KILLER FAMILY LAW OUTLINE

Keep in mind the (3) Types of Scrutiny y (1) Rational Basis Review- Rationally/Reasonably related to a legitimate state interest lowest level ( BURDEN OF PROOF ON CLAIMENT) y (2) Intermediate Scrutiny Substantially related to an important government objective (Lawrence v. Tx) y (3) Strict Scrutiny- Necessary to a compelling state interest. (Narrowly tailored, no other way to achieve the states goals) highest level (Burden of State)

I. PRIVACY AND THE FAMILY

EVOLUTION OF THE RIGHT TO PRIVACY The Birth of Privacy Griswold v. Connecticut (SCOUS 1965) Meaning of Privacy Rule of law: The specific guarantees of the Bill of Rights have penumbras that help to give them life and substance and that creates zones of privacy. The right of marital privacy is included therein and cannot be subject to regulations that have an unnecessarily broad sweep. Facts: Director of a planned parenthood and a doctor are appealing (their conviction) on charges of violating statute prohibiting persons from using drugs/medicine to prevent conception or from providing information to people interested in using contraceptives. Ct law forbids using anything to prevent conception and made assisting someone get contraception illegal. Analysis: The US Supreme Court found that the Connecticut law was a violation of the 1st Amendment guarantee of right to free speech and right to free assembly. The Court used this occasion to combine aspects of the 1st, 3rd, 4th, 5th, and 9th Amendments to create a right to privacy. Zone of Privacy and fundamental constitutional guarantees The Court found that marital relations are within in the zone of privacy created by several fundamental constitutional guarantees. The Court found that laws should not intrude on this zone. The Court limited this decision to married couples. Douglass says privacy is tied to marital couples the state cannot infringe upon the marital bond of privacy older than the bill of rights; sacred union

Eisenstadt v. Baird (405 U.S. 438 (1972)) later extended the right to unmarried couples on the basis of due process. Substantive due process of the 14th amendment prohibits government from depriving liberty without due process of the law. Concurrence: (1) suggested that the right to privacy, and the right to be married are guaranteed by the 9th Amendment, which says that the Constitution should not be interpreted to deny or disparage other rights retained by the people. (2) suggested that the proper basis of the decision in this case the DPC of the 14th Amendment. Dissent: The government has a right to invade privacy unless its prohibited by some specific constitutional provision. The law was stupid, but not unconstitutional; take it off the books by having Ct. citizens repeal it.

Michael Grossberg, Governing the Hearth: Law and the Family in the Nineteenth-Century America (1985) y demographic transition: a reduction in family size that characterized most western nations o 7.04 in 1800 3.56 in 1900 y History of statutes: o federal and state acts had banned contraceptives and abortion o purity crusaders prodding legislatures into action  obscenity laws o prohibited the flow of information in the mail about contraceptives and abortion Catherine G. Roraback, Griswold v. Connecticut: A brief case history y Only CT had an absolute ban on that time- had been on books for 86 years y Repealer bills had been introduced in attempt to get rid of the statute y Had opened clinic (to see if law would be enforced) and they were arrested for aiding/abetting Eisenstadt v. Baird (SCOUS 72) Privacy as an individual right y Rule of law: A state may not constitutionally discriminate between persons on the basis of their marital status in regulating the distribution of birth control devices. Providing dissimilar treatment to persons based on marital status violated EPC. y Facts: Baird was giving a lecture on contraception at Boston University. He also gave one person (an unmarried woman!) a sample contraceptive. He was arrested and charged under Mass. law that prohibited 'exhibiting contraceptive materials' and 'giving away contraceptives to unmarried people. The Trial Court convicted Baird on both counts. He appealed. The Mass. SC threw out the first charge based on the 1st Amendment, but upheld the conviction for giving away contraceptives. Baird appealed to Federal Court on a writ of habeus corpus. y The Federal Trial Court upheld the conviction. Baird appealed. y The Federal Appellate Court overturned the conviction. The prosecutor appealed. y The US Supreme Court reversed. 4

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The US Supreme Court found that the law was an unconstitutional violation of the 14th Amendment because it denied equal protection to unmarried people (who couldn't get contraceptives). Massachusetts argued that the law was meant to discourage 'fornication', which was illegal under Mass. law, but the Court found that the criminal penalty for the fornication (3 months in jail), was far less than the 5 year sentence for giving away contraception. Massachusetts argued that they were simply regulating potentially harmful materials. But the Court found that if that were true, then the fact that married couples could get it, and unmarried couples could not made no sense from a public health standpoint. The Court looked to Griswold v. Connecticut (SCOUS 65) held that you couldn't deny contraception to married couples because what went on in the bedroom was a zone of privacy that was not subject to government intrusion. The Court found that it would be discriminatory to not give unmarried couples the same protections. "If the right to privacy means anything, it means the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." See Lawrence v. Texas (539 U.S. 558 (2003)). Under due process, the government can't discriminate unless there is a rational basis for doing so. In this case, the Court did not find Massachusetts' stated reason (to deter fornication) to be a rational basis for treating single people from married people. Here, the court says that the State fails even under RB review, doesnt even have to look at SS review.

Meyer & Pierce lay the groundwork for the above cases y Griswold and Eisenstadt break new ground in explicitly recognizing a constitutional right to privacy yet, 40 years earlier the SCOUS expressed an understanding of the family that established a foothold for this right . y They establish the foundation of Rt to Privacy Meyer v. Nebraska (SCOUS 23) Fundamental Rt to learn foreign language y Rule of law: A state-imposed statutory language requirement making it a crime to teach primary school children any language other than English is unconstitutional. VIOLATES DPC OF 14th Amendment. y Issue: Whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the 14th amendment: no state shall deprive any person of life, liberty, or property w/out DP of law o Liberty may no be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or w/out reasonable relation to some purpose within the competency of the state to effect 5

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Facts: was tried and convicted of unlawfully teaching the subject of reading in the German language. o Nebraska Stat. prohibited teaching of foreign language. o statute as applied was arbitrary and without reasonable relation to any end within the competency of the state. Individuals have certain fundamental rights that must be respected Foreign language doesnt injure health/morals REVERSED Legislation was to promote civic development Right to teach and the right of parents to engage this teacher are within the liberty of the amendment

Pierce v. Society of Sisters (SCOUS 25) y Rule of law: A state statute requiring children to attend public school violates DPC of 14th Amendment. y Facts: Oregon statute Compulsory education act: requires every parent/guardian of a child between 8-16 to send them to a public school (misdemeanor for failure to do so). Society of Sisters () sought injunction, contending that the statute violated their rights under 14th Amendment DPC. o Enactment of bill conflicts with rights of parents to choose where educatedreligion etc. o Look to enjoin enforcement of the measure saying that the corporations business and property will suffer irreparable injury y Court below ruled for appellees, alleging 14th amendment violations o Affirmed y Under Meyer, the act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. o Rights guaranteed by the constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state cant force children to accept instruction from public teachers only GROWTH OF PRIVACY Abortions as a Private Choice Roe v. Wade (SCOUS 73) y Rule of law: A state criminal abortion statute that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, violates the DPC of the 14th Amend. Pre-viability, there is no restrictions post viability, state has an increasing interest for the life of the fetus. y Cannot ban abortion before 1st trimester. (At the point before the first trimester, States interest isnt compelling enough). THE RIGHT TO TERMINATE A PREGNANY IS NOT ABSOLUTE. 6

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Facts: Roe was pregnant and wanted an abortion, but she lived in Texas where abortions were illegal. Roe sued (Wade, the Dallas County DA), claiming that the Texas law was an unconstitutional violation of her right to privacy See Eisenstadt v. Baird (SCOUS 72), which said that a person has a fundamental privacy right to decide whether to have a child or not. Fundamental right triggers Strict Scrutiny Sought declaratory judgment saying statute was unconstitutional, sought injunction to prevent defendant from enforcing statute o Claimed her right of personal privacy was invaded protected by first, fourth, ninth, and fourteenth amendments The Trial Court found for Roe (found the statute unconstitutionally vague), but refused to grant an injunction. Roe appealed. o The Appellate Court affirmed. Roe appealed. US Supreme Court found the Texas law to be unconstitutional. o " State criminal abortion that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to the pregnancy stage and without recognition of the other interests involved is violative of the Due Process Clause of the 14th Amendment." When does the States interest become compelling enough to warrant intrusion into fundamental (privacy) rights? Texas argued that the purpose of the law was to protect the life of the unborn child, but the Court looked to the legislative history of the law and found that it was primarily done to protect women by restraining them from submitting to a procedure that placed their life in danger. o Roe () argued that medical advances had made abortions much safer for the woman, so the law was no longer necessary. Texas () argued that the unborn baby was a 'person' as defined by the Constitution and was thus entitled to constitutional protections. However, the Court noted that abortion rights were much more liberal when the Constitution was written, implying that the Founders did not include the unborn in their definition of 'person'. The Court noted that under the historical common-law, 'life' was considered to begin at the quickening (the time when the baby's heart can be felt beating). right of personal privacy includes abortion decisions, but that the right is not unqualified and must be considered against important State interests in regulation. o ** The Court found that the tipping point for State interest was when the fetus was 'viable' (as opposed to quickening) ** viable around 28 wks This case was an attempt of the State to balance the privacy rights of the mother with the State's responsibility to protect the baby. o Initially, the balance is in favor of the mother's right to privacy, but as the pregnancy continues and the baby develops, the balance tips in favor of the State's responsibility to protect the baby. The Federal Constitution does not explicitly have a right to privacy, but the Supreme Court found a right by combining several constitutional amendments. o See Griswold v. Connecticut (SCOUS 1965) 7

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Right of personal liberty embodied in the 14ths DPC Worked off of Griswold and the penumbras argument History: o At common law, at time of adopting of constitution, a woman enjoyed substantially broader right to terminate a pregnancy than she does in most states today o States began abortion laws in 1800s o Purpose of anti abortion laws was to protect women from unsafe procedures? o Legitimate state interest that the procedure is safely performed  Also interested in protecting life of the child? Constitution doesnt specifically mention right to privacy o Courts have recognized that Constitution grants some privacy protections  Penumbras of bill of rights 1st, fourth, fifth, 14th amendments o The Court decisions make it clear that only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in this guarantee of personal privacy 14th amendment concept of personal liberty and restrictions upon state action or 9th amendments reservation of rights to the people (decision to terminate pregnancy or not) the Court rejects that the argument that the state has no interest and the argument that the womans right to terminate is absolute and that she can terminate at any time o the court may be justified in regulating even fundamental rights if the states interest is compelling  legislative enactments must be narrowly drawn to express only the legitimate state interests at stake TX argues that a fetus is entitled to 14th amendment protection as a person (person to not be deprived of life w/out DP of law) o Flawed argument not protected by constitution  Many religions recognize the prenatal as life, but the law had not State has legitimate interest in protecting the woman and the prenatal child o Each interest is different and each grows substantially and becomes more compelling as the woman approaches term  For mom, compelling pt is at end of first trimester where mortality rates rise  For prenatal child, compelling point is at viability (when it could survive on its own) J. Rehnquist Dissenting: o Says the right of privacy isnt involved in this case o Says the right to abortions isnt fundamental, points to anti-abortion laws of past 100 yrs

Burdens on Privacy Gonzales v. Carhart (SCOUS 2007) Partial Birth Dilation and Extraction

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Rule of law: Legislation restricting access to specific abortion method does not have to include a heath exception for the mother if reasonable and viable alternatives exist. Facts: Federal statute regulating abortion procedures Partial Birth Abortion Ban Act 1531 was signed into law, which banned certain abortion procedures. It was immediately challenged as being unconstitutional based on the opinion in Roe v. Wade (SCOUS 73) No fundamental liberty interest here The Act was a response to the decision in Stenberg v. Carhart (SCOUS 2000) which held that a previous abortion ban was unconstitutional because it did not make an exception for the woman's health. o See also Planned Parenthood of Southeastern PA. v. Casey (SCOUS 92) held that the State has an interest to protect the unborn baby, but that interest must be balanced against the privacy rights of the mother. In 1531, Congress helpfully added some 'findings' to the law stating that they had found partial-birth abortions were never medically necessary, therefore there was no need to include an exception for the woman's health. o 1531 Only made an exception for the life of the mother, not just her health. However, it was targeted a much more narrow set of procedures than the law invalidated in Stenberg. In various cases, Federal Trial Courts in California, New York, and Nebraska all declared the law to be unconstitutional. The Federal government appealed. The Federal Appellate Courts in the 8th Circuit, the 9th Circuit, and the 2nd Circuit upheld the Trial Courts' decisions that the law was unconstitutional. The Federal government appealed. The problem the courts had was that there was no exception for the health of the mother. The 9th Circuit interpreted Stenberg to require a health exception unless "there is a consensus in the medical community that the banned procedure is never medically necessary to preserve the health of the woman." In addition, the courts found that 1531 was too vague, and left doctors wondering which procedures were banned and which were not. The US Supreme Court reversed and found the law to be constitutional. The US Supreme Court found that 1531 did not impose an undue burden on a woman's right to an abortion based on its over breadth or lack of a health exception. o The law did allow for other types of late-term abortion procedures, so a woman's health was never jeopardized because they could use a different procedure if they needed it. The Court looked back to Roe, which found the abortion decision to be a balancing act between the privacy rights of the mother and the State's interest in preserving the health of the baby. The Court found that for late-term abortions, the balance is in favor of the State's interest. The Court noted that there are alternatives to the banned procedure. The Court found that where medical testimony disputed Congress's findings, Congress is still entitled to regulate in an area where the medical community has not reached a "consensus." 9

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o Basically, the courts gave deference to Congress' findings about the health of the mother. The Court found that the law as written was not too vague. o In a dissent it was argued that the law was unconstitutional because it did not explicitly provide for the health of the woman. In addition, the dissent felt that the law did not further any legitimate government interest. The Act doesnt regulate 1st trimester abortions Horrible, detailed, brain-bashing abortion detail of post first trimester ensues o Partial-birth abortion Does the ACT further the legitimate interest of the Government in protecting the life of the prenatal fetus o Comparison to Planned Parenthood v. Casey  Casey rejected strict trimester requirements of Roe Casey act would be unconstitutional if its purpose or effect is to place a substantial obstacle to women seeking an abortion before the fetus attains viability The Acts ban on abortions that involve partial delivery of a living fetus furthers the governments objectives in regulating the medical profession in order to promote respect for life o Reasonable for congress to think that partial-birth abortion undermines the publics perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world Alternatives are available to the prohibited procedurenot an undue burden because of the absence of an exception that would allow the procedure when necessary to preserve the womans health DISSENT: Ginsburg, Stevens, Souter, Breyer o Decision refuses to take Casey & Stenberg seriously o Blurs lines between pre and post- viability abortions o Necessary procedure o Casey women control over her own destiny

WHEN PRIVACY RIGHTS CONFLICT Wives and Husbands Planned Parenthood of SE Penn. v. Casey (SCOUS 92) Undue Burden Sd y Rule of law: Spousal Notification Provision requiring a married woman to notify her husband that she plans to have an abortion violates the US Constitution by placing an undue burden on her right to privacy y Facts: The Pennsylvania Abortion Control Act, had provisions that impeded (but didn't prevent) women from having an abortion. o There were provisions that required doctors to provide information on health risks, that spouses and parents had to be notified, a 24-hour waiting period, and reporting requirements. o SCOUS rejects spousal notification, but upholds 24-hr wait. y In a class-action, a number of abortion service providers sued, arguing that the law was an unconstitutional violation of the right to privacy established in Roe v. Wade 10

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Pennsylvania () argued that the law didn't stop women from having an abortion, so it met constitutional standards. The Trial court found for Planned Parenthood () and entered an injunction against the law. Pennsylvania appealed. o The Appellate Court affirmed in part and reversed in part. Everybody appealed. The Appellate Court struck down the spousal notification provision, but upheld the rest. US Supreme Court affirmed. o The US Supreme Court cited stare decisis as the basis for their decision. They found that the Court needed to stand by prior decisions even if they were unpopular, unless there had been a change in the fundamental reasoning underpinning the previous decision. Based partially on stare decisis, the Court upheld the "essential holding" of Roe They found that the right to have an abortion is grounded in the Due Process Clause of the 14th Amendment. The Court looked to Eisenstadt v. Baird (SCOUS 72) which said, o "if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." The Court did overrule the standard of review established in Roe (strict scrutiny), with the lesser undue burden standard. o Undue burden is defined as one having "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." The Court did reiterate that a State may enact regulations to further the health and safety of a woman seeking an abortion, as long as the regulation does not impose an undue burden. o The Court did not specify exactly what would make something an undue burden. It is to be decided on a case-by-case basis. o THE STATE JAS A SINSTAMTOA; OMTEREST OM [RESERVOMG AMD PROMOTION FETAL LIFE In general fundamental rights require strict scrutiny review. Did this decision imply that reproductive autonomy is no longer considered a fundamental right? The Court did modify the "1st trimester" test established in Roe with a "viability" test that said the balance tips towards the State's interest in protecting the life of the baby occurs when the fetus is viable, not at the end of the 1st trimester. o forget about trimester shit, look at viability  pre-viability = no restrictions  post-viability = states increasing interests The Court found that the spousal notification provision was a violation of the Equal Protection Clause of the 14th Amendment because it only applied to married women. o That created an undue burden on that class. 11

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Penn law requires woman to provide physician with signed document testifying that either her spouse has been notified about the abortion, that she will be harmed if she notifies, that she was victim of reported sexual assault, that husband didnt impregnate her/couldnt find him District court heard testimony regarding effect of this statute from numerous expert witnesses Casey rejects the traditional concept of women: them as subordinates if physician performed procedure w/out consent letter, would lose license Womans right to abortion (privacy) has Constitutional protection vs. Mans right to know that a pregnancy he contributed is going to be terminated (no protection) DANFORTH: WHEN A HUSBAND A WIFE DISGAGREE ON THE DECISION OF ABORTION, THE VIEW OF ONLY ONE OF THE TWO MARRIAGE PARTNRS CAN PREVAIL THE WOMAN WHO PHYSICALLY BEARS THE CHILD IS MORE IMMEDIATELY AFFECTED BU THE PREGNANCY AND THE BALANCE WEIGHS IN HER FAVOR Dissent (Rehnquist, Scalia, White, Thomas): o Says Dansforth isnt controlling b/c the provision here involves a much less intrusive requirement of spousal notification, not consent o Q here: whether the spousal notification requirement rationally furthers any legitimate state interests o Husband has interest in being able to procreate within marriage o State has substantial interest in protecting the husbands interests and the interests of the unborn o just wants husbands to be able to know of his spouses intent to have an abortion, enabling him to be a part of the decision in deciding the fate of this unborn childa possibility that might otherwise have been denied to him o state also has an interest in promoting the integrity of the marital relationship  promote communication

Children and Parents Cinn. Womans Services, Inc. v. Taft (6th Cir. 2006) y Rule of law: Ohios Single Petition Rule constitutes an undue burden on a womans right to an abortion b/c the rule creates an obstacle in a large fraction of the cases in which the single petition rule would be applicable. y Facts: appeal of DC decision upholding an abortion regulation that limits the number of times a minor can seek to bypass the statutory parental-consent requirement to 1x per pregnancy (single-petition rule) misdemeanor and tort for physician to perform abortion on emancipated minors w/out the consent form y The petition allows the minor to seek decree from juvenile court declaring (1) that the minor is sufficiently mature and well enough informed to decide to have the abortion OR (2) that the abortion is in the best interests of the minor y Lambert and Bellotti II establish procedural requirements if a state requires parental consent before a minor receives an abortion, it must provide for a judicial 12

or administrative procedure so that a minor who satisfies certain conditions may bypass the consent requirement o Ohio complied with these laws, but sought to restrict the filing to bypass to 1x per pregnancy In Casey SCOUS analyzed spousal notification law that required woman to notify husband of abortion unless in exempt category o in determining whether this restriction was an undue burden, the proper focus of the constitutional inquiry is the group for whom the law is a restriction, and not those irrelevant  would a large proportion of women be deterred from procuring an abortion? In applying Casey to the Single-petition rule the group of women whom the restriction operates on and are denied a bypass are those who have changed circumstances (reapplying) such that they would be granted the bypass. Second petitioners have higher rate of passing. o exemplifies the large fraction test of Casey, b/c the Single-Petition rule presents an obstacle to a large fraction of minors faced with these circumstances, the rules = undue burden and is t/f unconstitutional Ohios law preventing more than one petition acts as a substantial obstacle to a womans right to an abortion undue burden and therefore facially unconstitutional o Invalid under Bellotti II because a court must account for material changes in the petitioners state after a first, unsuccessful bypass proceedings rule here is facially invalid b/c doesnt allow for a judge to evaluate a petitioners current maturity or interest in abortion

