I.

Private Family Choices: Constitutional Protection for the Family and its Members9 Level Of Govt Scrutiny Interest
Strict Scrutiny

The Law
The law must be narrowly tailored and necessary; It must be the only effective way to promote the governments interest. Strict scrutiny is most likely to result in striking down a law. The law must be substantially related to the problem. Not many laws reach the level to trigger intermediate scrutiny

How Analyze

to Examples
Applies to laws dealing with fundamental or constitutional rights or unchanging traits (suspect class). Affirmative action programs receive strict scrutiny.

The govt must have a compelling interest.

Government bears the burden of showing that its actions are constitutional Compelling govt interest + law that is narrowly tailored to address problem Its not clear who bears the burden, but its usually the govs job to persuade the court that its law is constitutional (significant interest + substantial relation to the problem) Individuals/gro ups challenging a law bear the complete burden of showing that the law is unconstitutional (no legitimate government interest & the law is not rationally related to the problem)

Intermediate Scrutiny

The govt must have a significant interest

Applies to laws dealing with traits that boost the ordinary level of scrutiny such as gender. Very few laws get to this level.

Rationality Review

The govt must have a legitimate interest in the goal of the law

The law is rationally related to the problem. Rationality review is most likely to result in a law being upheld.

Applies to laws that do not belong in the other categories. Usually any government interest will suffice here. Applied to laws involving the poor.

A. Evolution of the Right to Privacy Meaning of Privacy: Griswold v. Connecticut 1965 Facts: Griswold and a Professor gave information, instruction, and medical advice on birth control to married couples. After examination of each wife, the most suitable birth control method was prescribed. were convicted of being accessories in aiding others in violating a Connecticut statute forbidding the use of any drug, medical article, or instrument to prevent conception. An Appeal was taken asserting the statutes violated the DPC of the 14th Amendment by invading the private relationship between physician-patient and husband-wife. Holding - Douglas: The specific guarantees of the Bill of Rights have penumbras that help to give them life and substance and that create zones of privacy. The right of marital privacy is included therein and cannot be subject to the regulations that have an unnecessarily broad sweep. Rational: Bill of Rights establishes zones of privacy: The First Amendment protects freedom of association from government intrusion; Third Amendment protects against intrusion by prohibiting the quartering of soldiers. The Fourth Amendment is expressed in terms of the security of the home and possessions. The self-incrimination protections of the Fifth Amendment give rise to a personal zone of privacy. The Ninth Amendment mandates that the people retain rights not enumerated in the Constitution. Here, this case involves a relationship that is within the zone of privacy that these constitutional guarantees have created. By forbidding the use of contraceptives rather than regulating their manufacture or sale, the law selects a method having a maximum destructive impact upon that relationship. Control or prevention of activities constitutionally subject to state regulation by unnecessarily broad regulations is not permissible because that invades the area of protected freedoms. The right of marital privacy is older than the Bill of Rights itself and is subject to the broadest protection from impermissible interference. Thus, the conviction must be reversed. Concurrence: Goldberg Not every fundamental right is expressly guaranteed by the first 8 amendments. The broad, inclusive language of the 9th Amendment ensures that a right as fundamental as marital privacy may not be infringed just because nothing in the first 8 Amendments expressly protects that right. Concurrence: Harlan - The statute violates the DPC of the 14th Amendment because it impinges on values implicit in the concept of ordered liberty. Dissent: Black - The text of the constitution contains no right to privacy. Government may, therefore, invade privacy in the absence of a specific constitutional provision prohibiting the invasion. The 9th Amendment offers no legitimate support for such a right because the amendment is little more than an

ambiguous means for the judges on this court to read their own policy preferences into the Constitution. Dissent: Stewart The fact that the law is stupid and unenforceable doesnt mean its unconstitutional. The majority points to no specific portion of the constitution that supports such a right to privacy. Connecticut should repeal the law through legislation. Notes: Harlan believes it infringed because statute violated basic values implicit in the concept of ordered liberty. White invoked a more traditional 14th Amendment analysis in arguing that the statute deprived married couples of liberty without due process by interfering with the fundamental right to participate in family life without a compelling reason. While the Court voted 7-2 to invalidate the statute, no single opinion had the backing of the majority. There were few explicit laws against contraception before 1870. Griswold treats the idea of privacy within the family as different than individual privacy. Eisenstadt v. Baird - 1972 Facts: was convicted of exhibiting contraceptives during the course of a lecture he gave at BU and giving a package of contraceptives to a young woman at the end of the lecture. His conviction for exhibiting contraceptives was set aside as a violation of the First Amendment, but the conviction for giving away contraceptives was affirmed by the Massachusetts court. Under Massachusetts law, a person who gave away contraceptive was liable for a maximum of 5 years imprisonment with the exception of physicians, who could prescribe contraceptives to married persons, and pharmacists, who could furnish contraceptives to any married person by prescription. The court of appeals ordered discharged. Eisenstadt, the sheriff, appealed. Holding: A state may not constitutionally discriminate between persons on the basis of their marital status in regulating the distribution of birth control devices. Rational: Brennan The classification imposed by MA law is unreasonable and arbitrary. First, it cannot be seen as deterring premarital sex when fornication is classified as a misdemeanor, and the result may be the birth of an unwanted child. Although married persons can get contraceptives, they are not deterred from engaging in illicit sexual relations with unmarried persons. Second, if the purpose of the statute is to protect the health of the community by regulating distribution of harmful articles, the law would be both discriminatory and overbroad. A physician who can prescribe for married persons should be able to do so for a single person. As for whether MA can regulate contraception per se, the court need not reach that issue because, whatever rights individuals may have to contraceptives, the contraceptive must be available to married and single persons alike. The right of privacy goes to the individual, married or

Notes: If Griswold is no bar to a prohibition on the distribution of contraceptives, the State could not, consistent with the Equal Protection Clause, outlaw distribution to unmarried but not married persons. In each case, the evil, as perceived by the state, would be identical. Carey v. Population Services International Court struck down a statute barring distribution of all contraceptives except by licensed pharmacists. The majority explained that limitations on access to contraceptives impose burdens similar to limitations of use; hence, both must satisfy the compelling state interest test. Griswold and Eisenstadt explicitly recognize a constitutional right to privacy.

single, to be free from unwanted governmental intrusion into matters so fundamentally affecting persons as the decision to have children. Therefore, because the statute here arbitrarily requires dissimilar treatment for persons who are similarly situated, the law violates the Equal Protection Clause.

Meyer v. Nebraska - 1923 Facts: challenged a Nebraska statute that criminalized his teaching any language besides English except to pupils who had completed 8th grade. He was teaching German to kids. claimed the statute violated the DPC of the 14th Amendment. Holding: A state-imposed statutory language requirement making it a crime to teach primary school children any language other than English is unconstitutional. Rational: The liberty guaranteed by the DPC may be burdened only by legislation that is not arbitrary and that is within a states legitimate competence. Education and acquisition of knowledge have always been supremely important to the American people, as has the right of parents to control their childrens education. These rights are included within the liberty guaranteed by the 14th Amendment, and a states authority to restrict them is therefore not unlimited. Here, no emergency rendered the mere knowledge of a language other than English by a child so clearly harmful as to justify its prohibition through an infringement of rights that have been freely enjoyed for so long. Desirable ends cannot be promoted by prohibited means. The statute is applied arbitrarily and without reasonable relation to any end within the competency of the state. Pierce v. Society of Sisters - 1925 Facts: Oregon statute requires all children attend public school. Private schools sought injunction under DPC of 14th Amendment. Holding: A state statute requiring children to attend public school violates the DPC of the 14th Amendment. Rational: While states have the power to regulate schools and education, they may not act so as to unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of children. There is no evidence that private or military school education is harmful to children or otherwise undesirable. Because

the Oregon statute has no reasonable relation to some power within the competency of the state, it improperly violates the DPC. Notes: Meyer and Pierce establish the foundation for the right to privacy. In Griswold, Douglas cites Meyer and Pierce as cases that implement a First Amendment principle that the state may not constrict the spectrum of available knowledge. Both cases have dicta establishing parental autonomythe freedom of parents to control the upbringing of their children. Through such dicta, these cases extend substantive due process, found in the constitutional protection of personal liberty, to limit the authority of government to interfere in certain family matters. Strict Scrutiny Standard when statute involves one of the basic civil rights of man. The Growth of Privacy Abortion as a Private Choice Roe v. Wade - 1973 Facts: was unmarried, pregnant woman who wished to terminate her pregnancy by safe, clinical means. However, she was a resident of TX, where abortions were illegal except to safe the life of the mother. Roe, unthreatened by her pregnancy, alleged that she could not afford to travel to another state where it would be legal. She claimed the TX statutes were unconstitutionally vague and abridged her right to personal privacy. . Holding: A state criminal abortion statute that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, violates the DPC of 14th Amendment. Rational: Blackmun - There are divergent views on when abortion should be necessary and when life begins. Reasons advanced for abortion laws include discouraging illicit sexual activity, to protect the health of pregnant women, to protect prenatal life. It is not necessary to determine when life begins as where there is at least potential life involved; the state has an interest beyond the protection of the woman alone. A zone of privacy has been found in the Constitution, but it covers only personal rights that can be deemed fundamental or implicit to a concept of ordered liberty. The right to privacy is invaded when the state would impose upon a pregnant woman a complete denial of her choice to terminate her pregnancy. Children could be distressful to a womans life physically or psychologically. These factors should be considered by a woman and her doctor. Even though there is a right to privacy, there may be appropriate occasions where state regulation in areas protected by that right may be appropriate.

Thus, the right of personal privacy includes the abortion decision, but this right is not unqualified and must be considered against important state interests in regulation. Person in constitution does not show it to apply to the unborn. Unborns rights grows as the unborn grows. At a point during pregnancy, the unborns rights become compelling. End of first trimester is when the States interest in the unborn arises. The TX statute is far too broad. There is no distinction between procedures performed early in pregnancy and those performed later. The states interest arises at the point of fetal viability, where the fetus can survive outside the mothers womb. The statute limits abortions only to save the mothers life. Thus, during the first trimester of pregnancy, no abortion regulation is permitted. During the second trimester, reasonable regulation to protect maternal health is allowable. Only in the last trimester may there be a complete ban on abortion except where necessary to protect the mothers health. Dissent: Rehnquist The type of operation involved here is not private as that word has been legally defined, or as it is commonly used. The majoritys blanket invalidation of any abortion statute is too broad. Notes: Abortion is a fundamental right. Restrictions are placed on it though because after first trimester, both the mother and the fetus have an interest to be weighed. The balance of interest is not a traditional strict scrutiny thing. Different from Eisenstadt where Court said right to privacy was absolute. Gonzales v. Carhart - 2007 Facts: Partial birth abortions were banned by Congress in 2003. challenged the constitutionality of the ban. A similar law had been passed in Nebraska and challenged in Stenberg v. Carhart. The US. Supreme Court held that law was unconstitutional, in part, because it lacked a health exception for the mother. Here, the district court found the Act unconstitutional because it lacked a health exception for the mother and was overbroad in its language including not only partial birth abortions (intact D&E). Intact D&E: extract fetus intact and crushes skull, extracts brain matter or decapitates fetus (occurs duing 2nd trimester) Holding: Legislation restricting access to a specific abortion method does not have to include a health exception for the mother if reasonable and viable alternatives exist. Rational: Planned Parenthood v. Casey, with all its flaws, laid down the central premise that the state has a legitimate and substantial interest in preserving and promoting fetal life. This Court must evaluate the Act to determine if it promotes the federal governments legitimate interest in protecting fetal life. The Act is not void for vagueness nor overbroad in its application. It states specifically what must occur for the abortion method to constitute partial birth abortion. The Act further

requires the physician to knowingly commit an overt act other than delivery that kills the fetus. Physicians are reasonably informed of what act will result in criminal prosecution. If the physician sets out to do a D&E rather than an intact D&E or a method that involves deliberately choosing to remove the fetus in pieces, then the physician will not be prosecuted under this statute. The Act materially departs from Stenberg in adding an overt-act requirement. The evidence supports the finding that physicians do not accidentally perform an intact D&E. The vast majority of D&E procedures will remain valid under this Act because a physician must knowingly perform the intact D&E to be in violation of the statute. The Act is a reasonable result of Congresss legitimate interest in respecting lie and the emotionally fraught decision to have an abortion. Women often suffer regret and emotional devastation after the choice to abort. Physicians as a result often do not fully explain the process to patients. Such a method is simply not medically necessary, especially where the mother is not able to make a fully informed choice. Its okay that there is not a medical exemption because it is unclear that an intact D&E is ever necessary. The Act survives because Congress can act in the face of medical uncertainty and a D&E is a reasonable, viable alternative that remains allowed. Dissent: Ginsburg The decision demeans Casey and Roe. It accepts federal interference in a medical procedure involving a womans dignity and choice to bear or not bear a child. The state must not unduly subject a woman to a risk to her health or life and this Court previously supported that stance in Stenberg. The Act here is no different and Congress found no medical proof that such a procedure is ever not necessary. Notes: Standard of Review In Casey, court is confused as to what standard to apply: o Four Justices would have overruled Roe and upheld the statute under a rational basis standard. o Two others would have upheld Roe and applied a strict scrutiny test. o Stenberg v. Carhart has a majority of justices embracing the undue burden standard for the first time. Gonzalez seems to use an undue burden test and claims there is no undue burden. Court has said that states decision not to include abortions in Medicaid is rational basis and not strict scrutiny. Said was not unduly burdensome. Court said that Roes protection of the right to abortion does not confer an entitlement to funds to realize that right. Harris v. McRae. The Undue Burden Standard OConnor in City of Akron v. Akron Center for Reproductive Health announced a preference for strict scrutiny review only for unduly burdensome abortion restrictions such as bans or third-party consent, asserting that the state has a compelling interest in both maternal health and protecting potential life.

o Roe v. Crawford 8th Cir. Invalidating policy of prohibiting transportation of prisoners for elective abortions. o Under undue burden standard, Caseys joint opinion expressly permits some measures designed to persuade the woman to choose childbirth over abortion. o Rust v. Sullivan 1991, Court upheld regulations disallowing physicians in federally funded clinics from discussing abortion, despite the patients request for information, the physicians judgment that the patient should consider abortion, the health risks of pregnancy, or state malpractice laws requiring disclosure. o Informed Consent Court upheld state regulations mandating that the physician obtain the patients prior written consent, regardless of the stage of pregnancy. Planned Parenthood v. Danforth, 1976. When states required a detailed list of abortion warnings, however, the Court invalidated these measures because of both their interference with the doctor patient relationship and their underlying antiabortion motivation. Akron. o Court does not guarantee easy access to abortion. When Privacy Rights Conflict Wives and Husbands Planned Parenthood of SE PA v. Casey - 1992 Facts: The face of Section 3209 of PAs abortion law provided that doctors could perform an abortion on a married woman only if she provided a signed statement that she had notified her husband that she planned to have an abortion. The sole exception to his requirement was for cases of medical emergency. Alternatively, the statute permitted a married woman to certify that her husband did not father her unborn child, that she could not find her husband, that her pregnancy resulted from a reported case of spousal abuse, or that she believed notifying her husband would cause him or someone else to physically injure her. A physician, who performed an abortion for a married woman without the required consent, would have his license revoked and would be liable for damages to the womans husband. Holding: Requiring a married woman to notify her husband that she planned to have an abortion violates the US Constitution by placing an undue burden on her right to privacy. Rational: OConnor Statute reaches millions of women who are the victims of physical and psychological abuse by their husbands, and it is certain that such women try to avoid reporting their abuse to government officials. The statute thus places a substantial obstacle to a large fraction of women who want the choice to have an abortion, and the statute is therefore invalid for imposing an undue burden on a womans right to privacy that is a fundamental part of her constitutionally protected liberty. The Court no longer adheres to the paternalistic views of women expressed in our earlier opinions. Furthermore, given the abusive conditions faced by so many married women, the notification requirement here amounts to a requirement for spousal consent like the one struck down in Danforth. Giving a man

such domination over his wife is not consistent with the basic principles of our Constitution. Accordingly, PAs statute is invalid for violating the Constitution. Dissent: Rehnquist Danforth does not control here because this statute requires only spousal notification, not consent. Thus, under the appropriate standard of reviewrational basisPAs statute passes constitutional muster because it rationally advances legitimate state interests. PA has legitimate interest in protecting a husbands interest in procreation within marriage, the potential life of the unborn child, and marital integrity. The statute is a reasonable means of advancing all those interests. Notes: A husbands liberty interest in raising his biological children, as protected by Stanley v. Illinois, must yield to his wifes liberty interest in carrying and delivering an unborn child, an interest grounded in the wifes own body integrity. Undue Burden Standard OConnor says women have a right to abortion pre-viability. Court does uphold 24-hour waiting period from statute. Cincinnati Womens Services v. Taft 6th Cir. 2006 Facts: Ohios abortion regulation limited the number of times a minor can pe tition a court for a judicial bypass of the statutory parental consent requirement to one petition for each pregnancy. Challenged the regulation as unconstitutional on its face. Holding: Ohios single petition rule constitutes an undue burden on a womans right to an abortion because the rule creates an obstacle in a large fraction of the cases in which the single petition rule would be applicable. Rational: SCOTUS has held that if a statute requires that a minor obtain parental consent prior to an abortion, the state must also have a judicial bypass mechanism. Bellotti v. Baird. A reviewing court may allow a bypass if the minor proves she is mature enough or that an abortion would be in her best interest. Here, the court must determine if Ohios single petition rule will deter a large fraction of the women to whom the regulation applies from having an abortion. The group of women to whom the regulation applies is women who are minors, petition a court for the bypass, and then have changed circumstances requiring a second bypass petition. The record at trial shows that almost all second petitioners alleged changed circumstances. These circumstances include increased maturity and medical knowledge. They also include medical reasons, such as the discovery of birth defects after the minor files for the first petition. Because the single petition rule presents an obstacle to a large fraction of minors, the rule constitutes an undue burden and is unconstitutional. Concurrence: It is unnecessary to use Caseys large fraction test for analysis, because the Bellotti case is sufficient support for this court to rule simply that the single petition rule is violation of the judicial bypass requirement. To require a minor to obtain parental consent, without the possibility of a judicial bypass, is clearly invalid under Bellottis requirement that states allow for such bypass petitions.

Notes: Case presents example of large fraction rule that originated in Casey. Frequently, these cases involve a determination of what portion of the population the term large fraction applies to. Here, the court narrowed the group of women to whom the law applied. Under this analysis, the court relied on the record below for its holding that a large fraction of minors would be burdened by such a rule. Bellotti provided three reasons why the Constitution permits greater regulation of minors abortion rights compared to adults: 1. Vulnerability 2. Decision making Capacity 3. Promoting Parental Involvement Judicial bypass laws can make two parent notification laws constitutional. Taft applies the undue burden standard. Life and Death Cruzan v. Director, Missouri Department of Health - 1990 Facts: asked hospital employees to terminate life-sustaining medical treatment for their daughter, who was a vegetable. Hospital refused to do so without a court order. Trial court granted request b/c daughter had expressed to friend desire not to live in that condition. MO SC reversed saying need clear and convincing evidence to outweigh states interest. Holding: US Constitution does not forbid a state requirement that an incompetent persons wish to forgo or terminate life saving procedures be proven by clear and convincing evidence. Rational: Rehnquist Although a competent person has the right to refuse lifesaving medical treatment, a state may establish procedural safeguards in the case of incompetency in order to properly balance the states interest in preserving life against an individuals liberty interest in choosing the course of her medical treatment. Imposition of a heightened evidentiary requirement is an appropriate means of balancing these interests. Concurrence: OConnor Case does not address the issue of whether a state must give effect to the decisions of a surrogate decision maker. The Constitution does, however, give effect to protect a persons liberty interest in refusing medical treatment. Concurrence: Scalia Courts have no business in this area. The states have the power to forcefully or otherwise prevent suicide and assisted suicide. Even if it can be shown by a clear and convincing evidentiary standard, citizens of states have to decide whether that patients wish will be honored. Dissent: Brennan There is no state interest that could outweigh the right of . No interest in someones life, completely abstracted from the interest of the person living that life, which could ever outweigh a patients choice to terminate or avoid medical treatment. Although Missouri has a parens patriae interest in providing incompetent patients with as accurate as possible a determination of how they

would exercise their right with regard to life sustaining treatment, the state may impose only those procedural requirements that enhance the accuracy of a determination of such patients wishes. The standard imposed here is too exacting. Notes: Cruzan declined to allow an incompetent individuals family member to make decisions for the individual with respect to life-sustaining treatment. The Court noted that there are no assurances that the familys views would be the same as the patients if she were competent. While preserving individual rights through this holding, by so ruling, the Court avoids a ruling that would require a case-by-case inquiry into the motives of family members seeking to discontinue treatment to an incompetent. Court has rejected substantive due process argument in upholding ban on physician-assisted suicide. Washington v. Glucksberg. Said Cruzan was protecting against unwanted treatment (a battery) not the right to terminate. Caseys language was said not to warrant the sweeping conclusion that any and all important, intimate, and personal decisions are protected. Court said its okay for state to have a death with dignity law. The Liberation of Privacy Lawrence v. Texas - 2003 Facts: Responding to a reported weapons disturbance, police officers arrived at an apartment and found , an adult man, engaging in a sexual act with another adult man inside the apartment where resided. The officers arrested both men, who were charged with violating Texas criminal statutes that explicitly prohibited deviate sexual intercourse between persons of the same sex. Texas defined deviate sexual intercourse as any contact between any part of the genitals of one person and the mouth or anus of another person and the other man were convicted and appealed. Holding: A state cannot criminalize intimate sexual conduct between two persons of the same sex because of the substantive protections of the DPC of the 14th Amendment. Rational: Kennedy The issue is whether the Texas statutes violated the substantive right to privacy protected by the liberty provision of the DPC. In Bowers v. Hardwick (1986), which upheld a Georgia law that criminalized sodomy, the court framed the issue too narrowly, as to whether the constitution contains a fundamental right for homosexuals to commit sodomy. Because the historical reasoning of Bowers was overstated, if not simply wrong, Bowers is now overruled. The behavior proscribed by Texass statutes criminalizing deviate sexual intercourse with a person of the same sex falls within the privacy right contained in the DPC. Such a law advances no legitimate state interest that justifies such an invasion of an individuals personal and private life. Accordingly, the statute violates due process. Concurrence: OConnor Different from Bowers because, here, the better basis for decision is equal protection. As the Court held in Romer v. Evans, 1996, a bare desire to harm homosexuals is not a legitimate state interest under rational-basis review.

Contrary to Texass argument in this case, moral disapproval alone is not a legitimate state interest. The Texas law targets homosexuality, not merely homosexual conduct, which, as with the state constitutional amendment in Romer, amounts to a bare desire to harm an unpopular group. Such a state interest violates equal protection under even a rationality review. Dissent: Scalia Bowers historical underpinnings were and are correct, despite the majoritys eagerness to do away with Bowers just 17 years after the decision. There is no fundamental right to commit sodomy; neither a so-called emerging awareness nor the law of foreign nations establishes such a right. OConnors equal protection analysis cannot be sound because the law here proscribes same-sex interaction precisely as same-sex marriage statutes doand the statute here and same-sex marriage statutes both rest of the majoritys moral disapproval of homosexual conduct. In sum, this entire matter would be more appropriate to be addressed through the legislature. Notes: Substantive due process typically requires strict judicial scrutiny of the challenged government action; that level of review applies when government action burdens fundamental rights. The majority of Lawrence, however, unmistakably applies rational-basis review to what it frames as a manifestation of the privacy right that has been held to reside in the liberty interest enumerated in the DPC under Griswold, and its progeny. If the majority insisted on the rational-basis review, and if the majority had followed the principle that courts should decide cases in ways that disturb existing law as little possible, then Justice OConnors concurrence states the better basis of decision: Romer would have invalidated the Texas statute on equal protection grounds, without having the Court cause the major disturbance of overruling the relatively recent precedent of Bowers. Uses rational basis review.

II. Getting Married

Introductions: Public Versus Private Dimensions of Courtship and Marriage Courtship Patterns Marriage Contract: Maynard v. Hill - 1987 Holding: Although a marriage is, in a sense, a contract, is it one that the parties cannot change? Rational: Marriage creates a relationship between the parties that they cannot change. Unlike other contracts, it cannot be modified, restricted, enlarged, or entirely released upon the consent of the parties. Once that relation is formed, the law simply steps in and holds the spouses to their various obligations and liabilities. Marriage is the foundation of the family and of society, without which there would be neither civilization nor progress. When parties marry, they do not so much

contract as enter into a new relation whose rights, duties, and obligations rest not on their agreement, but upon the general law of the state that defines and prescribes them. These prescribed obligations and duties are of law and not contract, so action by the spouses simply cannot alter them. The contract involved when two parties marry is that the relation should be established; but once it is established, their power to alter its extent or duration ends. It is a life-long relationship they cannot sooner terminate by virtue of any contract they make. The reciprocal rights arising from this relationship are such as the law determines from time to time and none other. In this, it is much like the relation of parent and child, the obligations arising not from the consent of concurring minds but being the creation of the law itself. Notes: Traditional view of marriage. Less strict now. Breach of Promise to Marry Rivkin v. Postal TN Ct. 2001 Facts: and started living together while was married to another woman with whom he had three children. About a year after she met , became pregnant with s child. After baby was born, bought another home besides the one in which he and had been living, and he executed a quitclaim deed to transfer the house to himself and as joint tenants with right of survivorship. To save face with her family, demanded that buy her an engagement ring. refused, but eventually paid for a ring that acquired on her own; he also did not object when wore the ring around her family and told them she was engaged. After the affair ended, sued for a partition of their jointly owned property and for the return of his personal property. counterclaimed, alleging that had breached a promise to marry her. Holding: A quitclaim deed to a house and the testimony of two creditors do not establish a promise to marry under TN law. Rational: To prove a promise to marry, TN statute requires a party to show signed, written evidence of the promise; a contract; or the testimony of two or more disinterested witnesses. Although many kinds of writing will suffice, a mere quitclaim deed, standing alone and unexplained, does not show a mutual intent that the parties planned to marry. Quitclaim deeds are used so commonly for other purposes that an unexplained quitclaim deed, like the one here, simply cannot support a reasonable inference of a promise to marry. Neither can the testimony of s parents; quite apart from the fact that they were parents, they were also s creditors at the time of trial. Notes: TN has placed evidentiary burdens on breach of promise to marry. Other states have abandoned the cause of action. TNs burden is so strict that its similar to burden for criminal perjury. Majority View Only a few jurisdictions still recognize the claim for breach of promise to marry, but often with limitations.

o Ex: Abolishing unless is pregnant; Setting one year S.O.L.; Affirming statutory limitation on damages. Damages Breach of promise to marry is a hybrid action, reflecting roots in contract and tort law. may recover the monetary and social value of the marriage (expectation damages), as well as expenses incurred in preparation for the marriage (reliance damages). Damages for mental anguish and humiliation, not normally compensable in contract, may also be recoverable. Punitive damages are sometimes permitted. Defenses Traditional defenses to breach-of-promise claims include physical and mental defects, unchastity of the , s lack of love for the defendant, and mutuality of the decision to terminate the engagement. A defendants subsequent good faith offer to marry the plaintiff, while not a defense, may mitigate damages. Seduction At common law, tort liability existed for the act of seduction, defined as consent to sexual intercourse by an unmarried, previously chaste woman in reliance on a false promise to marry. The action was maintainable not by the woman, but by one entitled to her services (that is, her father or someone in loco parentis). o Approximately 17 states and DC recognize the tort but usually reformulate it as an action for intentional misrepresentation, i.e. false statements to induce a persons acquiescence to sexual relations. The decline of breach of promise to marry claims parallels the decline in the value of middle-class female chastity.

Gift in Contemplation of Marriage Fowler v. Perry Ind. 2005 Facts: and lived together in Missouri for more than a year. During the time, bought an engagement ring for 5.5k and gave it to . moved to Indiana with the parties son, with the understanding that would join her after he graduated from college. About 6 months after she moved to Indiana, broke off the relationship with and then tried to pawn her engagement ring. The ring eventually was stolen from her. sued for the value of the ring. Holding: The person who purchases an engagement ring in contemplation of marriage is entitled to a return of the ring or to recover the monetary value of the ring if the contemplated marriage does not occur. Rational: In ordinary usage, an engagement ring necessarily shows, by itself, that the gift was given in contemplation of marriage. Furthermore, because the ring was given in contemplation of marriage, the ring was a conditional gift, not an absolute, irrevocable, inter vivos gift. States are split, however, on how to determine the rightful ownership of an engagement ring when the marriage doesnt occur. Most states apply a fault-based analysis that rewards the party who is not responsible for the marriage failing to occur. A growing minority of states, though, takes a no-fault approach that accord with Indianas no fault system of divorce. Under such a

scheme, the person who buys an engagement ring is entitled to either the ring or its value if no marriage occurs. Notes: Fault at common law, fault barred recovery or retention of the engagement ring. Modern law, however, makes fault irrelevant. Restatement of Property applies no-fault return rule to same sex couples. Premarital Contracts Simeone v. Simeone PA 1990 Facts: On the eve of the wedding, attorney presented bride with a prenuptial agreement, which she signed without the benefit of counsel. At no time did s attorney advise the bride about any legal rights surrendered in the agreement. The agreement limited the bride to support payments of $200 per week in the event of separation or divorce, with a maximum of 25k. The parties separated in 1982 and began divorce proceedings in 1984. During the separation, made payments reaching the 25k limit. filed a claim for alimony pendent lite. A masters report upheld the prenuptial agreement and denied the claim for alimony. Appeal. Holding: Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their prenuptial agreements. Rational: Prenups are contracts, and, as such, should be evaluated under the same criteria of other contracts. Contracting parties are normally bound by their agreements, without regard to whether the terms thereof were read and fully understood. This is true irrespective of whether the agreement was reasonable. Moreover, reasonableness of prenuptial bargain is not a proper subject for judicial review. Such inquiries undermine the functionality and reliability of prenuptial agreements. Further, there is no merit to the contention that parties entering a prenuptial agreement must per se obtain independent counsel. Requiring otherwise would be intrusive and paternalistic. Dissent: Marriage is not a mere contract for hire. It is the most intimate relationship possible. Thus, at the dissolution of a marriage, a party should be able to introduce clear and convincing evidence showing that a prenuptial agreement is unfaireven if there was a full and fair disclosure when the agreement was signed. Although courts should not void prenups just to enable a party to get a better deal, courts should enforce those agreements only when the enforcement is equitable. Notes: The Uniform Premarital Agreement Act (UPAA) 19 states have enacted it into law. Provides that under certain circumstances an agreement is unenforceable if it was unconscionable when executed. Under the UPAA, unconscionability combined with absence of the following renders the prenuptial agreement unenforceable: 1. Full and fair disclosure of financial assets and obligations 2. A voluntary and express waiver of the right to disclosure in writing 3. Or adequate knowledge or reasonable opportunity to have adequate knowledge of the property or financial obligations of the other party.

In re Marriage of Shanks Iowa 2008 Facts: Ten days before wedding, presented fianc with prenup. worked as a paralegal at his office. told her on two occasions to get legal advice. found outof-state lawyer who told her to seek in state legal advice. did not seek legal advice. executed the agreement and they were married. Now divorced, can enforce agreement? Holding: Under the Iowa UPAA, a premarital agreement will be invalid if one party did not enter into the agreement voluntarily or if the agreement was unconscionable when executed. Rational: Voluntary means freedom from duress or undue influence. To prove duress, must prove that there was an unlawful threat and that there was no other alternative. Threat to refrain from marriage is not an unlawful threat. could have also refused to marryno duress. Undue influence Complaint must show wrongful constraint or urgency of persuasion in the transaction. No evidence in the record of such allegations. o Provision waiving alimony is invalid under IUPAA. Unconscionability For substantive unconscionability, a court examines whether the contract is mutual or if the proposed division of property reflects the parties assets at the time of the transaction. Here, the agreement was substantively fair. The provisions were mutual and the agreement sought to protect the parties current assets. The parties agreed to mainta in those assets separately, with the exception of a home and joint bank account. The agreement also provided that would receive a percentage of s law practice in the event of his death. Regarding procedural unconscionability, legal representation on both sides is not a requirement of the IUPAA. Moreover, the record shows had ample opportunity to have an Iowa attorney review the agreement. also had time to review the agreement, and that she was not an unsophisticated party and that as an employee of s law firm, she was fully aware of the scope of s assets. Notes: Iowa law differs from UPAA. Under UPAA, a reviewing court examines voluntariness first. Only where the court finds there was no financial disclosure, a waiver of such disclosure, and a lack of knowledge of the other partys assets will the court then move to an analysis of whether the premarital agreement was unconscionable. IUPAA allows a court greater leeway to review both voluntariness and whether the agreement itself was generally unfair. Other states regard Iowas procedural unconscionability analysis as duplicative of the voluntariness determination. Contracts vs. Prenups: o Different subject matter: Prenups typically deal with property, support rights during and after marriage, personal rights and obligations of the spouses during the marriage, or the education, care, and rearing of children who may later be born to the marrying couple.

These subjects are of more importance to the state than commercial contracts. o Relationship of parties: Confidential relationship often where one party has greater bargaining power. o Prenups will be performed in the future. Sometimes years after agreement is executed. Because of time difference, events may make it unwise, unfair, or otherwise undesirable to enforce such agreements. Requirements: Simeone and Shanks reflect different approaches. o Simeone, out of deference to private ordering, treat such agreements as ordinary contracts. Rejects an examination of substantive fairness whereas Shanks requires both substantive and procedural fairness (must be entered voluntarily and with full disclosure). o Shanks underscores the need for special protection. Unconscionability UPAA requires both procedural and substantive fairness, but sets a high standard for substantive unfairness: o A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: The party did not execute the agreement voluntarily; or The agreement was unconscionable when it was executed and, before execution of the agreement, that party; was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other property. ALI Principles Must meet standards of procedural fairness (informed consent and disclosure) and substantive fairness. A rebuttable presumption arises that the agreement satisfies the informed consent if (1) it was executed at least 30 days prior to marriage; (2) both parties had, or were advised to obtain, counsel and had the opportunity to do so; and (3) if one of the parties did not have counsel, the agreement contained understandable information about the parties rights and the adverse nature of their interests. Finally, the court must undertake a review of substantive fairness at the time of enforcement, specifically regarding whether enforcement would work a substantial injustice based on the passage of time, the presence of children, or changed circumstances that were unanticipated and would have a significant impact on the parties or their children. Time of determination: If substantive fairness should be considered, should it be determined as of execution and/or enforcement? Dissent in Simeone suggests that the following circumstances at divorce might lead to

invalidation of premarital agreement: (1) spouses diminished employment prospects if spouse was home maker, such that the spouse would become a public charge or suffer a significantly reduced standard of living; (2) a dependent spouse in a long marriage who helped increase the value of the others property; (3) an unanticipated serious illness rendering the spouse unable to provide self support. o UPAA provides that a premarital agreement will not be enforced at divorce if it would render one spouse a public charge. Relative bargaining power Simeone and Shanks assume there was equal bargaining power. Such agreements can be instruments of oppression.

Getting Married: Substantive and Procedural Regulations Constitutional Limits on State Regulation of Entry into Marriage Loving v. Virginia - 1967 Facts: Two Virginia residents (black man and white woman), married in DC to evade Virginias ban on marriages between white persons and those of any other race. They returned to Virginia, where they were found guilty of evading the antimiscegenation statutes, and each was sentenced to a year in prison. The sentence was suspended for 25 years on the condition that they leave Virginia and not return for that period of time. Longings challenged the constitutionality of the statute. Holding: The freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by the state. Rational: Equal protection demands that racial classifications, particularly in criminal statutes, be subject to the STRICTEST SCRUTINY. To be upheld, it must be shown to be necessary to the accomplishment of some permissible state objective, independent of racial discrimination, which is sought to be eliminated by the 14th Amendment. Virginia only bans marriage between whites and others. Clearly the state intends only to protect white supremacy. While marriage is left to the states under the 10th Amendment, their powers to regulate marriage are not unlimited notwithstanding the 14th Amendment. The law deprives Loving of due process, as the freedom to marry is one of the vital personal rights essential to the orderly pursuit of happiness by free men. Freedom of choice of marriage cannot be limited by invidious racial discrimination. The freedom to marry a person of another race resides with the individual and cannot be infringed by the state. Notes: Marriage was first characterized as a fundamental right in a case dealing not with marriage but with sterilization. Skinner v. Oklahoma. Fundamental Right + Suspect Class = Strict Scrutiny Zablocki v. Redhail - 1978

Facts: was the father of an illegitimate child and was ordered to pay child support. He subsequently applied to , the county clerk, for a marriage license. He was refused on the basis of a Wisconsin statute prohibiting a person with a child support obligation from marrying without a prior court order, based on the payments being current and the unlikelihood of the child becoming a public charge. , who was in arrears, filed a class action, contending the statute denied equal protection and due process. Holding: A state statute denying a fundamental right to marry must be supported by important state interests and be closely tailored to effectuate such interest in order to be constitutional. Rational: Marshall That the right to marry is fundamental is well established, and the state interest in enforcing support orders is unquestionably important. That interest, however, cannot be directly linked to a deprivation of the fundamental right to marry. Accordingly, because the statute prohibits all Wisconsin residents in the affected class from marrying, the statute violates the EPC. Concurrence: Stewart The statute does not create an invidious classification and therefore cannot violate equal protection. Instead, the problem with this statute is its unjustified burden on a fundamental right in violation of the liberty interest guaranteed by DPC. The states asserted interests cannot overcome the individuals fundamental interest, and the statute therefore violates due process. Notes: Case doesnt provide useable standard for future cases. Appears to invalidate all statutes that significantly interfere with the right to marry. However, many long accepted regulations (polygamy, bigamy, incest) are unlikely to be held unconstitutional. Right to marry is part of the fundamental right of privacy implicit in 14th Amendment. Not every regulation must be subjected to rigorous scrutiny. Reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may be legitimately imposed. (Califano v. Jobst). The statute here, however, does interfere with the right to marry. Wisconsin essentially places a financial block on marriage. cant prove that children will not be a public charge. Statute wanted to prevent more obligations until child support was paid. Doesnt consider that they will just have more illegitimate children. Zablocki establishes different degrees of scrutiny for regulations infringing the right to marry, that is, rigorous scrutiny for significant interference but minimal scrutiny for reasonable regulations that do not significantly interfere with decisions to enter into marital relationship. o Significant interference must be direct and substantial. Fundamental right + Suspect class = Strict Scrutiny Turner v. Safley - 1987 Facts: Missouri Corrections promulgated a regulation that allowed prison inmates to marry only under compelling reasons, with the states approval. Such approval was

given only where pregnancy or the danger of a child being born illegitimately arose. sued, contending the regulation infringed upon his constitutional right to marry. appealed the trial courts ruling that the regulation was invalid, contending no such constitutional right existed in the prison context. Holding: There is a constitutionally protected marriage relationship in the prison context. Rational: The constitutional right to marriage is not removed by incarceration. It serves both a personal need and in some respects fulfills an inmates religious needs. While the regulation does meet certain security needs, its scope is much too wide and presents too great an inhibition on the right to marriage. Notes: The decision to marry has been held to be fundamental. While this right is subject to impact by imprisonment, it cannot be unnecessarily infringed. The regulation in this case was not reasonably related to any legitimate penal interest. Court had previously (Butler v. Wilson) said marriage restrictions on lifesentenced prisoners is okay. Other courts have invalidated such statutes as not being reasonably related to legitimate penological objectives. Fundamental right = Rational basis State regulation of entry into the marital relationship Goodridge v. Department of Public Health Mass 2003 Facts: Seven same-sex couples sought marriage licenses from Department of Public Health in order to marry in MA. The Department denied the licenses. The couples filed suit, claiming that the licensing statute did not specifically prohibit same-sex couples from obtaining marriage licenses, or if it were construed to do so, that the statute violated the MA Constitutions guarantees of equal protection and due process. Holding: The MA Constitution forbids the creation of second-class citizens and, therefore, may not deny the protections, benefits, and an obligation of civil marriage to same-sex couples wishing to marry. Rational: Strict scrutiny is the appropriate standard of review where a statute implicates a fundamental right, such as the right to marry, but all other statutes require rational basis review. Although the couples assert that strict scrutiny applies here, the marriage statute does not meet the rational basis test on either equal protection or due process grounds, and the court therefore need not and does not reach the couples argument for strict scrutiny. Also, the couples argument that the licensing statute may be construed to permit same-sex couples to marry is incorrect. Construing a statute requires looking to the everyday definition of words, and the everyday definition of marriage has always been a man and a woman. The couples constitutional claims involve equal protection and due process under the state constitution. Civil marriage is a government creation through the states police power and is a vital, fundamental social institution. Marriage provides formidable protections and benefits, as well as demanding

equally formidable obligations. The MA Constitution provides perhaps even greater protection than the US Constitution and also protects citizens from government interference in the most private aspects of a citizens life. Choosing whether and whom to marry falls within those fundamental rights and private aspects, even while the regulatory power of the state over the mechanics of civil marriage remains quite broad. The US Supreme Court protected citizens rights to choose whom to marry in Loving v. Virginia, in striking down anti-miscegenation law. In Loving, the Court recognized the invidiousness of discrimination that did not allow mixed race marriage. The same result obtains where, as here, sexual orientation is the basis of the invidious discrimination. advances 3 rationales to justify the prohibitions: 1) promoting procreation; 2) proving stable households with two opposite sex parents for children; and 3) preserving state and private financial resources. o Procreation is not the primary purpose of civil marriage. You dont have to prove fertility to get married. Further, modern technology provides a variety of ways children may be brought into the world. Prohibiting same-sex couples from marrying does not increase the likelihood that additional same-sex couples will seek civil marriage for procreation. o Two opposite sex parents doesnt provide a more optimal child rearing setting. o The state asserts that same-sex couples are not as financially dependent upon each other, thus saving state and private resources, such as tax benefits given to married couples. This contention ignores the fact that many same sex couples have dependents relying on them who are no less deserving than the dependents of opposite sex couples. o also argues that allowing same sex marriage will undermine institution of marriage. Couples, however, are not seeking to eradicate the institution of marriage. They want to join it. The department advanced no valid argument supporting a rational basis for prohibiting same sex couples from marrying. Just as in Loving, the statute in this case is unconstitutional. Dissent: Should leave this to the legislature. Equal protection doesnt work because doesnt discriminate against gender. Men and women treated equally, both cant be gay married. No right to same sex marriage is deeply rooted in the nations history. Dissent: Under rational basis you only have to ask whether legislation is rational in favor of asking whether the states asserted rationale is persuasive. Dissent: Same sex marriage legitimately could undermine regular marriage. Notes: Our obligation is to define the liberty of all, not to mandate our own mora l code Lawrence v. Texas. Fundamental right + Suspect class = Rational Basis

Kerrigan v. Commissioner of Public Health Conn 2008 Facts: Connecticut passed civil union law that provided same-sex couples with all legal rights of spouses. Same sex couples applied for marriage licenses in the town of Madison. The town denied the couples license and the couples brought suit against the state. Holding: Connecticuts civil union law constitutes a violation of the states guarantee of equal protection under the law. Rational: Civil union law confers an inferior status on same sex couples. This inferior status constitutes a constitutionally cognizable injury. We must now determine if the classification meets the states constitutional requirements. Sexual orientation is a quasi-suspect classification, based on the long history of purposeful discrimination towards gay persons. Laws impacting gay persons are therefore subject to heightened scrutiny. The state presents two reasons why the legislature has prohibited same sex marriages. First, the civil union law will promote uniformity with the laws of other jurisdictions. The state has offered no explanation of this alleged governmental interest. The second reason is to preserve the definition of marriage. We must determine if the reasons underlying the traditional definition of marriage satisfy our constitution. Tradition alone and moral disapproval of same sex marriage are insufficient reasons to deny same sex couples the right to marry. Moreover, the states position that the judiciary should refrain from this public policy debate is unavailing. We are presented with a constitutional violation based on states civil union laws. We are not asked to create a new fundamental right. Instead, we are applying well-established equal protection jurisprudence to the statute at issue. Here, the state cannot specify any reason to deny the right to marry. The conventional definition of marriage must yield to a more contemporary one. Notes: Opinion purports to be based in EPC analysis, but Court actually melded EPC analysis with fundamental right analysis; rather than analyzing whether any fundamental rights were implicated, Court placed burden on the state to defend the traditional definition of marriage, then returned to an EPC analysis and concluded the civil union law violates EPC by denying same sex couples a right enjoyed by heterosexual couples Baehr v. Miike 1996 Hawaii, held the denial of marriage licenses to same sex couples implicates the states constitutions Equal protection Clause, which bars sex based discrimination (unlike its federal counterpart). Brause v. Bureau of Vital Statistics 1998 Alaska, invalidated states prohibition on the grounds of state constitutional rights to privacy and equality. o Both Hawaii and Alaska decisions were nullified by state constitutional amendments Baker v. State 1999 Vermont, Vermont Supreme Court held that its states constitutions Common Benefits Clause required same sex couples be

afforded the same benefits as married persons. However, in response, the state legislature enacted legislation recognizing civil unions that granted the same legal rights to same sex partners as enjoyed by spouses without the name marriage. The state now recognizes same sex marriage. After Goodridge, many states upheld bans on gay marriage. Iowa Supreme Court unanimously recognized same sex marriage in Varnum v. Brien (2009), after finding that sexual orientation was a quasi-suspect classification entitled to intermediate scrutiny review, the court ruled that the state ban was not substantially related to the alleged governmental objectives (ensuring an optimal environment for raising children, promoting procreation, promoting stability in opposite sex relations, conserving state resources), and also that the protection of traditional marriage was not an important government objective. California Supreme Court legalized same sex marriage in In Re Marriage Cases, finding that under strict scrutiny ban wasnt constitutional. Held gay to be a suspect class. However, Prop 8 abrogated that decision. o Strauss v. Horton, California Supreme Court upheld the state constitutional ban, reasoning that the ballot initiative was not sufficiently far reaching in its scope to be a constitutional revision. Scrutiny: o To survive constitutional attack, the classification must be: (1) necessary to a compelling state interest (strict scrutiny), or Racial classifications (2) substantially related to an important government objective (intermediate scrutiny), or Sex based classifications (3) rationally related to a legitimate government purpose (lowest level of scrutiny). Some states that recognize same sex marriage (like New Hampshire) state that religious organizations do not have to hold religious ceremonies for same sex couples. Choice of Law under traditional conflict of law principles, marriage validity is determined by the law of the state where the marriage was celebrated. However, this rule only applies if recognition of the marriage would not offend the forum states public policy. o Restatement of Conflict of Laws The validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriagea marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time.

o A few states have marriage evasion statutes, which declare void all marriages entered into by parties who married in another state for the purpose of evading their home state restrictions on marriage. Full faith and credit Requires state confer full faith and credit on the public acts, records and judicial proceedings of sister states. Federal DOMA Defines marriage a two opposite sex people. States that states are not required to give effect to same sex marriage under the Full Faith and Credit Clause. Leaves a state free to determine whether to recognize same sex marriages celebrated elsewhere. o Romer v. Evans SCOTUS 1996, Supreme Court invalidated a Colorado constitutional amendment that prohibited a state from singling out gays and lesbians for special civil rights protections. The Court held that discrimination on the basis of sexual orientation, rooted in animosity, violates equal protection.