LIFE AND DEATH States interests v. parents/patients interests Cruzan v. director, Missouri Dept of Health (SCOUS 90) y Rule of law: The Constitution does NOT forbid a state requirement that an incompetent persons wish to forego or terminate life-saving procedures be proven by clear and convincing evidence. y Facts: Missouri rule requiring C&C evidence that the patient, when competent, would have refused the treatment. Accident victim was in vegetative state and being kept alive on respirator, parents asked hospital to terminate artificial nutrition procedures, which would kill her. Hospital refused to do so w/out court approval. y Cert granted to consider whether the patient has a right under the US constitution to withdraw life-sustaining treatment from her y even @ common law- notion of bodily integrity touching w/out consent = battery y doctrine of informed consent -- patient generally possesses right not to consent (to refuse treatment) y in In re Quinlan held that the patient had a right of privacy grounded in the US Constitution to terminate treatment (father wanted to disconnect respirator) o court recognized that the right was not absolute it must be balanced against the states interests

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as the patients prognosis becomes more grim, the individuals right to privacy grows and the states interest weaken After Quinlan, most courts based right to refuse treatment on common law right to informed consent or on the common law right and the constitutional privacy right this is the first case where SCOUS is presented with issue of whether US constitution grants right to die Missouri requires evidence of the incompetent wishes as to the withdrawal of treatment to be proved by clear and convincing evidence o does the US constitution prohibit the establishment of this procedural requirement by the state? SCOUS says NO  Missouri has an interest in preserving human life DPC protects an interest in life and interests in refusing life-sustaining medical treatment Missouri has permissibly sought to advance these interests, adopts clear and convincing standard in order to reflect the importance of the particular adjudication o No fundamental right to die? Suicide = illegal. Argument that Missouri must accept the substituted judgment of close family fails o DPC doesnt require a state to repose judgment on these matters with anyone but the patient herself no assurance that the view of close family mimics the view of the patient

Liberation of Privacy Lawrence v. Texas (SCOUS 2003) DPC RIGHT TO LIBERTY y Rule of law: 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. TX statute violates the substantive right to privacy protected by the liberty provision of the DPC y the court doesnt go out and say there is a fundamental right, merely says that the statute cannot survive RB review (the states moral disapproval doesnt survive RB) y MORAL OBJECTION ALONE WILL NOT SUFFICE! y Facts: Lawrence and Garner were a homosexual couple. Acting on a tip from a neighbor, the police entered Lawrence's home and found the couple together. They were arrested and charged with sodomy. o At the trial and appellate courts, the court refused the defendants arguments that their due process rights had been violated under the equal protection y Under Texas law at the time, homosexual sex was illegal, even if consensual. o Tex. Penal Code Ann. 21.06(a): "A person commits an offense if he engages in deviate sexual intercourse with a member of the same sex." y Lawrence and Garner asked that the case be dismissed on the grounds that the law was unconstitutional because it only affected homosexual couples. That violated the Equal Protection Clause and the Due Process Clause of the 14th Amendment. In addition, it violated their right to privacy. y The Texas Supreme Court upheld the conviction. Lawrence and Garner appealed. y The US Supreme Court reversed and found the Texas law to be unconstitutional. 14

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The US Supreme Court found that the law violated due process guarantees. o The Court overruled the similar case of Bowers v. Hardwick (SCOUS 86), which allowed a similar Statute in Georgia, quoting the dissent in Bowers:  "The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting the practice...Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the 14th Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." Concurrence: Argued that the Texas Statute was unconstitutional, but on equal protection grounds since it only banned same sex conduct. Laws that ban sodomy between same sex and opposite couples (like the one in Georgia) should remain constitutional. o "The State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted State interest for the law." Dissent: it was argued that the 14th Amendment only applies to fundamental rights (See Duncan v. Louisiana (391 U.S. 145 (1968)). If the Court was not prepared to find that homosexual sodomy is a fundamental right, they cannot use the Due Process Clause to force States to accept it, nor can they overrule Bowers. o In addition, the dissent argued that morality is a legitimate State interest. If the homosexuals wanted to change people's perception of morality, the proper way to do that was through legislation, not through the courts. o Dissent slippery slope argument:  The dissent suggested that if homosexual sodomy was allowed, all of the laws affecting sexual mores (e.g. polygamy) would also be in jeopardy.  this doesnt pass muster b/c the majority emphasizes privacy, consenting adults However, the Court had (implicitly) found a fundamental right to intimacy, but that does not extend to a fundamental right to sexual deviancy. Casey is brought up and relied upon. It had reaffirmed the substantive force of liberty protected by the DPC. o constitutional protection is afforded to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education

II. GETTING MARRIED

1800s-1900s and Significance of Engagement Ring Getting Married Move from Courtship (in the home) to dating (public) Heart Balm Statutes- enacted to keep women from blackmailing men. 15

Van Houton v. Morse y Facts: Engaged to marry, dude finds out something 3 weeks before Fianc has a black ancestor!!! y He breaks it off, she sues for breach of promise to marry. y it was not the duty of a party, before making or accepting an offer of marriage, to communicate all the previous circumstances of his or her life; and that the parties would be bound, if they became engaged without making any investigations, and without receiving any assurances or representations which led to the engagement, even though matters were discovered subsequently which, if known at the time, would have prevented the engagement, unless they were such as gave a right to the other party to terminate the contract upon their discovery. Whether the only matters which would give the defendant such a right were those relating to the chastity of the plaintiff, we have no need now to consider. The Marriage Contract: (A private Agreement or a Status?)

Maynard v. Hill (SCOUS 1887) y Rule of law: Although marriage is, in a sense, a contract, it is one that parties cannot change. y Facts: Withheld from Textbook y Issue: Although marriage is, in a sense a K, is it one that the parties cannot change? y Holding: Unlike other Ks, a marriage cannot be modified, restricted, enlarged, or entirely released upon the consent of the parties. Once the relation is formed, the law simply steps in and holds the spouses to their various obligations and liabilities. y The basic obligations of marriage, as provided for in law, are still considered unalterable. Preparing to Marry: Pre-Marital Controversies Rivkin v. Postal (Tenn. Ct. App. 2001) Breach of Promise to Marry y Rule of law: A quitclaim deed to a house and the testimony of two creditors do not establish a promise to marry under Tenn. law. y Facts: Married record producer was living with and had a child with another woman outside his marriage. Crazy woman ordered herself an engagement ring and wore it around saying they were getting married and he didnt contradict her, but they had never discussed any plans to wed. He divorced his wife and also broke it off with crazy woman. Man brought suit to partition the joint property he had with crazy woman. Crazy woman countered with a suit for damages from breach of promise to marry y History: In past breach of promise to marry was where party would obtain damages b/c marriage was seen largely as a property transaction o most states abolished this cause of action altogether y Tenn. hadnt abolished it all together, 1949 tenn. code designed to prevent certain injustices in suits for damages for breach of promise or contract of marriage o safeguards:  claims couldnt be joined with other damage claims 16

promises or contracts of marriage could only be established using signed evidence or two disinterested witness testimony  jurors had to consider parties age and experience when calculating damages  punies were prohibited where allege breaching party was over 60 y/o s claim for breach (of promise to marry) fails for lack of evidence: o plaintiff points to quitclaim deed signed by dude that conveyed purchased property to him and crazy woman as joint tenants w/ right of survivorship  written evidence doesnt require proof of engagement per se, just show proof they were on their way to becoming married o dude says the deed was just to provide for his kid with crazy woman would be taken care of if anything happened to him  court held that the deed without more wouldnt suffice in this case to show that they were going to get married o Ms. Postal (crazy woman) failed to carry her burden b/c she couldnt produce sufficient written evidence or 2 disinterested witnesses; statutory burden not met Breach of promise to marry not a very actionable claim today; anti-heart balm statutes in place. Tenn. still has it on the books, but has greatly impeded recovery under breach of promise to marry by imposing high evidentiary burdens.

Courts will return engagement rings b/c they re seen as a conditional gift (on the condition of marriage), but usually will not return wedding expenses Gifts in Contemplation of Marriage Fowler v. Perry (Ind. Ct. App. 2005) y Rule of law: The person who purchased the 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. y Facts: Dude () buys engagement ring for chick while living with her and their child. Chick and child move away and dude finishes education, planning to then move to where chick and child are to be with them. Chick calls off engagement. Chick wants to sell ring because dude never asked for it back broad gets ring stolen from car, gets $5K insurance money. dude files complaint seeking value of stolen engagement ring y Trial judge rules in favor of Chick, dude appeals y First examine whether ring constitutes a gift in contemplation of a marriage trial court erred in finding it didnt y Next whether, upon parties break up, dude was entitled to return of the ring, o must determine whether the ring was an absolute or a conditional gift  absolute gift inter vivos gift gift is completed with nothing left undone property is delivered by donor and accepted by donee gift is immediate and absolute  conditional gift = condition precedent engagement ring is a gift conditioned upon marriage 17

y y y

majority of jurisdictions = fault based approach  if guy is at fault for breaking up engagement, dont award him minority of states = no fault approach, returned to donor regardless of fault like divorce laws Dude gets $5K, trial court reversed

PREMARITAL CONTRACTS Simeone = just substantive fairness; Shanks = substantive & procedural fairness Simeone v. Simeone (Pa. 1990) PROCEDURAL FAIRNESS y Rule of law: Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their prenuptial agreements. y Facts: Man () presented woman with prenuptial agreement on the their wedding night. They broke up (after a period of marriage), woman claimed it wasnt a fair agreement. Court doesnt buy argument that there wasnt an adequate disclosure of her statutory rights when she signed the agreement. o She claimed she wasnt adequately informed of the nature of the alimony (that she could get more in front of court than the stipulated amount she signed to) y Reasonableness of K isnt subject to judicial review y The contract had provided the appellees (s) worth and assets, and although appellee claims that theyre not accurate, fails to meet C&C burden o Court below properly held that the agreement was valid and enforceable o Prenuptials are presumptively valid In Re Marriage of Shanks (Iowa 2008) Procedural & Substantive Fairness y Rule of law: Under the Iowa Uniform Premarital Agreement Act (IUPAA), a premarital agreement will be invalid if (1) one party did not enter into the agreement voluntarily or (2) if the agreement was unconscionable when executed. y Facts: Before getting married, guy suggested a premarital agreement because each spouse was bringing children from a first marriage Guy drafted the agreement (b/c he was an attorney) and gave to girl and suggested she have counsel look it over. They divorced 6 years later and he sought and she opposed enforcement of the premarital contract y In Iowa, invalidate agreements if o involuntary contract o unconscionable o no fair disclosure of property/financial obligations before o no reasonable knowledge y Voluntariness = freedom from duress or undue influence o DC found the agreement wasnt executed voluntarily b/c dude as an attorney had greater power and she hadnt sought independent counsel  COA reverses doesnt agree that there was duress (didnt use unlawful threat or provide for no other alternative) There was no undue influence

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o DC correctly concluded that alimony waiver was invalid and unenforceable because there is a prohibition for premarital agreements to affect spousal support o A court cannot consider the unconscionability of a premarital contract unless it finds there was no fair and reasonable financial disclosure o Substantive Unconscionability:  whether the K is mutual or if the proposed division of property reflects the parties assets at the time of the transaction. Here, substantively fair The provisions were mutual and the agreement sought to protect the parties current assets. Parties had agreed to maintain those assets separately. o Procedural Unconscionability:  legal representation of both sides isnt a requirement of the IUPAA record shows that had ample time to review the agreement, she wasnt unsophisticated (she was a paralegal) o procedural v. substantive unconscionability  agree w/ DC that it wasnt substantively unconscionable agreement sought to keep premarital property separate  procedural = taking advantage of another persons lack of knowledge DC thought no attorney could enter into an enforceable premarital agreement with a spouse who isnt represented by an attorney Simeone and Shanks reflect different approaches: y Simeone, out of deference to private ordering, treats such agreements as ordinary contracts o rejects an examination of substantive fairness, y Shanks requires both substantive fairness and procedural fairness (entered into voluntary and with full disclosure) o rejects judicial review of reasonableness o Shanks underscores the need for special protections Getting Married: Substantive and Procedural Regulations Constitutional Limits on State regulation of Entry into Marriage Loving v. Virginia (SCOUS 67) Freedom to marry = fundamental rt? y Rule of law: The freedom to marry or not to marry a person of another race resides with the individual and cannot be infringed by the state. Law prohibiting interracial marriages violates EPC y Facts: Mr. and Mrs. Loving were an interracial couple. They lived in Virginia, and got married in Washington DC (after being denied a marriage license in Virginia). When they returned to Virginia, they were arrested and charged with violating the Racial Integrity Act, which banned interracial marriages. y The Lovings argued that there was no compelling State reason to deny a marriage license to persons of opposite race, but to allow a marriage license to member of the same race. 19

o The Trial Court found the Lovings guilty and they were sentenced to one year in prison, suspended if they left Virginia. The Lovings appealed and started a class action suit. y The Trial Court found that: o "Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix." y The Virginia Supreme Court affirmed The Lovings appealed. o The Virginia Supreme Court found that the law did not violate the Equal Protection Clause because both the white and the non-white spouse were punished equally for the "crime" of "miscegenation." o The Court found that there was a compelling State reason to preserve the racial integrity of its citizenry, prevent the "corruption of blood," avoid the creation of a "mongrel breed," and avoid the "obliteration of racial pride." y SCOUS REVERSES. o The US Supreme Court found that the Racial Integrity Act violated the Equal Protection Clause. y The Court found that the stated reason was not compelling enough to justify the discriminatory law. o "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival...To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the 14th Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." y The Court found that the law violated the Due Process Clause, because it was an improper restriction on the freedom to marry, which had previously been recognized as a fundamental right. y The Court applied a strict scrutiny standard of review. o Strict scrutiny is the level of review used when a fundamental constitutional right is infringed, or when the government action involves the use of a suspect classification such as race that may render it void under the Equal Protection Clause. y This decision was important for more than just racial equality reasons. The Court found that at one time, marriage could be defined as relationships within the same race, but that definition has evolved, and so law needs to be changed to incorporate interracial marriage. o This concept of "evolving definitions of marriage" has since been used in the attempt to justify a number of other things, from same-sex marriage to palimony. Zablocki v. Redhail (SCOUS 78)

20

y y y

y y

y y

Rule of law: 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. Marriage = a fundamental right, BUT not every restriction on this fundamental liberty is subjected to SS Review Facts: Wisconsin passed a Statute person could not get a marriage license unless they were up to date on their child support payments. Redhail knocked up a girl, and was unable to make his child support payments (because he was in high school at the time). o Two years later, Redhail applied for a marriage license to marry a different girl and was denied. He sued in Federal Court, claiming that 245.10 was unconstitutional. The Federal Court found the statute unconstitutional. Wisconsin appealed. o The Federal Court applied a strict scrutiny review and found that there was a compelling State interest in preventing children born out of wedlock, but that 245.10 didn't effectively stop that from happening, so the interest was insufficient because the law was not narrowly tailored. In order to pass a strict scrutiny review, a law must: o Be justified by a compelling governmental interest. o Be narrowly tailored to achieve that interest. o Use least restrictive means to achieve that interest. SCOUS Affirms o The Court agreed with the Federal Trial Court in that the law didn't achieve the objective it set out to meet. o The Court refused to apply strict scrutiny, and instead only asked if the Statute was supported by sufficiently important state interests and was closely tailored to effectuate only those interests. That's similar to the intermediate scrutiny level of review. Intermediate scrutiny asks if a regulation involves important governmental interests that are furthered by substantially related means. o This decision cast doubt on previous rulings that there is a fundamental right to marry that is "implicit in the concept of ordered liberty." Court needed to figure out appropriate level of scrutiny marriage is seen as a fundamental right Loving is leading case on right to marry o that case could have rested solely on EPC grounds, but the court held that the laws arbitrarily deprived the couple of fundamental liberty protected by the DPC the freedom to marry Here, statute interferes directly and substantially with right to marriage o needed court order to marry, which some people may never be able to get b/c of financial problems o cannot have possible absolute prevention (to some people) of a right thats recognized as fundamental

Turner v. Safley (SCOUS 87) 21

y y

y y

Rule of law: There is a constitutionally protected marriage relationship in the prison context Facts: Banning marriages in prison, unless one of very limited compelling reasons given was facially invalid because it wasnt related to legitimate (penological) objectives and it interfered with a fundamental right Determine constitutionality of regulations promulgated by Missouri Dept of Correction regarding inmate marriages o challenged regulation permits an inmate to marry only with the permission of the superintendent of the prison and also provides that such approval should be given only when there are compelling reasons to do so  compelling not defined, generally only a pregnancy or birth of illegitimate child usually = compelling prison concedes that marriage, under Zablocki is a fundamental right, but different rules should apply to prison forum o argues that it should be tested under reasonableness standard that the restriction is reasonably related to security and rehabilitation concerns SCOUS disagrees with petitioners contention that Zablocki doesnt apply to inmates o prison inmates retain those constitutional rights that arent inconsistent with his statutes as a prisoner or the legitimate objectives of the penal system Right to marriage is subject to substantial restrictions as a result of incarceration the remaining attributes of marriage are sufficient to form a constitutionally protected marital relationship in the prison context (emotional, religious, rehabilitive value of marriage) Missouri regulation isnt sufficiently related to the penologial interests of security and rehabilitation SCOUS doesnt say SS is triggered, says it doesnt pass RB, but OConnor asks for compelling reasons t/f sounds like SS.

State Regulation of Entry into the Marital Relationship Substantive Restrictions Capacity to Marry Same Sex Goodridge v. Dept of Pub. Health (Mass. 2003) y Treating pregnancy different that other disabilities is not okay. y Rule of law: The Mass Constitution forbids the creation of 2nd class citizens, and t/f may not deny the protections, benefits, and obligations of civil marriage to same-sex couples within to marry. y Facts: Same sex couple () sought marriage licenses from Dept of Health () in order to marry in Mass. s claimed violation of EPC and DP. TC granted SJ for , deferring to the legislature, and that Mass had legit interest in safe guarding civil marriage for primary purpose of procreation and that the statute accomplished this purpose in a rational manner. y Issue: Can the state use its formidable regulatory authority to bar same sex couples from civil marriage? 22

y y

o Marriage is part of fundamental right of privacy implicit in the 14th amendments DPC Loving & Zablocki The statute deprives individuals of access to an instutution of fundamental legal, personal, and social significance because of a single skin trait as it did in Perez & Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination SS triggered but handled with RB std. Plaintiffs challenge the statute on EPC and DP grounds o b/c statute doesnt survive rational basis review, court doesnt consider arguments that the case merits strict judicial scrutiny Dept had outlawed same sex marriages b/c o 1) furtherance of procreations o 2) ensuring optimal setting for child rearing o 3) preserving scare state and private financial resources Dissent use power of legislature to effectuate social change without interference from the courts o power to regulate marriage lies with the legislature and not the courts o right to privacy wasnt really implicated still had rights of procreation and sexual relations

Perry v. Swazenager y Facts: After Goodridge, San Francisco mayor ordered city officials to issue marriage licenses to same sex couples beginning V-Day 2004 Cali SC then ruled mayor overstepped his authority and voided the licenses. y Then, gay rights activists challenged Californias statutory definition of a marriage as that between a man and woman court determined based on strict scrutiny review (reasoning that sexual orientation is a suspect class), the differential treatment accorded to same sex couples by the state ban infringes upon the fundamental privacy interest in family relationships, fails to serve a compelling state interest, and t/f violates the EPC of the state constitution. y THEN Prop 8 was passed by voters which was a state constitutional amendment abrogating the earlier decision that successfully challenged Californias statutory definition of marriage as that between a man a woman (law had violated state constitution, so Prop 8 amended the constitution no violation right?) gay rights then challenged the state constitutional amendment (prop 8) as being an illegal revision of the state constitution rather than an amendment y Then actions against enforcement of prop 8, alleging that the California constitutional amendment violates federal constitutional guarantees of EP,DP, privacy, free speech, travel, and 9th amendment. y SS review b/c law based on sexual orientation, but DC J. Walker said it doesnt pass RB grounds y Prop 8 had passed, then thrown out by J. Walker. y Prop 8proponents appealed. y Appeal taken up by 9th Cir. Q: cert. to Cali. SC to determine whether the sponsors for prop 8 even have standing. 23

Kerrigan v. Commissioner of Public Health (Conn. 2008) y Rule of law: Cts (s) civil union law constitutes a violation of the states guarantee of equal protection under the law y Facts: 8 same sex couples who applied for and were denied marriage licenses commenced this action seeking declaratory judgment and injunctive relief state then passed civil union law conferring all marriage rights to gays to have civil unions. The parties narrow the issue down to whether the civil union law is ok under the state constitution. Trial court had granted SJ to on ground that had failed to demonstrate legally recognizable injury by virtue of the enactment of the civil union law. y Q Presented: Whether the state statutory prohibition against same sex marriage violates plaintiffs rights to substantive DP and equal protection under the state constitution. y Court concludes that the plaintiffs have alleged a constitutionally cognizable injury (b/c they arent allowd to marry which the court has recognized as a fundamental right Loving, Griswold, Goodridge) y Does the states differential treatment of same sex and opposite sex couples satisfy state constitutional interests? o determining standard of review: sexual orientation meets requirements of a quasi-suspect classification y is preserving tradition of marriage (man and woman) sufficient to justify the statutory ban on same sex marriage? o when tradition is offered to justify preserving a statutory scheme that is challenged on equal protection grounds, must determine reasons underlying that tradition and see if sufficient to satisfy constitutional requirements y : leave this to the people and their electing representation and legislators y homosexuals = quasi-suspect class, they are entitled to recognition as a sensitive class and t/f have the right to heightened judicial protection from laws that discriminate against them y if the defendants were able to demonstrate sufficient cause to deny same sex couples the right to marry, plaintiffs claim would be rejected and state could preserve the institution of marriage as a man and woman.  since they fail to do so, court refuses to follow settled equal protection jurisprudence merely b/c doing so will result in a change in the defn of marriage