Incest In re Adoption of M NJ 1998 Facts: In 1991, adoptive parents sought to adopt M. The uncontested adoption was entered when M was 15. After the adoption, the adoptive parents filed for divorce. When M was 22, she gave birth to an infant. Ms adoptive father was the natural father of the child. The petitioner and her adoptive father now want to marry. Because their adoptive relationship would render their relationship incestuous, the petitioner sought to vacate the judgment of adoption. Holding: Final judgment of adoptions should be set aside only when it is in the best interest of the child and on a showing of truly exceptional circumstances. Rational: NJ legislature has mandated that the adoption laws should be liberally construed so that the best interest of children be promoted. The interest of the people involved in this case changed dramatically between the time of adoption and the petition. The record did not reveal any evidence of abuse, neglect, or domestic violence; rather, the record suggests that the petitioner voluntarily entered into the romantic relationship. Despite troubling evidence that the relationship began before M was 18, her continued desire to marry her adoptive father well after she attained adulthood should be respected. Moreover, their marriage would legitimize their relationship and protect the status of their child. These facts constitute truly exceptional circumstances. Petition granted. State has a legitimate interest in protecting children (natural and adoptive) from incestuous relationships (including marriages) Bigamy

State v. Holm Utah 2006 Facts: , a resident of Utah married Stubbs in 1986. then married Holm. He then married Stubbs sister who was 16 at the time of the wedding. By her 18th birthday, she had 2 children. The state convicted of violating Utahs bigamy statute. Holding: A conviction pursuant to Utahs bigamy statute did not violate the state or federal constitution. Rational: first contends that he did not marry the 16 year old. We disagree. and girl participated in a wedding ceremony that was not any different from weddings that the state recognizes as such every day. That the state did not record the wedding does not mean their wedding did not result in a marriage between the parties. We next discuss whether the conviction runs afoul of the federal constitutional right of freedom to exercise ones religion. This court and the US Supreme Court have previously held that convictions for bigamy do not violate the free exercise clause. Holm next contends that conviction violates his own liberty interest pursuant to the 14th Amendment. He argues freedom to engage in a polygamous lifestyle is a fundamental right, and can be limited only for a compelling state interest. relies on Lawrence. This case is distinguishable. First, Lawrence only applies to private and intimate acts. It does not discuss the institution of marriage. Utah has a compelling state interest to regulate marital relationships and ban plural marriages. Second, Lawrence did not involve a minor. The presence of a minor warrants inquiry into whether the minor suffered injuries due to the relationship. Lastly, there is no equal protection violation because the bigamy statute is facially neutral. Concurrence: Agree with majority as to conviction for sex with a minor. But dissent from the remainder of the decision. There is no threat to the traditional institution of marriage that would justify the state to impose criminal penalties on those who create their own domestic structure, especially when they do it for religious reasons. Age Kirkpatrick v. District Court Nevada 2003 Facts: 15 year old wants to marry 48 year-old guitar teacher. NM law, however, prohibited a minor under the age of 16 from marrying unless she was pregnant or unless the marriage would legitimize a child born out of wedlock. Mother supported decision. Went to Las Vegas so they could marry, because Nevada law permitted a minor under the age of 16 to marry if one parent consents and judge approves. Father learned of marriage and petitioned NM court for an ex parte restraining order vesting sole legal and physical custody to him. NM court granted fathers petition but vacated its order four days later because, in the NM courts assessment, girls marriage was valid under Nevada law. Father petitioned Nevada Supreme Court for a writ of mandamus that would compel the Nevada trial court to vacate its order authorizing the marriage and to annul the marriage. Father said it was his fundamental right to be a parent that was violated. Holding: A states law requiring only one parents consent to a minor childs marriage does not violate the non-consenting parents fundamental parental rights as guaranteed by the US Constitution.

Rational: Although fathers parental rights under the US Constitution are fundamental, those rights are not absolute. They are subject to, for example, limitations imposed by states in the legitimate exercise of their police power to regulate the institution of marriage an institution based on what is in this case a competing fundamental right, the individuals right to marry when and whom she chooses. Nevada law permits daughter to marry, and the manner in which Nevada law operatesrequiring only 1 parents consentdoes not violate the nonconsenting parents fundamental parental rights. Consent of both parents is not required by the Constitution in several other areas involving important decisions about minors, and many states require only single-parent consent for a minors marriage. Father has lost no fundamental parental right, having lost only his right to control his now-emancipated daughter during her minority. This approach is consistent with the relaxed approach to strict scrutiny used by SCOTUS in substantive due process cases in the area of family law: balancing of interest here does lead to a reasonable result. Notes: Nevada Supreme Court also probably could have grounded its decision on the usual standard for analyzing a substantive due process challenge to the constitutionality of a state statute that impinges on a fundamental constitutional right statute did susbstantially affect fathers parental rights to control over daughter during her minority, but the law as applied advanced a compelling state interest (right to marry) by narrowly tailored means (one-parent consent and judicial approval) [Different analysis, same result] Marriage is fundamental right. Constitutional rights apply to children as well. Two-parent consent doesnt really work in modern families because many live in one-parent households. State of Mind (Fraud/Duress) Blair v. Blair Missouri 2003 Facts: W and N had sex once while N was married to another man and in a long term sexual relationship with a 3rd man. 9 months after having sex with W, N gave birth to son. 20 months later, N told W he was the Dad. W and N resumed having sex. N dissolved prior marriage. N and W have a daughter together and get married once Ns prior marriage is dissolved. N files for divorce after 20 years. W petitioned to annul marriage b/c N lied to him about paternity of boy to get him to marry her. Testing confirmed he is not the father. Trial court denied Ws request. Holding: a marriage should not be annulled for fraud when the husband would have entered the marriage even if he had known that the wife misrepresented to him, before the marriage, that he was the biological father of her child Rational: Only evidence supporting Ws request for annulment is his own selfserving testimony that he would not have married N had he know he was not boys biological father. Trial judge heard evidence that W would have married her

anyways, had a daughter with her before marriage and that W consciously overlooked paternity issue at time he married N. Notes: Even if N did knowingly misrepresent sons paternity to W, the compelling evidence overcame that finding Thus, fraud sufficient for an annulment must be no only clear but probable and largely uncontradicted by evidence of the complaining spouses willingness to enter the marriage despite fraud Procedural Carabetta v. Carabetta Conn. 1980 Facts: Marriage religiously observed by failed to obtain marriage license. Conn statute required both, but did not specifically declare unlicensed marriages void. Trial court granted M/T/D dissolution action, holding it lacked SMJ b/c the marriage was void. Party seeking dissolution appealed. Holding: a ceremonial marriage is not void unless the licensing statute explicitly makes unlicensed marriages invalid. Rational: Marriage that fails to observe a statutory requirement is dissoluble, yet not void. Where the legislature intended non-compliance to void a marriage, it has specifically so stated. The absence of such specificity evidences grounds for dissolution, but not nullity. Therefore, the marriage here was not void, and the trial court had jurisdiction to dissolve it. Informal Marriages Jennings v. Hurt NY 1991 Facts: J and H met and began living together in 1981. H was still married. H told J marriage was not in the cards for him. J became pregnant with Hs child and Hs attorney began drafting financial agreements for couple. In 1982, J joined H in South Carolina where H was working. They lived in the same house and shared the same bed until Jan 1983. Hs divorce became final in Dec 1982. J testified H approached her with draft of prenup and suggested they sign it, get blood tests and get married. Went to notary public to sign prenup. Upon returning home, H spoke to attorney and was advised the prenup is not valid b/c J was not represented by an attorney. Fight ensued in which H allegedly stated they had a spiritual marriage. J brought suit, alleging existence of common law marriage. Holding: common law marriage in South Carolina is evidenced by a present intention and agreement between the parties to take each other as husband and wife. Rational: Common law marriages are not recognized in NY, however NY does give effect to them if they are valid under the laws of another state in which the marriage was supposedly contracted. South Carolina courts will not declare the existence of a common law marriage in the absence of strong and competent testimony. Here the only testimony evidencing a common law marriage is the one statement in which H

allegedly said he believed the two to share a spiritual marriage. The testimony of various persons with whom the couple socialized showed that they know the two were not married. The testimony does not demonstrate that the couple held themselves out as husband and wife after Hs divorce. The two did not file tax returns as married persons. The testimony does not evidence an intent to solemnize a marriage. Notes: Party cannot claim common law marriage where one of the parties is married to a 3d person; neither does a subsequent divorce from a 3d party transform the relationship into a common law marriage Proponent of common law marriage must show by a preponderance of the evidence that the relationship underwent some fundamental change following the removal of the impediment

III. Being Married: Regulation of the Intact Marriage

Duty to support McGuire v. McGuire Nebraska 1953 Facts: was cheap. He refused to give his wife any money of her own. His sole contribution to the familys support was to pay for groceries and to keep a roof over their head. refused her any and all additional comforts. He refused to repair the car, replace old furniture, fix the heating, buy her clothes, etc. He had more than sufficient funds to substantially raise the level of the familys life style, but refused to do so. The parties lived like this for 33 years. The trial court awarded the wife support, a new car, new furniture, and funds to visit her daughter. continued to live with her husband. Holding: No support payments can be granted where the parties continue to live together as husband and wife. Rational: The living standards of a family are the concern of the household, not the court. As long as the parties remain together as husband and wife, it may be said that the husband is legally supporting the wife and the purpose of the marriage relationship is being carried out. Public policy requires that the courts not interfere in such situations. s only alternative would be to leave her husband and then bring a suit for support. Notes: In Miller v. Miller, Michigan 1948, the court affirmed support payments to the wife even though the parties resided together in the same house. In that case, Mr. Miller lived in separate room and ate separately. This decision, however is rare. Commonwealth v. Georgia also denied marital support payments even though husband was a drunk. In Reed v. Reed, 1976, Supreme Court invalidated an Idaho law that gave preference to men over women as administrators of intestate estates. The court reasoned that the statute, which was based on stereotypical gender roes, lacked a rational basis.

Craig v. Boren 1976, Supreme Court applied intermediate standard of review for gender-based discrimination. Classification must serve important governmental objectives and must be substantially related to achieve those objectives. Higher than rational basis test. o SCOTUS elevated standard slightly and now requires an exceedingly persuasive justification for gender classification. US v. Virginia. o Some states apply strict scrutiny (like California) for gender-based classification.

Names in the Family Neal v. Neal Mo. 1997 Facts: married in 1994 and separated when she was pregnant a year later. brought a petition for dissolution of marriage, requesting that her maiden name be restored and given to both her and her unborn child. The gave birth to a son, gave him her maiden name, and did not include fathers name on birth certificate. Court ordered babys birth certificate include s name as natural father and ordered that the childs surname be changed to Neal. Holding: There is a common law right to a change of name, regardless of marital status. Rational: There was no reason for the trial court to decline the request to restore wifes maiden name. There is a right to change of name, regardless of marital status. Although it is within the trial courts discretion to find a name change to be detrimental, the scope of that discretion to deny the change is narrow. Here, there was no evidence to support the trial courts decision. Further, the lower court erred when it failed to provide any notice to the ex wife of her ex husbands intent to change his sons name. Note: No law presumes it is detrimental to a child to have different name from parent. Trial court didnt follow proper procedure in changing childs name to Neal because never sent notice to mother. Henne v. Wright 8th Cir. 1990 Facts: When Hennes daughter was born, she wanted to give her daughter the surname of the girls acknowledged biological father, Brinton. Spidell wanted to give her newborn daughter the surname of McKenzie simply because Spidells other children had that surname. The mothers were informed that the proposed surnames could not be entered on the newborns birth certificates because a state statute restricted the range of possible surnames that could be entered on the birth certificates. Wright headed the Nebraska Department of Health, which denied the mothers requests. Holding: There is no constitutionally protected, fundamental right of privacy that covers the right of a parent to give a child a surname to which the child has no legally recognized parental connection.

Rational: The statute in question does not prevent either mother from ever giving their children the surnames they have selected. To determine whether a fundamental right is implicated, the court looks to whether the right is deeply rooted in the nations history and tradition. There is no American tradition that supports an extension of the right of privacy to cover the right to name their children as the mothers suggests. Since a fundamental right is not involved, the statute is analyzed under rational basis review. There is some rational relationship to legitimate state interests. Upheld statute. Concurrence and Dissent: Family matters come within the reach of fundamental rights. The right to name ones own children is clearly included in the principles of early cases, and indeed is even more compelling than the rights found in earlier cases. Employment Bradwell v. Illinois SCOTUS 1873 Facts: was a married woman. She applied for admission to the Illinois bar. Illinois Supreme Court didnt let her in because she was married. Holding: A state may deny entry into a profession on grounds of sex and marital status. Concurrence: Men should be the protectors of women, whose natural timidity and delicacy make the fair sex unfit for much of civil life. The harmony of family organization, which is divinely created, is repugnant to the idea of a woman pursuing a career outside of that of her husband. Also, married women cant enter contracts. Although some women are not married, they are exceptions to the general rule that womans paramount destiny and mission lie in the noble roles of wife and mother. Vaughn v. Lawrenceburg Power System 6th Cir. 2001 Facts: Two employees of a public utility company married, even though company policy required one to resign if married. Neither resigned, and the company fired both. Couple claimed anti-nepotism policy violated federal EPC and as to basing termination on expression of dissatisfaction with the policy, violation of right to free speech under 1st Amendment and Tennessee HRA. Holding: A government employers anti-nepotism policy, requiring one of two employees to resign if they marry, does not violate the EPC of the Constitution. Rational: LDSs policy on exogamy requires only rational basis review because it does not impose a direct and substantial burden on the right of marriage. The rule neither prevents LPS employees from marrying at all nor prevents them from marrying a large portion of the otherwise eligible population. Here, they could and obviously did get married. The economic burden that the policy imposed on advances a legitimate government interest in, for example, not having employees who harbor too much inherent loyalty for each other. The policy rationally advances that interest by prohibiting both employee members of a married couple from making their intense personal loyalty part of the workplace. Cohabitating couples who are both employees, on the other hand, may properly be permitted to keep

their jobs because unmarried persons presumptively have less personal loyalty for each other than do spouses. Also, unlike the government employer in Montogmery v. Carr, does not have the option of merely transferring either to another location within the company because Company is small. As for 1st Amendment claim, he was speaking on private matters, not public issues, so not applicable. Parenting Cleveland Board of Education v. Lafleur SCOTUS 1974 Facts: Two teachers were required to take a mandatory 5-month, non-paid maternal leave, pursuant to a rule adopted by the . The teachers were not promised reinstatement after the childrens birth, only priority in reassignment. Failure to comply with rule was grounds for dismissal. Holding: A school districts mandatory maternity leave rule may only be upheld if it does not needlessly, arbitrarily, or capriciously infringe upon the teachers freedom of personal choice and family life in violation of the DPC of the 14th Amendment, and if the school district can assert a legitimate state interest in support of the rule. Rational: Stewart The Court has long recognized that freedom of personal choice in matters regarding marital and family life is a liberty interest protected by the DPC of the 14th Amendment. Overly restrictive maternity rules constitute a heavy burden on the exercise of such liberties. The DPC requires that such rules not needlessly, arbitrarily, or capriciously infringe upon this liberty interest. The issue is whether the school board can demonstrate interests sufficient to justify the imposition of these rules. The School Board asserts two rationales in support of the rules: (1) continuity of instruction; and (2) the possibility that the teacher may be physically incapable of performing her duties. o While continuity of instruction is a legitimate state interest, the absolute requirement of termination at the end of the teachers fourth or fifth month of pregnancy does not achieve this goal. Such cutoff dates have no rational relationship to the valid state interest of preserving the continuity of instruction. So long as the teachers complied with substantial notice requirements, the choice of a date later in a pregnancys term would be better serve to encourage such continuity while imposing less burdensome restrictions on the teachers. o The necessity of keeping physically unfit teachers out of the classroom is also a legitimate state objective; however, the absolute rule prohibiting teachers in the classroom after the 5th or 6th months of pregnancy is too broad. DPC requires that the school board invoke alternative methods of achieving their goals, which are less restrictive on the teachers liberty interest. Notes:

Court said that rule about getting physician approval before returning to work was okay, but that rule about waiting until new born was 3 months was arbitrary and not okay.

California Federal Savings and Loans v. Guerra SCOTUS 1987 Facts: California enacted a law requiring employers to permit pregnant workers to take a leave of absence of up to four months, with guaranteed reinstatement, unless the employees position was abolished for legitimate business reasons. took such a leave but was not allowed to get her job back. When California instituted administrative action, filed an action seeking to have the law invalidated as inconsistent with the Federal Pregnancy Discrimination Act. Holding: A state law requiring an employer to provide maternity leave is not inconsistent with the Federal Pregnancy Discrimination Act. Rational: Marshall - Not inconsistent. The Act forbids employers to discriminate on the basis of sex and specifically includes pregnancy discrimination as being discrimination on the basis of sex. It essentially provides that pregnant employees may not be treated any worse than disabled employees. A reading of the statute and its legislative history makes it clear that the Act was intended to provide a basic level of protection under which an employer could not go. If a state decides, as California did, to provide a higher protection, it can do so. Dissent: White The act mandates that pregnant workers be treated the same as non-pregnant ones. The law in question singles them out for preferential treatment. This is inconsistent with the act. Notes: Geduldig v. Aiello 1974, SCOTUS Said pregnancy was not a sex based distinction, it was a disability distinction applied to all people (but duh, only women) with that impairment. GE v. Gilbert 1976, SCOTUS said pregnancy was not sex discrimination. Congress amended Title VII to include Pregnancy Discrimination Act classifying pregnancy as a disability. Balancing Work and Family Caldwell v. Holland of Texas 8th Cir. 2000 Facts: Caldwell was a single mother and worked for in one of their restaurants. Caldwell notified her boss prior to the start of her morning shift that she would be absent because her son needed emergency medical treatment. Her boss gave her permission to miss her shift. That night, at the request of her boss, Caldwell worked an evening shift. She was fired two days later. The condition of Caldwells son continued to deteriorate and he eventually needed surgery. Caldwell argued that she was fired in violation of the federal Family and Medical Leave Act. Holding: The FMLA allows eligible employees to take time off from work to care for sick family members who suffer from a serious health condition.

Rational: FMLA allows eligible employees to take up to 12 weeks of leave per year to care for a child who has a serious health condition. The applicability of the law turns on a two-pronged inquiry: 1. Whether the child suffered a period of incapacity of more than three consecutive calendar days 2. Whether the child subsequently received continued, supervised treatment relating to the same condition. Although what constitutes incapacity for a preschool-age child is not spelled out by the statute, a variety of factors may be considered, including whether the child participated in his daily routines, was particularly difficult to care for during that period, or whether a day care facility would have allowed a child with his or her illness to attend. o Here, the child received continuing treatment and was incapacitated for more than three days. Having determined that the FMLA applies, the remaining question is one of fact for the jury: Whether the boys health condition was serious under the statute. Notes: FMLA is designed to protect working men and women, both married and single. Its purpose is to help people balance the demands of work and of their personal lives. P. 269 for law. Dike v. School Board 5th Cir. 1981 Facts: was kindergarten teacher, Gave birth to child. Arranged for husband to drop off child and breast fed kid in privacy during lunch break. Principal told her to stop, so she did, but child was allergic to formula. The child refused to nurse from pumpfilled bottle. claims school interfered with constitutionally protected right to nurture her child by breastfeeding. Holding: A womans decision to breastfeed her child is a fundamental liberty interest protected by the US Constitution against excessive state interest. Rational: The constitution protects against undue state interference with fundamental liberty interests. These interests include freedom of choice in the areas of marriage and family life. The US Supreme Court has recognized parents interests against state interference on the nurturing and rearing of their children (Pierce, Meyer), and the decision to breastfeed is one such interest. The complaint should not be dismissed for failure to state a claim. Notes: School board may still demonstrate that its regulations regarding breastfeeding are constitutional. o Court says such factors to be taken into consideration by the trial court in making this determination include the school boards interest in avoiding disruption in the educational process and in the performance of the teachers duties, and potential liability for accidents.

Tort and Criminal Law Tort Actions Against Third Parties: Alienation of Affection and Criminal Conversion Jones v. Swanson 8th Cir. 2003 Facts: grew up in same hometown as married woman. They were romantically involved since high school. They rekindled their relationship after 20 yearsafter both of them had married other people. Married woman spoke of her dissatisfaction with her marriage, they met for lunch, would talk on the phone, etc. They went to Europe together, but, within three months of their accidental meeting, suggested they end the affair. A month later married woman moved out of her home she shared with husband. A month after that sent her a love letter. Married woman went back to her husband. Married woman contacted to continue their affair, and she went to visit him and fuck. Husband found out and sued for alienation of affection under SD law. Married woman left the residence once again. Trial court gave husband 950k in damages. Holding: An affair partner proximately causes the alienation of a married persons affection if he encourages an affair even when the married partners marriage is already weak and eventually results in divorce after the affair ends. Rational: Under SD law, which still recognizes a cause of action for alienation of affection, a must prove that the behaved wrongfully, that the has lost the affection or consortium of his spouse, and that the s wrongful conduct caused the s loss of affection or consortium. A claim for alienation of affection essentially seeks recovery for malicious interference with a marital relationship, which promises each spouse the continuing consortium of the other. The key to such a claim is enticement, conduct that is calculated to steal one spouses affection from the other. Here, the jury reasonably could have found that the marriage was over before reentered the picture. At the same time, the jury could also have found, and reasonably did, that actively pursued a relationship with woman when he knew she was married. The evidence showed, for example that woman did feel affection for and that kept pursuing the affair with her when he knew that she was trying to reconcile with . s own wrongful conduct was not absolved either, just because wife willingly participated in the affair and was even infatuated with him, or because did not intend to hurt . The evidence that the marriage was troubled, though, does undermine the award of compensatory damages, and it also undermines award of punitive damages. Accordingly, judgment reduced to 400k. Notes: At common law, interference with the marital relationship was remediable by tort action for alienation of affection and criminal conversation. o Alienation of Affection required: 1) A valid marriage; 2) wrongful conduct by the defendant with the plaintiffs spouse; 3) the loss of affection or consortium;

and 4) a causal connection between the defendants conduct and the deprivation of affection. Does not require intercourse. o Criminal conversation requires sexual intercourse. Only defense is injured s consent and statute of limitations. Cause of action is abolished in most states.