1996 Defense Of Marriage Act (DOMA) defined marriage as between man and a woman for federal benefit purposes and specifies that states arent requires to give effect to the same-sex marriage under the full faith and credit clause y explicitly states Full Faith and Credit doesnt apply OVERVIEW OF WHAT TYPE OF SCRUTINY IS APPLIED y Loving Fundamental Right (FR) + SC SS 24

Zabloski FR + SC SS Turner FR Rational Basis (RB) (cant say felon = suspect class b/c they have lots of diminished rights) y Lawrence FR + SC Intermediate Scrutiny (IS) (really heightened scrutiny under guise of RB) state constitutional issues y Goodridge FR + SC RB y Kerrigan FR + SS IS y Perry FR + SC IS y y Incest In Re Adoption of M (NJ Super. Ct. 98) Adoptive father and daughter y Rule of law: Final judgments of adoptions should be side aside only when it is in the best interest of the child and on a showing of truly exceptional needs. y Facts: husband and wife adopt 15 y/o child. Their relationship ends a couple years later. Petitioner = adopted kid. At 22y/o had child w/ adoptive father after he divorced her adopted mom. They now wish to marry they are the natural parents of this new kid. Their relationship was occurring before the dissolution of the adopted parents marriage. No evidence of abuse, neglect, or domestic violence. o their present legal relationship as adoptive father and adoptive daughter renders the former an ancestor of and latter a descendant to each other, thereby precluding a lawful marriage (NJ Statute invalidating marriage between persons and their siblings, nephew, nieces, ancestors or descendents) o Hence, petitioner rings this application to seek the vacation of the adoption as to her adoptive father y final judgment of adoption = a big deal, terminates all rights and duties of natural parents and kid and gives them to adopting party, not to be set aside unless best interest of child and adoptive parents served and a showing of truly exceptional circumstances o facts here constitute truly exceptional circumstances through marriage, petitioner legitimizes her relationship with her sons father and the status of her infant son o application granted Void v. Voidable Distinction y void marriage one that is invalid from inception , that is, it never had legal significance. o either party or a 3rd party may challenge the validity of the marriage at any time in any proceeding y voidable marriage valid until subsequently declared invalid o invalidity can only be asserted by one of the parties and only during the marriage Bigamy State v. Holm (Utah 2006) y Rule of law: A conviction pursuant to Utahs bigamy statute didnt violate the state or federal constitutions 25

y y y y

Facts: FLDS Mormon has wife and bangs his wifes underage sister and has kids with her too. Hes convicted of bigamy. Argues that him and the other one werent really legally married (only religiously), and that if they were married, the statute = unconstitutional b/c it violates his guarantee to freedom of religion. Holmes and the kid had participated in a religious wedding ceremony. o Holmes () argues that freedom to engage in such behavior is an individual liberty interest protected by the 14th amendments DPC argues such behavior is a fundamental liberty that can be infringed upon only for compelling reasons o Holmes relies upon Lawerence (-- same sex sodomy private consensual sexual behavior is protected by dpc)  Court argues that Lawrence is a much narrower holding present situation is different and involves a minor (outside scope of holding in Lawrence)  Lawrence only applies private, intimate acts, it doesnt discuss the institution of marriage. States ability to regulate marital relationships and prevent the formation and propagation of relationships it deems harmful Utahs state constitution specifically bans bigamy/polygamy Marital relationships = building blocks of our society state must be able to assert some level of control to ensure smooth operation of laws further states interest Polygamy statute was a fairly neutral one that doesnt mention religion doesnt violate equal protection by (his argument) discriminating against individuals who are religiously compelled to practice bigamy o T/f no EPC challenge/violation What about if underage girl wasnt involved? dissenting opinion individual liberty guarantee, substantial measure of guarantee from unjustified interference

Age Kirkpatrick v. District Court (Nev. 2003) y Rule of law: A state law requiring only one parents consent to a minor childs marriage does NOT violate the non-consenting parents fundamental parents rights as guaranteed by the US Constitution. y Facts: Man and woman had child. They divorced. Then, child at 15 y/o wanted to marry 48 y/o guitar teacher, dumbass mother approved. New Mexico didnt allow the marriage, they went to Vegas baby! Vegas approved it w/ approval of one parent and permission of the court found good cause existed affidavits had been filed by mother and daughter. o Dad and mom had joint custody over their daughter who mom just allowed to get married y New Mexico court awarded custody to father after he sought restraining order then court rescinded its order b/c held that Nevada marriage license was valid, and t/f the child was emancipated as a result of that marriage y Then, Kirkpartick () sought writ of mandamus to district court to vacate their decision

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He argues that the statute violates his constitutional interest in the care, custody and management of his daughter since it neither requires his consent nor gives him an opportunity to be heard o SCOUS has held that parents have a fundamental liberty interest in this o however, SCOUS held that while theyre fundamental, they are not absolute state also has an interest in the welfare of children and may limit parental authority o standard for substantive due process challenge to constitutionality of state statute impinging on a fundamental constitutional right is usually whether the statute is narrowly tailored so as to serve a compelling interest, however family privacy cases involving competing interest w/in the family, court deviates from regular test and uses more flexible reasonableness test Nevada statute is constitutional, safeguards were in place, no real interests lost

BEING MARRIED: Regulation of the intact marriage

Articles talking about marriage during slavery (for slaves), marriages throughout the 1920s and 30s, and the major change in the style of communication that occurred in the 1970s. y Blackstone commentaries common law view o marriage is a womans coverture (protection), under which she performs everything o man has obligation to provide for the woman, pay her debts from before marriage o husband and wife were one, if one a defendant, both defendants o not allowed to testify against each other o man was allowed to physically correct wife Marital property regimes: y 1) common law approach majority of jurisdictions, the husband and wife own all property separately. During marriage, property belongs to the spouse who acquired it, unless they choose another form of ownership y 2) community property approach own some property jointly. Community of ownership. Each spouse has undivided interest in all property acquired by the efforts of either spouse during the marriage. Unlike common law recognizes the contributions of the homemaker spouse. Also respects each spouses separate property property brought into the marriage remains the property of that spouse. Property acquired during marriage as a gift/ inheritance also remains separate property. Common law disabilities (on a wife): y wifes real property wife lost all power over her real property during the marriage. Husband entitled to sole possession and control of any real property that the wife owned in fee- whether acquires by her before of after the marriage if child born from the marriage, husbands rights became a life estate. o husband could alienate wifes property w/out her consent y

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y y

y y y

Dower- wifes primary protection from her husbands conveyances consisted of her right of dower her life estate of one-third of any land of which the husband was seised in fee at any time of the marriage (dower is now dowrydower is an inchoate property interest of married woman that comes into beneficial enjoyment upon widowhood.) wifes personal property- no right to possess personal property Wifes lack of rights to husbands personal property- husband had all power of disposition over his personal property husband could sell wifes paraphernalia (jewels etc.) Husbands liability husband was liable for the wifes premarital debts, and for torts she committed before/during marriage Wifes Contractswife couldnt enter into contracts during marriage except as her husbands agent by 1865 29 states had married womens property acts stated in Mississippi so widows could retain slaves

Uniform Marital Property Act 1998, imposes a sharing rule from the beginning of the marriage. Under UMPA, absent an agreement, a spouse acting alone can manage and control marital property held in that spouses name alone, that not held in the name of either spouse, and that held in the name of both spouses in the alternative. Spouses must act together with respect to marital property otherwise held in the name of both.

Duty of Support McGuire v. McGuire (Neb. 53) y Rule of law: No support payments can be guaranteed where the parties continue to live together as husband and wife. y Facts: Lydia was married to Charles. She did all the cooking and cleaning and took care of the farm, but Charles managed the finances. He was really cheap. o For example, he hadn't taken her to a movie in 12 years, and hadn't bought her any clothing for four years. The house was also old and shoddy (and had no indoor plumbing). y Lydia sued Charles for suitable maintenance and support money. o Lydia argued that, as he husband, Charles was legally obligated to support her. (aka necessaries). y Traditionally under the common-law, necessaries have been found to include things such as food, clothing, medicine, legal services, and housing. But there was never an exact definition. y The Trial Court found for Lydia and ordered Charles to pay her a $50 per month allowance. He appealed. o Charles argued that the allowance was not supported by evidence, was contrary to law, and was an unwarranted usurpation and invasion of his rights. y The Nebraska Supreme Court reversed. 28

y y y

y y

The Nebraska Supreme Court found that the living standards of a family are a matter of concern to the household, and not for the courts to determine. See Griswold v. Connecticut (SCOUS 65) The Court found that as long as the home is maintained and the couple is living together as husband and wife, it can be said that the husband is legally supporting the wife. o The Court noted that, outside of divorce, the only way Lydia could make a claim would be if Charles has abandoned her. o They further noted that it was theoretically possible for the facts to show that Charles had effectively abandoned her even if they were still living together, but there wasn't enough evidence in this case. Dissent: argued that if Lydia left, she would be entitled to support from Charles as part of a divorce. So it is inconsistent to find that she is not entitled to support if she stays with him. o Note that if it were today, Lydia could just divorce Charles for being cheap, but when this case was decided, you could not get a divorce in most places without a showing of fault, and if Lydia just left, then she would be the one who did the abandoning and would most likely be entitled to nothing. Facts: married in 1919 -- at that time was 46/47, this was s second marriage, had gotten 80 acres from first marriage. and her two daughters inherited a 1/3 interest in that property. At trial, = 66, = 8, no children were born to them. At time of marriage, two minor children from s previous marriage were involved, at time of proceeding, those children had families already those children had received financial support from both of the parties. During marriage, wife worked the fields and tended the home wife testifies husband wasnt so good didnt get her any clothes etc in over 4 years, didnt give her much money. didnt inform her of any of his finances o public policy requires such a holding. isnt devoid of money (allowed to take all rent from 80 acres she owns) REVERSED AND REMANDED w/ direction to dismiss this case illustrates two doctrines HOLDING: o common law duty of support duty to provide o common law doctrine on nonintervention specifies that the state rarely will adjudicate spousal responsibilities in an ongoing marriage. THUS, marital support obligations are enforceable only after separation or divorce.

Names in the Family Neal v. Neal (Mo. 97) y Issue: Can a womans maiden name be restored after a divorce and given to her baby as the minors surname? y Rule of law: There is a common law right to a change of name, regardless of marital status. y Facts: Husband and wife separated in 95, wife was pregnant and filed a petition for dissolution of marriage that year. Husband answered, denying marriage was broken and he sought dismissal of her petition. July 95 wife gave birth to child, listed maiden name as childs surname and didnt list husband on birth certificate. 29

y y y y

Divorced by decree of dissolution filed September 95. After the court decided custody, court ordered a correction on the birth certificate to reflect husband as father and that surname of minor is changed to Neal wife appealed a trial court must find a change of name petition to be detrimental with a narrow scope of discretion a general concern of possible detriment is insufficient to deny a petition for change of name in light of the obvious legislative intent that such a procedure be available Here, trial court provided no reason for its declining to order restoration of wifes maiden name. Trial court erred in refusing to restore wifes maiden name Wife also contends trial court erred in granting husbands request to change last name of child to Neal. o Trial court failed to follow proper procedure in changing childs last name failed to give notice to wife of husbands intent o reversed and remanded.

Does state regulation of naming children treat men and women differently? Henne v. Wright (8th Cir. 90) Right to choose surname isnt fundamental y Rule of law: 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. y Facts: Debra and Robert were in the middle of a divorce. While the paperwork was being filled out, she met Gary. Gary got Debra pregnant. She had a baby named Alicia. Although Gary was the father, the registrar would not allow Alicia's birth certificate to have Gary's last name. o Under Nebraska State law, a child born into wedlock must have the mother's husband's last name (Robert's). y In most States, there is a presumption of paternity, meaning that if a couple is still married, any children are presumed to be the child of the husband. o In some States this presumption is irrebutable! y Debra gave in and gave Alicia Robert's last name. However, she left the 'father's name' birth certificate blank. Later, she applied to have Alicia's birth certificate amended to list Gary as the father, but the Registrar denied the request. y Debra sued the Nebraska Dept. of Health (Wright), and the Dept. of Vital Statistics, claiming that the restrictions on names were unconstitutional. y Facts: In a totally separate case (class action), Linda (who was single) had a baby with Ray. Linda wanted the baby's last name to be 'McKenzie', just because she liked the name. The Registrar denied the request. o Neither Linda nor Ray was related to anyone with the last name McKenzie, but she had already named her other two kids McKenzie. y Linda intervened and joined the lawsuit. y The Trial Courts found for Debra and Linda and found the Nebraska Statute (Neb.Rev.Stat. 71-640.01) unconstitutional. Nebraska appealed. o The Trial Court found that the restrictions were a violation of the right to privacy in the 14th Amendment. y The Appellate Court reversed. 30

o The Appellate Court found that the courts should apply a rational basis test to determine the constitutionality of the Statute. The Court found that there was no fundamental right to name your kids whatever you wanted. Therefore the rational basis standard was the appropriate level of review (as opposed to strict scrutiny). o The Court noted that there is no historical tradition of allowing parents to choose their child's last name. o The Court found that there was a rational basis for the Statute. o The Statute promotes the welfare of children by giving them familial connections, it insures that the names of citizens are not appropriated for misleading purposes (such as false implication of paternity), and it makes for inexpensive and efficient record keeping. Dissent: it was argued that people have a 1st Amendment right to free speech to name their child whatever they want. In addition, it has been established parents do have a fundamental right to raise their child as they see fit. The dissent felt that naming the child should be considered part of raising the child. Debra could have gotten a judicial determination of paternity, proving that Gary was the father. Then she could have gotten Alicia's birth certificate changed. Also, Linda could have had her name legally changed to 'McKenzie' and then all of her children's names could be changed to match. the right to chose a childs surname is NOT fundamental

Methods of Name Change two methods exist 1. Common law method of consistent, nonfraudulent use -This is how married women change their surnames. 2. Statutory prescribed judicial procedure - judicial hearing/publication etc. Note only 6 states have statutory provisions allowing men to change their names on marriage

Post-divorce name resumption -Statutes often provide for a married woman to resume use of her birth name upon divorce. Childrens Surnames -Traditionally, children born out of wedlock given mothers surname, in wedlock are given their fathers. - In response to womens movement, statute give parents the right to fathers name, the mothers, or a hyphenated name. Name Disputes between parents -Courts resort to one of three standards: 1. custodial parent presumption 2. presumption favoring the status quo 31

children born choose the

3. test to determine best interest of the child (Maj. jurisdictions) childs preference, effect of name change on parent-child relationships, length of the time the child has had the s surname, ID of the child as part of the family unit, social difficulties, presence of any parental misconduct or neglect

TITLE VIIProhibits discrimination on the basis or race, color, religion, sex, national origin Employment Bradwell v. Illinois (SCOUS 1873) Historical View of Women y Rule of law: A state may deny entry into a profession of grounds of sex and marital status y Most famous articulation of the separate spheres doctrine y Facts: SC of Ill. denied Bradwells () application to the state bar after being presented with a petition and certificate attesting to her good character, after she had passed the Chicago bar exam. y SCOUS affirmed. y HOLDING: o Bar admission denied based, in part, on inability of a married woman to contract o SCOUS: admission to the bar was a matter reserved to the states and not one of the privileges belonging to citizens. y Ill SC denied the application on the ground that the legislature provided that no person should be admitted to the bar without having previously obtained a certificate from the court of some county of his good moral character in addition to obtaining license from two justices. o Left to discretion of the court to establish the rules by which admission to the profession should be determined y Courts are bound by two limitations o 1) should establish terms of admission that promote the proper administration of justice o 2) should not admit any person, or class of persons, not intended by the legislature to be admitted, even though not expressly excluded by statute y court felt compelled to deny the application of females to be admitted to the bar common law at the time? y claim under 14th amendment (that declares no State shall make or enforce any law which shall abridge the privileges. assumes that it is one of the privileges of women as citizens to engage in every and any professional occupation. y **Man is, or should be womans protector and defender*** o womanhood = domestic sphere y married woman cant go into Ks without husbands consent o this married woman is incompetent to fully perform lawyerly duties!!!!! y Unmarried women = exception to the rule? y 1870 first woman admitted to bar of any state 32

o Bradwell case took place two months after this Vaughn v. Lawrenceburg Power System (6th Cir. 2001) y Rule of law: A government employers anti-nepotism policy, requiring one of two employees to resign if they marry, does not violate the EPC of the US Constitution. y Facts: = former employees of . They allege that their rights were violated when they were terminated -- Tennessee Human Rights Act. Vaughns (s) objected to LPSs () anti-nepotism policy which requires the resignation of one spouse in the event two employees marry. The Vaughns had been warned of the policy and that one of they would have to resign if they got married. o LPS requested a resignation letter from one of them if they married. They didnt get it. When they got back from honeymoon they were both suspended for two weeks because they failed to inform. Then only man went to work. He was fired for not providing employer with the requested letter. o filed lawsuit alleging violations of 42 USC 1983 based upon fundamental right of marriage and freedom of association y ** in order for strict scrutiny to be triggered, there must be a direct and substantial burden on the right of marriage ** o direct and substantial burdens occur only where large portion of those affected by the rule are absolutely or largely prevented from marrying a large portion of otherwise eligible population of spouses y LPS policy didnt bar them from marrying or restrict their freedom to marry. Rule was non-oppressive burden on the right to marry. o Therefore subject to Rational Basis Review y LPS demonstrated that its rule advances a legit government interest (avoid marital problems at work etc.) Parenting Pregnancy Leave Cleveland Bd. of Edu. v. Lafleur (SCOUS 74) y Rule of law: 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. y Facts: 1952 mandatory maternity provision required expectant mothers to take leave w/no pay 5 months before birth of child no promise to rehire, only given priority. Failure to comply with mandatory maternity leave provision = grounds for dismissal o Two teachers didnt want to take unpaid maternity leave --- wanted to keep teaching until the end of the year. y consolidated cases more facts: o similar shit, pregnant teacher required to leave work unpaid at four months before and to get physician letter for when shes ready to resume. School board rejected requests to continue teaching until end of first semester. Filed suit under 42 USC 1983 33

y y y

y y

SCOUS takes case to resolve conflict between the courts of appeals regarding the constitutionality of such mandatory maternity leave rules for public school teachers (Importance of case lessened because at time the teachers in this case were placed on leave, Title VII didnt apply to state agencies and educational institutions this was amended with the Equal Employment Opp. Act of 74 EEOC said mandatory leave violated Title VII) Eisenstadt right to be free from unwarranted governmental intrusion into matters fundamentallydecision as whether to bear or beget a child o By acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute heavy burden on exercise of these protected freedoms Can the school board advance sufficient enough justification to encroach on these fundamental liberties? o Asserted goal of continuity/not disrupting school year is bs Arbitrary cutoffs arent good (5 months out and you have to quit [bring line rules]) o It should be a case-by-case matter o such arbitrary cutoffs have no rational relationship to the valid state interest of preserving the continuity of instruction SCOUS says that the stated objectives of the School Board (ensuring continuity and physical fitness of teacher) are legit, HOWEVER, the rules were overly broad. o DPC REQUIRES THAT THE RULES NOT NEEDLESSLY, ARBITRAIRILY, OR CAPRICIOUSLY INFRINGE UPON THIS LIBERTY INTEREST. Violates DPC 14th amendment requires other administrative means which do not so broadly infringe upon basic constitutional liberty to support their legitimate goals Requiring medical certificate is reasonable and narrow method of protecting school boards interest in teacher fitness and possible deferral of return until the next school year serves the goal of preserving continuity of instruction these rules are ok Bright-line Rules requiring x months before / after pregnancy are not ok Postscript: pregnancy discrimination act of 1978 pregnant women should be treated the same as other medical conditions for all employment-related purposes based on individual ability/inability to work

California Federal Savings & Loan Assn. v. Guerra (SCOUS 87) y Rule of law: A state law requiring an employer to provide maternity leave is not inconsistent with the Federal Pregnancy Discrimination Act. y Facts: A state law requiring an employer to provide maternity leave was challenged as inconsistent with the Federal Pregnancy Discrimination Act. o Issue: Whether Title VII of Civil Rts act of 1964 as amended by the pregnancy discrimination act of 1978 preempts a state statute that requires employers to provide leave and reinstatement to employees disabled by pregnancy