Bailey v. Faulkner Ala. 2006 Facts: F and wife having marital difficulties, so Pastor, B, began counseling them. B then commenced consensual, sexual relationship with Fs wife. B also convinced F to turn down out of state job offer b/c it would harm his marriage. F eventually discovered all this. F divorced wife w/in several months. F brought actions against B for negligently and wantonly performing acts as marriage counselor. Jury awarded $2,067,000 in damages, lowered to $1,617,000. Holding: Alabamas anti-heartbalm statute precludes recovery for injuries arising from one persons interference with another persons marriage Rational: Since the legislature passed the anti-heartbalm statute, this court has refused to allow recovery for any claim, under any designation, that is founded on alleged interference with a marital relationship. Statute bars any such claim, regardless of form. Interspousal Immunity GL v. ML NJ 1988 Facts: Wife filed for divorce against her husband alleging four separate counts of personal injury for her husbands continuing to have a sexual relationship with her after discovering he had herpes as a result of an affair. Husbands insurance carrier and attorney brought a motion for summary judgment. Holding: The marital privilege of sexual relations does not include immunity to personal injury suits between spouses based on the transmittal of a sexual disease. Rational: In Merenoff v. Merenoff, NJ Court abrogated the immunity doctrine in respect to tortious conduct, stating that when one spouse tortuously inflicts personal injuries on the other, it is fair that the injured party be allowed to bring suit to recover for injury. Although certain activities still fall within marital privilege, tortious injuries do not. Husband argued that the marital privilege shielded his conduct from liability because the conduct involves sexual intercourse with wife. This argument was rejected by the court. The abolition of the interspousal immunity doctrine applies to both intentional and negligent conduct. One spouse has a duty of care to the other. Here, husband violated that duty by continuing to have sex with his wife after sexual relations with a third party. Notes: Doctrine of interspousal immunity now exists only in a minority of jurisdictions. The doctrine was gradually abrogated, first with respect to intentional torts, then with respect to negligent conduct. Courts have long recognized the existence of a cause of action for the transmission of STDs.

The court here recognizes that the threat of such harm resulting in injury, as a result of 3rd party sex, is actionable as well. Wiretapping Glazner v. Glazner 11th Cir. 2003 Facts: Divorcing husband recorded wifes conversation. She sued under federal wire tapping statute. Holding: The federal wiretapping statute does not contain a marital exemption that permits one spouse to record the other spouses phone conversations without the consent of the other spouse or any third party with whom she spoke. Rational: The plain text of the statute permits any person whose wire, oral or electronic communication is improperly interfered with to file suit against any person who improperly interferes with communications in violation of the statute. Although Simpson v. Simpson (11th Cir) found an implied interspousal exemption in the statute almost 30 years ago, subsequent history suggests that stare decisis should not control this case. Since Simpson, the vast majority of cases from other jurisdictions deciding the interspousal exemption issue have concluded that the statute does not imply the exemption. Accordingly, Simpson is overruled. The holding should apply retroactively because such application certainly advances the statutes purpose. Notes: Glazner represents the majority rule, finding no interspousal immunity from liability under federal law. Eavesdropping on a persons phone call (like by picking up the receiver) is not prohibited. Some courts have held that parents have vicarious consent to record their childrens phone calls if made in good faith. Alameda v. State (Tex Crim. 2007)(holding that vicarious consent doctrine permits recording if parent has good faith reasonable belief that it is in the childs best interest). Marital Rape People v. Liberta NY 1984 Facts: Wife got court order kicking husband out of house and to stay away from her. The order allowed 1 visit a week with son. failed to visit his son one weekend and called Denise the following Tuesday to request a visit. agreed to let and a friend pick up her and son from school and take him to hotel where was living. Once at the hotel, the friend left. Once at hotel, friend left and husband raped the mother while forcing son to watch. He argued, though, that he was within the marital exemption to rape and sodomy and therefore could not be prosecuted for either crime. Holding: The statutory marital exemption for rape lacks a rational basis in violation of the EPC of both the state and federal constitution.

Rational: NY statute provides the husband with a marital exemption from prosecution for rape and sodomy, unless the couple was living separate and apart under a valid court order. The statute is subject to an equal protection challenge because it distinguishes between two classes of similarly situated individuals, married and unmarried men. Though the state is not prohibited from drawing classifications, the law must not arbitrarily encumber a particular class of individuals. Where the statute distinguishes on the basis of marital status, there must be a rational basis for the distinction. There is no rational basis supporting the statutory differention between marital and non-marital rape. Thus, the exemption is unconstitutional. Notes: Primary among the reasons purported for the exemption is the protection against governmental intrusion into familial relationships. This rationale states that the exemption promotes reconciliation between spouses, and its eradication would be adverse to the marital institution. The court states that though such factors serve a legitimate state interest, they bear no rational relation to the marital exemption. Rather, the right of privacy may protect consensual acts, but not forcible acts of violence. Just as a married man cant use marital privilege to escape liability for beating his wife, he cant use it to escape liability for raping his wife. Found statute violates EPC because it didnt punish women for rape. Almost all states have changed laws saying marital rape is illegal. o That being said, almost all states treat marital rape differently than regular rape. Including 1) criminalizing a narrower range of offenses if committed within marriage; 2) subjecting marital rapist to less serious sanctions; and/or 3) creating special procedural hurdles for marital rape prosecution (such as reporting requirements to designated professionals or within certain time periods. Data suggests that marital rape is more violent and more damaging to women than non-marital rape. Many are raped multiple times. Evidentiary Privileges Arising from the Marital Relationship Trammel v. US - 1980 Facts: and his wife were involved in heroin ring, and she agreed to testify against him in return for immunity. The trial court ruled she could testify as to anything except confidential communications between herself and , which were held to be privileged and inadmissible. appealed the resulting convictions for importing heroin and conspiracy, alleging that he had the right to invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of his wife. Holding: The privilege against adverse spousal testimony belongs to the witness spouse alone, so that the accused spouse may not invoke the privilege to exclude the voluntary testimony of the witness spouse. Rational: Accused spouse cant invoke privilege for witness spouse. Hawkins left the federal privilege for adverse spousal testimony where it found it, continuing a rule

that bars the testimony of one spouse against the others unless both consent. However, since then, support for the privileged has been eroded, and criticism of Hawkins has been unabated. The consensus of state law and the various model statute codes is that the privilege should belong only to the witness spouse. The accused spouse must rely on his ability to preclude testimony as to confidential communications only, as applied with regard to communications with his lawyer, doctor, or priest. Husband had no right to prevent wife from testifying. Notes: Common law recognized two different privileges: o Confidential marital communication privilege private communications between husband and wife are privileged absolutely. Either spouse may invoke the privilege. This is not what Trammel talked about. o Trammel talks about the ability of a spouse to exclude evidence by the other spouse of criminal acts and communications made in front of third persons. Trammel had several consequences. First, different rules now apply in federal and many state courts concerning two different types of spousal communications. Second, Trammel influenced many states to limit this privilege. Exceptions: o Joint participation Some courts hold that privilege is not available where spouses jointly participated in a criminal act. Others hold that the privilege applies regardless of joint participation. o Separated spouses Some courts have held that permanent separated status at the time of the communication makes the marital communications privilege inapplicable. o Familial offenses Exception for offenses committed against a spouse or a child or either spouse.

IV. Alternative Families

Constitutional Limits on Definitions of Family Is a Commune a Family US Dept. of Agriculture v. Moreno - 1973 Facts: Section 3(e) of the Food Stamp Act defined a household as a group of related or non-related persons living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common. This definition was later amended to include only related groups of persons. Several groups of individuals who claimed that they were excluded from eligibility from the program because they were not all related brought a class action. The district court held that the unrelated person provision created an irrational classification in violation of the EPC.

Holding: In order for a challenged statutory classification to be upheld under the EPC, the government must show that the classification furthers a legitimate governmental interest. Rational: Brennan - Here, the statutory classification is irrelevant to the purpose of the state. The legislative history does not reflect a purpose for the 1971 amendment. The government contended that the classification should be upheld as rationally related to the legitimate interest in minimizing fraud in the administration of the federal stamp program. However, the amended excluded not only those persons likely to abuse the program but also persons in need of assistance. While the EPC does not require that such classifications be drawn with mathematic precision, the classification was amended without a rational basis. Concurrence: Douglas The unrelated persons provision bears some rational relationship to the prevention of fraud. This case deals, though, with a fundamental rightthe right of freedom of association guaranteed by the First Amendment. The government therefore may save its classification only by using narrowly drawn methods to advance the governments interest, and the broad classification under the amendment does not meet this standard. Dissent: Rehnquist its not unreasonable for Congress to conclude that it would only provide food program assistance to households comprised of related individuals. Notes: Amendment was to hurt hippie communes. Court okay with considering unrelated people in household. In Village of Belle Terre v. Boraas 1974, Court upheld a zoning ordinance that restricted land use to one family dwellings and defined family as one or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of servants. A number of persons but not exceeding 2 living and cooking together a single housekeeping unit though not related by blood, adoption or marriage shall be deemed to constitute a family Court found no fundamental right was involved and that goal of creating a family friendly environment was rationally furthered by restrictions of household to family units. Most states find singe-family ordinances constitutional under state constitutions, however some dont Unmarried Couples - Belle Terre zoning ordinance contained an exception permitting 2 unrelated persons to constitute a family. Group Homes City of Cleburne v. City of Cleburne Living Center 1985, City denied exemption from the local ordinance to a home for retards. Court held the ordinance invalid as applied, reasoning that the denial resisted on irrational prejudice. The Extended Family Moore v. City of E. Cleveland - 1977

Facts: An E. Cleveland ordinance limited occupancy of a dwelling unit to members of a single family. lived with her son, grandson, and a grandson of her dead daughter. She was criminally fined for having her daughters son in the house. Holding: It is unconstitutional for an ordinance to restrict occupancy of a dwelling unit to the narrowly defined pattern of the nuclear family so as to exclude other family living arrangements. Rational: Inasmuch as the ordinance in question restricts families from living together except in the narrowly defined nuclear family arrangement, it is unconstitutional. Unlike other ordinances regulating the desires of UNRELATED (Belle Terre) individuals from living together, this ordinance slices deeply into families and selects certain categories of relatives who may live together. Such an intrusive regulation of the family must be examined closely, since the family unit is one of the liberties protected by the DPC. This traditional respect for family bonds is not limited to the concept of the nuclear family, but encompasses the extended family. Thus, the right of relatives of the close kinship evidenced in this case may not be lightly denied by the state. The Constitution prevents Cleveland from restricting its children and adults by forcing all to live in certain narrowly defined family patterns. Concurrence: Brennan Extended family is vital to our society. Any prohibition of this type of family living is a deep intrusion into family associational rights that have been and remain today central to a large part of our population. The extended family provides social, economic, and emotional support. Dissent: Stewart The family interests protected in the DPC are those related to decisions to marry or bear and raise children, and this case involves no such high level interest. Notes: Belle Terre Distinguished in applying a stricter standard of review than in Belle Terre, the Court treats Moore as involving not zoning, but rather family privacy There is a presumption that parents, children, and siblings function as a single economic unit for food stamp purposes. Lyng v. Castillo, 1986. Cohabitation: Unmarried Couples Marvin v. Marvin Cal1976 Facts: and lived together as an unmarried couple for 7 years. They agreed among themselves to present themselves as married. According to , they also entered into an oral agreement that required to provide housekeeping and companionship in exchange for financial security. also alleges they agreed to split all accumulated assets. Holding: A cohabiting partner in a non-marital relationship has the same rights that any other unmarried person has to enforce contracts and claim an equitable interest in property acquired by the persons own efforts. Rational: None of s four theories sustains the trial courts judgment.

Notes: Deals with express agreements. For agreements not in writing, the opinion is less clear. Court says equitable remedies may be appropriate in some cases. Hewitt v. Hewitt Ill, 1979 Rejected express oral agreement because it would effectively reinstate abolished doctrine of common law marriage and would undermine marriage. Unmarried Couples, Third Parties, and the State Tort Recovery Graves v. Estabrook NH 2003 Facts: Woman saw fianc who she lived with die from car accident. Sued driver for negligent infliction of emotional distress. Holding: A person who cohabits with and is engaged to a descendent has a cause of action for negligent infliction of emotional distress against one who negligently caused the other cohabitants death. Rational: Elements of infliction in NH are: 1) physically close to accident; 2) experience shock from the accident; 3) Closely related.

First, the alleged contract does not violate public policy against contracts for meretricious sexual services. Contracts for unmarried persons should be governed by the general rule of consideration, excluding, of course, agreements for meretricious sexual services that clearly do violate public policy. This contract is not for only sexual activity. Second, the alleged contract here would not impair the property rights of s lawful wife because those rights have already been adjudicated in a divorce proceeding. Third, the alleged contract doesnt violate California statute because the statute requires only that settlement contracts entered in contemplation of marriage be reduced in writing. Finally, this case also clearly does not present a veiled claim for breach of promise to marry. The principle of decision in this case is simply that adults who do not marry but live together and have sex have the same contractual rights regarding their earnings and property as anyone else has. The complaint is therefore facially sufficient and the trial court accordingly erred. On remand, the trial court and the parties should consider further that a person in s position also has the same right that anyone else has to recover based on implied contract or equity. Any notion of guilt that would bar her recovery also should bar an award favoring , who was just as responsible for the non-marital relationship as was. The ruling, moreover, does not undermine the institution of marriage, which remains the most socially productive and individually fulfilling relationship possible.

Notes: Under traditional rule, recovery for NIED from witnessing the negligent injury to another was limited to persons who either suffered a physical impact or were in the zone of danger. Most courts reject unmarried loss of consortium claims Courts are split on same sex couples p 378-379 Employment

NH court rejects bright line rule that unmarried people cant be closely related. Says they should take a cue from NJ Supreme Court in Dunphy v. Gregor, which set out factors to test if closely related. o Duration of relationship, degree of mutual dependence, extent of common contributions to a life together, the extent and quality of shared experiences, whether members of same household, emotionally reliant on each other California Supreme Court said unmarried people cant recover based on policy reasons. Elden v. Sheldon. Said it would devalue marriage, it would create a burden for the courts, and it would increase negligent liability.

Shahar v. Bowers 11th 1997 Facts: is a woman who married another woman in a religious wedding ceremony. stated that although Georgia did not legally recognize her marriage, she considered herself married. The Attorney General offered her a staff attorney position upon graduation from law school. She accepted and began to work. She began to make plans for her wedding. AG withdrew the offer when found it was to another woman. Holding: In evaluating the constitutional validity of the states decision to revoke an offer of employment based on the prospective employees same-sex marriage, the employees interest must be weighed against the potential disruption and harm the state believes such employment would cause. Rational: Court affords s associational rights great weight. However, such associational rights can be overcome by the states interest in maintaining efficient functioning. asserted that she did not attempt to use her marriage to make a political statement, nor did she attempt to receive any benefits based on the marriage. s actions disprove her claim. She not only held herself out as married, but placed her marital status on her employment application. She and her partner both filed petitions to change their name with the superior court. They received an insurance rate accorded to married couples. Moreover, in claiming that she did not seek to avail herself of any benefits of the marital relationship, she only recognized that such benefits are not accorded same sex marriages under Georgia law. The AG was not unreasonable to believe that s actions would cause the public to question the departments credibility or to cause him to question her ability to make good judgments as an attorney in his department. The states interest as an employer in promoting the efficiency of its legal department outweighs s right to freedom of association.

Notes: Court rejected strict scrutiny test as enunciated in Dike v. School Board (breastfeeding case). Overrules application of strict scrutiny in Dike and says that the appropriate test for evaluating the constitutional implications of the states decision is the same test for evaluating the constitutional implications of a government employers decision based on the employees exercise of free speech (a balancing test as set forth in Pickering v. Board of Education) Decided before Lawrence Health In re Kowalski Minn. 1991 Facts: Kowalski was brain damaged after accident. She was living with her lesbian partner, Thompson (). Both and Kowalskis father petitioned for guardianship. agreed to the appointment of the father. He subsequently terminated s visitation rights and relocated Kowalski to another nursing home. Father became ill and tried to become subsequent guardian. Holding: Minnesota law provides that the standard for appointment of a guardian is the best interest of the ward. Rational: All professionals who worked with Kowalski stated that they believed she could express a preference as to where and whom she wanted to be with, and that she indicated she wished to return to live with . Despite the fact that there was no evidence presented to the contrary, the trial court concluded that Kowalski could not express a reliable preference for guardianship. That conclusion was clearly erroneous. Rather, the evidence showed that was especially committed to promoting Kowalskis welfare and was strongly equipped to attend to her physical and emotional needs. Instead the trial court concluded that long-term care in a neutral setting was in her best interest and that was incapable of providing the necessary care. This evidence was contradicted by the testimony of the medical care providers and thus erroneous. The trial court also concluded that a neutral third party was needed as guardian, due to the Kowalski familys opposition to s appointment. The record does not show the necessity of a third party appointment and Tomberlin was not a neutral third party. Furthermore, agreed to accommodating visitation with the Kowalskis in a neutral setting or in their own home. Trial court based decision on definition of family gave guardianship to Father due to biological relationship and unconditional parental love Court also denied application of substituted judgment standard (which would have taken into consdiration Ks desires) for the best interest standard Domestic Violence State v. Carswell Ohio 2007 Facts: assaulted a female. The state charged him with one count of domestic violence, which under state statute, stated that no person shall cause physical harm

to a family or household member. The state planned on introducing evidence that the alleged victim was living as a spouse with . The domestic violence statute specifically included one living as a spouse as a family or household member. The trial court dismissed the indictment on the grounds that the statute conflicted with Ohios Defense of Marriage Amendment to the state constitution. That amendment recognized marriage as the union of one man and one woman. Significantly, it also barred the creation of any other legal status similar to marriage. The trial court held that the domestic violence statutes allowance of prosecutions for violence against a person living as a spouse conflicted with the constitutional amendment. Holding: Ohios domestic violence statute that provides for prosecutions for domestic violence towards a person living as a spouse does not conflict with Ohios Defense of Marriage Amendment that bars the creation of any legal status similar to marriage. Rational: The first sentence of Ohios DOMA defines marriage as a union between one man and one woman. However, it is the second sentence that is significant here. That sentence bars the creation of any other legal status that has the same rights and privileges as marriage. Here, the domestic violence statutes allowance of prosecutions for violence against one living as a spouse creates no such rights. It i s a criminal statute that creates a set or list of victims. It does not create any marital rights or any other rights for persons within the defined set of victims. Therefore, there is no conflict with the DOMA. Notes: To uphold the statute the court narrowly interpreted its scope, holding that it only created a list of victims, rather than providing any legal rights. By doing so, the Court steered clear of any constitutional conflicts. All states have domestic violence statutes. Usually have definitions of cohabitants or household members. Factors to consider include sexual relationship between parties, sharing of income and expenses, joint use or ownership of property, the manner in which the parties hold themselves out to the community and the length of the relationship. A few states specifically exclude same-sex partners as victims of domestic violence. Others explicitly protect them.

Familial Benefits: Housing and Inheritance Braschi v. Stahl Associates NY 1989 Facts: and Blanchard lived together in a rent-controlled apartment for more than 10 years until Blanchard died. The apartment was rented in Blanchards name. and Blanchard regarded themselves as spouses, and both families did, too. regarded the apartment as his home, received mail there and listed the address on his drivers license. They shared normal household obligations, held joint bank accounts. was beneficiary of Blanchards life insurance policy and was given

power of attorney to handle Blanchards affairs during his illness. After Blanchard died, moved to evict under the citys Rent and Eviction Regulations, contending that did not qualify as a family member under the regulation. Holding: Within the context of rent control and eviction regulations, the term family will be interpreted to include those who reside in households having all of the normal familial characteristics. Rational: Rent control regulations were enacted for the protection of renters. The intent of the present regulations is to restrict a landowners ability to evict a narrow class of occupants, namely family members, other than the tenant of record. This restriction is narrow so as to further the overall objective of creating a normal free market for housing. Thus, the definition of family within these regulations must be interpreted in light of these purposes and not in light of the purposes of adoption or intestacy laws. The intended protection of these regulations should not be rigidly restricted to those who have formalized their relationships by obtaining a marriage order or adoption decree. The determination as to whether one should be evicted should be based upon an objective examination of the relationship between the parties. Such an examination in the present case reveals that the relationship between Blanchard and was imbued with all normal familial characteristics, and as such, should be afforded protection of the regulation. Notes: Braschi, like Graves and Dunphy, adopts a functional definition of family. Critics say the court is forcing gay couples to pretend to be Ozzie and Harriet in order to get court protection. North Dakota Fair Housing Council v. Peterson ND 2001 Facts: Unmarried couple tried to rent apartment from . turned the couple down because they were seeking to live together. The couple, together with the ND Fair Housing Council, sued alleging housing discrimination. Holding: It is not unlawful to refuse to rent to an unmarried couple seeking to live together. Rational: ND Human Rights Act does not allow discrimination based on marriage. Its a misdemeanor to live openly and notoriously with a person of the opposite sex as a married couple without being married. When the Human Rights Act was enacted, the legislature knew about the existence of the criminal code, but failed to repeal or change the inconsistency. Courts in other jurisdictions have decided cases involving the claimed conflict between similar statutes, and concluded that it is not unlawful to refuse to rent to an unmarried couple. Finds the two statutes can be read harmoniously. Notes: Court focused on the distinction between discriminating on the basis of status (illegal) and discriminating on the basis of conduct (legal). Kind of similar to Shahar v. Bowers, where court said she wasnt being fired because she is gay, she is being fired because she is married. Here, it was the couples conduct of living together, rather than their status of being unmarried, that

landlord was permitted to consider when refusing to rent to . The effect, however, is that unmarried couples are still being discriminated against. Vasquez v. Hawthorne Wash. 2001 Facts: Frank () and Robert lived together for all but two years during a 30-year period; in the two years they didnt live together they lived in same apartment building. Robert died with several assets in his name but without a will. filed a claim against the estate, , alleging that he and Frank were life partners and that therefore was entitled, under case law for division of property in a meretricious relationship, to a share of the community property. denied s claim. Holding: Same-sex relationships can be considered meretricious relationships for purposes of dividing shared community property. Rational: In this case, meretricious relationship was one of several equitable claims for relief. As an equitable claim, meretricious relationship need not depend on the strict legality of the relationship between Frank and Robert. Earlier holdings that meretricious relationships are marital like established only a mere analogy, not a de facto common law marriage, a status that doesnt exist in Washington. The equitable theory of meretricious relationship thus depends on the specific facts of a given case. Here, the substantial fact-issue exists on what equitable theory applies to this cases facts, thus SJ is not appropriate. Notes: Remanded to see whether they had a pseudo married life together. Court is basically just saying that its possible for gays to have a meretricious relationship. General rule is that unmarried cohabitants cannot inherit from their partners by intestate succession. Nor do unmarried cohabitants have other rights of legal spouses, such as the right to a family support allowance during the estate administration, protection against unintentional or intentional disinheritance, priority in administration of the decedents estate, and the right to control the disposition of the decedents remains. (Note that domestic partnership legislation in some states changed this result for samesex couples). Washington has been at the forefront of extending property rights to unmarried cohabitants upon dissolution. Connell v. Francisco, Wash. 1995, Washington Supreme Court developed an equitable doctrine that confers property rights at dissolution upon parties who have a meretricious relationship. Support Rights for Non-marital Children Clark v. Jeter - 1988 Facts: PA adopted a statute providing that an action by an illegitimate child against its father for support had to be brought within 6 years of its birth. No such requirement existed to legitimate children. In other contexts, such as intestacy controversies, no such statute existed. brought a paternity action on behalf of her

daughter against 10 years after she was born. The trial court dismissed based on the statute. Holding: A 6-year statute of limitations on paternity actions by illegitimate children raises equal protection considerations. Rational: Disparate treatment of support actions based on legitimacy are subject to heightened scrutiny not amounting to strict scrutiny. This Courts prior cases make it clear that statutes classifying on the basis of legitimacy in regards to when a support action may be brought must (1) give the illegitimate child a reasonable opportunity to seek support, and (2) be substantially related to the states interest in preventing state claims. Here, it is evident that the statute in question does not satisfy the latter requirement, as the state permits the issue of paternity to be litigated in other contexts, such as probate. If the evidence bearing on paternity is legitimate at such a proceeding, it is also legitimate at paternity hearing. This being so, the statute violates equal protection. 6 year may be okay for first factor. Court previously struck down 1 and 2 year statute of limitation because didnt satisfy reasonable opportunity to seek support. Gomez v. Perez 1973, SCOTUS held that a state couldnt grant marital children a statutory right to paternal support while denying this right to nonmarital children. Congress created Child Support Enforcement Amendment requiring states to extend their statutes of limitations to permit paternity establishment for 18 years after birth. Family Support Act requires states to permit paternity establishment for children whose paternity actions were dismissed previously under short statutes of limitations. The FSA also requires states to have procedures by which the state can order all parties in a contested case to submit to genetic testing. Has a good cause exception for people to not submit to genetic testing. At the time of Clark, many states had statutes of limitations that restricted the time within which paternity suits could be brought. States justified these short statutory periods to prevent the filing of state claims and to discourage fraud. Supreme Court first held discrimination against non-marital children unconstitutional in Levy v. Louisiana. The Court ruled that LAs Wrongful Death Act violated EPC by denying recovery to a non-marital child for the death of the mother. o Glona v. AGL Insurance, Court reached a similar result, permitting recovery by a mother for her non-marital child. o Weber v. Aetna Casualty Extended approach to permit recovery by a non-marital child for the fathers death under a state workers compensation law. Court has declined to invalidate all discrimination against non-marital children, especially discrimination regarding inheritance. Traditionally, the laws in most states provided that a non-marital child occupied the same

position as a child both within marriage with regard to inheritance rights vis-vis the mother. However, while a father always could name a non-marital child as a beneficiary in the fathers will, the kid would receive nothing if the father died without a will. The non-marital childs right to inherit intestate from the biological father was considered problematic because of concerns about proof of paternity. o The Court held that, in order for a non-marital child to inherit from a noncustodial biological father, a state could require a higher level of proof in the form of a judicial declaration of paternity (Lalli v. Lalli), but could not require that the childs parents subsequently marry after the childs birth (Trimble v. Gordon). Today, states have expanded the inheritance rights for non-marital children. Many have done so by adopting the Uniform Parentage Act (UPA). o UPA Man presumed to be child if he is married or married mother within 300 days of birth. Also, if he acknowledged paternity in writing. Presumption is rebutted only by clear and convincing evidence. See p. 420. o Revised UPA New UPA reaffirms the original policy of equal treatment for children regardless of parents marital status. Parental Establishment: o Jurisdiction To establish paternity of an out-of-state putative father, a court must obtain personal jurisdiction over him. Failure to support can be considered commission of a tortious act, breach of contractual obligation within the state, or doing business in the state. o Genetic Testing Upon either parents request, a court must order genetic testing. However, under the new UPA, courts may deny requests for genetic testing based on estoppel principles in the interest of preserving a childs ties to the presumed or acknowledged father who openly held himself out as the childs father regardless of whether he is in fact the genetic father. If a father refuses to take the test, court can establish paternity by default. o Indigent Defendants SCOTUS has held that the DPC guarantees the cost of blood testing to indigent defendants in paternity actions. Little v. Streater. Courts are split as to whether due process requires right to counsel. o Jury Cant use preemptory challenges to exclude all men from jury. o Standard of Proof Supreme Court has held that due process requires only the preponderance of the evidence standard for proof in paternity proceedings. Rivera v. Minnich unmarried woman filed for child support alleging Rivera was father. Rivera argued that due process required clear and convincing evidence (based on Santosky v. Kramer, which mandated higher standard for TERMINATION of parental rights). Court disagreed.

o Voluntary Paternity Establishment 1) a valid, un-rescinded, unchallenged acknowledgment of paternity is equivalent to a judicial determination of paternity and is entitled to full faith and credit; 2) parents must be advised of the legal consequences before signing a voluntary acknowledgment; and 3) either parent has the option to rescind within 60 days, but may challenge the acknowledgment thereafter only judicially and only on limited grounds (fraud, duress, material mistake of fact). Wallis v. Smith NM 2001 Facts: and had long-term sexual relationship after made known to her his opposition to being a father, and after they agreed that would exercise birth control by taking the pill. himself used no form of birth control. Unknown to , at some point decided to stop taking the pill. Became pregnant. actually sued for money damages on the grounds of fraud, breach of contract, and prima facie tort. Holding: A biological father cannot sue a sexual partner for damages if her pregnancy resulted from her unilateral decision to stop taking birth control in order to become pregnant against the fathers clearly expressed wishes. Rational: The only real issue in this case is whether public policy should permit to be compensated by for the economic burden of child support. By statute, each parent is financially responsible for his or her child, and that policy applies to fathers of children born out of wedlock as well as married fathers. Although such a case also raises substantial issues involving the parties privacy, the public policy of requiring parents to support their children is the overarching basis of todays decision. s argument in contract does not apply because his child requires support regardless of whether one of her parents broke a promise to the other. Further, in these circumstances is no ordinary tortfeasor because she had a statutory right to collect child support. If wanted to avoid a support obligation, he could have taken steps himself to ensure the result. Notes: Some courts have held that preconception agreements alleviating father of support duties are a violation of public policy. Wallis illustrates the general rule that the mothers contraceptive fraud does not serve as a defense to a fathers support obligation.

Limitations on Unmarried Parents Rights Stanley v. Illinois - 1972 Facts: lived with Joan intermittently for 18 years but never married. They had 3 children. When Joan died, declared the three children to be wards of the state even though Stanley was never shown to be an unfit father. The Illinois Supreme Court held that there was no equal protection claim and that could lose custody of the

children based on the fact he and the deceased mother were not married, regardless of his fitness as a father. Holding: All parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody, and denying such a hearing to a particular classification of parents is violative of EPC. Rational: An unmarried father is constitutionally entitled to a hearing on his fitness to be a parent before his children can be removed from his custody, and denying such a hearing to an unmarried father violates the EPC. As a matter of due process, was entitled to a hearing before his children were taken away. By denying him a hearing while extending one to all other parents whose custody was challenged by the state, Illinois denied s his right to equal protection of the law. In other areas, the law has recognized family relationships that are not legitimized by marriage. Neglectful parents certainly may be separated from their children, but the parents must first be found to be neglectful. The state gets no benefit from taking children from an unmarried father, particularly if he is fit to care for them. In those circumstances, the separation would be needless. Notes: The right to conceive and raise ones children have been deemed essential Meyer, Skinner v. Oklahoma. Court has previously declared unconstitutional a state statute denying natural, but illegitimate, children a wrongful death action for the death of their mother, emphasizing that such children cannot be denied the right of other children because familial bonds in such cases were often as warm, enduring, and important as those arising within a more formally organized family unit. Levy v. Louisiana. Michael H. v. Gerald D - 1989 Facts: s were married. Carole cheated on Gerald with and the affair produced a kid. Kid, through her guardian ad litem, and sought to establish visitation rights, yet those rights were denied based on California statute that conclusively presumed paternity in favor of the husband in children born during a marriage. Under the statute, only the husband and wife have standing to rebut that presumption. and kid appealed, contending that the presumption violated their federal constitutional rights to due process and equal protection. Holding: A statute precluding all but the husband and wife from contesting the paternity of children born during a marriage is constitutional. Rational: Scalia - Statute is rationally related to a legitimate state interest in promoting the stability of the nuclear family. Substantive parental rights can only exist in one man and one woman at a time. To grant the relief sought would create dual parenthood inconsistent with the policy. Further the same disruption of the familial unit would occur if the child is allowed to rebut the presumption. Dissent: Brennan Decision is based upon misinterpretation of past cases and baseless presumptions of traditional values. A natural parent cannot be denied at least a hearing on such paternity. The principle of paternity is too important to completely foreclose based upon an arbitrary evidentiary preclusion.

Notes: The Court addressed the Constitutional claims of unmarried fathers in 3 cases between Stanley and Michael H: o Quilloin v. Walcott, 1978 Upheld a GA adoption statute requiring only the consent of the mother unless the father had legitimated the child by marriage and acknowledgment or by court order. The mother, shortly after childs birth, married person who wasnt father. New husband petitioned for adoption and kid lived with him for 9 years. Biological father had been given notice of adoption proceeding, and had given some support. Supreme Court affirmed based on childs best interest. Distinguished need for hearing in this case and Stanley because of this fathers failure to ever seek custody. Legal custody of children is, of course, a central aspect of the marital relationship, and even a father whose marriage has broken apart will have borne full responsibility for the rearing of children during the period of marriage. o Caban v. Mohammad, 1979 Unmarried father brought successful equal protection challenge to a NY law that permitted the adoption of his children, without his consent, by the husband of the childrens mother. Supreme Court found statute, which required the consent of only the mother of a non-marital child, an overbroad gender-based generalization. The Court rejected the states asserted justification for the statute, that a mother has a closer relationship and has an interest in promoting adoption of non-marital children. Court pointed out that in this case, both mother and father participated in childs life. o Lehr v. Robertson, 1983 Upheld NY statute dispensing with notice of adoption proceedings for some fathers of non-marital children. Mother married new man, father had no contact with kid, new man wanted to adopt. Father sued saying Stanley requires notice of adoption hearing. Supreme Court concluded that due process does not require notice to a biological father if he has not assumed any responsibility for the care of the child. o Quilloin-Caban-Lehr stand for the principle that an unwed father is entitled to constitutional protection of his parental rights so long as he is willing to accept the responsibilities of parenthood. The Biology Plus Test. o UPA 438-439. UPA presumes married husband is father. For unmarried, it includes presumption based on alleged fathers conduct. Including: receiving child into home, holding child out as his own, etc. California and other states have amended statutes to allow putative fathers genetic testing within 2 years of birth. Extending Paternity Laws to Same-Sex Couples Elisa B. v. Superior Court Cal. 2005

Facts: and Emily were involved in long-term lesbian relationship. earned twice as much money as Emily did, and the couple decided she would be the breadwinner and Emily would have kids. Each woman was artificially inseminated. gave birth to one child and lesbo gf gave birth to twins. Kids had hyphenated surnames. claimed all three as dependents and made then benefactors to her life insurance. The women never adopted each others children, and they never registered as domest ic partners. Lesbos split up. At first supported, but then stopped. Holding: A woman who is not the biological parent of her former lesbian partners twins can be considered a parent of the twins for purposes of establishing support obligations. Rational: There is no reason that both parents of children cannot be women. Johnson v. Calvert (Cal. 1993), which pitted a surrogate mother against a natural mother, held only that a child cannot have three parents. Holding to be a parent of Emilys twins finds further support in our case law in Sharon S v. Superior Court (Cal. 2003) that held that two women could be adoptive parents of same child. California statute, moreover, supports the same conclusion because, as the statute requires, received Emilys twins into her home, and she presented them publicly as her natural children. Finding no parental obligation based solely on s lack of biological relationship with the twins would cause an unpreferred result similar to leaving a child fatherless. Finding her the mother, however, leaves children with two parents. Thats a good thing.

V. Divorce
Fault-Based Grounds for Divorce Adultery Lister v. Lister Miss. 2008 Facts: and were married for 18 years. He owned a construction company where worked as a secretary. In 1999, hired Sheila as a receptionist. and Sheila began hanging out and were absent from the office together a lot. discovered had given Sheila $2,500. While was away on business, fired Sheila. Upon his return, fired and reinstated Sheila. The chancellor in the court below found that proved by clear and convincing evidence that had committed adultery and awarded half of s assets. and Sheila denied the relationship. Holding: A party filing for divorce on the grounds of adultery must prove his or her spouse has an adulterous inclination and an opportunity to consummate that inclination. Rational: The inclination may be proved by the spouses infatuation with a third party or a general adulterous propensity. Direct evidence of an affair is not necessary. Where the moving party relies on circumstantial evidence, however, the burden of proof is a heavy one. Here, the chancellor below found the following sufficient facts: Sheilas husband testified Sheila stayed at s house five nights in a row. Sheila moved into the mobile home next to after left him. and Sheila were

absent from work together for long periods of time and they often took long trips together on his motorcycle. Therefore, the chancellor below properly found that had an infatuation with Sheila and the opportunity to consummate his adulterous inclination. Notes: Even though there was no direct evidence of an affair, the court upheld a finding of an adulterous relationship based on several pieces of circumstantial evidence. Courts occasionally hold that same-sex sexual acts constitute cruelty for divorce purposes (Mississippi). Cruelty Muhammad v. Muhammad Miss 1993 Facts: and were married and relocated to strict Islamic community. was unhappy and moved out in the middle of the night. In community, woman had to submit to husbands and care for their children. There were also many dietary restrictions, including fastings. Holding: In a suit for divorce based on cruel and inhuman treatment, the primary consideration is the intolerableness of the conditions created for the complaining spouse. Rational: While the court has defined cruel and inhuman treatment as conduct endangering life, limb, or health, or creating reasonable apprehension of dangers, the court has also recognized that the harm need not be based on physical attack. While testified to only one incident of physical abuse by , the living conditions to which she was subject were such as would be intolerable to the majority of women in modern society. Her only recourse to escape those oppressive conditions was to leave the relationships. AffirmedCruelty. Dissent: There was no testimony, other than one incident, indicating was subject to physical or mental abuse by her husband; rather, she objected to the living conditions of the society, not to any conduct on the part of . The grant of divorce should have been based on other grounds. Notes: Elements: Courts generally require a course of conduct of cruel behavior that creates an adverse health effect. Mississippi courts explain that this is more than rudeness or unkindness, or a mere incompatibility or want of affection. Must be unreasonably harsh and severe conduct. Such conduct must also be habitual that is, done so often, or continued so long, that its recurrence may be reasonably expected. Kergosien v. Kergosien. How adverse to health does it have to be? Single incident may suffice if severe enough. NY has particularly strict requirements regarding proof of cruelty for divorce purposes, requiring a course of conduct and an adverse effect to physical and mental well-being. These requirements reflect a historical concern with

preventing easy divorce. Also, NY requires a higher degree of proof of cruelty for divorce involving a long-term marriage. Desertion Reid v. Reid VA, 1989 Facts: and were married in 1965. When they were married had a degree in medical technology and worked at a local hospital. was in med school. Following his residency, they moved to Virginia, where obtained a position at the university. He subsequently left to establish a medical corporation of which ultimately became the controller. sought divorce on the ground of constructive desertion and responded seeking divorce on the ground of desertion. testified as to a gradual breakdown of the marital relationship. While the testimony of both spouses was not in conflict, where perceived a marital problem, did not. did not challenge the finding that did not constructively desert her. Instead, she claimed SHE was justified in leaving because her emotional health was endangered by the couples lack of sex, long work habits, and failure to assist in child rearing. Holding: Divorce based on grounds of desertion may be granted where proof is shown of an actual termination of marital cohabitation with intent to desert on the part of the offending spouse. Rational: While reasons other than intent to desert may justify the discontinuance of the marital relationship, they may not provide grounds for divorce. Moreover, a finding of fault in divorce proceedings constitutes a bar to spousal support for the offending spouse. claimed she was justified in leaving the marriage. She previously informed that she could no longer endure the stress created by the marriage and they went to counseling. When the parties could not agree to a mutual separation, moved to an apartment. The chancellor sustained the commissioners finding that did not intend to desert the marriage as a matter of law. This conclusion was erroneous. While became increasingly unhappy in the relationship, such unhappiness could not be legally or factually attributed solely to s conduct. The fact that filed for divorce within two months after moving out shows that this was not intended to be a temporary separation. legally deserted the marriage and thus forfeited her right to spousal support. Notes: Half the jurisdictions recognize desertion as grounds for divorce. Desertion is demonstrated by evidence of a termination of cohabitation with an intent to abandon and without justification or consent on the part of the other spouse, for a period prescribe by statute. o The statutory period begins to run from the time such intent is formed. If both fault and no fault grounds exist, judge can use discretion. Elements: A spouses mere departure is not sufficient to prove desertion. Desertion requires a cessation of cohabitation, without cause or consent, but with intent to abandon, continuing for a statutory period.

o Although intent is essential, the separation and intent need not occur contemporaneously. Separation without the requisite intent will not constitute desertion; subsequent intent formed after a separation will suffice, however. Constructive Desertion: Constitutes intolerable conduct by one spouse toward an innocent spouse that causes the innocent spouse to leave the marital abode.

Fault-Based Defenses Recrimination Parker v. Parker Miss. 1988 Facts: and were married. operated a beauty salon on marital property. After repeated instances of infidelity and outrageous jealous behavior on the part of (who was clearly crazy), filed for divorce on the grounds of habitual cruel and inhuman treatment. Several witnesses testified supporting her allegations. Her physician testified that at the time of the parties separation, required hospitalization for anxiety. pled recrimination as a defense. The court denied the divorce on the ground of recrimination, having found by clear and convincing evidence that committed adultery. Holding: The affirmative defense of recrimination is no longer a sufficient ground for denying a petition for divorce. Rational: In order for a divorce to be granted on the ground of habitual cruel and inhuman treatment, which pled, there must be proof of systematic and continuous behavior on the part of the offending spouse beyond mere incompatibility. The trial court found that the evidence here supported a finding of habitual cruel and inhuman treatment. Recrimination, pled by , bars the granting of a divorce on the theory that the equal guilty of the complaining spouse prohibits the right to obtain a divorce. The complainants offense need not be the same as that charged against the other spouse, but it also must constitute a ground sufficient for divorce. Several policy considerations have been offered in support of the defense of recrimination: (1) the promotion of marital stability; (2) deterrence of immorality; (3) protection of the wifes economic status; and (4) prevention of person from being free to contract another marriage. These considerations are outdated and do not apply to the case here. Here, there was no marital stability to be preserved, and did not commit adultery during the course of the marriage but only after the parties had separated. s economic status not only was not protected; instead, her business was destroyed (because husband drove all customers away from being crazy). Her status would be better protected if she were to receive a proper settlement sufficient to resume her business. Although the state has an interest in preventing future bad marriages, to prevent and from obtaining a divorce would perpetuate an already bad marriage. Divorce granted.

Condonation Haymes v. Haymes NY 1996 Facts: and were married. claimed that (husband) stopped fucking her. moved out of the home. claimed he did so without consent or justification. also claimed fucked a lot of other women during the marriage. She filed for divorce. The parties briefly reconciled one time, but it was unsuccessful. asserted a counterclaim for divorce. moved for dismissal of s cause of action for abandonment and constructive abandonment on the basis of their attempted reconciliation. argued that a single unsuccessful attempt at reconciliation is insufficient to defeat her claims of abandonment. Trial denied divorce. Holding: An estranged couples attempt at reconciliation after the commencement of a divorce action, even if it involves a brief resumption of cohabitation or sexual relations, does not as a matter of law preclude an entry of judgment for a spouse who had an otherwise valid claim for abandonment. Rational: If is consistent with public policy that couples suffering from marital disharmony should be afforded the opportunity to reconcile, especially in respect to marriages of long duration. Public policy also requires the courts to encourage the preservation of the family unit when practicable. However, such attempts at reconciliation are meaningless unless attempted in good faith. By granting the motion for summary judgment prior to opening statements, was precluded from making the claim that did not attempt to reconcile in good faith. The trial court found that s claim of abandonment was forfeited as a matter of law by the fact that she fucked her husband during the reconciliation period. The record, however, appears ambiguous as to the frequency of the relations and whether entered them in good faith. Courts have held that cohabitation alone does not invalidate a separation agreement or claim for divorce. Moreover, cohabitation has not been viewed as a condonation of cruel and inhuman treatment asserted as ground for divorce. Notes: Court distinguishes between reconciliation after acts of cruel and inhuman treatment and reconciliation after acts of adultery. Cites Fisher v. Fisher (NY 1928) for the proposition that endurance of unkind treatment in an effort to overcome its practice and continuance of cohabitation does not condone a course of inhuman conduct. o In the case of abandonment, the court must examine the totality of the circumstances surrounding the alleged reconciliation in order to ascertain its effect on the divorce proceeding, including whether the reconciliation was entered into good faith, its success, which party initiated the reconciliation, and the parties intent. Definition A spouse who has once condoned marital misconduct is barred from using that misconduct as grounds for divorce. Grounds that may be condoned include adultery, cruelty, habitual drunkenness, and

desertion/abandonment. HOWEVER, some courts, as explained in Haynes, limit condonation defense to adultery. Requirements Some courts find that continuing to fuck your wife constitutes condonation of wifes infidelity. Critics say that condonation doctrine causes an innocent spouse to chose immediately whether or not to leave home or continue marital relation thereby forfeiting the right to dissolve the marriage if it should subsequent cease to viable.

Other Fault-Based Defenses Connivance Constitutes express or implied consent by the plaintiff to the misconduct alleged. Collusion An agreement between husband and wife to (1) commit a marital offense in order to obtain a divorce; (2) introduce false evidence of a transgression not actually committed; or (3) suppress a valid defense. Connivance and Collusion differ in (1) connivance requires only the corrupt consent of the , while collusion requires that of both spouses and (2) connivance cannot occur without the actual commission of a marital offense, while collusion can take place without either partys ever actually giving the other cause for divorce. No-Fault Divorce California Family Code: o Dissolution of the marriage or legal separation of the parties may be based on either of the following grounds, which shall be pleaded generally: Irreconcilable differences, which have cause the irremediable breakdown of the marriage Incurable insanity o Irreconcilable Differences Defined Those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved o Misconduct Admissibility of Specific Acts of Misconduct Except as otherwise provided by statute, in a pleading or proceeding for dissolution of marriage or legal separation of the parties, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible. Uniform Marriage and Divorce Act o Court shall entered a decree of dissolution of marriage if the court finds that the marriage is irretrievably broken, if the finding is supported by evidence that (i) the parties have lived separate and apart for more than 180 days next preceding the commencement of the proceeding, or (ii) there is serious marital discord adversely

affecting the attitude of one or both of the parties toward the marriage. o If one party has denied that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that give rise to filing the petition and the prospect of reconciliation and make: 1. Make a finding whether the marriage is irretrievably broken; or 2. Continue the matter for further hearing not fewer than 30 nor more than 60 days later, or as soon thereafter as the matter may be reached on the courts calendar, and may suggest to the parties that they seek counseling. A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation. NY Domestic Relation Law NY has the strictest divorce law in the country. See p. 484. Divorce is permitted only on fault-based grounds, or living apart for at least one year pursuant to a decree of judicial separation or by written agreement. In re Marriage of McKim Cal, 1972 California ended the practice of permitting divorce by affidavit and required a petitioner to appear personally to testify to the existence of irreconcilable differences. The subsequent adoption of a summary dissolution procedure liberalized this requirement. Spouses can resort to this summary procedure if they (1) have no children; (2) were married less than 5 years; (3) do not own real property; (4) have debts (excluding automobiles) totaling less than 4k; (5) have no more than 25k in community property and separate property; and (6) waive spousal support. Some states enacted statutes that made divorce more difficult to obtain when only one spouse wanted divorce. And, in NY, unilateral no-fault divorce is unavailable, even parties who live apart for one year pursuant to a judicial separation often cannot get divorced unless they have reached consensus on all issues.