34

Cali. enacted a law requiring employer to permit pregnant workers to take a leave of absence of up to four months, with guaranteed restatement, unless the employees position was abolished for legit business reason. o The statute didnt give employees right to paid leave, just gave them a qualified right to reinstatement. y Guerra took such a leave, but was not allowed reinstatement by her employer, California Federal Savings and Loan (). When California () initiated administrative action against , filed for an action seeking to have the law invalidated as inconsistent with the Federal Pregnancy Discrimination Act (codified in Title VII of Civil Rts Act) o DC issued injunction barring enforcement of the law, but the 9th Cir. reversed SCOUS Accepts review. y Cal. Fed. () has policy of reserving right to terminate an employee who has taken leave of absence if a similar position isnt available y Does the Cali statute require or permit employers to violate Title VII as amended by the PDA, or is it inconsistent with the purposes of the statute determine whether the PDA prohibits the states from requiring employers to provide reinstatement to pregnant workers, regardless of their policy for disabled workers generally y Petitioners contend that the PDA forbids employer to treat pregnant employees any different than other disabled employees o PDA was passed after Gilbert decision whereby SCOUS said pregnancy discrimination wasnt part of the protected sex discrimination y PDA = floor, not ceiling y Petitioners had argued that PDA prohibits employment practices that favor pregnant women (b/c PDA says they dont have to extend treatment to pregnant women beyond what they do for regular disabled employees) o Statute isnt preempted by Title VII as amended by the PDA b/c its not inconsistent with the purposes of the federal statute (protecting pregnant women from employment discrimination) Pregnancy Discrimination Act of 1978 (PDA) Direct response to Gilbert which excluded pregnancy for disability purposes. Its sex discrimination to not cover pregnancy. Argument that its not medically necessary. y Four stages of development in the treatment of pregnancy and maternity under the law: y 1) 1870 1970 o need to protect women and there babies during vulnerable time period. US dept of labor recommended that they shouldnt work 6 weeks before and 2 months after birth many states began adopting laws prohibiting employers from employing women during this time before/after birth  protected them out of having a job where leaves werent accompanied by a guarantee of job security or wage replacement o working women should go home when they get pregnant y 2) 1970-1976

35

o court concluded that discriminating against pregnancy didnt violate EPC b/c was a particular physical condition (insurance providers) used rational basis review & it passed o Lefleur didnt invoke sex discrimination cases and the EPC, but rather invoked reproductive choice cases such as Eisentstadt, Roe and the DPC. 3) 1976-1978 o Gilbert SCOUS interpreted title VII as it had the EPC: discrimination on the basis of pregnancy was not sex- discrimination (insurance company failure to compensate women for pregnancy doesnt upset the basic sex equality of the program just b/c pregnancy is an additional risk unique to women 4) 1978 present o reacting to Gilbert, congress passed the Pregnancy Discrim. Act (PDA) of 1978 as an amendment to title VII making pregnancy discrimination sexual discrimination

Balancing Work and Family Family and Medical Leave Act -- 29 USC 2601,11,12,14 (2006) y eligibility have been employed for at least 12 months by the employer y benefits protection restored to position with equivalent employment benefits/pay. Maintain health benefits for duration of leave y FMLA APPLIES TO BOTH MEN AND WOMEN Caldwell v. Holland of Tx Inc. (8th Cir. 2000) y Rule of law: The FMLA allow eligible employees to take time off from work to take care for a sick family member who suffers from a serious health condition. y Facts: Caldwell (), a single mother, is the former employer of , owner/operator of several KFCs in Arkansas she had a good record while with the company for 3 years. o Son got sick one day, got permission to take him to doctor. Son got meds and was to require ear surgery, worked sat night shift, had Sunday off, came in Monday was fired (after having received permission to miss her shift).  She filed suit alleging violation under FMLA y FMLA allows eligible employees to take up to total of 12 workweeks off per year for serious health conditions affecting immediate family members. o Applicability of FMLA 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 y Here, incapacity no easily defined for preschool child, but look at if child participates in his daily routines, whether a day care facility would allow child to attend with the sickness, etc. y Must demonstrate incapacity and ongoing treatment = serious health condition y FMLA purpose is to help working men and women balance conflicting demands of work and personal life to prevent individual from having to choose between their livelihood and treatment for their own or their family members serious illnesses 36

o DC erred in granting SJ/dismissal reverse and remand Dike v. School Board (5th Cir. 1981) Breastfeeding y Rule of law: A womans decision to breastfeed her child is a fundamental liberty interest protected by the US Constitution against excessive state interference. y Facts: Dike () is a teacher, gave birth and returned to job. Wanted to have child brought to school during free periods to breastfeed in private locked room. Didnt disrupt her work performance. After 3 months of no problems with this, school board directed her to stop nursing the kid on campus citing policy prohibiting teachers from bringing children to work. She stopped, kid was allergic to formula, she pumped but it fucked her and the kid up. School denied her request to leave during day to feed kid in camper van. o B/c she was denied permission to breast feed on campus or off, she was compelled to take unpaid leave of absences y She sued the school board under 42 USC 1983 alleging it had unduly interfered wit her constitutionally protected right to nurture her child by breastfeeding. o District court deemed action frivolous, dismissed complaint and awarded attorneys fees to y Constitution protects from undue state interference of citizens freedom of personal choice in some areas of marriage and family life. These protected interests have been described as rights of personal privacy or as fundamental personal liberties y among these protected liberties are: o individual decision respecting marriage (Zablocki & Loving) o procreation (LaFleur & Skinner) o contraception (Griswold & Eisenstadt) o abortion (Roe) o and family relationships y SCOUS: parents interest in nurturing and rearing their children deserves special protection from state interferences (Pierce/Meyer) y Constitution doesnt prohibit all restrictions on protected liberties school board may establish appropriate regulations prohibiting teachers from leaving campus or bringing children onto campus if its to further sufficiently important state interests that are closely tailored to effectuate only those interests. y The interests asserted by the school board are legit whether theyre strong enough to justify the regulations and whether theyre sufficiently narrowly drawn must be determined @ trial. y Reversed SJ inappropriate. TORT AND CRIMINAL LAW Third Parties: Alienation of Affection and Criminal Conversation (Unlike alienation of affection, criminal conversion requires intercourse) Note: Only 7 states currently have Alienation of Affection laws -Alienation of affection can only be brought against 3rd parties. Jones v. Swanson (8th Cir. 2003) y Rule of law: An affair partner proximately causes the alienation of a married persons affection if he encourages an affair even when the married partners 37

marriage is already weak and eventually results in divorce after the affair has ended. o Facts: Dude and chick date, both marry other people after dating, dont see each other for 20 years. Run into each other again, and start hooking up. Husband and wife kept reconciling and the other dude kept interfering. Husband sues guy for alienation of affection. o Elements of the claim  1) wrongful conduct of the  2) loss of affection or consortium  3) causal connection between the wrongful conduct and the loss of affection or consortium o Based on an intentional tort not negligence based on enticement o After found guilty, dude appeals saying that the marriages ending wasnt casually related to the affair (not the proximate cause of chicks loss of affection for her husband) o There was evidence pointing to a failing marriage before the high school sweetheart came back on the scene, but also competing evidence that the marriage may have survived or in the very least that chick still had affection for her husband  Chick had moved back in with husband after affair died downshe had harbored affection for her husband which was alienated as a result of other dudes involvement o Jury had concluded that Donna still may have continued to love her husband if other dude wasnt involved o Intentionally trying to inflict harm isnt an element of this intentional tort o 150K in compensatory, 200 K in punies Bailey v. Faulkner (Ala. 2006) Anti-HeartBalm Statutes y Rule of law: Alabamas anti-heartbalm statute precludes recovery for injuries arising from one persons interference with another persons marriage. y Facts: Bailey () appeals judgment of jury verdict in favor of Faulkner () arising out of a consensual sexual relationship with Faulkners wife. y Bailey was the pastor looking over their marriage counseling y Since Alabama abolished heart balm torts, court has refused to recognize any claim for damages against a 3rd party, no matter how denominated, thats based on allegations of interference with the marriage relationship y Faulkner (husband) had sued that pastor negligently and wantonly performed his duties as a counselor, causing extreme mental anguish jury had awarded 2 mil in punies and $67K in compensatory appeal for remitter or reversal (punies brought down to 1.5 mil) o This case wasnt about negligence, it was about intentional misconduct y Claims stated in this case are barred by anti-heart balm statutes o Tried to get by those statutes with a negligence claim Tort Actions Between Spouses G.L. v. M.L. (NJ Sup. Ct.) Interspousal Immunity

38

y y y

Rule of law: The marital privilege of sexual relations does not include immunity to personal injury suits between spouses based on the transmittal of a sexual disease. Facts: Woman () filed for divorce, including four counts for IP alleging that her husband transmitted genital herpes to her files motion for SJ dismissing PI counts o points to Merenoff v. Merenoff and interspousal immunity  Recognized certain areas of marriage that are beyond the reach of courts b/c they fall into special matters of privacy and fall out of the bounds of a definable and enforceable duty of care argues that b/c knew he had herpes from an extramarital affair she should be able to get $, he contends that sexual intercourse between spouses is within scope of marital privilege and t/f he should be shielded from liability o Court doesnt agree with -- thinks its unconscionable to be able to purposely infect someone and be immune Court says cannot simultaneously breach the marital contract with an extramarital affair and also claim nuptial immunity o The intentional act was not the transmittal of the herpes, but rather was the act of sexual intercourse with the after sexual relations with someone else whom he had carried on a 2 year relationship --- s behavior put at a risk of harm Spousal duty of care o @ common law doctrine of interspousal immunity precluded interspousal tort suits Spouses have an affirmative duty of care; not only did he fail that, he also put his wife at risk.

Wiretapping Glazner v. Glazner (11th Cir. 2003) y Rule of law: The federal wiretapping statute does not contain a marital exemption that permits one spouse to record the other spouses telephone conversations without the consent of the other spouse or any third party with whom she spoke. y Facts: During divorce proceedings, dude places recording device on the phone of the marital home w/out consent of any party. After discovering the device (and that it had recorded a number of her conversations), chick filed suit seeking damages as result of alleged Title III violation o Title III prohibits the interception of wire communication y To determine whether dudes actions constitute title III violation, look at language of the statute  intentional interception of any wire, oral or electronic communication o Dude was wiretapping y Some courts had held exceptions for interspousal wiretapping while most did not y District court had granted SJ to dude on based on Simpson v. Simpson (5th Cir. 1974 11th cir. predecessor) 39

y y

o In the 30 years since Simpson was decided, majority of fed. c o Courts refused to imply exception to title III liability for interspousal wiretapping SCOUS instructs that stare decisis should be abandoned where, as here, a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed o 11th cir. goes to hold that NO EXCEPTION FOR INTERSPOUSAL WIRETAPPING EXISTS UNDER TITLE III In deciding whether the rule overruling Simpson should apply retroactively or prospectively examine whether retroactive application will further or retard the rules operation o Applying new Glazner rule retroactively will further the purpose of title III Abolition of interspousal wiretapping exception applied retro actively to Mr. Glazner Wiretapping requires the interception; t/f wife taking stuff off mans comp. isnt wiretapping.

Battered Woman Syndrome Hawthorne v. State (Fl. DC 82) y Rule of law: Expert testimony regarding the battered woman syndrome is admissible if the court finds that: (1) the proffered expert is qualified to give an opinion regarding the subject matter; (2) scientific knowledge allows the expert to give a reasonable opinion; and (3) such testimony is beyond the understanding of the average person. y Facts: This is womans second trial for the murder of her husband. First conviction for first degree murder was reversed by DCA y Woman claims she was justified in firing the dozens of bullets from multiple guns into her husband because she wanted to protect herself and her family from assault, rape, and death. y Appellant argued that trial court erred in disallowing the testimony of a clinical psychologist who would have testified as an expert about battered woman syndrome o Purpose was to establish self-defense claim y Expert testimony should be allowed as long as its relevant and about info beyond the scope of average laymen  Expert also must be sufficiently qualified and presenting information about commonly accepted scientific knowledge y Court finds that average person wouldnt understand why a battered woman wouldnt leave her husband o However, here, there has been no determination as to adequacy of this doctors qualifications or whether her methodology is accepted indicating that the subject matter can support a reasonable expert opinion y Whether the doctor is qualified and the testimony allowed is up to discretion of trial court o Appellee argues that to admit this expert testimony would violate rule that testimony regarding metal state of in a criminal case in inadmissible in the absence of a plea of not guilty by reason of insanity however this expert 40

isnt being offered as a means to a defense rather that the specific defense of self-defense which requires a showing that the accused reasonable believed it was necessary to use deadly force to prevent bodily harm to her or her children REVERSED AND REMANDED FOR NEW TRIAL (evidence should have been admitted) o at remand, the trial court rejected the evidence, reasoning that its scientific basis was not sufficiently accepted COA affirmed

Duties of Law Enforcement Town of Castle Rock v. Gonzales (SCOUS 2005) y Rule of law: A person who has been awarded a state-law restraining order does not have a protected property interest under the 14th Amendment to have the order enforced if the person has probable cause to think that the order has been violated. NO DPC property interest in the restraining order against the ex-husband. y Facts: ex wife had TRO on ex husband. Kids went missing from womans home, called cops to enforce TRO. They didnt, told her to call again later. Told to wait until 10, then 12. Officers made no reasonable effort to enforce the TRO. At 3:20 am the ex husband arrived at police station and engaged in shootout with police who killed him. The 3 daughters were found dead inside his car y Gonzales brought a civil rights action against the town under 42 USC 1983 claiming that she had a property interest in the enforcement of the TRO and that the town deprived her of this property interest without due process by having a policy that tolerated nonenforcement of TROs y DeShaney DPC doesnt require a state to protect the life, liberty, property of its citizens y Ct of appeals here said Colorado law created an entitlement if government officials may grant or deny at their discretion o Colorado law didnt necessarily make enforcement necessary  True mandate of police action would have used stronger language y Respondent doesnt specify the precise means of enforcement that the Colorado restraining-order statute mandates o Such indeterminacy is not the hallmark that a duty is mandatory y Even if enforcement was mandatory under the Co law, doesnt mean that the state law gave the respondent an entitlement to enforcement of that mandate y Reversed Mandatory Arrest Laws -A controversial practice to battering. Over states require misdemeanor domestic violence offenses. mandatory arrest for

Marital Rape People v. Liberta (NY 84) y Rule of law: A statutory marital exemption for rape lacks a rational basis in violation if the EPC of state/federal constitutions 41

y y

Facts: When Liberta () was indicted for first-degree rape and sodomy of his wife, he claimed his acts were protected under the marital exemption. A TRO issued to wife by Family Court after husband began to beat her. Under this order, was to move out of and remain away from family home and from wife. was allowed to visit with his son 1x/weekend o wife got tricked into going to husbands motel room where he forced her to perform sexual acts in front of the kid o wife went to hospital after this occurred went to cops and swore out a felony complaint against marital exemption lacks even rational basis t/f violates EPC of federal & state constitutions Under penal code, female for purposes of the rape statute was defined as any person not married to the actor o deviate sexual intercourse = sexual conduct between persons not married to each other B/c of the not married language in the definitions of female and deviate sexual intercourse, there is a martial exemption for both forcible rape and forcible sodomy. o marital exemption has exceptions husband and wife considered not married if at the time of the sexual assault they are living apart pursuant to a court order or a separation agreement o state legislatures who enacted the marital rape exemption in the 17th century relied on statement that wife has given herself up to husband, by contract which the wife cannot retract court finds no rational basis for distinguishing between regular and marital rape old notions were based upon property rights o urges (since all other arguments failed) marital exemption protects against government intrusion into marital privacy  no relation between allowing a husband to rape his wife and promoting privacy in the marriage . state interests prevail  (right of privacy protect consensual acts, not violent sexual assaults Griswold v. Ct.) o court additionally finds that the penal law violates EPC b/c it exempts females from criminal liability for forcible rape (now in NY, anyone who engages in this conduct is guilty) s conviction AFFIRMED

Domestic Violence Statistics: of all women will experience domestic violence 1247 women vs. 240 men killed in DV incidents last year 83% of perpetrators are male Evidentiary Privileges Arising from the Marital Relationship Trammel v. US (SCOUS 80) Only witness spouse has immunity privilege y Rule of law: The privilege against adverse spousal testimony belongs to the witness alone, so that the accused spouse may NOT invoke the privilege to exclude the voluntary testimony of the witness spouse. 42

y y

Cant be forced to testify against spouse, but cant prohibit spouse from testifying adversely against the other spouse so long as it wasnt privileged information must have been said in front of a third party Facts: Trammel and his wife were involved in heroin ring she agreed to testify against him in return for immunity. Trial court ruled she could testify as to anything except confidential communications between herself and Trammel, which were deemed privileged and inadmissible. When his wife took the stand to testify, Trammel objected on the grounds that her testimony was not admissible because it was protected by spousal privilege. o The Trial Judge allowed her to testify to any act she observed during the marriage and to any communications made in the presence of a third person. Historically, there were two different types of spousal privilege: o Spousal Testimonial Privilege said that a spouse could never testify against the other spouse on any issue, as long as they were married.  Once the marriage was over, this bar was lifted. o Spousal Communications Privilege ABSOLUTE said that a spouse could never testify about communications between the two made during the marriage, even after they got divorced. The Trial Court convicted Trammel of drug smuggling. He appealed. The Appellate Court affirmed. Trammel appealed. The Appellate Court found that the spousal testimonial privilege did not prohibit voluntary testimony of a spouse who appears as an unindicted co-conspirator under a grant of immunity. SCOUS affirmed. o The Court noted that the leading case was Hawkins v. United States (SCOUS 54) which followed the common law tradition that one spouse cannot testify against the other unless both consent.  Under Hawkins, all testimony by the spouse was inadmissible. This was much broader than other privileges (like lawyer-client), which only applied to confidential communications. Court does away with sweeping rule of Hawkins o However, the Court also noted that under FRE 501, the courts have the authority to continue the evolutionary development of privilege rules. The Court found that the spousal testimonial privilege rule should be similar to other privileges. The spouse is not barred from testifying if they chose to do so. However, they cannot be compelled to do so. o Basically, the testifying spouse is the only one who can raise the issue of privilege. If they want to waive it, the accused spouse can't stop the testimony. Currently, the spousal communications privilege may be asserted by either spouse in both civil and criminal proceedings; the spousal testimonial privilege may only be claimed by the testifying spouse, and is only recognized in criminal proceedings. this case only dealt with spousal testimonial privilege, but @ time of this case, 24 states permitted a spouse to prevent adverse spousal testimony (influenced change).

IV. ALTERNATIVE FAMILIES

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Constitutional Limits on Definitions of Family Marriage Civil Union Common Law Marriage Domestic Partnership -------------------------------------------SPECTRUM-------------------------------------------------Is a Commune a Family? US Dept. of Agriguclure v. Moreno (SCOUS 73) Food Stamps y Rule of law: 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. y Facts: Applicants for federal food assistance programs challenged the constitutional validity for 3(e) of the Food Stamp Act of 1964, which defined a household as including only groups of related persons. Is 3(e) of Food and Stamp Act of 1964 in violation of the constitution? 3(e) defines household as those who are related or non related, non residents of an institution or boarding house living together sharing common cooking facilities and food etc o 1971 amendment congress required those members to be related individual (anti-hippie laws) y Class action suit sought declaratory and injunctie relief against the enforcement of the sction DC held that the unrelated person provision created an irrational classification in vilation of the EPC. US Dept () appealed) y Contented that the food stamp act has other provisions aimed at reducing fraud --this provision wasnt necessary y Contrast this case to Belle Terre v. Boras (SCOUS 74) upheld a zoning ordinance that restricted land use to one-family dwellings and defined family as those who were blood/adoption related there was 6 college kids living together o In upholding the ordinance, court analogized the group of college students to other urban problems (frat houses, boarding houses) too much noise and traffic o SCOUS applied RB test to the zoning ordinance saw nothing impermissible in villages goals y Cases conflict ? Belle about congestion and overcrowding, while Moreno SCOUS is skeptical about the governments unsubstantiated assumptions about the instability of households of unrelated persons o Different outcome b/c Moreno s were more like traditional family? y Impact of Lawrence did it set a new DP standard for zoning ordinance, invalidating the principles of Belle Torre? OConnor concurrence in Lawrence relies in part on Moreno y Concurrence: fundamental right at hand right of freedom of association guaranteed by the first amendment. o t/f the governments regulation must be narrowly drawn The Extended Family Moore v. City of East Cleveland (SCOUS 77)

44

y y

y y

Rule of law: 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. Facts: City zoning ordinance requires single family dwellings for occupancy, however, family in this ordinance recognizes only a few categories of related individuals o Appellant was convicted of criminal offense b/c her family doesnt fit into this category lives with her son and her two grandsons the two grandsons are cousins and not brothers City relies on Belle Terre (SCOUS 74) court distinguishes them b/c there the ordinance didnt affect related individuals living together When city is undertaking an intrusive regulation into the family, Belle Terre and Euclid cannot apply o Court long has recognized freedom of personal choice in matters of marriage and family life is one of the liberties protected by the DPC of the 14th amendment. There is a private realm of family life which the state cannot ender o family is not beyond regulation (Prince) Ordinance would require appellant to find another dwelling for her grandson simply because of the presence of his uncle and cousin o ordinance cannot survive City tries to distinguish Meyer & Pierce and points to grandmothers not necessarily having fundamental rights when it comes to their grandsons The Constitution doesnt permit an ordinance limiting occupancy of dwellings to the narrowly defined pattern of the nuclear family.

Cohabitation Marvin v. Marvin (Cal. 76) Unmarried Couples Rights CONTRACT y Rule of law: A cohabitating 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. y Facts: and cohabitated for 7 years, during which time all property was acquired in the s name/ sued for a portion of the property based on the s alleged breach of an oral contract. The court here recognizes express/implied Ks, but if this doesnt qualify then who will? This couple did everything a married couple does, but werent actually married. She took on his last name and gave up a career. y He had given her an oral promise to support her whether they split up or stayed together y ISSUE: whether an express oral contract existed or not o Court seeks to not resurrect the notion of common law marriage which was banned by California statute y Because s complaint states a legally recognized cause of action for breach of an express K, the trial court erred in granting s motion for SJREVERSED & REMANDED y At remand, court found no express K and no implied K, however, awarded 104K in rehabilitative alimony = to two year period of highest salary earned as a singer prior to the cohabitation 45

y y

Court of appeals cancelled this award award wasnt supported by law or equity o There was no unjust enrichment and no wrongful act by Most couples dont have express agreements and b/c the here only pleaded express K, everything said in case about implied ks = dictum T/f all importance of this case rests on dictum Notes: domestic services (in return for s promise of support) fail to provide sufficient consideration b/c of rationales that 1) woman acted out of affection rather than for a gain, 2) intended her actions as a gift, or 3) her services are offset by the mans companionship and services Marvin disapproved the status approach of In Re Cary, which treated cohabitants like married persons by granting them half of the accumulated property, based on an extension of no-fault divorce and community property principles.

Marriage: Status v. Contract: Cary- Marriage as STATUS. Ct: it looks like marriage, so give them benefit of marriage) Marvin Benefit of CONTRACT. (Ct. doesnt like public policy ramifications of cohabitation) Most jurisdictions recognize Marvin ACI says its should be more like status (Cary), while restatement says it should look more like contract (Marvin) Unmarried Couples, Third Parties, and the State Tort Recovery Graves v. Estabrook (NH 2003) TORT y Rule of law: A person who cohabits with and is engaged to a decedent has a cause of action for negligent infliction of emotional distress against one who negligently caused the other cohabitants death. y Facts: Graves () was engaged in Ennis he was riding motorcycle while she () was following him. At intersection, Estabrooks (s) vehicle didnt yield at stop side and hit Ennis, killing him the next day. Graves alleges NIED as a result. DC granted SJ to . appeals. y Issue: Can , who lived w/ and was engaged to marry the decedent, recover for NIED? y Must determine if it was reasonably foreseeable o 1) was close enough to the scene as contrasted to one that was far away observing it, o 2) whether the shock resulted from direct emotional impact (observing it as opposed to learning about it from another person after it happened, o 3) whether and victim were closely related y Some states had allowed recovery to fianc, some didnt y Pleadings are reasonable and should have withstood motion to dismiss reversed/remanded y What if the hadnt been engaged to the decedent, and they were merely dating/cohabitating? y must prove quality of the relationship 46

in determining quality, court looks to: o duration, degree of mutual dependence, extent of common contribution to a life together, extent and quality of shared experience, membership in the same house.

Employment Shahar v. Bowers (11th Cir. 97) EMPLOYMENT (discrimination) y Rule of law: In evaluating the constitutional validity of the states decision to revoke an offer of employment based on the prospective employees same sexmarriage, the employees interests must be weighed against the potential disruption and harm the state believes such employment will cause. y Facts: was a law student, got offer from Attny Gen. Invited fellow employees to attend her lesbian wedding. Offer revoked b/c would interfer with her ability to perform her duties well. /appellant contends that the attorney general of state of Georgia violated her federal constitutional rights by revoking a legal employment offer b/c of her purported marriage to another woman. claims constitutional rights were infringed upon b/c she lost her job at the hands of a state actor y argues for strict scrutiny under Dike rationale SS review of governmental employees freedom of intimate association claim y Court concluded appropriate test is for evaluating the constitutional implications of a government employers decision based on an employees right to free speech use Pickering balancing test y Pickering Balancing Test used when Govt is employer, has heavier rights to balance interests y Attny general worries about his office being involved in litigation in which Shahars special personal interest might appear to be in conflict is reasonable y Employers interest in promoting the efficiency of the legal department outweighs Sharas personal associational interests fed. constitutional law provision didnt prohibit the attny general from making this decision y Note: Fed government has not spoken about employment discrimination based on sexual orientation (up to individual states to enact legislation) Health In Re Guardianship of Kowalski (Kowalski III) (Minn. App. Ct. 91) y Functional vs. Formalistic Defn of Family y Rule of law: Minnesota law provides that the standard for appointment of a guardian is the best interests of the ward. y Facts: Woman gets into car accident that debilitates her. Had legit lesbian relationshipinsurance, etc. Her parents didnt know about relationship at the time of the accident. Father agreed initially to be guardian and that lesbian could have visitation rights.changed his mind quickly, moved her to a care-facility further away from lesbian and denied lesbian visitation rights, court approved. Father then was getting sick so changed guardian status, lesbian petitioned for guardianship denied, (disinterested) friend appointed y Issue on appeal: courts choice of guardian and its findings and conclusions on the comparative qualifications of friend vs. lesbian lover. y Court supposed to look at: (1) Wards expressed preference, (2) Petitioners qualifications, and (3) Courts choice of a neural guardian. 47

Lower court had concluded, despite testimony attesting to otherwise, that the accident victim couldnt express preference to be with someone, appeals courts finds otherwise expresses a reliable preference for guardianship to be with lesbian o This was really about the victims family not wanting to ever visit her if lesbian is named guardian would move back to her home together y Lesbians petition for guardianship granted lower court had discretion but clearly erred y Best interest of the ward was with the lesbian lover (even though lover had new girlfriend?). She was going to be moved to an actual home instead of being in facilities. y Functional v. Formalistic Definition of family: o Father as guardian (formalistic) o Lesbian lover (functional) y Trial court had taken on a more formalistic definition when appointing guardianship. y Note: This case brings up important notion of being able to visit your loved one in the hospital (here, lesbian lover denied access) o Some Domestic Partnership legislation now covers this Domestic Violence State v. Carswell (Ohio 2007) y Rule of law: The state of Ohios domestic violence statute that provides for prosecutions for domestic violence toward 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. y Facts: After Carswell () allegedly assaulted a female, the State () charged him under the States domestic violence act, which stated that no person shall cause physical harm to a family or household member. State was going to introduce evidence that the dude and chick were living as spouses, the DV statute included living as a spouse as a family/household member. Trial Court dismissed on grounds that the statute conflicted with the States () Defense of Marriage Amendment, which recognized marriage as the union between one man and one woman (also barred the creation of any other legal status similar to marriage such as civil unions). y Appellate Court reversed, appeals. y Analysis: The Defense of Marriage Amendment bars creation of any legal status that has the same rights and privileges as marriage here, the DV statutes allowance of prosecutions against one living as a spouse creates no such rights! t/f no conflict between the statute and the constitutional amendment. AFFIRMED. y Familial Benefits Housing Braschi v. Stahl Associates Co. (NY 89) Housing and Inheritance y Rule of law: 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 48

the normal familial characteristics. presented evidence that they shared household obligations, joint accounts, life insurance, etc. y Facts: Two guys were living together as life partners for more than 10 years; only one of them was listed as the tenant in the dwelling. Then man died. Owner of apartment building wanted dude out since he wasnt the tenant on the lease. y Dispute: family isnt defined on the rental codelegislation was a result of housing shortage after WWII contained provision pertaining to some member of decedents family y Respondent () argues that the term family member should be construed to mean relationships of blood y Court: term family shouldnt be rigidly construed and restricted to those people who have formalized their relationship with marriage license. Their relationship was imbued with all normal familial characteristics y necessity to prove financial interdependence y the legislature intended to protect those who reside in households having all of the normal familial characteristics y Intended protection against sudden eviction y Case could succeed on the merits case remanded y this case led to eviction protection for millions y ** like Graves, adopts a functional definition of family ** North Dakota Fair Housing Council v. Peterson (ND Sup. Ct. 2001) y Rule of law: It is not unlawful to refuse to rent to an unmarried couple who are seeking to live together. y Facts: The Petersons () refused to rent to an unmarried couple seeking to cohabitate b/c cohabitation violated an ND statute. ND Fair Housing Council joined the unmarried couple in their suit claimed housing discrimination in violation of ND Human Rights Act, which prohibits consideration of marital status with respect to housing. y The Court harmonizes the anti discrimination human rights with the criminal cohabitation statute by emphasizing that the cohabitation statute regulates conduct, not status. o discrimination on the basis of status is prohibited o discrimination on the basis of conduct is not y It is unlawful to deny housing based on a persons status with respect to marriage (married, single, divorced, widowed, separated) y It is NOT unlawful to deny housing to an unmarried couple seeking to openly and notoriously live together (conduct) y SJ was appropriate y Note: B/c the Federal Fair Housing Act doesnt protect marital status discrimination, cohabitants must look to state law 23 states have statutory prohibitions against marital status discrimination in housing Vasquez v. Hawthorne (Wash. 2001) Inheritance y Rule of law: Same-sex relationships can be considered meretricious (marital-like) relationships for purposes of dividing shared community property.

49

y y

Facts: Two gays lived together for 30 years. They held themselves out to the public as a couple, and were interdependent. One died and had several assets. But, he died w/out a will. Vasquez filed a claim against the estate asserting that they had been life partners and that he was entitled a division of the property community property Estate denied his claim in order to give the property to dead guys next of kin, Vasquez filed suit Issue: Were the facts sufficient enough to grant SJ based on the equitable doctrine of meretricious relationship o In granting SJ for , trial ct had held Vasquez was in a long term cohabitation relationship. Also held that property was joint and passed to Vasquez upon death. Ct of appeals had reversed since the trail court had awarded based on meretricious relationship they are supposed to be marital like and persons of the same sex cannot legally be married Wash. SC held that same-sex relationships can be considered meretricious relationships for purposes of dividing shared community property.

Parents & Childrens Rights in the Non-marital Family Support Rights of Nonmarital Children Clark v. Jeter (SCOUS 88) biological, nonmarital fathers have obligations y Rule of law: A six-year statute of limitations on paternity action by illegitimate children raises equal protection considerations. y Facts: Woman had child out of marriage with dude, must seek to establish this dude as a parent in order to get support payments. Under existing Penn law, statute of limitations for illegitimate child = 6 years for suit to establish paternity (for legit child w/e that means, no SOL). y Trial court held that the SOL passed then the woman contended that the statute was unconstitutional under the EP and DPC clauses y Higher state courts affirmed, and held that new legislation creating an 18 year SOL didnt apply retroactively y SCOUS grants CERT to consider whether the state legislation violated the EPC of the 14th amendment y Use intermediate scrutiny for discrimination classifications based on sex of illegitimacy o To withstand intermediate scrutiny, must be substantially related to an important government objective y In Mills v. Habuetzel, EP challenges to SOL that apply to suits to establish paternity (was 1 yr SOL there) y Framework for evaluating EPC challenges to SOLs that apply to suits to establish paternity: o 1) Period for obtaining support must be sufficiently long in duration to present a reasonable opp for those with an interest in such children to assert the claims o 2) Time limit placed on that opp must be substantially related to the states interest in avoiding the litigation of stale or fraudulent claims 50

Here, 6 year SOL violates EP, even 6 years doesnt necessarily provide a reasonable opp to assert a claim on behalf of illigit child y Reasoning not all emotional difficulty/strain will necessarily subside after 6 years (nonsense?), increasing financial difficulties as child ages, unexpected financial shortfalls y Court doesnt rest decision on ground that 6 years in unreasonable limitation period, rather that the 6 year limitations isnt substantially related to Penns interest in avoiding the litigation of stale or fraudulent claims y Court finds that Penn didnt have a substantial reason for limiting the time in which paternity and support actions could be brought o Penn statute doesnt w/ stand heightened scrutiny under the EPC, t/f not necessary to reach Clarks DP claim. y Violates EPC b/c discriminates between claims for legitimate vs. illegitimate children y Note: Traditionally, a non-marital child has not right to inherit intestate from the biological father. Today, most states have expanded protection by adopting the Uniform Parentage Act of 2001 (UPA) declaring equal treatment for all children without regard to the marital status of their parents so long as the father can be identified. y Cannot discriminate between marital and non-marital children because of equal protection claims? Wallis v. Smith (NM Ct. of App. 2001) y Rule of law: A biological father cannot sue a sexual partner for damages if her pregnancy resulted from her unilateral decision to stop exercising in order to become pregnant against the fathers clearly expressed wishes. y Facts: and were in a long-term sexual relationship. explained to that he didnt want to become a father, and they agreed would use birth control. He did not exercise any form of personal contraceptive. Unknown to , at some point stopped taking the pill and got pregnant and delivered a baby. filed suit for $ damages for fraud, breach of K, conversion, and prima facie tort. Citing public policy, the DC dismissed the complaint. appealed. y This case was all about child support the court refused to let the kid economically suffer b/c of decisions of the parents. Public policy cannot permit to be compensated by his economic burden of having to support the child (that he explicitly didnt want to have). The child requires support regardless of whether one of the parties broke their promise. If wanted ensure he wouldnt have to ever pay support he could have used contraceptives. Limitations on Unmarried Parents Rights Stanley v. Illinois (SCOUS 72) Cant take kids without fitness test y Rule of law: 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 the Equal Protection Clause. y Facts: Stanley () lived with woman over period of 18 years and they had kids. She died, kids automatically became wards of the state b/c of presumption of unfitness against unwed fathers y 51

Issue: Is presumption that distinguishes and burdens all unwed fathers constitutionally repugnant? y Yes was at least entitled to a hearing on his fitness before his kids were taken away state denied EP of 14th o States duty to protect minors through judicial proceeding is not challenged here y There was proceeding in place but for unwed fathers as opposed to all others, proceeding was to just show theyre werent married as opposed to additional requirement of showing unfitness (only for this class of persons, unfitness is presumed at law) y Not everything requires a hearing in order for DP to not be violated, but family is an important right y Just b/c presuming unfitness is more convenient than proving it, doesnt make it an acceptable exception to due process Michael H. v. Gerald D. (SCOUS 89) Two Daddies: Paternity Presumptions y Rule of law: A statute precluding all but the husband and wife from contesting the paternity of children born during the marriage is constitutional. court uses RB review. y Biological father has no right to his daughter here, daughter here has no right to her biological father. y Facts: Michael H () = married whores (s wifes) neighbor. He fathered a child with whore. Whores husband () thought child was his, was listed as father on birth certificate. Michael H. () filed injunction to establish his paternity and right to visitation. Whore involved with husband and babys daddy (and another dude) y Whore signed stipulation agreement with Michael that baby was his kid, then instructed her attns not to file it b/c she reconciled with husband () and had two more kids with him. (whore) y Michael () won limited visitation privileges, whores husband () intervened, moved for SJ on ground that Cali statute presumption that paternity is presumed to be married father if they are married and live together presumption only to be overturned by request of blood work done w/in two years of birth y Michael had wrongfully relied on Stanley and subsequent cases for principle that fatherhood establishes a liberty interest and a parental relationship y Issue: Whether relationship between persons like Michael and Whore are protected family unit under the law o Does he have a right in raising his biological child when biological whore and husband want to raise it as their own? y In Quilloin v. Walcott (SCOUS 78), biological illegitimate child was informed of adoption proceedings taking place for biological mothers (new) husband biological father objected, court denied fathers procedural DP and EP claims. Court didnt need a finding of unfitness for this biological father b/c father had received a hearing when he sought to legitimate the child and distinguished Stanley b/c the father never sought to seek custody o but see Caban v. Mohamed (SCOUS 79) where unmarried father brought a successful EP challenge to NY law permitting the adoption of his children without his consent, by the husband of the childrens mother SCOUS found y 52

that the NY statute which only required consent of mother for a nonmarital child was overbroad gender based discrimination. father her provided support for and had lived with kids and their mother for 5 years. o In cases where father is deadbeat, nothing in EPC precludes state from withholding from his privilege of vetoing the adoption of that child vs. in cases where father is substantially involved with child Extending Paternity Laws to Same-Sex Couples Elisa B. v. Superior Court (Cal. 2005) Non-biological support obligations y Rule of law: 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 obligation. y Facts: Each of the two women in a long-term lesbian relationship became artificially inseminated. The primary breadwinner of the two women delivered one child, while the other woman delivered twins. The parties had chosen joint surnames for the children; Elisa had taken the twins in for purposes of income tax and life insurance. The women never adopted each others children and they never registered with the state to become domestic partners. When the relationship ended, the primary breadwinner refused to pay child support for her former partners twins. At first, Elisa () continued to support her ex-partner and her two twins, then stopped paying support, despite her income of $95,000/yr. The District Attorney filed a complaint against Elisa () to establish her parentage of the two twins as a basis for a further order of child support against her. Ct of appeals reversed, reasoning that under California Statute, could not be a parent of her ex partners twins State () appeals. y Rationale: Consistent w/ California precedent; no reason that both parents of children cannot be women. The California statute supports the same decision because as the statute requires, Elisa () (1) received Emilys twins into her home, and (2) she presented them publically as her natural children. y Policy: if the Court had found no parental obligation based solely on s lack to biological relationship with the twins, would cause an unpreferred result similar to that leaving a child fatherless y If a courts application of a parental presumption scheme leaves a child with only one parent dont apply the presumption.

V. DIVORCE
Brief History: No court before 1857 (in England) had the authority to grant a divorce. During the American colonial period, the South remained faithful to this English tradition, while in Penn., laws of 1682 gave spouses the right a Bill of Divorcement if their partner was convicted of adultery. Later was empowered to grant divorce on grounds of incest, adultery, bigamy, or homosexuality. Before American Revolution/independence, divorce was outlawed in the north. After independence, the South allowed legislative divorce on two-thirds vote of each branch and after a fair trial. The North allowed courtroom as opposed to legislative divorce. Divorce 53

was allowed only for impotence, adultery, intolerable severity, three years willful desertion, and long absence with presumption for death. 1880, legislative divorce was abolished. Late 1800s divorce law became strict again, = advent of divorce rings girls were round up to be placed on witness stand to admit that they knew the s husband. WWII and more liberalized laws then brought higher divorce rates. Stats: of all marriages today will end in divorce compared to 10% at beginning of 20th century. Currently, 1:5 adults is divorced. First marriages that end in divorce last about 8 years; remarriages reflect the same dissolution rate and duration. Fault Based Reasons for Divorce: y Adultery (Lister) y Cruelty (Mohammad) y Desertion (Reid) o Leaving without cause or consent & with intent to abandon y Constructive Desertion (Reid) Defenses: y Recrimination (Parker) y Condonation (Haymes) y Connivance y Collusion No Fault Divorce did occur until 1960s/70s. y CA Family Leave Act required irreconcilable differences/ irreversible marriage breakdown y Uniform Marriage Divorce Act o separated for at least 180 days OR Serious marital discord adversely affecting 1 or both parties.