Living Separate and Apart Bennington v. Bennington Ohio 1978 Facts: wife suffered a stroke rendering her permanently and totally disabled. There was no sexual relations between the couple after that time. 11 years later, moved out of the marital home into a van located adjacent to the house. He continued to help with household chores. Testimony conflicted as to whether he ever slept inside the house after moving into the van. Two years later, left the home. He moved to Arizona for one month and later returned, living off the marital premises in a van and later obtaining an apartment. commenced suit seeking alimony on the basis of gross neglect and abandonment without just cause.

answered denying grounds for alimony and counterclaimed for divorce based on gross neglect of duty and extreme cruelty. His counterclaim was amended asserting statutory grounds since he and his wife had been living separate and apart for two years without cohabitation. Holding: Under Ohio law, a couple is living separate and apart when there is a cessation of the marital duties and relations between the wife and husband. Rational: Ohio allows couples to divorce when they live separate and apart for two years without cohabitation. The trial court erred when it included the time that lived in the van as part of the two year period. There was no cessation of marital duties and relations during that time to conclude that they were living apart. Notes: Some states have mixed divorce law (fault and no fault reasons); others, like California, just have no-fault laws. Different states have different proof requirements for being separate and apart: 1) Separated by judicial decree; 2) Separate by mutual consent; or 3) Merely proof that the parties lived apart for the statutory period. States can grant no fault divorce if parties live apart for a certain period of time. Time ranges from 6 months to 3 years. Abolition of Fault Based Defenses: Some states have abolished fault based divorced, but in some states who havent, they have become important when a lengthy separation requirement is imposed. In jurisdictions that continue to have fault based divorce, it becomes important in determining spousal support or property division. What Role of Fault Feltmeier v. Feltmeier Ill. 2003 Facts: and divorced after being married for 11 years. Twenty months after the marriage was dissolved, sued for intentional infliction of emotional distress. In her complaint, alleged had engaged in a pattern of physical and verbal abuse, including stalking her after the divorce, and that the pattern had continued from the beginning of the marriage. Holding: Conduct during a marriage should be actionable under the tort theory of intentional infliction of emotional distress, and such claims should be governed by the continuing violation rule to determine when the statute of limitations begins to run. Rational: A claim of IIED requires proof (1) that the s conduct was extreme and outrageous; (2) that the either intended to inflict severe emotional distress or knew that there was a high probability of his causing such distress; and (3) that the conduct actually did cause severe emotional distress. There is no reason to bar such claims for marital conduct or to require a higher threshold for outrageousness for conduct that occurs during a marriage. Public policy supports that conclusion. Utterly intolerable behavior is intolerable whether it occurs within or without a marriage, and a marital

concessions policy does not apply, especially where, as here, the pattern has extended beyond the marriages dissolution. Demanding proof required for claims of IIED will discourage frivolous litigation in such cases. Also, IIED claims in such cases are not redundant because the dissolution action itself does not compensate persons for domestic abuse. The alleged conduct here was, furthermore, sufficiently outrageous to support an action for IIED. The continuing violation rule should apply in determining when the statute of limitations begins to run on such claims. The abusive conduct alleged in this case, considered as a whole, therefore means that the statute of limitations started to run when the LAST violation in the alleged continuing pattern. To hold otherwise would be to condone the abusive behavior.

Notes: Joinder Courts are split as to whether s are required to join tort claims to divorce claims o Some prohibit joinder, some mandate, some adopt a permissive policy. Claim Preclusion Even states that dont require joinder may say that if an issue is discussed at the divorce it is precluded from being decided at subsequent tort hearings. This effectively makes joinder required. Divorce Reform: Same-Sex Divorce Gonzalez v. Green NY 2006 Facts: , a wealthy business man, married , a student in Massachusetts to take advantage of the states same-sex marriage law. The couple then returned to NY and lived in s home. During the course of the relationship, gave two automobiles and a ski house. The marriage deteriorated and s attorney drafted a sep aration agreement that both parties executed. Pursuant to the agreement, paid 780k for release of all future claims, and returned ownership of the ski house. subsequently filed for divorce for cruel and inhuman treatment in NY. moved to dismiss s divorce count on the grounds the marriage was not valid outside of MA. Holding: Under NY law, express agreements between unmarried persons living together are as enforceable as if the parties were not living together. Rational: The court agrees with that the marriage itself is void under both MA and NY law. MA law includes a statute that invalidates the marriage if the couple moves to a state where the marriage would be void under that states law. In NY, the Domestic Relations Law does not permit same-sex marriage. Therefore, the court dismisses s divorce count. However, the separation agreement between the two parties is valid. NY has long recognized that an agreement between two persons respecting a division of assets is valid whether the parties are living together or not. s argument that the separation agreement lacks consideration is also without merit. Both parties released each other from all future claim. In addition, returned the ski house, which is more than enough consideration to support

Notes: After the case was decided, MA legislature repealed the law that voided marriages for out of state same-sex couples. However, the significance of this case was the courts validation of the parties separation agreement. The court eventually held the parties marital status was not relevant in determining the validity of the agreement. Gonzalez adopts the contract approach of Marvin v. Marvin. Does creating these contracts serve as a substitute for same-sex marriage? DOMA permits the second state to refuse to extend recognition of the marriage. Similarly, if the second state has a relevant state statute or state constitutional amendment banning same-sex marriage, that state enactment might require courts in the second state to deny recognition to the same-sex marriage. The prevailing approach is non-recognition of same-sex marriages, domestic partnerships, or civil unions that were entered into in other states. Return of Fault States have begun to introduce fault back into dissolution process. These statutes are characterized by (1) mandatory premarital counseling that emphasizes the seriousness of the institution of marriage; (2) the parties execution of a statement that contains their respective promises to take responsible steps to preserve the marriage if marital problems arise; and (3) limitations on the grounds for divorce. Access to Divorce Boddie v. Connecticut - 1971 Facts: and other welfare recipients in Connecticut challenged the states procedural requirements to commencing litigation. Among the preconditions imposed were court fees and costs for service of process that claimed operated to restrict his access to judicial process for the purpose of instituting divorce actions. Holding: Procedural preconditions such as court fees that restrict judicial access to instituting divorce claims violate the DPC of the 14th Amendment. Rational: Due process requires that a meaningful opportunity to be heard be given when claims of rights are forced to be settled via the judicial process. The only exception to this minimum requirement occurs when an overriding state interest exists. Further, when a state statute or rule deprives individuals of protected rights, even though it is a legitimate exercise of state power, the statute or rule is constitutionally invalid. Connecticuts argument that the interest in preventing frivolous litigation and facilitating resource allocation by imposing court fees and service of process costs is reasonable, but it is nevertheless insufficient to override

s one-time 780k payment. s final argument that the agreement contained a mutual mistake regarding the parties marriage is disingenuous. , a sophisticated business man, had his attorney draft the separation agreement. also knew there was the possibility that the marriage was void.

the interest in providing access to the judicial process. Moreover, other alternatives exist to achieve the same goals, such as penalties for false pleadings and service of process by mail or posted notice. Here, the court requirement is valid on its face, but it violates due process when it operates to foreclose a particular partys opportunity to be heard. Further, because divorce can only be obtained by gaining judicial access, the imposition of costs as a precondition to using the courts is equivalent to denying opportunity to be heard and is thereby a denial of due process. This ruling is limited, however, only to those cases in which the bona fides of both indigency and the desire for divorce are not disputed. Concurrence The imposition of costs as a precondition to gaining court access is invidious discrimination based on poverty, and thus violates the EPC of the 14th Amendment. Notes: It seems like the court is saying there is a constitutional right to divorce. Indiana has decided, on state, not constitutional grounds, that indigent divorce petitioner has the right to appointed counsel. Sholes v. Sholes. Access to Alternatives to Divorce Alfalo v. Alfalo NJ 1996 Facts: Couple married in Israel and had one daughter. sued for divorce and refused to provided a get. didnt want a divorce, and took action with the Beth Din to have a hearing on his attempts at reconciliation. s attorney claimed that, as a practicing Orthodox Jew, he would definitely have a religious problem representing a man who refused to give his wife a get at the conclusion of a divorce proceeding, and sought to be relieved as counsel. also sought a court order requiring to cooperate with the obtaining of a get upon pain of having his visitation rights curtailed. Holding: Where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and 14th Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. Rational: Civil courts cannot override decisions of a religious tribunal or interpret religious law or canons. The Free Exercise Clause prohibits governmental regulation of religious beliefs. To pass constitutional muster, a law must have both a secular purpose and a secular effect; it must not be based on a disagreement with a religious tenet or practice. In attempting to coerce , the civil court would be, in essence, overruling or superseding any judgment that the Beth Din can or will enter, that would be contrary to First Amendment principles. Since stated under oath that he would follow the recommendation of the Beth Din and would give the get if that was the result of those proceedings, his counsels stated concerns are elimination.

Notes: This court disapproved of Minkin v. Minkin (NJ). There, the court relied on expert testimony stating that the acquisition of a get was not a religious act. There, the court ordered the husband to give a get. NY Legislature has passed a law requiring a husband of the Jewish faith to provide his wife with a get. The Role of Counsel Moses v. Moses PA 1975 Facts: Fox was counsel for in a divorce proceeding. Fox billed for many hours of personal and telephonic conversations. After Fox withdrew from the case, he tendered a bill for almost 5k in fees for 121 hours of work at $40/hour. Although he averaged over 2 hours of work per day for , the only result from his work was the support award for and the children. The lower court ordered to pay the attorneys fees. Holding: An attorney in a divorce proceeding who expects to be paid by the opposing party has a duty to control excessive demands on his time by the dependent spouse. Rational: Fox failed to demonstrate such control in this case. ABA Disciplinary Rule sets forth factors to consider in determining the reasonableness of attorney fees. These factors include: 1) time and labor required, difficulty of the issue, and required skill; 2) the likelihood that acceptance of the case will preclude other employment; 3) the customary fee for such services in the community; 4) the amount charged and the results achieved; 5) time constraints; 6) the nature and length of the professional relationship between the attorney and client; 7) the experience, reputation, and ability of the particular attorney; and 8) whether the fee is fixed or contingent. In this case, these factors do not warrant the award issued to Fox. Reduced fee by 1800 dollars. Notes: The court did not object to the fee imposed by Fox or the lower courts determination of hours expended in preparation of the case. Rather, it was s excessive phone calls to Fox that caused his eventual withdrawal from the case and raised s ire. The court agreed and imposed a duty on attorneys to control such situations or suffer the financial consequences on their failure to do so. Conflict of Interest Florida Bar v. Dunagan Fla 1999 Facts: Attorney represented the Leuchts during their acquisition of a business and on several personal matters. sent a letter to the police stating that he represented

Moreover, s consent or refusal to consent, to the providing of a get, and s consent or refusal to appear before the Beth Din are matters beyond this courts proper exercise of powers.

William Leucht who was the sole owner of the business. Said that certain employees whom William intended to fire would be ejected from the premises, and that he was notifying the police to prevent a breach of the peace. Days later, filed a petition for divorce on behalf of William against his wife. Paula then called the restaurant and was told that her husband was the sole owner and she could not come there anymore. After she went to the restaurant, she was arrested and forcibly removed. s conduct led to a disciplinary action against him brought by the bar. He appealed. Holding: A lawyer may not ethically represent one spouse in a divorce action against the other spouse after the lawyer previously represented both spouses, unless the lawyer obtains the informed consent of the non represented spouse. Rational: Whether two legal matters are substantially related is dependent on the specific facts of each case. Here, the represented the couple in the formation of their business and in transferring assets. The business was a marital asset and was materially related to a divorce proceeding. Although an attorney may represent a client despite a conflict of interest when the appropriate party consents, there is no evidence of informed consent in this case. The never disclosed his intent to represent the husband to the wife prior to the petition for dissolution. The appropriate time fro the to obtain her consent was before he filed a divorce action against her. Notes: Joint representation is permissible when an attorney reasonably believes that he or she can adequately protect and represent both clients interest. Both clients must consent after being fully informed of the risks inherent in such an arrangement. Joint representation is impermissible in criminal actions. Some states have banned joint representation in divorce. Sexual Ethics Iowa Supreme Court Attorney Disciplinary Board v. Morrison Iowa 2007 Facts: , a defense attorney, represented a female client in a divorce proceeding. and the client fucked a little. No personal relationship existed between and client before his representation of her. reported the relationship to the Bar. acknowledged his conduct was unethical and cooperated with the bar in its investigation. had one prior incident. In 2004, the board privately admonished for solicitation of a client for a social relationship. Here, the recommended to the Grievance Commission that be suspended for 60 days. The Grievance Commission recommended a 6 month suspension, Holding: Sexual relations with a client during the representation constitutes a violation of the Iowa Code of Professional Responsibility, regardless of whether the relationship was consensual. Rational: There are several reasons for this rule. First, there is an unequal balance of power between attorney and client. Second, the client may be harmed by the relationship. Third, the lawyers ability to represent the client competently may be compromised. Fourth, the relationship may undercut the clients trust in the

attorney. Regarding the sanction, courts look to a number of factors, including but not limited to the extend and nature of the unethical conduct, the attorneys fitness to continue practicing law, the courts obligation to protect the public and the reputation of the bar generally, as well as any aggravating or mitigating factors. Because had a very recent unethical incident, it is clear he did not learn from past mistake. 90-day suspension. Divorce Jurisdiction In re Marriage of Kimura Iowa 1991 Facts: Parties married in Japan, but lived apart for years. Husband was a doctor in Iowa. husband filed for divorce in Iowa, notice was sent to wife in Japan. Japan wouldnt let husband have divorce if he filed there. Wife filed special answer contesting personal and subject matter jurisdiction. District court concluded that husband satisfied residency requirements in Iowa and granted divorce. Holding: Court can grant divorce to those domiciled in state. Rational: Court can do so even if other party is not in state, has never been in state, and was served with constructive notice. Lower court said, and appeals court agrees, that was domiciled in Iowa. Said minimum contacts does not count for dissolution of divorce cases. Court cannot adjudicate support or custody without personal jurisdiction over , but they have an interest in the marital status of its residents. Forum non convenience is at discretion of court. Notes: Special Jurisdictional Rules To terminate a marriage, the plaintiff must be domiciled in the forum state. Personal jurisdiction over the defendant is not required to terminate, although it is required to resolve financial incidents of the marriage. Notice to the defendant that complies with due process is required to inform the defendant of the pendency of the action. A divorce without proper notice may be challenged for lack of jurisdiction. Ex Parte Divorces Williams v. NC (SCOTUS 1942) establishes that the domiciliary state of one spouse may grant an ex parte divorce entitled to full faith and credit in all other states. Court limited this holding in Williams II and held that, although the full faith and credit obligation assumes the forum has valid jurisdiction as the domicile of the petitioner, a subsequent showing of lack of domicile will allow sister states to refuse to recognize the divorce. B Burnham Tag jurisdiction okay. Durational Residency Requirements Sosna v. Iowa - 1975 Facts: Sosnas were married in Michigan in 1964. From 67 until their separation in 71, they lived in NY. In 72 the wife moved to Iowa with her three children and filed for divorce. The husband was personally served with notice of the action and then made a special appearance to contest the jurisdiction of Iowas court. The Iowa

court dismissed the divorce petition for lack of jurisdiction, finding that the husband was not a resident of Iowa and that the wife had not met Iowas 1 year jurisdictional requirement. The wife contended that the Iowa requirement of one years residence was unconstitutional because (1) it established two classes of persons and discriminated against those who had recently exercised their right to travel to Iowa, and (2) because it denied a litigant the opportunity to make an individualized showing of bona finde residence and therefore denied such residents access to the only method of legally dissolving their marriage. Holding: It is constitutional for a state to require that a person be a resident for at least one year before being allowed to file for a divorce in its court. Rational: Rehnquist - Cases that have struck down durational residency requirements were so decided because the states interests were budgetary or for recor keeping considerations that were held insufficient to outweigh the constitutional claims of the individuals. However, with the important consequences of a divorce, may insist that one seeking to initiate a divorce proceeding have the modicum of attachment to the state required here. Furthermore, the failure to provide an individualized determination of residency does not violate the DPC since a showing of physical presence plus the intent to remain would not entitle the wife to a divorce since she still would not meet the one-year residency requirement. It is therefore held that the state interest in requiring that those who seek a divorce from its courts be genuinely attached to the state, as well as a desire to insulate divorce decrees from the likelihood of collateral attack, outweighs the constitutional claims of the wife. Dissent: Marshall The right to get a divorce is important. A party required to wait one year before obtaining relief suffers severe injury by being locked into what may be an intolerable, destructive relationship. Although Iowa has a legitimate interest in protecting itself from those seeking quick divorces, a simple requirement of domicilephysical presence with intent to remainwould protect that interest while removing the rigid one year barrier and allowing the state to restrict its divorce process to its own citizens. Notes: If a residency requirement is too long it can be struck down. Rehnquist distinguishes b/w Boddie. Says a financial fee forecloses access to courts while a residential requirement merely delays access. Delay is okay. Decided before Zablocki. Domestic Relations Exception to Diversity Jurisdicton Ankenbrandt v. Richards - 1992 Facts: , a citizen of Missouri, filed suit on behalf of her two daughters against her ex husband and his girlfriend for damages resulting in the sexual and physical abuse of her daughters. She filed it in federal court claiming diversity of citizenship. The trial court granted s motion to dismiss, concluding that the court lacked jurisdiction because the case fell within the domestic relations exception to diversity

jurisdiction. appealed, and the court of appeals affirmed. petitioned SCOTUS for review. Holding: The domestic relations exception to diversity jurisdiction only divests the federal courts of the power to issue divorce, alimony, and child custody decrees. Rational: It does not apply to a suit such as this one, in which a former spouse sues the other former spouse for torts allegedly committed upon the couples children. Federal subject matter jurisdiction under 28 USC 1332 is therefore proper in this case, and the court of appeals erred by affirming the trial courts dismissal for lack of jurisdiction based on the domestic relations exception. Notes: Court discussed at length the precedent for the domestic relations exception established in Barber v. Barber (1859). Court noted that Congress had reenacted the diversity statute without altering this exception. The Court declared that, in certain circumstances, the abstention principles of Burford v. Sun Oil (1943) might be relevant in a case involving elements of a domestic relationship even when the parties do not seek divorce, alimony, or child custody. This would be so when a case presents difficult questions of state law bearing on policy problems of substantial public importance.

VI. Financial Consequences of Divorce

Property Distribution Theories Ferguson v. Ferguson Miss 1994 Facts: filed for divorce from husband after 24 years. Had two children. During the marriage, was homemaker and beautician. Lower court gave custody, alimony, marital home and its contents, and divested property from husband to give to wife, as well as a lump sum payment and half interest in s pension and stocks. Holding: A spouse who has made a material contribution toward the acquisition of property that is titled in the name of the other may claim an equitable interest in such jointly accumulated property incident to a divorce proceeding. Rational: In this case, the property was not titled solely in s name, but to both husband and wife. Moreover, both parties requested an equitable division of their jointly accumulated property. Through the evolution of case law, the chancellor was within his authority and power to order an equitable division. However, was divested of her undivided one-half interest in the adjoining 33 acres of jointly owned and accumulated real property, which was awarded to , along with other property. Thus the issue of property division is reversed and remanded for consideration in light of the factors determining substantial contribution to the accumulation of that property. Notes: Court determined that the states use of the separate property system resulted in an unfair division of property because it did not take account of a spouses non-financial contributions, which, in many cases left housewives with nothing.

Court set guidelines to apply when attempting an equitable division of property. Adopts equitable distribution Homemaker status -

Uniform Marriage and Divorce Act The court, WITHOUT REGARD TO MARITAL MISCONDUCT, shall equitably apportion the property and assets belonging to either or both however and whenever acquired, and whether the title thereto is in the name of the husband, wife, or both. In making apportionment, the court shall consider the duration of the marriage, and prior marriage of either party, antenuptial agreement of the parties, the age, health, station, occupation, amount and source of income, vocational skills, employability, estate, liabilities, and need of each parties, custodial provisions, whether the apportionment is in lieu of or in addition to maintenance, and the opportunity of each for future acquisition of capital and assets and income. The court shall also consider the contribution or dissipation of each party in the acquisition, preservation, depreciation, or appreciation in value of the respective estate, and the contribution of a spouse as a homemaker. see p. 564-565 Notes: Equitable distribution includes debts as well as assets. Some courts factor in fault when dividing assets. This is not what the UMDA states should happen. Equal Division ALI and Community Property states dictate a presumption of equal division of marital property. Although the ALI Principles disregard fault in the distribution of property, they include an exception for financial misconduct with marital assets. Spousal Support Mani v. Mani NJ 2005 Facts: After 30 years of marriage, files for divorce after she discovers he was having an affair with her friend. They lived a lavish lifestyle because of valuable stock and other gifts received from her father during the marriage. They lived almost entirely off of income from s investments; that income was capable of covering monthly expenses of 13k a month. sought an award of 68k/year alimony; argued he should receive no alimony at all. Holding: When calculating awards of alimony, courts can consider marital fault that either affects the parties economic status or violates societal norms to such an extent that maintaining the economic bonds between the parties would not be just. Rational: Alimony does not punish one spouse while rewarding the other. NJ statute enumerates 13 factors for the court to consider when assessing requests for alimony, and those factors clearly focus on the economic status, not the fault, of the parties. The catch all category of any other factor listed in the statute arguably does, however, permit some consideration of fault in alimony determinations. The parties economic misconduct therefore can be relevant to alimony, as can the

exceptional cases that constitute egregious fault, in which the wrongful behavior of the spouse who seeks alimony would itself render the alimony fundamentally unjust. Here, alleged no fault of that affected the parties economic status, and fault therefore should not have been considered in calculating alimony. Concurrence and Dissent: The court is being too vague. The necessary egregiousness of egregious fault is too subjective to be workable. If your spouse having sex with your friend and then asking for money does not confound notions of simple justice, then the new standard is meaningless. If such behavior does fir the standard, though, then there are already other ways to reach the same result. Notes: SCOTUS has invalidated gender specific alimony in Orr v. Orr. Applied intermediate scrutiny, Court rejected Alabama law that made husbands, but not wives, pay alimony. Court stresses that need is the underlying rationale for alimony, Some courts increase alimony because of fault. See p. 575 n 4. Should tort suits cover egregious acts? Rehabilitation for Self-Sufficiency o UMDA makes maintenance a remedy of last resort, to be awarded only when the spouses reasonable needs remain unmet because of the absence of sufficient property or income from appropriate employment. Court has discretion to order support in an amount and duration that is just, based on all relevant factors. o Duration How long should rehabilitation take? Can it exceed the length of the marriage? Types of alimony Can be permanent, rehabilitative, and limited duration or reimbursement alimony. UMDA Maintenance: Court may provide maintenance if it finds spouse seeking maintenance lacks property to provide for his reasonable needs and is unable to support himself. Amount is without consideration of marital misconduct. Factors to include are financial resources, time necessary to acquire education or training to enable party to find employment, standard of living established during the marriage, duration of marriage, age and physical and emotional condition of spouse, ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. ALI Principles Compensation for loss of Marital Living Standard: Person married to rich person is entitled to compensation for the loss of standard of living he or she would experience. Award should increase with duration of marriage. Winding up a marriage: Applying theories of property and support Michael v. Michael Mo. 1990 Facts: Husband became financially dependent on his wife during 18 year marriage. He worked when they started, but then just wanted to be a writer. Never

really wrote anything. Wife wanted divorce, trial court found that the funds used to acquire the marital property had been earned almost exclusively by the wife. Trial court granted 75% of property to husband. Denied husbands claim of alimony. Holding: Maintenance should be utilized as a means of providing support for an economically dependent spouse until said spouse is self-reliant. Rational: The trial court abused its discretion in its property division and by not awarding maintenance. Although the husband barely performed any housemaker duties, he did prepare dinner. Although he was not entitled to an equal division of the property, the trial courts division is against the weight of the evidence. Further, maintenance is awarded when one spouse has detrimentally relied on the other spouse to provide monetary support during the marriage. If the relying spouses withdrawal from the marketplace so injures his marketable skills that he is unable to provide for his reasonable needs, maintenance may be awarded. Dissent: Trial court acted within discretion. Husband had a negative impact on the shared enterprise of the marriage. He did not sacrifice his career for his wife, instead, he was a hindrance to her progress. The husband has simply shown that he is unwilling, rather than unable, to support himself. Notes: Gender should have no bearing on the division of the marital property. MO family law directs the trial court to divide marital property in a just manner, after considering all relevant factors. These may include the economic circumstances of each spouse, the contributions of each spouse, the conduct of the parties during the marriage, and the custodial arrangements for minor children. Court says that property division should reflect the concept of marriage as a shared enterprise similar to a partnership; and, second, should be utilized as a means of providing future support for an economically dependent spouse. Husband wanted money to go back to school for journalism to become selfsufficient. Rosenberg v. Rosenberg MD 1985 Facts: and were married for 30 years. husband left home with purpose of ending marriage. The divorce decree followed a trial in which the court found that had committed adultery numerous times. was a descendant of the family that started huge oil business, which held 50% of voting stock in oil company. Wife worked hard as homemaker so husband could succeed in career. Two issues, one, whether award to wife was okay, and second, whether stocks were marital assets. Holding: Marital property is all property acquired by the spouse during the marriage. Rational: Following identification of the marital property and its valuation, the chancellor must consider nine factors in determining the amount of the monetary award and proper method of payment. The chancellor also may take into consideration any factors necessary in order to obtain a fair result. argued that the chancellor erred in applying the statutory factors. He also argued that the chancellor erred in finding that contributed substantially more to the accumulation of

property through her services as homemaker. The court stated, however, that such a result follows the goals of the Marital Property Act to achieve a fair and equitable distribution of the marital estate. also sought review of the chancellors failure to include the increased value of s stock as marital property. While such property was gifts and inheritances received both prior and during the marriage, the value of the stock increased during the marriage due to s efforts. claimed such increase should have been included as marital property. Marital property does not include property acquired prior to the marriage or by inheritance or gift from a 3rd party, property excluded to a valid agreement, or property directly traceable to any of these sources. Where funds are partly marital and partly non-marital, the property retains the same character as its source. The chancellor found that failed to prove that s personal efforts directly or indirectly cause the stock to increase. Notes: Court says monetary award was not erroneous. Court says that because husband is so rich, and wife is so old, it is unlikely she will ever have a career to allow to her to live like she is accustomed. Indefinite alimony is appropriate. Changing Circumstances Lucas v. Lucas WV 2003 Facts: Ex husband was ordered to pay $850/month to wife. He petitioned to terminate that order 3 years later because, he alleged, she was living with another man in a de facto marriage. Ex wife lived with another man, conjugally, for more than 2 years, she used his mailing address as her own, she shared household duties, and contributed to the household monetarily. Ex-Husbands income had dropped slightly, as well. Lower court found that there was a de facto marriage and reduced monthly award to $700. Ex-husband appealed. Holding: A de facto marriage can justify reducing or terminating an award of spousal support if substantially changes circumstances have altered the recipient former spouses need for support. Rational: WV statute permits a reduction or termination of spousal support when the recipient has substantially changed circumstances because of a de factor marriage. This reduction or termination, however, is not mandatory but is instead committed at the trial courts discretion. One check on that discretion is the necessary finding of a substantial change in circumstances. Other checks appear in WVs twenty statutory factors for determining original awards of spousal support. Further, the petitioning party in reduction or termination proceedings shall have the burden of proving that the recipient former spouses economic circumstances have substantially changed and therefore justify the requested reduction or modification. The record in this case fails to show that anyone in the trial court seriously considered the necessary factors, and the reduction order therefore constitutes an abuse of discretion. Remanded Notes:

Distribution of property upon divorce is final, even if the parties circumstances change significantly. By contrast, support awards typically allow modification upon a showing of changed circumstances. UMDA Payments end when either spouse dies or receiving spouse remarries. Some states have statutes, like the UMDA, that automatically terminate support at remarriage. Others grant discretionary powers to terminate support at remarriage only if there is a change in circumstances.

Bankruptcy In re Werthen 1st 2003 Facts: filed for divorce after 13 years. Throughout the marriage, had cared for kids and was housemaker. worked for fa mily business in which he held a substantial ownership interest. The state court hat handled the divorce found that s earnings were hampered by her lack of education. s income and assets were large, and he had done everything in his power to reduce his financial obligations to and children. Divorce court gave 1/3 of s future bonuses, as well as $450 a week in what the state called child support and alimony. Payment of bonuses would stop at either partys death or s remarriage. The weekly payme nts would continue until the youngest child was emancipated, graduated from college, or turned 23. Court treated as property award s past bonuses and stocks. He had to pay 50k a year for the next 10 years. Within 90 days after the divorce court entered its order, filed for bankruptcy protection in federal court, seeking, in part, to discharge the orders requiring payments to of past bonuses and company stock. resisted that request before the bankruptcy judge, who ruled that the past-bonus and stock payments were alimony, not property division, and thus could not be discharged under the Bankruptcy Code. appealed. Holding: Payment from one former spouse to the other cannot be discharged in a bankruptcy proceeding if the payments constitute alimony or child support and not property division. Rational: This case turns on a mistaken but nonetheless assumed distinction in the Bankruptcy Code, between support payments and other kinds of payments required by divorce decrees. in theory, support payments go toward maintenance of a former spouse or children, whereas other payments serve non-maintenance purposes. These two easily identified categories often overlap in practice, though, because support awards often depend on what the less-financially-able spouse receives as property division in a divorce. In bankruptcy proceedings in such cases, the key question is what the state divorce court intended a particular award to be, regardless of the labels used to describe the award in the divorce decree. Here, even though the judge called the 50k payment property division, such an award can

easily be interpreted as alimony that the state judge intended to make up differences in s earning capacity. Affirmed Pension and Employee Benefits Bender v. Bender Conn 2001 Facts: Wife filed for divorce who had worked as firefighter for 19 years. Couple had no assets or savings except s unvested pension plan. His interest in the plan would vest if he worked at the fire department for 25 years, if he stopped, for any reason besides disability, he would be entitled only to his actual contributions to the plan (27k). The trial court entered orders on several issues, including domestic relations order naming as beneficiary to s pension plan contributions until s rights vested. Also awarded her of s disability or retirement benefits through the date of the order. Holding: Unvested pension benefits are a presently existing property interest that is subject to equitable distribution in a divorce proceeding. Rational: Trial court has broad discretion to equitably distribute property. Courts view property as broad under marital context. The key factor throughout our prior cases is whether a partys interest is so speculative that it cannot be divided by a court. Under that test, the pension plan here is sufficiently concrete to constitute a present, divisible property interest that is subject to equitable distribution. The pension plan here is not a mere expectancy but rather a quantifiable form of deferred compensation. Courts generally value such property in 3 ways: (1) using present value or immediate offset; (2) the present division method; and (3) the reserved jurisdiction method. This latter approach is hereby disapproved because it requires courts to hold a second hearing, and it forces witnesses to testify about matters in the distant past. Accordingly, unvested pensions are present interest for equitable distribution in marital dissolutions, and courts should value those interest using the present value or present division method. Dissent: Better approach would be to follow the statute and require trial courts to consider unvested pension benefits as one factor among others when fashioning an equitable distribution of property in a divorce. Notes: Because unvested pensions are deferred compensation, that presumably accumulates in relatively identifiable amounts, they are specific enough for a court to value them for purposes of equitable distribution. Nearly all jurisdictions follow Bender in saying that nonvested, as well as vested, pensions are marital property subject to division upon dissolution. Investment in a spouses future success In re marriage of Roberts Ind. 1996 Facts: Husband went to law school. Couple agreed that wife would support them while husband studied. Two months before graduation, learned she was pregnant. The couple separated. Husband graduated 3rd in his class and editor-in-chief of law

review. Upon graduation he accepted position with large law firm. He filed for divorce. Wife wanted husbands degree as marital asset. Holding: A degree does not constitute marital property subject to division upon divorce. Rational: An award of future income is only allowable as support or maintenance. While a degree is not marital property subject to division, the enhanced earning ability of the spouse is a factor to be considered by the court in determining the distribution of marital assets. Taxation Rykiel v. Rykiel- Fla. 2003 Facts: Divorce. In decree, trial court ordered s alimony payments to would not be deductible by and would not be gross income to for tax purposes. Appeal. Holding: The IRS Code does not prevent a state divorce court from ordering that alimony payments are not gross income to the receiving former spouse and are not deductible by the paying former spouse. Rational: Discretion. Child Support Parental Duties Elisa B. v. Superior Court Cal. 2005 Facts: and Emily were involved in long-term lesbian relationship. earned twice as much money as Emily did, and the couple decided she would be the breadwinner and Emily would have kids. Each woman was artificially inseminated. gave birth to one child and lesbo gf gave birth to twins. Kids had hyphenated surnames. claimed all three as dependents and made then benefactors to her life insurance. The women never adopted each others children, and they never registered as domestic partners. Lesbos split up. Af first supported, but then stopped. Holding: A woman who is not the biological parent of her former lesbian partners twins can be considered a parent of the twins for purposes of establishing support obligations. Rational: There is no reason that both parents of children cannot be women. Johnson v. Calvert (Cal. 1993), which pitted a surrogate mother against a natural mother, held only that a child cannot have three parents. Holding to be a parent of Emilys twins finds further support in our case law in Sharon S v. Superior Court (Cal. 2003), that held that two women can be adoptive parents of same child. California statute, moreover, supports the same conclusion because, as the statute requires, received Emilys twins into her home, and she presented them publicly as her natural children. Finding no parental obligation based solely on s lack of biological relationship with the twins would cause an unpreferred result similar to leaving a child fatherless. Finding her the mother, however, leaves children with two parents. Thats a good thing. Notes:

Parent by Estoppel Happens when a father lives with child for two years, or since birth, believed he was the biological child, and continued taking parental responsibilities even after the belief no longer existed, or alternatively, when an adult has lived with the child since birth or for 2 years, accepting full and permanent responsibilities and holding child out as his own, and recognition as that parent would be the best interest for the child.

Imposing Support Obligations: From Discretion to Guidelines Child support used to be decided like alimony. Now, there is guidelines that use mathematical formulae. Downing v. Downing KY 2001 Facts: Divorce, custody for mother. Later, husband earned more money. Mother tried to increase child support award. Holding: Child support amounts are set at levels designed to meet realistic needs of child. Rational: The commissioner set out 3 considerations he considered in determining the amount of support: 1) the reasonable needs of the child; 2) the standard of living the parents enjoy; and 3) a mathematical projection of the child support guidelines. We do not agree with the approach of increasing a child support obligation above the childs reasonable needs because this primarily benefits the custodial parent rather than the child. Rather, child support obligations must be set in amounts that are reasonably related to the realistic need of the child. This is sometimes called the 3 pony rule, because no child, no matter how wealthy, should have more than 3 ponies. Notes: Federal Advisory Panel recommends following factors to be considered in setting child support: Both parents should share responsibility for child support; parental subsistence needs should be considered (but support should rarely be set to 0); child support should cover a childs basic needs while allowing enjoyment of a parents higher standard of living, each child has an equal right to share in parents income, subject to factor such as age, income, and other dependents; child support determination should not depend on gender or parents marital status; and guidelines should encourage the involvement of both parents in the childs life. Child support guidelines create a rebuttable presumption of the appropriate award. Courts must explicitly justify deviations from the guideline amount. Post-Majority Support Curtis v. Kline PA 1995 Facts: Father contested the constitutionality of Act 62, which classifies young adults according to the marital status of their parents, and forces college tuition payments on parents for unmarital children.

Holding: A state law that distinguishes between children of married and divorced, separated, or unmarried parents for the purpose of authorizing a court to order the parents to provide equitably for the post-secondary educational costs of the child is unconstitutional under the EPC of the 14th. Rational: Act 62 does not implicate a suspect class or infringe upon a fundamental right. The Act authorizes a court to order separated, divorced, or unmarried parents to provide equitably for a childs educational costs, including those incurred after the child has reached 18 years of age. There is no state or federal right to a college education. The Act must be reviewed under a rational basis analysis, and will be upheld if there is any rational basis for the prescribed classification. The state argued that the legislature may have chosen to treat children of married and divorced or unmarried families differently out of the states strong interest in protecting the marital family unit from governmental interference. Also, the legislature may have determined that children of divorced or unmarried persons required educational advantages to overcome the lack of an intact family unit. The court must determine whether either of these justifications provide a rational basis for the classification. The Act classifies children according to the marital status of the parents and provides for enforcement of a benefit by court order to one group but not the other. Such enforcement may not be granted to one group and not the other. No rational basis. Dissent: Not EPC violation to remedy the disparate treatment of children of divorced, separated, or unmarried parents. Divorce is hard, we should help out. LeClair v. LeClair NH court upheld this type of law for same reasons. Modification of Child Support Pohlman v. Pohlman Fla. 1997 Facts: Ex husband filed petition to reduce child support based on changed circumstances that include a permanent decrease in his income, a remarriage that produced 3 children, and the fact that his former wife has remarried. Holding: A statute requiring non-custodial parents to continue to support children from first marriage at prior levels, notwithstanding their obligation to support children from a subsequent marriage, reasonably furthers a legitimate state interest and is constitutional. Rational: Granting priority of support to children of an earlier marriage is logical because such children should not have their standard of living substantially decreased by the voluntary acts of their non-custodial parent. Non-custodial parents take on a new support obligation to children from later marriages with the knowledge that they must continue to support their children from previous marriages. Dissent: Ruling discriminates unfairly against children of subsequent marriages whose standard of living will decline because their parent must continue to support children of his or her first marriage at disproportionately high levels. Just as the first child from an intact marriage has no claim to more monetary support than his later born siblings, neither should first children have more claim to a non-custodial parents support than their half-siblings.

Notes: When Congress enacted the Family Support Act, it left states in charge of figuring out issues with successive families. Some take second family first approach, some take Pohlman approach. Some states make step-parents pay if the step-parent takes the child into the family, so long as the child remains in the home. Others allow the step-parent to unilaterally terminate quasi-parental status at any time. Others only look to stepparents when child would otherwise become destitute. The obligation does not continue, however, upon dissolution of that marriage unless the stepparent has actively interfered with the childs support from the biological parent. ALI does not recognize a general duty of support by stepparents. One whoa agrees to undertake parental support obligations of a child, however, might later be estopped from denying a parental support obligation. Courts dont generally retroactively alter past due payments, even if changed circumstances. Employment Changes Olmstead v. Ziegler Alaska 2002 Facts: Divorce. At that time, s annual income was 53k and s was 25k. s income dropped a lot. He eventually decided to stop practicing law altogether and study to become a teacher. Shortly after, he filed a motion to modify child support obligations. Judge said no because they said he was voluntarily underemployed and couples child should not have to finance his new career. Holding: A career change can support a finding of voluntary underemployment in calculating child support. Rational: Voluntary underemployment defeats a request to modify a support obligation; that determination is largely a question of fact. Here, the trial court did not err by finding was voluntarily underemployed. intentionally reduced his law practice and displayed poor work habits. Notes: Courts are not very lenient regarding changed circumstances that court views as voluntary. Enforcement State v. Oakley Wis., 2001 Facts: was charged with 7 counts of intentionally refusing to provide child support as a repeat offender. had 9 children by 4 different women. He paid no child support. After guilt was determined, the trial court placed on probation. As a term of his probation, the was not permitted to have any more children unless he could show that he had the ability to financially support them and that he was supporting his existing children. filed for relief.

Holding: It is not unconstitutional to require, as a condition of probation, that a deadbeat dad refrain from fathering more children unless the probationer can demonstrate that he is providing for his existing children. Rational: Does not offend constitutional right to procreate because the condition of probation is not overly broad. In fact, it merely bans the defendant from violating the law again. The condition can be satisfied by the defendant merely complying with the court order and making reasonable efforts to support his children. The condition of probation does not limit the number of children the can father. It simply requires him to conform his conduct to the law. There is no dispute that the court could constitutionally have sentenced the defendant to prison, an option that would also effectively have denied him the right to procreate. Instead, the more lenient option of probation upon the stated condition has the salutary effect of offering the a chance to be a responsible father and his existing children the possibilityalbeit a remote oneof collecting some financial support. Dissent: This decision makes it constitutional to limit a probationers right to father children based on financial ability to support his children. Although on its face, the condition of probation leaves room that the could establish the financial means to support his children, the order essentially prohibits his right to have children. By allowing the right to procreate be subject on financial qualifications, the majority imbues a fundamental liberty interest with a sliding scale of wealth. The courts decision has impinged the fundamental right to procreate. Moreover, because the condition is triggered only upon the birth of a child (and not intercourse), it creates a strong incentive for a man in s position to demand from any woman impregnated by him that she have an abortion. This is basically coercive abortion. Finally, the majoritys solution is unworkable. The condition of probation will be violated only if a woman impregnates carries her child to term. He will then be imprisoned, and another child will go unsupported. Notes: Zablocki vs. Oakley How are they different? Does it matter than judge could have easily sent to prison in Oakley? Does it matter that could make a showing that he could support? How realistic is this? A can also be held to be in contempt for failing to comply with court ordered payments. Limitations: o Inability to pay Defense for both civil and criminal contempt o Burden of proof Federal Deadbeat Parents Punishment Act creates a presumption of willful nonpayment. o Empirical evidence found that a close connection between more payments and more jail. Critics say there are less intrusive methods of gaining support than the threat of jail. Challenge of Multistate Cases Kulko v. Superior Court - 1978

Facts: and wife, residents of NY throughout marriage, stopped in CA only to get married whiel was on duty in Korea. Upon separation, s wife moved to SF, but she flew to NY to sign a separation agreement. It provided that their children, a bot and girl, would life with in NY but would stay with their mother in CA during Christmas, Easter, and summer vacations. Child support was set at 3k a year. After procuring a Haitian divorce, s ex-wife returned to California and remarried. When s daughter expressed a desire to stay with mother after the Christmas vacation, consented and bought her a one-way ticket to CA. When the son told his mother he wanted to live with her, mother bought a ticket for kid and didnt tell . After both children were living with her, wife sought to establish the Haitian divorce decree as a California judgment and to modify the judgment (1) to give her full custody of the children and (2) to increase s support obligations. , appearing specially, moved to quash service of summons on the ground that he was not a resident of California and lacked minimum contacts to warrant the states assertion of personal jurisdiction over him. The trial court summarily denied the motion to quash, and the appellate court affirmed, holding that his consent to send his children to California created an effect in the state warranting the exercise of jurisdiction. Holding: A state court may not exercise in personam jurisdiction over a nonresident, non-domiciliary person unless that non-resident has certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Rational: Here, the alleged minimum contact was allowing his daughter to live in California. However, that was not sufficient contact, by itself, so confer jurisdiction. Allowing a child to spend more time elsewhere than required by a custody decree can hardly be said to be purposefully availing oneself to the benefit and protection of Californias laws. Basic consideration of fairness point decisively in favor of s state of domicile as the proper forum for adjudication of this case. He resided there at all times during the marriage and continues to do so. He did no more than acquiesce in his childs wish to live with her mother, a single act that a reasonable parent would not expect to result in the substantial burden of litigating a child support suit 3000 miles away. To make jurisdiction turn on whether bought his daughter her ticket or unsuccessfully sought to prevent her departure would impose on family relations an unreasonable burden wholly unjustified by the quality and nature of his California-related activities. Notes: Uniform Interstate Family Support Act (UIFSA) p. 663, Congress made acceptance of UIFSA a requirement for states to receive federal funding. Covers both spousal and child support (but not property distribution). o Rejected child state jurisdiction in favor of long arm statutes. UIFSAs 8 bases for jurisdiction include when the individual resided with the child in the state, the child resides in the state as a result of acts or directives of the individual, the individual engaged in intercourse in the state and the child may have been conceived therefrom, and there is any other basis consistent with the Constitution. UIFSA facilitates a one state proceeding, in place of the two state approach under URESA.

Modification and Enforcement Draper v. Burke Mass 2008 Facts: and resided in Oregon and received a divorce judgment in Oregon in 1997, The Oregon court gave , the mother, physical custody of the two children and legal custody of them to both parents. The judgment obligated to pay child support but did not address the issue of college payments. After the divorce, moved with the children to Idaho. In 1999 and 2004, filed complaints in MA for a modification of the award to increase s contribution toward college expenses. moves to dismiss for lack of subject matter jurisdiction. Specifically, contends that the UIFSA does not allow , as an in-state resident, to file in MA for modification of a prior, out of state divorce judgment. Holding: The federal Full Faith and Credit for Child Support Orders Act preempts the MA Uniform Interstate Family Support Act as to the issue of subject matter jurisdiction. Rational: First, the state UIFSA does not allow for a resident of MA to petition a MA court for modification of an out of state divorce judgment where the obligor lives elsewhere. To do so, would have to petition the Idaho courts for modification. Comment to the rule analogizes it to going to an opponents home field, in order to lessen the possible prejudice to the out of state obligor. , however, does not dispute that holding. Rather, she contends the Federal Full Faith and Credit for Child Support Orders Act preempts UIFSA as to SMJ. We agree. The federal act allows for modification of an out of state judgment where the original court no longer has personal jurisdiction over the participant. The movant must also file the complaint in a state that has personal jurisdiction over the non-movant. Here, Oregon no longer has personal jurisdiction of the parties involved, including the children. No other state has modified the original Oregon judgment. Finally, does not contest that MA has personal jurisdiction over him. Therefore, the federal act confers SMJ in MA. Because there is a clear conflict, the state act is preempted. Separation Agreements Richardson v. Richardson Mo 2007 Facts: and divorced in 1997. As part of the divorce, the parties entered into a separation agreement that the family court incorporated into the decree of dissolution. The family court determined at that time the separation agreement was not unconscionable. The agreement obligated to pay 2,425/month until s remarriage or the death of either party. The agreement specifically included a nonmodification provision that barred later attempts at modification, regardless of circumstances. In 2004, filed suit to terminate his payment obligations on the grounds that allegedly tried to have him killed. The trial court found that the agreement could not be modified. Holding: A separation agreement that was not unconscionable at the time the parties executed it cannot be modified later due to subsequent circumstances if the agreement includes a non-modification provision.