FAULT BASED GROUNDS FOR DIVORCE Lister v. Lister (Miss. Ct. App. 2008) Adultery y Rule of law: A party filing for divorce on the grounds of adultery must prove his or her spouse has (1) an adulterous inclination and (2) an opportunity to consummate that inclination. y Facts: Man () and woman ( ) were married for 18 years. owned a construction company (NICK) and worked there as a secretary. Later, hired another chick as a receptionist, and they began spending lost of time together and were absent from the office together for long periods of time. discovered, gave the chick $2500. When was away from the office, fired the chick. Now it gets good, b/c when gets back to office, fires his wife () and reinstates the chick. The lower court found that proved by 54

clear and convincing evidence that had committed adultery, and awarded half of s assets. and the chick denied the relationship -- appealed. Inclination can be proved by the spouses infatuation with a third party or a general adulterous propensity. Direct evidence is NOT necessary. However, where the moving party relies on circumstantial evidence, the burden of proof is heavy. Lower court relied on these facts -- and chick spent 5 nights in a row at s house together, Chick moved into a motor home next to , and chick were absent a lot together and took long motorcycle rides. T/f lower court properly found that was infatuated with chick, and hope the opportunity to consummate his adulterous inclination. Note: The use of fault divorces has been decreasing and will continue to decrease, but they remain legal options in some states. This case is significant b/c absent direct evidence; the court relied on circumstantial evidence to uphold a finding of an affair. (also: the chick above was married as well) Additional notes: a double standard used to govern adultery wife had to prove that adultery constituted a course of conduct to obtain a divorce (i.e. a pattern of activity), while the husband just had to prove a wife committed a single act. Policy: Should adultery be criminalized? Until the 1970s, adultery was a ground for divorce in all states. Historically, adultery was a common fault-based ground for divorce, but not the most common (most common = 1) desertion, 2) cruelty, 3) Adultery in order of how easy it is to prove). Prohibitions on adultery rest on public policy supporting promises of sexual exclusivity, condemning deception, and supporting the preservation of nuclear families. Kinsey Report based on 18,000 interviews, estimated that of married men and 26% of married woman have affaris. Use of internet to obtain proof of cheating y Spouses are increasingly obtaining proof of their partners adultery from emails, and other electronic means. However, a spouses retrieval of such records may violated the Electronic Communications Privacy Act of 1986 extended the wiretapping provision to electronic communications -- in cases of violating the ECPA, the intercepting spouse is subject to civil and criminal liability

Muhammad v. Muhammad (Miss. Sup. Ct. 93) Cruelty y Rule of law: 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. (does NOT need to be physical cruelty) y Facts: Couple married in 83, moved to an Islamic community in Miss. in 87. They lived there until 1989, when wife () took the kids in the middle of the night to Michigan while husband () was sleeping. Wife () testified that since arriving at the Islamic community, shed been unhappy was controlled by strict religious groups required to submit to husband and fast. Trial Court granted a divorce based on habitual cruel and inhuman treatment. appealed contenting that had presented insufficient evidence of such treatment @ trial. COA upheld; while cruel and inhumane treatment is define as conduct endangering life, limb, or health, or creating reasonable apprehension of danger the court recognized that the harm does 55

not need to be based on physical attack. -- s only recourse was to escape the marital relationship. y Dissent: Husband wasnt doing the cruelty it was the community that imposed the harsh rules. y Notes: Courts usually require a course of conduct of cruel behavior that creates an adverse health effect. Several courts maintain that one incident will not satisfy the course of conduct requirement. HOWEVER, a single incident will suffice if the act is particularly brutal see Rogers v. Rogers (strangling of a spouse). y What constitutes mental cruelty? Insistence on birth control? Unreasonable sex demands? Excessive gambling? Reid v. Reid (Va. Ct. App. 89) Desertion y Rule of law: Divorce based on grounds of desertion may be granted where proof is shown of (1) an actual termination of marital cohabitation, and, (2) an intent to desert on the part of the offending spouse. y Wife () sought divorce on grounds of constructive desertion, and husband () responded seeking divorce on the grounds of desertion. didnt contest the trial courts finding that didnt constructively desert her she claimed she was justified in leaving because he emotional health was endangered by the couples lack of sex, s work habits and his failure to assist in child rearing and lack of intimacy. y Trial court denied divorce based on fault grounds, and instead entered a no-fault divorce decree. Trial courts finding were erroneous. When the parties couldnt agree to a mutual separation (prior to first trial), had moved into an apartment. legally deserted the marriage and t/f was barred from spousal support. o when desertion is found, offending spouse is barred from spousal support. o Constructive desrtion = intolerable conduct by one spouse toward an innocent spouse that causes the innocent spouse to leave the abode (thus, if Mr. Reids conduct gives the justification to leave the home, then would NOT be guilty of desertion. o the statutory period for desertion usually = one year. y Note: of jurisdictions currently recognize desertion as a ground for divorce. Desertion = intent to abandon and without justification or consent on the part of the other spouse, for a period prescribed by statute. The intent to abandon the relationship does NOT need to be formed at the time when cohabitation is ended, but may be formed following physical separation. The statutory period begins to run when the time of such intent (to abandon the relationship) is formed. Here, wile was unhappy with the marriage, this couldnt be legally or factually attributed to . A spouses mere departure is NOT sufficient grounds (alone) for desertion. y More Notes: Va. permits divorce on the no-fault ground of a years separation, as well on fault-based grounds (adultery, conviction of a felony, cruelty, desertion/abandonment). If both fault based and no-fault grounds exist judge exercised discretion to select the most appropriate ground. When Reid was filed, proof of fault barred spousal support subsequently, the legislature eliminated fault as a bar to spousal support in all cases except adultery. FAULT-BASED DEFENSES

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Faults Adultery Desertion Cruelty

Defenses Recrimination (Parker) Condonation (Haymes) (spouse condoned the behavior courts dont buy this) /Constructive Desertion Connivance (willingness to allow the wrongdoing)/ Collussion

Parker v. Parker (Miss. 88) Recrimination y Rule of law: The affirmative defense of recrimination is no longer a sufficient ground for denying a petition for divorce. y Facts: After repeated instances of infidelity on part of the husband (), wife () filed for divorce on the grounds of habitual cruel and inhumane treatment. Physician testified that required hospitalization for severe anxiety caused by marital problems. was physically and mentally abusive and controlling of . s beauty shop closed down because of s activities (scaring customers away) pled recrimination as a defense. The court denied the divorce on the ground of recrimination, having found by C&C evidence that had also committed adultery. appealed. y COA: Trial ct had found that the evidence here supported cruel and inhumane treatment (proof of systematic and continuous behavior on the part of the offending spouse beyond mere incompatibility) Recrimination, pled by , bars the granting of a divorce on the theory of equal guilt of the complaining spouse prohibits the right to get a divorce. o w/ recrimination, 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. y According to COA recrimination policy considerations are OUTDATED, and do NOT apply to the facts of this case. Here, didnt commit adultery during the course of marriage but only after they had separated. s economic status was not only not protected, but her business was destroyed. Her economic status would be better protected with a property split. Preventing these two from obtaining a support would only perpetuate an already deteriorated marriage. Lower court t/f erred in denying a divorce REVERSED. y Outdated recrimination policy considerations: o (1) promotion of marital stability o (2) deterrence of immorality o (3) protection of wifes economic statues o (4) prevention of persons from being free to contract another marriage y Note Policy: The policy considerations offered to support the defense of recrimination are inconsistent with the moral principles of modern society. While the court found to be guilty of some misconduct, the evidence was in her favor. Recrimination prevents the dissolution of those very marriages most appropriate for dissolution. Haymes v. Haymes (NY Ct. Appeals. 96) Condonation y Rule of law: An estranged couples attempt at reconciliation after brief commencement of a divorce action, even if it involves a brief resumption of

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y y

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. Facts: Wife () and husband () married in 65 and lived together until 87. In 84, stopped having sex with . In 87, moved out of the marital home -- claims this was w/out her consent/justification. claimed was having affairs, and she commenced action for divorce in 88. The parties attempted reconciliation between 88 and 89 (and they banged), however, claims that during this period they resumed residing unhappily together and that expressed no remorse for his affairs or gave any affection to during the 6-week reconciliation period. then moved to dismiss s claims for abandonment and constructive abandonment on the grounds of their attempted reconciliation. argued that a singled unsuccessful attempt at reconciliation is insufficient to defeat her claims of abandonment. Trial court denied the divorce, appeals. Lower court erred in granting SJ to b/c this precluded an investigation into the good faith of s attempted reconciliation. trial court erred as a matter of law that s claims for abandonment were forfeited by the fact that she engaged in sexual relations with during the attempted reconciliation. Remanded to TC to examine the totality of the circumstances surrounding the purported reconciliation, before determining its effect, if any, upon the pending marital proceeding. o Trial court should consider:  whether the reconciliation and any cohabitation were entered into in good faith, whether it was at all successful, who initiated it and with what motivation. Condonation a spouse who has once condoned marital misconduct is barred from using that misconduct as grounds for a divorce. Note: With the advent of no-fault divorce (discussed next), many jurisdictions abolished fault-based defenses. However, as Haymes reveals, some jurisdictions continue to recognize some or all of these defenses.

NO-FAULT DIVORCE Divorce reform All statues currently offer some form of no-fault divorce. There is considerable variation as to the forms of no-fault divorce. Consider the two common models: California Family Law Act (1970) -based upon concerns about the high-divorce rate, adversary process creating hostility and trauma, a need to recognize the inevitability of divoce for some couples, and charges made by divorced men that the divorce law and its practitioners worked with divorced women to acquire an unfair advantage over former husbands. - this new act established two grounds for marital dissolution (1) Irreconcilable differences which have cause the irremediable breakdown of the marriage, and (2) incurable insanity -under prior fault-based law, the property division was unequal when the ground for divorce were adultery, extreme cruelty, or incurable insanity innocent party was allocated a disproportionally large share of the community property. Under new act, community property was usually divided equally with no regard for fault (unless

58

community funds had been deliberately depleated/misued by one spouse to the extent that equal division of the remaining assets is no longer equitable. Side note: this act was passed mostly in response to legislation made by an attorney who was tired of paying lots of $ to his ex wife = legislative self-interest. Uniform Marriage and Divorce Act (UMDA) (1970s) A National Marriage & Divorce Statute - more progressive than Californias laws. Issues of marital misconduct were considered irrelevant to custody - 180 days living separate and apart or if there is a serious marital discord adversely affecting the attitude of one or both of the parties toward the marriage. Primary concern with move from fault-based to no-fault divorce was to reduce the expense, acrimony (bitterness), and fraud in resolving matters envisioned as essentially private concerns. focus was on equity for men, even though womans rights movement was occurring. (the greatest influence for no-fault approach was overwhelmingly male. NO-FAULT APPROACH BEGAN WITH THE PREMISE THAT DECISIONS INVOLVING THE TERMINATION OF MARRIAGE SHOULD REST WITH PRIVATE PARTIES; -- PUBLIC RESPONSIBILITY WAS SIMPLYE TO PROVIDE EFFICIENT LEGAL RULES FOR PROCESSING THEIR AGREEMENT AND RESOLVING ANY DISPUTES. (allocation of child rearing and financial matters were appeared to be matters for private ordering) No FAULT DIVORCE ALLOWS FOR UNILATERAL ACTION Problems with the no-fault approach: (for one, increasing divorce rate with advent of no-fault) Bennington v. Bennington (Ohio Ct. App. 78) Living Separate & Apart y Rule of law: 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 the husband. y Facts: Couple married in 1946 in 63, wife () suffered stroke rendering her permanently disabled. There was no sex after that time between the couples. In 74, moved out of marital home into a van located adjacent to the family home HE CONTINUED TO HELP WITH HOUSEHOLD CHORES, ECT. y IN 76, left the marital home and moved to Arizona for a month and later returned, at first living in the van and then getting an apartment. then filed suit, seeking alimony on the basis of gross neglect & abandonment without a cause. initially counterclaimed for divorce based on gross neglect of duty and extreme cruelty, and then amended his counterclaim to assert that SOL argument b/c he and his wife had been living separate and apart for two years without cohabitation. Trial court found that when moved from the marital resident into the van on the same premises, that constituted living separate and a part without cohabitation (and t/f SOL had run and was barred form her claim?) Wife () appealed. y Trial court had erred when it included the time that lived in the van as part of the two-year SOL period (because there was no cessitation of the marital duties and relations during that time to conclude they were living apart. 59

With respect to No-Fault divorces, depending on the jurisdiction, living separate and apart provisions fall into one of 3 categories: o 1) require the couple to be living apart pursuant to a judicial decree r separation agreement for a period prescribed by statute o 2) require the couple to be living apart by mutual consent o 3) in some jurisdictions (HERE and the UMDA) mere proof that the couple lived separately for the period prescribed by law is sufficient.

Note on differing jurisdictions: Many states simply added no-fault grounds to their existing faultbased ones. T/f lots of states have a mixed fault/no-fault regime. This is in contrast with pure no-fault jurisdictions such as California. -Fault-based defenses become important in jurisdictions with lengthy separation requirements (Which force parties who want a speedier divorce to resort to traditional fault-based grounds) or in those jurisdictions where fault continues to play a role in spousal support or property division. Is there any role for fault in no-fault divorce? Feltmeir v. Feltmier (SC of Ill. 2003) y Rule of law: Conduct during marriage should be actionable under the tort theory of IIED, and such claims should be governed by the continuing violation rule to determine when the SOL begins to run. y Facts: Wife () and husband () were married for 11 years. 20 months after the marriage was dissolved, sued for IIED. alleged that had engaged in pattern of physical and verbal abuse, including stalking her after her marriage, and that the pattern had continued from the beginning of the marriage. moved to dismiss for failure to state a claim, and for violating applicable SOL. s motion to dismiss was denied, but the trial court granted an interlocutory appeal to determine the answer to the Qs raised in s motion to dismiss. COA affirmed the trial court, and the Ill. SC then took the case. y argued that the incidents occurring over a 12 year period should be looked at in isolation (and t/f would be time barred by SOL); court denies this and uses the continuing violation rule. y IIED requires proof that: o 1) s conduct was extreme and outrageous o 2) that the either intended to inflict severe emotional distress or knew there was a high probability of his causing such distress, and o (3) that the conduct actually did cause severe emotional distress. y Public policy dictates that there is no valid reasons to bar such claims for marital conduct or to requires a higher threshold for conduct that occurs during a marriage. Utterly intolerable behavior is such regardless whether it occurs within or without a marriage, and a marital concessions policy thus doesnt apply, especially here, where the pattern has extended beyond the marriages dissolution. Additionally, the demanding proof required for IIED claims with prevent frivolous litigation, and an IIED claim isnt redundant because the dissolution proceedings dont compensate for domestic abuse. Additionally the continuing violation rule should apply in determining when the SOLD begins to run on such claims. Here, SOL began to run

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with the last violation in the alleged continuing pattern. To hold otherwise would be to condone the abusive behavior alleged by . AFFIRMED Policy: Whether courts shoule permit interspousal actions for IIED in divorce actions. (does recognition of emotional distress claims undermine no-fault divorce law? o The danger of letting fault-divorce reappear in the guise of tort law o Should courts require joinder of tort claims with the divorce claims?  Maj. of jurisdictions adopt a permissive approach towards this allowing but not mandating joinder. o Claim Preclusion Res Judicata  IF a spouse chooses to pursue a separate tort action post-divorce, can the tortfeasor spouse raise the affirmative defense of res judicata to bar the claim? y At first glance it appears that most states are permissive regarding joinder of tort and divorce actions, nut many divorce statutes include specific language that, although joinder is not strictly mandatory, if the subject of the subsequent tort action was at all part of the dissolution, then the tort action would be disallowed on ground of res judicata. y Ill. has a permissive joinder regime, t/f s claims werent barred.

Divorce reform same sex divorce -How do you get a court that has never legally recognized your union to dissolve it fairly and equitably? Gonzales v. Green (NY Sup. Ct. 2006) Marital status isnt relevant to separation agreement y Rule of law: Under NY law, express agreements between unmarried persons living together are as enforceable as if the parties were not living together. Married or not, gays separation agreement is valid. y Facts: , a wealthy businessman and , a student (a homosexual couple) went from NY to Mass. solely to take advantage of NYs gay laws, and them went straight back to NY (which, pursuant to Mass. law terminated their Mass. marriage K). During the course of the relationship, gave two cars and a ski house. When the marriage deteriorated, s attorney drafted a separation agreement (executed by both parties) whereby paid $780,000 for the release of all future claims and returned ownership of the ski house to . subsequently filed for divorce for cruel and inhuman treatment in NY court. moved to dismiss s divorce count on the grounds that the marriage was not valid outside Mass. moved to dismiss s counterclaims that seek return of the $780,000. y The court agrees with that the marriage itself it void under both Mass. and NY laws (Mass. statute invalidates marriages if the couple moves to a state where the marriage would be void under that states law) The marriage was ruled void, so the court dismissed the divorce count. HOWEVER, the separation agreement between the two parties is valid (there had been consideration for the divorce separation agreement) o The separation agreement was enforceable even though the marriage was never valid b/c the agreement just dealt with their property. (Marvin v. Marvin marriage as a CONTRACT v. STATUS) 61

o NY has long recognized than an agreement between two persons respecting a division of assets is valid whether the parties are living together or not. s argument that the agreement lacked consideration is without merit b/c both parties released each other from future claims and returned the house to . o s motion to dismiss s divorce count is granted; s motion to dismiss s counterclaim for recission is granted. Access to Divorce Boddie v. Connecticut (SCOUS 71) Divorce and the Constitution y Rule of law: Procedural preconditions such as court fees that restrict judicial access to institution divorce claims violate the DPC of the 14th Amendment. y Facts: Boddie () and other welfare recipients in Ct challenged the states procedural requirements to commence litigation (court fees, service of process, etc.), claiming a unlawful restriction of access to the judicial process for purposes of instituting divorce actions. y SCOUS: 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 is when an overriding state interest exists. When a state statute/rule deprives individuals of protected rights, even though it is a legitimate exercise of state power, that statute or rule is constitutionally invalid. y Cts () argument that the interest in preventing frivolous litigation and facilitating resource allocation by imposing fees and service of process costs is reasonable, but it is insufficient to override the interest in providing access to the judicial process. o additionally, other means exist to achieve the same goals, such as penalties for false pleading and service of process by mail or posted notice. y s cost requirement is valid on its face, but it violates due process when it operates to forecloses a particular partys opportunity to be heard y Furthermore, b/c divorce can ONLY be obtained by gaining judicial access, the imposition of costs as a precondition to using the courts is = to denying the opportunity to be heard and is t/f a denial of DP. y The ruling is limited only to those cases in which bona fides of both indigency and the desire for divorce are not disputed. y Why is this case decided on DPC grounds and not equal protection? o Is there a constitutional right to divorce?  Boddie suggests that there is y Concurrence The imposition of costs as a precondition to gaining court access is invidious discrimination based on poverty, and thus violated the EPC. y On remand, court ordered to waive filing fees. y Most jurisdictions now allow indigents to waive avoid filing fees by proceeding in forma pauperis y Note on Pro Se Divorce o In the fault-based system, lawyers were essential to prove the existence of (or lack of) marital fault. No-fault has diminished the role for lawyers and the growth of pro se divorce (divorce self-help kits!). Individuals take it upon themselves to distribute property, arrange custody, etc. Especially with the current economic state, Pro Se divorce is increasing. (75% of divorce cases in California = pro se). 62

Studies on effectiveness of pro se are conflicting. (ABA Psychologist reports that there is less satisfaction and more difficulties arising later on, as opposed to study by Yale-law students which found the opposite) Access to alternatives to divorce Aflalo v. Aflalo (NJ Sup. Ct. 96) Can the Court require someone to get a get? y Rule of law: Where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth 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. y Facts: Wife () and husband () married in Israel and had one daughter. sued for divorce and refused to provide a get, which functions as a Bill of Divorce as required by Jewish law in order for the divorce to be final. didnt want to get a divorce, and took action with the Union of Orthodox Rabbis of the US (the Beth Den) to have a hearing on his attempts at reconciliation. sought a court order requiring to cooperate with the obtaining of a Jewish divorce by curtailing his visitation rights. (COURT CANT REQ. HIM TO GET GET, WOULD VIOLATED 1st AMENDEMNT) y Civil courts cannot override a decision of a religious tribunal or interpret religious law or canons. The Free Exercise Clause prohibits governmental regulation of religious beliefs. o To pass Constitutional muster, a law must not be based on a disagreement with a religious tenet or practice. o In attempting to coerce , the Civil Court would be overruling or superseding any judgment that the Beth Din can or will enter, and that is contrary to first Amendment principles. y Side note: s attorney had moved to be relived as counsel, b/c as an orthodox Jew, he would have serious religious problem representing a man who refused to give his wife a get at the conclusion of the divorce proceeding o Because stated, under oath, that he would follow the recommendation of the Beth Din and would give the get if thats what they required, his counsels stated concerns are eliminated. y knowingly and willingly entered into the religious/marital aspects and knew that he possibly wouldnt provide a get. y 1st amendment violation to make provide a get y Her religion, at least in term of divorce, does not profess gender equality. But does that mean that she can obtain the aid of this court of equity to alter this doctrine of her faith? y Court seemed to rely on contract principles when she contracted to marry this man, she agreed to follow the Jewish law It may seem unfair that Henry may ultimately refuse to provide a Get, but the unfairness comes from s own sincere-held religious beliefs. When she entered into the ketubah (Jewish marriage K), she agreed to be obligated by Jewish law 00 this was s choice and one which can hardly be remedied by this court.