Rational: A Mo statute states that a court may incorporate a separation agreement into the dissolution decree if the agreement is not unconscionable. The same statute also allows parties to limit or bar later modification of the agreement. Here, the agreement clearly bars any future modification attempts, regardless of circumstances. We not that the unconscionability determination is made at the time of the creation of the contract, not later. We also disagree with s public policy argument that we should not award bad behavior. Our states criminal and tort laws exist to respond to s behavior. In this instance, we must respect the statute and the language of the contract. Notes: Uniform Marriage and Divorce Act p 673. Talks about written stipulations

VII. Child Custody

Standards for selecting the custodial parent: Presumptions? Devine v. Devine Ala. 1981 Facts: and were married and separated when they had 2 children. After college, was a teacher. was a member of the college faculty. While there did not exist a preponderance of the evidence in favor of either party regarding the awarding of custody, the trial court awarded custody of the children to on the basis of the tender years presumption. That doctrine holds that, in custody cases involving children of tender years and in the absence of evidence to the contrary, the natural mother is the proper person to be awarded custody. Holding: The tender years presumption is an unconstitutional gender-based classification in violation of the EPC. Rational: The presumption was created because courts assumed it to a law of nature that mother is best for child. The presumption is a rebuttable, factual presumption based on the theory that the mother is best suited to care for young children. The father may rebut the presumption by showing clear and convincing evidence of the mothers unfitness. The rule requires the court to award custody to the mother, all things being equal, and it imposes an evidentiary burden on the father. Although the presumption has been upheld by the appellate courts of this state, the US Supreme Court has held that statutes that impose obligations on husbands but not wives establish a gender based classification subject to scrutiny under the 14th amendment. Such scrutiny thus must be applied to legal presumptions that impose burdens on fathers but not mothers. The tender years presumption is therefore an unconstitutional gender based classification because it discriminates between fathers and mothers in child custody proceedings solely on the basis of sex. Notes:

Best Interest Standard Replaced tender years presumption. Highly discretionary standard is based on a list of factors regarding the childs needs. ALI Prohibit a court from considering the gender of either the parent or the child in determining custody arrangements. Says that unless parenting agreement is signed, or parents agree, the court should award custody based on the allocation of caretaking responsibility prior to the separation. o Differs from primary caretaker presumption in that it contemplates a spectrum of possibilities. p. 687-688 Primary Caretaker Presumption The best interest of the child are served by placing the child with the parent who has taken primary responsibility for the childs care. Most states have gotten rid of presumption, but allow primary caretaker to be considered as one factor in the best interest of the child.

Best Interest of the Child UMDA - p. 689 Relevant factors for best interest of child: The wishes of the childs parents, wishes of the child, interaction and interrelationship of the child and parent, childs adjustment to his home, school, and community, mental health of everyone involved, **court shall not consider conduct of a proposed custodian that does not affect the relationship to the child** Not followed in every state. Subjective and vague. Race Palmore v. Sidoti - 1984 Facts: P and S were divorced in May 1980 and P was awarded custody of their 3 year old daughter. In Sept. 1981 S filed for custody due to changed circumstances P was living with a black dude (who she married 2 months later) and wasnt properly caring for daughter. Trial court awarded custody to S. Holding: a court cannot justify a racial classification as a basis for removal of a child from the custody of its natural mother Rational: Ability of mother (P) to care for child was not an issue. Best interest of the child is the most important factor, and here it was decided on the basis of the race of Ps husband. While the protection of a childs best interest is substantial government interest for purposes of EPC analysis, racial classifications cannot be utilitized to justify removal of a child from its natural mother who is an otherwise appropriate caretaker. Sagar v. Sagar - 2003 Facts: Devout Hindus, Sejal and Mahendra, entered divorce proceedings after contentious marriage due to husbands controlling behavior. Had 1 child, a daughter, and agreed on her upbringing aside from 1 ceremony, Chudakarana.

Husband considered it essential, wife did not. Husband petitioned to perform ceremony and probate judge denied his request. Order stated ceremony could only occur if both parties agreed or when daughter was old enough to decide herself. Order was incorporated into divorce decree. Husband appealed, arguing order violated state and federal rights to free exercise of religion. Holding: one parent must demonstrate a compelling state interest to justify restricting fundamental right of the other parent in a custody dispute Rational: Trial court seemed to have denied husbands claim because of a perceived lack of a sincerely held religious belief, but motive of control do not mean that the husbands request for the ritual lacked a sincerely held belief. Instead, his request fails because he demonstrated no compelling state interest for repudiating the wifes fundamental parental right to require that the ceremony not be performed. At the same time, the record also contains no evidence of a compelling state interest in permitting the wife to make the decision in denial of the husbands fundamental rights, either. In such circumstances, the trial court took the properly narrow course of not awarding the choice to either parent, thereby respecting both parents fundamental rights in this case. Fulk v. Fulk - 2002 Facts: Rhonda had an affair with a crazy woman who testified she would be around the baby Rhonda had with her husband. Chancellor didnt think relationship was over and thought it was unacceptable for baby to be around this type of behavior. Chancellor ruled that crazy woman was not a good influence nor would she provide a good environment for raising a baby. Rhonda appealed, claiming Chancellor placed too much emphasis on the fact that Rhonda had an affair with a woman. Holding: all parental actions that help in determining what is in the best interests and welfare of the child should be addressed and considered when a decision is made as to which parent should have custody Rational: Chancellor erred by more heavily considering the mothers lesbian affair and not other prior parental behavior. All parental actions that help in determining what is in the best interests and welfare of the child should be addressed and considered when a decision is made as to which parent should have custody. The primary consideration in child custody cases is what is in the best interest and welfare of the child. Some guidelines to follow are: Which parent has the best parenting skills and which has the capacity to provide primary child care Health and age of the parents Moral fitness of the parents Home, school and community record of the child Stability of the home environment and employment of each parent Other factors relevant to parent-child relationship Marital fault should not be used as a sanction in a custody decision, not should the differences in religion, personal values and lifestyle be the sole basis for custody decisions. Too much weight can be placed on the moral fitness factor based upon a mothers lesbian affair. Precedent has held that it is of no consequence that a

mother was having an affair with a woman rather than a man. Although the chancellor disapproved of Rhondas relationship, she did not recognize that the father, Jeff, was not only the instigator in the triangle relationship, but that he was involved in the affair to the point of having sex with the second woman. Furthermore, it is not clear from the chancellors opinion that she considered other disturbing incidents that should have been addressed and considered. Rhonda is a young mother who does not have a source of income. Jeff, on the other hand, admits to having used drugs and alcohol heavily. He also forgot his pregnant wife was in the house and padlocked her inside. Jeff also pleaded guilty to threatening to kill Rhonda and her family with a claw hammer. Rowe v. Franklin - 1995 Facts: K and D married in July 1987. In December 1991, K left the family home with son and filed for divorce and temporary residential parenting rights and support. D counterclaimed for divorce and temporary parenting rights and support. Child remained in Ks custody pending resolution. During this time, K relocated to Kentucky to be closer to her job as pilot for U.S. Army. K was also in law school. D was unemployed ironworker. Trial court order required neither parent remove child from state without court order. In Sept. 1993, K filed a Motion to modify court order so she could establish residence in Kentucky where she was enrolled in law school and had become pregnant. D filed emergency motion for contempt seeking return of their son. Court denied Ks Motion but allowed child to remain with her until completion of custody investigation. Investigation found child was attached to both parents, both parents loved and nurtured child, child had good relationship with new stepbrother and Ks boyfriend, however recommended custody be granted to D. Holding: the court must consider the best interests of the child in determinig custody issues in a divorce proceeding Rational: Court cannot judge parents lifestyle according to non-statutory moral standards. Rather than make decisions as to what lifestyles are correct, the court should consider how parental conduct may affect the physical, mental, emotional or social development of the child. Despite the findings that the childs relationship with his mother, her new bf and the infant sibling was good, the court concluded that the child should be removed from the mothers custody. This determination was made based on the relative living situations of the parents. The trial court placed and inappropriate emphasis on the mothers priorities and not enough on the best interests of the child. Trial court abused its discretion in relying on an erroneous standard in granting the father custody. Notes: trial court concluded mothers accomplishments in law school and her career demonstrated that she was not as committed to the childs best interests as she should be; court also expressed concern about the mothers involvement with another man so soon after her separation Domestic Violence Peters-Riemers v. Riemers ND 2002

Facts: During his marriage to , committed numerous serious acts of domestic violence against her. Slapping, punching, kicking while she was pregnant, etc. occasionally fought back. Trial judge found she fought back in self defense. The trial court used these findings to support an award of custody of the parties minor child to . Holding: In ND, acts of domestic violence can prevent a parent from being awarded custody of a child in divorce proceedings. Rational: Here, s claim that the trial judge failed to make specific findings of domestic violence is without merit. Further, the trial court specifically found that any domestic violence committed by was done in self-defense, which lessens the impact of such evidence as to . Using the findings of domestic violence against on the issue of custody was consistent with ND law, which creates a rebuttable presumption that a parent in s circumstances should not have sole or joint custody of a child. Finally, s assertion that the trial court clearly erred by finding that he inflicted extreme mental cruelty on also has no merit. Evidence of physical violence, as well as s extramarital affairs, supports the trial courts findings in this regard, too. Notes: Virtually all states now require courts to consider domestic violence in custody decisions. Most states include the factor in the best-interest analysis. The emerging trend is to provide that evidence of domestic violence creates a rebuttable presumption against awarding custody to the abusive parent. (24 states hold this rebutabble presumption) Acts of self defense do not constitute abuse. Proof Statutes differ in regard to the amount of proof that triggers the presumption. Some statutes require one severe incident or a pattern of abuse, others require a criminal conviction, and still others merely require reasonable grounds to believe that a child has been abused or neglected. Many times battery of a spouse is relevant in divorce proceedings, but not custody proceedings. Research shows that batterer husbands are several more times likely to batter children. Some consider children witnessing parent abuse is a form of maltreatment. Physical disabilities Only changes custody if affect of disability harms child. No more per se rules. Joint Custody Presumption, Preference, or Option? Bell v. Bell Alaska 1990 Facts: appealed from the trial court order awarding primary custody of the child to on the basis that the parties should have been awarded joint legal custody under state law. Holding: Joint legal custody is okay where it is determined to be in the childs best interest.

Rational: argued on appeal that the trial court erred in not awarding joint custody to both parents under state statute. State law allows for the awarding of shared custody where it is determined to be in the best interest of the child. Here the trial court denied joint custody and determined physical and legal custody should be granted to subject to s visitation rights. The legislative intent behind the statute here was an express policy favoring the award of joint legal custody regardless of the physical custody arrangements so that both parents share the rights and responsibilities of child rearing. The trial court found that joint custody was inappropriate because and were incapable of meaningful communication and/or negotiation regarding matters relating to their childs best interest. Based on the record this finding was clearly erroneous. While the parties disagreement over daycare related to a fundamental childcare issue, resolution of this issue did not require denial of joint legal custody. Notes: Some states have a presumption for joint custody, others have a preference for joint custody, still most others, make joint custody one option in the best interest determination. Some courts require parental agreement for joint custody, others make it a factor to consider in the best interest analysis. Restrictions on Visitation Hanke v. Hanke MD 1992 Facts: The Hanks were separated following an incident of sexual abuse on s 11 year old daughter from a previous marriage. At the time of the separation Mary was pregnant. Criminal charges were brought against and, as part of the plea bargain, he agreed to supervised visitation with their child. In August 1990, the parties were divorced, was awarded custody, and the issue of visitation privileges was reserved for a later hearing. In 1991, the court ordered supervised visitation and required to submit to a mental health examination. After one of their visitations, the daughter reported to a friend of her stepsister an incident of sexual abuse. examined the child and found scarring in the genital area. Social Services investigated the incident. The doctor who examined pursuant to the court order determined that should not have been placed in a situation in which he was alone with the daughter and that he should not drink alcohol. The trial judge, nevertheless, granted overnight visitation with the child. Holding: The ultimate test for custody and visitation is the best interest of the child. Rational: The decision of the trial judge was clearly erroneous. Assuming the judge was correct in determining that the child was at no or minimal risk in overnight visitation with , he abused his discretion in failing to provide a specific place for the supervised visitation in order that the child be fully protected to the satisfaction of all parties. Notes: Trial judge was essentially punishing Mary for moving to another state, which the trial court was annoyed with. Even if he was annoyed, the

primary goal of custody hearing is to protect the child, not punish the parents. Traditionally a custody award to one parent was accompanied by an award of visitation to the other parent. Some modern custody awards continue to mirror this traditional arrangement, and in such cases, the judge has considerable discretion to determine the scope of visitation. Swipies v. Kofka 8th Cir 2005, holding that a noncustodial father with courtordered visitation has a liberty interest at least in some form that was violated when a sheriff deputy removed his daughter during a court-ordered visitation without a hearing. Rebuttable Presumption Some states create a rebuttable presumption against unsupervised visitation if a parent presents evidence of physical or sexual abuse. Courts can hold children in contempt if they refuse to see parent for visitation.

Denial of Visitation Turner v. Turner TN 1995 Facts: The Turners had 2 children, and filed for divorce. The trial court ordered pay $704/month in child support and pay for childrens medical insurance. later sought to have held in contempt for being $2,166 in arrears in his child support. The trial court entered an order holding in contempt and ordering him to pay an additional $177 per month in child support to reimburse the cost of obtaining insurance. filed a second petition seeking to hold in contempt for improper conduct while returning her son from visitation. She filed a 3rd petition that he had harassed and abused her and the children and was still delinquent in his support obligations. The court ordered s arrest and suspended his visitation rights. The court found him in criminal and civil contempt for harassment and abuse and failure to pay child support payments. The court denied s petition requesting modification of his child support and seeking reinstatement of his visitation. Holding: Denial of visitation is warranted only when the non-custodial parent is financially able to support his or her children and refuses to do so. Rational: contested the trial courts denial of visitation rights because he is delinquent in paying child support. While the sanction may be appropriate in some cases, this is not such a case. Child custody and visitation decisions should be determined in accordance with the childs best interest. They are not intended to be punitive. The general rule is that the custody arrangement promotes the childs relationship with both parents. argued that the childrens best interest are adversely affected because their father does not provide support for them and that their interest will be best served by terminating his visitation rights. There is no proof to substantiate this claim since is able to provide for their needs. Denial of

visitation is warranted only when the non-custodial parent is financially able to support his children and refuses to do so. Notes: Courts may limit or deny visitation on grounds of neglect. If a parent CAN pay, but refuses to, this is essentially parental neglect. Standards Governing Parent vs. Non-Parent Disputes Troxel v. Granville - 2000 Facts: had 2 daughters with her bf. Bf committed suicide. notified BFs parents () that she wished to limit their visitation to one short visit a month and s brought suit seeking to obtain visitation rights. Their petition was based on Washington Statute which provides that Any person may petition the court for visitation rights at any time, including, but not limited to, custody proceedings. The superior court entered a visitation decree ordering visitation for one weekend per month, one week during the summer, and 4 hours on each of the grandparents birthdays. appealed and the case was remanded, during which time she married. Her husband later adopted the children. The court of appeals reversed the lower courts decision and dismissed the petition, holding that non-parents lack standing to seek visitation unless a custody action is pending. The Washington Supreme Court found that the s had standing to seek visitation under the statute, but concluded that they could not obtain visitation because the statute unconstitutionally infringes on the fundamental rights of parents to rear their children. Holding: A parent has a fundamental right in the care, custody, and control of his or her children. Rational: The 14th Amendment prohibits states from depriving any person of life, liberty or property, without due process of law. The clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. The liberty interest at issue here is that of parents in the care, custody, and control of their children. Statute here unconstitutionally infringes on s fundamental parental right. The statute is extremely broad, permitting any 3rd party to subject any decision by a parent concerning visitation of the parents children to state-court review placing the best interest determination exclusively in the hands of the judge. Several factors here compel the conclusion that the section as applied violates due process. First, the s did not allege, nor did the court find, that was an unfit parent. There is a presumption that fit parents act in the best interest of their children. Where this is the case, there is usually not reason for the state to interject itself into the private realm of the family. The superior courts decision directly contravened this presumption and failed to provide any protection for s fundamental constitutional right to make decisions regarding the rearing of her own daughters. Dissent: This Court has never held that a parents liberty interest is so inflexible as to establish a shield protecting every parental decision from challenge unless the challenge makes a positive showing of harm. The DPC should allow the states to

consider the impact on a child of potentially arbitrary decisions that neither serve nor are motivated by the childs best interest. Notes: VC v. MJB NJ 1999, A NJ court held that a lesbian partner was entitled to visitation with her other partners child. The court established a 4 part test for determining whether a 3rd party is entitled to visitation: 1) the biological parents consent to the establishment of a parent-like relationship with the child; 2) the party seeking visitation and the child lived together in the same home; 3) the party seeking visitation assumed parental obligations; and 4) the party seeking visitation had been in a parental role for a sufficient amount of time to establish a parental relationship. Four types of grandparents visitation statutes existed prior to Troxel: 1) those conditioned on the related parents rights; 2) those based on family disruption (for ex. death of one parent or divorce); 3) those based on best interest theory; and 4)those requiring a substantial relationship between grandparent and child. Painter v. Bannister Iowa 1966, A father left his young son with grandmother when the boys sister and mother died in an auto accident. When the father remarried and requested the return of his son, the grandparents refused. The father sued. Refusing to apply the parental presumption, the court held that the childs best interest would be served by remaining with the stable, churchgoing Midwestern grandparents rather than the hippie writer/father. Step-parents traditionally have no rights, this is slightly changing. p. 749 Beth R. v. Donna M. NY 2008 Facts: and married in Canada to take advantage of same-sex marriage laws. They then returned to NY. gave birth to a child via insemination before marriage and another after marriage. She did not allow to adopt the children. The children were given s last name. The birth announcement said both were parents. Held out kids to be both mothers children. Parties split up and wanted a determination that she has a custodial right to the children. seeks to dismiss the divorce count on the grounds that NY does not recognize same-sex marriages, and therefore, the marriage is void. Holding: A non-biological, non-adoptive partner or spouse may receive custodial rights to the children where the other spouse holds the party seeking custodial rights out to the world as a parent of the children. Rationale First, the marriage is not void. NY has always recognized out-of-state marriages. There is no state statute that bars recognition of valid out-of-state marriages, regardless of sexual orientation. Second, prior case law has denied a same-sex partner visitation rights because the partner was not deemed to be a parent of the child. That is not the case here. There is no question that held out to the world as a parent of the children. The children had s last name. The birth announcement designated both lesbos as parents. The parties families and their childrens teachers and doctors all regarded as a parent. In addition, the well-

being of the children is a factor to be considered as well. We also note the rise of equitable estoppel defense often used to force non-biological partners to pay child support. s motion to dismiss the divorce count is denied. s motion regarding custodial rights is granted. Notes: The decision did not grant custodial rights. The decision only ruled that , as a non-biological and non-adoptive spouse, could seek custodial rights of the children during the divorce proceedings. The court distinguished the prior case of Alison D. v. Virginia M (NY 1991). That case held that a nonbiological same-sex partner did not have visitation rights because she was not held out to the world to be the mother. ALI recognizes that biology is not determinative of legal parenthood. Recognizes parents by estoppel as well as de facto parents (who may be members of the opposite sex or same sex and who may be married or unmarried. A parent by estoppel is a person who acts as a parent in circumstances that would estop the childs legal parent from denying the claimants parental status. o Parent-by-estoppel may be created when an individual 1) is obligated for child support; 2) has lived with the child for at least 2 years and has a reasonable belief that he is the father; or has had an agreement with the childs legal parent since birth (or for at least two years) to serve as a coparent provided that recognition of parental status would serve the childs best interest. o De facto parent is a person, other than a legal parent or parent by estoppel, who has regularly performed an equal or greater share of caretaking as the parent with whom the child primarily lived, lived with the child for a significant amount of time, and acted as a parent for non financial reasons or as a result of a complete failure or inability of any legal parent to perform caretaking functions. Uniform Parentage Act also recognizes that biology is not determinative of legal parenthood. Childs Preference McMillen v. McMillen PA 1992 Facts: The parties married in May 1975 and had a son soon after. They were divorced in 1981. The court awarded primary custody to , subject to reasonable visitation by . commenced a suit in PA seeking partial custody. The court awarded general custody to and visitation to . His visitation was limited to alternating weekends and holidays, one day every other week and two weeks during summer. Over the next 6 years, continuously sought modification of the custody order and the court continued to expand visitation rights. Kid wanted to live with father. In 1988, he was awarded general custody, but on appeal the court vacated order.

Holding: While the express wishes of a child to live with one parent are not controlling in awarding custody, they constitute an important factor to be considered in determining the childs best interest. Rationale The superior court vacated the lower courts order on the basis that the record failed to state any circumstances warranting a change in custody, and that the childs best interest would not be served by changing custody simply because the child desired it. The court is justified in considering the childs desires in regard to custody in making a determination of the childs best interest, subject to certain limitations. The preference must be based on sufficient reasons, and the court must consider the age and maturity of the child. The weight given to such testimony is within the trial judges discretion. The kids desire to live with his father was supported by satisfactory reasons. He testified that his stepfather frightened, upset, and threatened him and that he didnt get along with his mother or step father. In contrast, he got along with his dad and stepmom and was well cared for in their home. In light of the complete record presented, Kids wishes were sufficient to support granting custody to father. Notes: Most states have statues that take into consideration a childs wishes: o Some, modeled after the UMDA, require consideration of a childs wishes o Some after a finding of maturity o Some give deference if a child is a certain age o Some give judge discretion to consider childs wishes ALI says no deference to the primary caretaker, and deference to children over 11s wishes. More weight to older children. Child deference is more likely when both parents are fit. Acts as a tiebreaker. Representation for the Child Leary v. Leary MD 1993 Facts: At the conclusion of the parties divorce hearing, the trial court appointed counsel for the minor children. appealed from the granting of sole legal custody to , arguing that the trial court erred by failing to instruct the childrens counsel about her duties. He also contended that the attorney failed to represent her client adequately. Holding: When the court appoints an attorney as a guardian ad litem for a child, the attorneys duty is to make a determination and recommendation after deciding what is in the childs best interest. Rationale The attorney has a primary responsibility to the court and therefore has immunity for judicial functions. The attorney must look to the court for direction and remuneration. There exists a dichotomy between the attorneys roles as both an advocate and guardian. An example is when the child desires to live with one parent while the attorney believes that such a decision would not be in the best interest of the child. There are two approaches to the issue. First is that the childs preference is only one factor to be considered in the attorneys determination. Second is that

the attorney must fully advocate the childs wishes. The trial judge must inform the appointed attorney as to what role the attorney is expected to take. Here, the trial judge did not state the purpose for the appointment. argued that the attorney merely stated what the childrens preference was, without acting as either a guardian ad litem or investigator, but he was incorrect. The attorney acted both as an advocate and as a fact finder. She investigated the childrens preferences and concluded that joint custody should be granted. However, the ultimate decision to award the wife sole custody was made by the trial judge. Notes: When an attorney is appointed by the court as a guardian ad litem, there is an inherent conflict in the attorneys dual roles as advocate and guardian. Rule 1.4 of the Rules of Professional Conduct describes the tensions involved in representing a client with mental disability. The comment to the rule recognizes that while the typical attorney client relationship presumes that the client is capable of making informed decisions regarding important matters, a person suffering from a disability may be incapable of making such decisions. P. 760-762. Different rules for Guardian ad litem.