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Moses v. Moses (Pa. Super. Ct. 75) Duty on Attny to mitigate demands when paid by opp. party y Rule of law: 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. y Facts: Fox was counselor for Mrs. Moses () in a divorce proceeding. Fox was friends with both and , and although the communications are privileged, it seems as though a lot of the communications between Fox and was personal. Fox billed (husband) for many hours of telephone conversations between him and ( it seems was required to cover s attorney fees for the divorce proceeding). Although Fox worked 2 hours a day for , the only result from the work was the support award for and her children. Upon the lower court ordering to pay the attorneys fees, appeals. y ABA sets forth factors to consider in determining the reasonableness of attorneys fees (LIKE THE LODESTAR METHOD). y The facts of this case dont warrant a $5,000 award to the attorney modified and reduced to $3,000. y This case reveals the overlap between the divorce attorneys role as advocate and psychological counselor. Conflicts of Interest Florida Bar v. Dunagan (Fla. 1999) Ethical problems facing divorce lawyers Conf. of Interest. y Rule of law: 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. y Facts: A lawyer, , represented a couple in numerous business matters over several years. Some years later, the lawyer, , without obtaining the wifes consent, filed a divorce action against her on behalf of the husband. The judge in the divorce proceedings ordered that the equally share the proceeds then moved to withdraw as counsel for the husband, as the wife hired an attorney to file a malpractice suit against . A complaint against the lawyer () arising from this conduct was filed with the state bar association. After that organization suspended the lawyer from practice, he appealed to the Florida Supreme Court. y The rules state that an attorney shall not represent conflicting interests without consent here the interests represented in the business proceedings were substantially related to the interests represented for the husband in the divorce proceedings b/c the business had to do with both. y Additionally, violated another ethical rule by using information relating to the representation of a former client to the former clients disadvantage -- had sent a letter to the police warning of breach of the peace that may result from firing some employees well, the employee that was terminated was the wife, and the police relied on s letter when arresting her for being at the restaurant when she wasnt allowed. y Note: Different States bars allow different things with the representation of both parties by the same attorney. In Mississippi, an attorney may not represent both parties in a no-fault divorce; their interests are too conflicting and the lawyers loyalty will be divided. But see Montana where a lawyer may represent both spouses in a 64

joint dissolution of a nonadversarial procedure where its obvious that he can adequately represent the interests of both parties. Must always obtain informed consent. Sexual Ethics Iowa Supreme Ct. Attny Diciplinary Bd. v. Morrison y Rule of law: Sexual relations with a client during the representation constitute a violation of the Iowa Code of Professional Responsibility, regardless of whether the relationship was consensual. y Facts: represented his female client in October 2004 Feb. 2005..he started banging her in November 2004 and continued banging until March 2005. HAD NO PERSONAL RELATIONSHIP WITH THIS CLINET PRIOR TO NOV. 2004. s client had a child with her husband, and its not clear if s representation prejudiced s client in any way. y After the Iowa Board filed a complaint against alleging he violated the Iowa Code of Prof. Responsibility, stipulated to the above facts and acknowledged his behavior was unethical. o unequal balance of power in attorney-client relationship o may prevent attorney from competently representing client o undermining clients trust and faith in the attorney y Whats the proper punishment? agreed to be suspended from practice for 60 days. but the Grievance Commission recommends suspension for 6 months and counseling programs. (Bd. recommended only 60 days b/c the case didnt involve aggregating factors such as forced sexual advances or commercial exploitation.) y License is suspended minimum 3 months he had been previously admonished for making sexual advances toward a client only 8 months before he started banging this client. y Note: a lawyer may not have sexual relations with a client UNLESS a consensual sexual relationship existed between them when the client-lawyer relationship commenced YOU CAN ONLY BANG YOU CLIENTS WHEN YOU WERE BANGING THEM PRIOR TO THEIR BEEING YOUR CLIENT! o Different jurisdictions have different approaches 27 states have a stringent prohibition against sexual relationships between attorney and client, 14 states have no specific rule governing sexual activity. o Other claims can arise out of sexual activity IIED, malpractice breach of fiduciary duty. Divorce Jurisdiction Over the and the In Re Marriage of Kimura (Iowa 91) Special jurisdictional rules and divorce proceedings y Rule of law: The court has the authority to grant dissolution of marriage decree so long as the petitioner is domiciled in the state. y Facts: The parties ere married in Japan in 65, but lived apart since 1973. Dude had graduated from Med school in Japan, and in 87 became a DR in Iowa. In 88, dude () filed a petition for dissolution of marriage in district court. A copy of the petition was mailed to in Japan. filed a pre answer motion contesting the district courts subject matter and personal jurisdiction. The district court concluded that satisfied 65

residency requirements and granted the dissolution. appeals on the basis of Iowas assertion of jurisdiction over violated her Due Process rights. Analysis: The court may exercise authority to grant a dissolution so long as petitioner is domiciled in the state DOES NOT MATTER that the petitioners spouse is absent from/has never been to the state, and was served with constructive notice. (there may be a valid DP challenge if there isnt proper notice) Due process challenge: Due process no longer requires personal presence only requires minimum contacts. contends that jurisdiction must follow the minimum contacts standard of International Shoe o Williams I Domicile of one spouse within the forum state gave that state the power to dissolve the marriage regardless of where the marriage occurred. o Williams II 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 this holding allowed NC to prosecute for bigamy two NC residents who purported to establish a domicile in Nevada where each got a divorce, married each other, and them immediately returned home. o Estin v. Estin Divisible Divorce Doctrine recognizes the courts limited power where the court has no personal jurisdiction over the absent spouse.  Court has the power to grant a divorce to one domiciled in the state, but no jurisdiction to adjudicate the incidents of the marriage (alimony/property division, ect.) The court looks to see if is domiciled within the state o Residency established by demonstrating that the petitioner resided within the state for one year, and that such residency was in good faith and not for the purpose of obtaining a dissolution of marriage, and there is an intent to remain in the new domicile permanently or indefinitely. o Residence fixed habitation with no intention of leaving o sufficiently demonstrated residence bank accounts, job, etc. (intent to remain) o you can only have one domicile -- swore he abandoned his domicile in Japan, o Doesnt matter that but one factor for his moving here was to possibly take advantage of more lenient US divorce laws. s forum non conveniens challenge o Divorce in Japan is not easily obtained alimony and post divorce maintenance not available in Japan, additionally a nonconsensual divorce is almost impossible to obtain. District court was well within its discretion to deny this challnge Iowa has an interest in the status of its residents had the court honored s requrest, , an Iowa resident would have een denied the protection of Iowas dissolution laws (no-fault divorce). Note: Dissolution proceedings have different requirements than other civil actions w/ respect to establishing jurisdiction. Other civil actions require minimum contacts; with dissolution proceedings, you only need domicile. o i.e.: in order to figure out financial distributions, custody, alimony, need min. contacts. ex-parte v. bilateral divorce (jurisdiction over one vs. both parties)

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o Ex- parte some divorce decrees issued in one state may be collaterally attacked in another state for want of jurisdiction (Williams I & II). o Bilateral- when the forum has personal jurisdiction over both spouses in a migratory divorce, the principles of full faith and credit forbid collateral attack (migratory divorce = forum shopping)  allows the court to address divorce dissolution aspects alimony, child support/custody, etc. o Collateral attack a proceeding initiated in order to challenge the integrity of a previous judgment. Durational residency requirements Sosna v. Iowa (SCOUS 75) y Rule of law: 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 courts. y Facts: Man and woman married in 1964 in Michigan. Lived in NY from 67-71, after which they separated but remained in NY. In 72, appellant (wife) moved to Iowa with her 3 kids and the following month, she petitioned a district court in Iowa for a divorce. When her husband came to Iowa to visit the kids he was personally served with notice of the action he then made a special appearance to contest the jurisdiction of the Iowa court the court then dismissed the womans petition for lack of jurisdiction, finding that the husband wasnt a resident of Iowa and that the appellant (wife) was not a resident for at least a year before filing her petition. y contended that Iowas () requirement was unconstitutional for two reasons: o Because it established two classes of personas and discriminated against those who had recently exercised their right to travel to Iowa o Because it denied a litigant the opportunity to make an individualized showing of bona fide residence and t/f denied such residents access to the only method of legally dissolving their marriage. y SCOUS upholds the Iowa law Cases that have struck down durational residency requirements were so decided b/c the states interests were budgetary or for recordkeeping considerations that were held insufficient to outweigh the constitutional claims of the individuals. However, with the importance of divorce and its consequences, may insist that one seeking to initiate a divorce proceeding have the modicum of attachment to the state required. Additionally, failure to provide an individualized determination of residency doesnt violate the DPC since the showing of physical presence plus the intent to remain would not entitle the wife to a divorce b/c she still would not be meeting the one-year residency requirement. y The states interest in requiring that those who seek a divorce form its courts be genuinely attached to the state, as well as a desire to insulate divorce decrees from the likelihood of collateral attacks, outweighs the constitutional claims of the wife () y Note: Prior to Sosna, residency requirements of two years had fallen under challenge, but shorter requirements such as 6 months 1 year remained intact. y Majority distinguishes a one-year delay for permitting a dissolution of marriage from a delay for voting, welfare benefits, and medical aid (for which durational requirements have been struck down)

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y y

THESE RESIDENCY REQUIREMENTS DO NOT TOALLY DENY ONE THE RIGHT TO A DIVORCE, MERELY DELAYS IT o distinguishes this case from Boddie Dissent: This penalizes interstate travel. Why the bright line rules? One year is a long time. Case-by-case review. Note: What if Zablocki came out before Sosna? o Zablocki Marriage is a fundamental right

Domestic Relations Exception to Diversity Jurisdiction Ankenbrandt v. Richards (SCOUS 92) y Rule of law: A domestic relations exception to diversity jurisdiction only divests the federal courts of power to issue divorce, alimony, and child custody decrees. y Facts: Akenbrandt , a citizen of Missouri, filed suit on behalf of her two daughters against her ex-husband Richards () and his female companion, seeking amages for alleged sexual and physical abuse of the kids. lived in Louisiana, and so t/f filed suit in federal court, alleging diversity of citizenship. The trial court granted s motion to dismiss b/c the case fell within the domestic relations exception to diversity jurisdiction. appealed, and the COA affirmed. then petitioned to SCOUS for review. y Domestic Relations Exception: Originated from Barber v. Barber (SCOUS 1859) that the federal courts have no jurisdiction over suits for divorce or the allowance of alimony. y Doctrine of stare decisis seems to be the only thing keeping the exception alive. o Domestic relations exception is not a constitutional requirement y The exception divests the courts of power to issue divorce, alimony, and child custody decrees y THE COA ERRED BY AFFIRMING THE DCS INVOCATION OF THIS EXCEPTION THE LAWSUIT IN NO WAY SEEKS SUCH A DECREE; RATHER IT ALLEGES THAT THE s COMMITTED TORTS. T/F FEDERAL SUBJECT MATTER JURISDICTION = PROPER. y Policy: the exception exists because domestic relations cases involve matters of peculiarly state, rather than federal law. After this case, Federal Courts could only decline jurisdiction over those cases involving the issuance of divorce decrees and the issuance or modification of child custody/ alimony. o Abstention Doctrine- Another way that federal courts can use to shut the door to some domestic relations matters that do not involve divorce, alimony, or custody. Federal courts may refuse to adjudicate civil proceedings that involve important state interests or substantial policy concerns. y Note: Fed. courts can enforce alimony, etc. but they cannot decide the case. y IS DIVORCE A FUNDAMETAL LIBERTY? NO, not using SS here

VI. FINANCIAL CONSEQUENCES OF DISSOLUTION

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Notes: 1/5 adults in the US have divorced. Dissolutions often entail division of property and an award of spousal support (formerly called alimony, now referred to as maintenance). Termination of marriage allows state opportunity for intervention in matters left to private resolution in an intact family. Law is increasingly deferring to private ordering. Effect of No-fault divorce -Sociologist Dr. Weitzman , Californias transition to a no-fault regime had unexpectedly impoverished women and children. Family home, formerly awarded to innocent wives, were now being sold (and children displaced) so the proceeds could be divided equally between the spouse. Additionally, support awards were decreasing for women, primarily mothers and homemakers, who were now expected to be self-sufficient. After 1 year of divorce, men had 42% improvement in standard of living and women had a 73% decline. Bread maker v. Homemaker Dichotomy Role of fault in dividing property and determining spousal support: -20 states decide the financial consequences of dissolution without regard to marital misconduct -5 disregard fault for property division/support, 3 never consider fault in financial matters although they could do so under their statutes, 7 disregard fault for property division but consider it for support awards, 15 states consider misconduct in both areas Property Distribution: From Title Theory (common law) to Contribution What property can a court allocate between the spouses at dissolution? What theory determines how much to award to each? Ferguson v. Ferguson (Miss. 1994) Bread maker v. Homemaker y Rule of law: 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. y Facts: Linda Ferguson () filed for divorce from her husband () after 24 years of marriage and two children. ( was an adulterer) During the marriage, had worked as a homemaker and beautician. Chancellor granted s request for divorce, awarding her custody of their son, child support, periodic alimony, the marital home and its contents, together with four acres of land, debt-free title to be vested in Linda () a lump-sum alimony payment & a interest in s pension/stock ownership/savings/security plan. appealed. y Here, the property had been titled in both and s names. Additionally, both parties requested an equitable division of their jointly accumulated property. Chancellor was within his authority and power to award an equitable division. y However, was divested of her undivided interest in the adjoining 33 acres of jointly owner and accumulated real property, which was awarded to along with other property. T/f the issue of property division is reversed remanded for consideration in light of the factors determining substantial contribution to the accumulation of that property. y contends that he owned all the interests in his pension plan, savings, etc. and that it was his separate property. ISSUE: When a couple is married for 24 years and both have benefitted from the employer funded plan along the way, is it equitable to find that only one spouse is entitled to the financial security upon retirement? 69

Analysis: The separate property system, the equitable property distribution system, and community property (system of fixed rules) are all reflected in American jurisprudence. The court determined that the use of separate property system resulted in an unfair division of property because it didnt take account of a spouses non-financial contributions, which in the case of a homemaker are often considerable. o Here, Mississippi became the last state to abandon the title system whereby the court awarded the assets to whichever spouse held the title to the property abandoned in favor of the equitable distribution system fairness is the prevailing guideline in marital division --- all property division, lump sum or periodic alimony payment, and mutual obligations for support should be considered together.. therefore where one expands, the other must recede LaRue v. Larue (W. Va. 83) Note: Common law scheme reflects the title theory title to property, as evidenced in a deed, for example, determines ownership between the spouses. Property acquired or earned during marriage belongs to the acquiring or earning spouses, unless that spouse acts affirmatively to create joint ownership (ex: buying a house titled jointly in the names of both parties). Upon divorce, court assigns the property to the owner. In the 1980s, after adoption no-fault grounds witnessing rising divorce rate, many states abandoned the title system in favor of a system of equitable distribution applicable at the end of marriage. In Ferguson, Mississippi became the last state to abandon the title system. Different methods/theories of property division separate property (common law title theory) determined title to the assets and returned that property to the title holder equitable distribution court determines which property is subject to division and values it. community property refers to all money of property acquired during the term of the marriage in which each spouse has an undivided interest. Explicitly recognizes marriage as a partnership/

Uniform Marriage and Divorce Act 307 (UMDA) (1998) y the court, without regard to marital misconduct, in a dissolution shall equitably apportion between the parties the property and assets belonging to either or both however and whenever acquired, and whether the title is in the name of either y court shall consider: duration of marriage, prior marriages, age, health, occupation, incomes, skills, employability, assets, liability y many states direct division of marital property only acquired by either spouse during the marriage except when acquired by gift, inheritance, etc.

v. Spousal support - foreword looking -modifiable

Property Division -backward looking - not modifiable 70

Spousal Support What is the rationale for spousal support? How should the amount be determined? How long should that duty continue? Theories behind spousal support: -Marriage is more than simply a K, but event if its just a K, still should put people in the position they would have been should marriage not have failed (you expect a marriage to work when you enter into it) Mani v. Mani (NJ 2005) Economic Misconduct Std. in calculating fault. y Rule of law: When calculating awards of alimony, courts can consider marital fault that either affects the parties economic status or that violates societal norms to such an extent that maintaining the economic bonds between the parties would not be just. y Facts: After 30 years of marriage, the wife () filed for divorce from after she discovered he was having an affair with a woman that was part of their social circle. & had a lavish, extravagant lifestyle over the course of their marriage mainly due to valuable stock and other gifts that received from her father during the marriage. (couple was essentially living entirely off of s investments). The couple had monthly expenses between $7,300 and $13,000+. 7 Years into retirement, found out that was having an affair and filed for divorce. sought an award of more than $68,000/yr in permanent alimony. argued he should receive NO alimony. y Trial Court took middle ground awarded $610/week in alimony because of his economic dependence, and his ability to earn $25K/year on his own. y Both parties appealed COA affirmed, reasoning that s gifts accounted for most of the marital estate, and that s adultery also justified a lower alimony award for him (THEY TOOK FAULT INTO ACCOUNT). y sought further review from NJ SC. y NJ statute enumerates 13 factors to consider when assessing requests for alimony the factors focus on economic statues, not he fault of the parties. However, the courts are permitted to put some consideration of fault in alimony determinations. o the (faulting) parties economic misconduct t/f 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 that alimony fundamentally unjust. y HERE, alleged no fault that affected the parties economic status, t/f fault should not have been considered in calculating the alimony. o COA should t/f reconsider alimony w/out regard to fault REVERSED AND REMANDED. y Note: a majority of the jurisdictions do NOT take fault into account. y Mani limits the amount of fault that the court can take into consideration when determining alimony. Uniform Marriage and Divorce Act 308 (1998)

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Court may grant order for either spouse ONLY if it finds that the spouse seeking maintenance: o lacks sufficient property to provide for his reasonable needs, and is unable to support himself through appropriate employment or is the custodian of a child whose condition makes it appropriate that the custodian not be required to seek employment outside of the home The maintenance order should be in amounts and for periods of time the court deems just, without regard to martial misconduct, and after considering all the relevant factors, including: o financial resources of the party seeing maintenance (including the marital property apportioned to him, ability to meet needs independently, extent to which a provision for support of a child living with the party includes a sum for that party as custodian) o time necessary to acquire sufficient education or training to enable the party seeing maintenance to find appropriate employment o std. of living established during the marriage o duration of the marriage o the age and physical/emotional condition of the spouse seeking maintenance, and o the ability of the spouse form whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance

Types of Alimony -States permit several types of alimony, based on different objectives and rationales. Some of the types: 1) Permanent 2) Rehabilitative 3) Limited duration/reimbursement (Mani) Alimony Rationale Treating income disparity as a reflection of the economically dependent spouses loss upon divorce, the ALI principles invoke the rationale of loss compensation. Michael v. Michael (Mo. Ct. App. 90) y Rule of law: Maintenance should be utilized as a means of providing support for an economically dependent spouse until said spouse is self-reliant. y Facts: The husband () became financially dependent on his wife () during their 18 years of marriage. On the wifes petition to dissolve the marriage, the trial court found that the funds used to acquire the marital property had been earned almost exclusively by the wife; and t/f she was awarded 75% of the marital property. TC also denied s request for rehabilitative maintenance (maintenance until he could become self supportive again). appealed. y Trial court abused its discretion in its property division by not awarding maintenance. Although barely performed work as a homemaker, he spent hours every night making dinner. Although isnt entitled to an equal division of the property, trial courts division is against the weight of the evidence. 72

Maintenance is awarded when one spouse has detrimentally relied on the other spouse to provide monetary support during the marriage. o If the relying spouses withdrawal from the marketplace so injures his marketable skills that hes unable to provide for his reasonable needs, maintenance may be awarded. REVERSED. Rosenberg v. Rosenberg (Md. Ct. Spec. App. 85) y Rule of law: Marital property is all property acquired by the spouses during marriage. y Facts: Married in 1952. 81, man left with purpose of ending marriage. In 83, wife () filed complaint for divorce, alleging adultery, abandonment, and desertion. filed cross complaint, divorce decreed. appealed, challenging the monetary award, alimony award, counsel fees, and expenses. cross appealed courts failure classify the increase in her husbands stock as a marital asset (worth millions of $$). At time of the divorce, was worth 33 million. o Trial court found that dude committed adultery many times. Chick had assumed all housework so guy could concentrate on career. o was given monetary award of $1.5 million, and an alimony award of $275,000/year indefinitely. y (dude) contends that trial court erred in taking into account statutory factors of equitable distribution and also challenged the finding that contributed substantially more to the accumulation of the marital property through her services as a homemaker. (court found that gave up on her potential income earning ability by taking are of children and entertaining guests to could pursue career). Court states that such a result follows the goals of the Marital Property Act to achieve a fair and equitable distribution of the marital estate. y claims that increases in the value of the stock that (that occurred due to s efforts) should be characterized as marital property. o While such property was gifts and inheritances received both prior to and during the marriage, the value of the stock increased substantially during the marriage due to s efforts. o Marital property does not include property acquired prior to marriage or by inheritance or gift from a third party. o Where funds are partly marital, and partly non-marital, the property retains the same character as its source o The lower court found that failed to prove that s personal efforts directly or indirectly contributed to the stock increase. y Judge must apply 9 statutory factors in order to obtain an equitable result. y Note: Purpose of alimony is the rehabilitation of the supported spouse. However, indefinite alimony payments may be granted if the court finds either that the party cannot become self-supporting, or that the respective standards of living of the parties will be unconscionably disparate. y The American Rule traces existing assets to their source. Assets traceable to separate property are treated as such; those traceable to marital funds are treated as marital property. y Special Problems in Achieving a Fair Dissolution Changing circumstances 73

Lucas v. Lucas (W. Va. 2003) De Facto Marriage y Rule of law: A de factor marriage can justify reducing or terminating an award of spousal support if substantially changed circumstances have altered the recipient former spouses need for support. y Facts: In 97 divorce granted. Appellant ordered to pay 850$/month in spousal support. May 2000, appellant (ex-husband) filed petition for termination of spousal support alleging that since Oct. 99, a de facto marriage had existed between the appellee and a third party Appellant was making more money than appellee (woman) ($125K-116k v. $31K) o Woman had been living with and shared several vehicles with another man for two years paid 300$/month to him y Court had found that a de facto marriage (as defined by West Va. Code) had existed between appellee and Mr. Davis and that the evidence justified a reduction of support from $850 monthly to $700 o this was based on the financial advantages of the de facto marriage, the continuing disparity in the parties incomes, appellees stress/thyroid/stomach ailments y Appellant (ex-husband) contends that the lower court erred by failing to completely terminate the appellants support obligation y Primary standard to determine whether or not a trial court should modify an award of alimony is substantial change of the circumstances o Circumstances that have substantially impacted upon the financial resources and economic needs of the parties subsequent to their divorce  look at existence of a de facto marriage  What is the effect of cohabitation on the issue of continued spousal support? Neither reduction nor termination is necessary discretion rests within the court y Reasoning of [Oklahoma] statute: not to regulate morality, but rather to regulate support maintenance when the need for continued support has diminished or vanished. (Roberts v. Roberts) (Roberts concurrence importance of [alimony reduction statute] in domestic relations law, noting that prior to the enactment of the statute, cohabitants found that it was financially detrimental for them to marry (and thus lose support alimony), while those who married were automatically (with certain exceptions), removed from recipient status subsequent to the enactment of the statute, the law is equally and equitably applied to both those recipients who marry and those who dont. o Now law doesnt encourage or discourage marriage of support recipients, now relies solely on the true financial needs of each party y Burden of proof to establish changed financial circumstances justifying reduction/ termination is on the payor, as the party petitioning for modification o de facto marriage potentially unstable nature rare for it to be abuse of discretion for a court to preserve a partys future options by granting a nominal alimony award (as opposed to terminating it as the judge had wished) y Where finding of a de facto marriage is made, a factual investigation into the financial circumstances, income, expenses of support recipient, including 74

contributions in money or in kind by the cohabitant, is necessary in order to determine the recipients continuing need (if any) for support o Based upon such financial evaluation, a comparison should be made between the financial status and the need of the parties before and after the orig. spousal support take into account any assistance provided as a consequence of the de facto marriage o REVERSED AND REMANDED master nor court judge didnt disclose that they seriously entertained these factors (abuse of discretion)

UMDA 316 Modification and Termination of Provisions for Maintenance, Support, and Property Disposition y Among other things In most jurisdictions, spousal support terminates upon death, remarriage

In Re Werthen (1st Cir. 2003) Bankruptcy y Rule of law: Payments 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. y Facts: An ex-husband () filed for bankruptcy protection within three months after the divorce decree was issued. y He sought to discharge financial obligations to his ex-wife () that were required by the divorce decree, but the bankruptcy court found the obligations to be nondischargeable o Husband was worker, woman care taker, had children. Divorce decree didnt favor dude, he had abused his wife and kids, frustrated wifes efforts to attain financial independence/college degree these circumstances supported a generous award, but the state didnt explain which portion was alimony and support (as opposed to property? court listed everything simply as a property division o Court awarded 1/3 of dudes future bonuses (until eithers death or she remarries), and child support @ $450/week (until youngest graduates from college or reaches age of 23)  Also 60% of gross bonuses received by dude (222K reduced to 124K)  Also 40% marital share of dudes 22% interest in co (611K) y Less than 90 days after court order, dude filed for bankruptcy o In this proceeding, ex wife won ruling declaring that the (largely/entirely yet unpaid) past bonus and stock awards werent subject to discharge dude appeals  Altavilla v. Altavilla viewing the awards as intended to provide the support for wife and kids rather than a division of property o 5 of statute is muddled turns on supposed distinction between support payments for spouse and children (alimony/maintenance/child support) and other kinds of divorce awards (division of property).

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problemoverlaps b/c the need for ongoing support will often depend on how much property the less well-off spouse is given outright  (how do u know when a judge was giving the spouse higher % of property in lieu of alimony [upon bankruptcy hearing]?) y Thought he trial judge called the $50K in annual payments property division such an award can easily be interpreted as alimony that the state judge intended to make up differences resulting from s diminished earning capacity. y Bankruptcy Reform Act of 1994 (BRA) was the applicable statute here. It departs from strict categorical approach embodied in earlier statutes. Even if the court had ruled the monthly payments as property, she could avoid her exs attempted discharge by meeting certain procedural requirements. y Policy: What is the proper balance between bankruptcy laws objective of a fresh start for debtors and he fair resolution of the financial incident of divorce? Bender v. Bender (Conn. 2001) Pensions and Employee benefits y Rule of law: Unvested pension benefits are a presently existing property interest that is subject to equitable distribution in a divorce proceeding. y Facts: Firefighter and wife divorced (b/c he was violent and adulterous). Additionally, b/c of mans spending habits, couple had no assets/saving except for husbands () unvested pension plan. His interest in the plan would vest if he worked at fire dept for 25 years (19 so far ). If stopped working before 25 years for any reason aside from disability, only gets his actual contributions to the plan -- $24K at time of trial. y Court named wife as beneficiary of husbands pension plan contributions until the husbands rights vested in the plan also awarded wife of husbands disability or retirement benefits through the date of the domestic-relations order Husband appealed y Reasoning: a courts power over property and equitable distributions in dissolution proceeding is broad. Unvested pension benefits have been treated as both similar to wages and less speculative than inheritances. Property is construed broadly in finding that vested pensions to be property subject to equitable distribution. y Key determination is a partys interest so speculative that it cannot be divided by the court? o Under this test, the pension plan here is sufficiently concrete to constitute a present, divisible property interest that is subject to equitable division o Majority fuzzily distinguishes between mere expectancies and unvested pensions y Rationale 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 o Here, not merely expectancy but rather a quantifiable form of deferred compensation o Courts generally value such property in three ways:  1)** using present values or immediate offset,  2) ** the present division method,  3) the reserved jurisdiction method

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this approach is hereby disapproved b/c it requires courts to hold a second hearing, and it forces witnesses to testify about events in the distant past Dissent: Unvested pension benefits shouldnt be subject to division in divorce majority implicitly overrules precedent o Should follow statute and require trial courts to consider unvested pension benefits as one factor among others when fashioning equitable distribution of property in divorce.

Investments in a spouses future success: Degrees, earning capability, goodwill In Re Marriage of Roberts (Ind. Ct. App. 96) Law Degree y Rule of law: A degree does NOT constitute marital property subject to division upon divorce y Facts: Wife appeals after court determines that husband ( )s law degree didnt constitute a marital asset and that repayment of the husbands student loans was his sole responsibility. During dissolution proceedings, she had assets, but he was worth negative b/c of loans. T/f she tried to have his law degree characterized as an assed, but court refused to recognize it as such. o Wife and husband married in 89. He started law school in 90, wife worked while he pursued school. Two months before grad, wife was pregnant. Couple separated. Was editor of law review and grad third in class got good job. y A degree doesnt constitute marital property subject to division upon divorce. Prenatt v. Stevens trial court found wifes doctoral degree was marital asset overturned on appeal on basis that there was no vested present interest in such future income. y An award of future income is only allowable as support or maintenance o Prenatt relied on Wilcox future earnings didnt constitute a marital asset subject to distribution and upon dissolution trial court awarded wife a lump sum = to the amount she contributed to the attainment of the husbands degree on the rationale that such money constituted a dissipation of marital property Indiana SC reversed, stating such an award was to be paid from the husbands future income and could only be recoverable in the form of support/maintenance. y Note: a spouse may be reimbursed for contributions made toward the other spouses earning of the degree (tuition, books, etc.) but the degree doesnt constitute marital property. y While a degree isnt martial property subject to division, enhanced earning ability of the spouse is a factor to be considered by the court in determining the distribution of the marital estate affirmed y Reconciling Roberts with Bender: o Degree cases reflect judges sense that they worked long and hard for their degrees. Blackstone theory of property. o Guy in Bender was a dick, whereas guy here wasnt? Child Support 77

Board Crap: o Judicial Discretion to (child support) guidelines led to variable, often inadequate or non-existing awards. o This led to the advent of a mathematical formula for determining child support awards 1984 Title VI-D Child Support Recovery Act utilize guidelines as a rebuttable presumption. o Role of changed circumstances New Family (Pohlman), New Job (Olmsted). o Court will not make you pay the same monetary amount if support is sent and then you lose your job or have income greatly reduced. o FAMILY SUPPORT ACT OF 1988 MANDATED STATE GUIDELINES Parental Duties Elisa B. v. Superior Ct (Cal. 2005) (review of case from before) WHO IS A PARENT??? o Notes: Elisa B had no biological connection to her former lesbian partners children, yet shes required to pay support? o There are NO NATIONAL GUIDELINES state by state approach. o Why not put child support onto the public sector? Downing v. Downing (Ky. Ct. App. 2001) Three Pony Rule y Rule of law: Child support payment amounts are set at levels designed to meet the realistic needs of the child. y Facts: In 92 after divorcing, mom () received sole custody of their two children. In 98, she moved to increase s support obligations, based on a substantial INCREASE in his income. The court found that his monthly income increased by $40,000 and set his support payment at $3,475/month. y Ruling: A non-custodial parents child support obligation DOES NOT AUTOMATICALLY INCREASE after that parents income substantially increases. y Look to three factors: o (1) Reasonable needs of the child o (2) Standard of living the parents enjoy o (3) Mathematical projection of the child support guidelines y B/c the lower court based the child support obligation amount almost entirely on a mathematical calculation, the amount set was t/f arbitrary VACATED AND REMANDED o Lower court simply looked to the mathematical formula and gave 4% of annual income to child support here the guys income was astronomical and not even on the charts of the original guidelines resulted in an unnecessary windfall y Rationale: Increasing a childs support obligation above the childs reasonable needs primarily benefits the custodial parent rather than the child. This is the three pony rule b/c no child, no matter how wealthy the parent, should be given more than three ponies. o The court should not be making lifestyle choices for the parent/child the $ must be rationally related to the needs of the child. y Notes: Jurisdictions have complied with the federal mandate for guidelines in different ways. All of the models are designed for uniformity and predictability. o Most states use the income-shares model (38 states) parents divide child support obligations in proportion to their income. 78

o ** The child support guidelines create a rebuttable presumption of the appropriate award. Courts must explicitly justify deviations form the guideline amount. o Look at court intervention in the intact vs. non-intact family  Intact court cant force family to spend certain amount of $ on kid  Non- intact (i.e. divorced/never married) state can not intervene and determine $ allocation Curtis v. Kline (Pa. 1995) Post-majority Support y Rule of law: A state law that distinguished 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 chills is unconstitutional under the EPC of the 14th. y Facts: Father () challenged the constitutionality of ACT 62 authorizing a court to order divorced, separated, or unmarried parents to provide equitably for the educational costs of their children, even after they reach 18 y/o. y Analysis: ACT 62 does NOT implicate a suspect class or infringe upon a fundamental right. There is NO FEDERAL RIGHT TO COLLEGE EDUCATION. T/f, the act is reviewed under a rational basis standard, and will be upheld if there is any rational basis for the prescribed classification. o The state () argued that the legislature may have chosen to treat children of married and divorced/unmarried families differently out of the states strong interest in protecting the marital family unit from government interference. May have determined that children of these types of parents require educational advantages to overcome the lack of an intact family unit. o B/c the Act classifies children according to the marital status for their parents and provides for enforcement of a benefit by court order to one group while not providing the same benefit to the other ground such enforcement may not be granted to one group and denied to the other. The statute has the effect of treating similary situated children, those in need of financial aid for college education, differently. THERE IS NO RATIONAL BAISS FOR THE UNEQUAL TREATMENT T/F the act = unconstitutional. y Dissent: EPC not violated by statutes seeking to remedy the disparate treatment of children of divorced, separated, or unmarried parents. Look at the stats: 90% of intact v. 30% provide college support. Modification of Child Support Pohlmann v. Pohlmann (Fla. Dist. Ct. App. 97) Remarriage and New Families y Rule of law: A statute requiring non-custodial parents to continue to support children from a first marriage at prior levels, notwithstanding their obligation to support children form a subsequent marriage, reasonably furthers a legit state interest (RB STD) and is constitutional. y Facts: Ex-husband () filed motion to reduce his child-support obligations based on changed circumstances that included a permanent decrease in his income, and fact that his former wife remarried. His petition was denied, and t/f he appealed. claims EP violation kids of intact family are discriminated in favor of kids from 1st marriage. y Analysis: RB ARGUMENT Granting priority of support of children of an earlier marriage is logical b/c such children should not have their standard of living lowered b/c 79

of the voluntary acts of the non-custodial parent. Non-custodial parents take on new support obligations to children from later marriage with the knowledge that they must continue to support children from previous marriages @ prior levels. AFFIRMED Dissent: Maj. ruling unfairly discriminates against children of a subsequent marriage whose std of living will decline because their parent must continue to support children of the first marriage as disproportionately high levels. Requires non-custodial parents to provide new ball gowns to firstborns, while supplying hand-me-downs to their later children Note: In contrast to Pohlmann, some states follow a Second family first doctrine, deducting the support needed for the second family to determine the parents available income before applying the guidelines to calculate the first familys support. Which is the better approach?

Olmstead v. Ziegler (Alaska 2002) Employment Changes y Rule of law: A career change can support a finding of voluntary underemployment in calculating child support. y Facts: Former husband () changed careers and sought to reduce his child support obligation when his income decreased. At time of divorce in 1994, s estimated income was $53K and his wifes () was $25K. o s income dropped to $10,000 in 1996, then up to $13,000 in 1998. (he was a lawyer throughout this point). Then in 1999, decided to stop practicing law to study to become a teacher. Shortly thereafter, filed motion to modify the support obligation. Trial judge denied, reasoning that was voluntarily underemployed and that and the couples child should not have to finance s pursuit of a new career. Trial court also found that and had equal earning capacities based on s increase earning capacity. appealed. y A finding of voluntary underemployment defeats a request to modify support obligations. This determination is a question of fact and is t/f committed to discretion of trial judge. y Here, found voluntarily underemployed he intentionally reduced his legal practice, his former partner attested to his poor work habits. s claims that he was simply not fit to practice law successfully is refuted by his once $50K/year earning capability. wanted the court to look at when he was making $10k a year, as opposed to when he was doing well. y Note: only when changed circumstances are beyond the control of the party will a court adjust child support payments. Personal Responsibility and Work Opp. Reconciliation Act of 1996 -- welfare reform legislation, gives states three options for reviewing and adjusting awards: 1) process required under the Family Support Act 2) a cost-of-living adjustment 3) an automated adjustment (based on tax records, etc.)

ENFORCEMENT Imprisonment: Criminal Nonsupport and Contempt of Court y Enforcement of child support orders move from a system of support to federal legislation 80

o 1/3 of all custodial parents not receiving any support that is owed to them. o 32% custodial mothers v. 10% custodial fathers living in poverty o Has federal legislation helped at all? Why dont we use federal funds to distribute assistance to each family w/ children? Federal legislation o 1984 Child Support Enforcement Amendment othis expanded upon 1975 Child Support act, required states to enact state enforcement efforts (tax o 1986 Full Faith and Credit for Child Support Orders Act (FFCCSOA) o 1996 Personal Responsibility and Work Opp. Recon. Act (welfare program) o 1998 Deadbeat Parents Punishment Act (felony to be willfully in arrears on child support after X $/years behind o 1998 Family Support Act o Requires states to provide procedures for immediate w/holding for all child support orders issued on/after Jan. 1, 94, whether or not child support obligor has fallen into arrears, unless one party shows good cause or parties have written agreement providing for the alternative. Typical statues complying with this federal directive Employer withholding as much as 50% of income to be given to court for child support payments Measures of Enforcements o Income withholding (1998 Family Support Act) o tax-refund interception o suspension of license/passports o new penalties auto booting (does this incentivize the parent to pay the $, or does it inhibit him from making the $ ?)

State v. Oakley (Wis. 2001; SCOUS cert. denied) Deadbeat Dad + Child Support y Rule of law: It is not unconstitutional to require, as a condition of probation, that a dead beat dad refrain from fathering more children unless the probationer can demonstrate that hes providing for his existing children. y Facts: was charged with 7 counts of intentionally refusing to provide child support as a repeat offender. The had 9 children by 4 different women, paid no child support, and was in arrears in excess of $25K. After guilt was determined, the trial court placed on probation (could have thrown him in jail). As a condition of the probation, was not permitted to have any more children unless he could show that he had the financial ability to support them and that he was supporting his existing children. filed for post conviction relief. y This doesnt offend the constitutional right to procreate b/c the condition of probation isnt overly broad. It merely bans from breaking the law again. this condition can be satisfied by complying with the court order and making reasonable efforts to support his kids. The condition of probation doesnt limit the # of kids can father, but rather requires him to conform his conduct to the law. Its undisputed that court could have constitutionally sentenced to prison, an option that would have also denied him the right to procreate. y Dissent: This decision makes it constitutional to limit a probationers right to father children based on his financial ability to support his children. This is like Zablocki 81

y y

fundamental right to kids; should be SS. Think about what will happen to the woman who get pregnant with s kid while hes out (you have kid, I go to jail). There is a fundamental right to procreate. If he is imprisoned, then another child will go unsupported. Analysis: There IS a right to procreate in the penumbras of the 14th amendment. y Griswold right to contraception; Eisenstat contraception for single people; y Move to criminal contempt after civil punishments were not work Notes: Limitations inability to pay: B/c civil contempt seeks to coerce compliance, an obligors inability to pay precludes the use of this remedy to enforce support awards. Where should the burden of proof lay: o Should the alleged contemnor be required to establish inability to pay, or must the petitioner prove ability to pay? o Federal Deadbeat Parents Punishment Act 1998 punishes as a felony willful failure to pay a support obligation for a child living in another state if the obligation has remained unpaid of over two years or exceeds $10K. creates a presumption of willful non-payment.

The Transformation of Enforcement: From Private Efforts to Public Intervention - As illustrated in Oakley the government is playing an increasing role in enforcing financial obligations in non-intact families. - traditional approach to enforcement was seen as a private concernan obligors failure to comply with a court ordered transfer or property of an award of spousal/child support left the obligee to innate judicial proceedings for enforcement, which was a time-consuming process that required an attorney. - Aid For Dependent Children 1975 (AFDC) Congressional legislation which increased child support requirements. Enacted the first Office of Child Support Enforcement Child Support Enforcement Amendment of 1984 mandated state enhanced state enforcement efforts. Family Support Act of 1988 extended the federal involvement to non-welfare (non-title IV-D) cases. All states are required to provide procedures income withholding up to 50% of obligors disposable earning to be paid to attorney general, or court registry. Personal Respobsibility and Work Opportunity Reconciliation Act of 1996 strengthens the use of income withholding by establishing a National system to track the employment of delinquent obligors. Also requires all states to have procedures for suspending/withholding licenses/passports. The Challenge of Multi State cases Jurisdictional Limitations on Establishing Awards Kulko v. Superior Court (SCOUS 78) Jurisdictional Requirements  Rule of law: 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  Facts: Kulko () and his wife, residents of NY throughout their marriage, stopped in California only to get married while was en route to a tour of duty in Korea. Upon separating years later, s wife moved to San Francisco, but she flew to NY to sign a 82

separation agreement drawn up there. That agreement provided that their two children would live with in NY, but would stay with their mother over certain holidays and the summer. Child support was set at $3,000/year ( ex). After procuring a Haitian divorce, s ex-wife returned to California and remarried. When s daughter decided she wanted to remain with her mother after Christmas vacation, consented and bought her a one-way ticket to California. When the son told his mother he also desired to live with her, without telling , the mother sent a ticket for her son to join her. After both kids were living with her, she south to establish the Hatian divorce decree as a California Judgment, and to modify the NY agreement to (1) give her full custody of the kids, (2) increase s child support obligations. appeared specifically to challenge California jurisdiction over him, contending that he lacked sufficient minimum contacts to warrant the states assertion of personal jurisdiction over him. Trial court denied s motions, and the COA affirmed, holding that his consent to his childrens living in California cause an effect in the state warranting the exercise of jurisdiction. appealed to Califorinia SC, who affirmed, holding the purposeful act or warranting exercise of personal jurisdicion to have been action in actively and fully consenting to his daughters living in California for the sschool year and sending her there. Appeals to SCOUS. SCOUS Analysis: The alleged minimum contacts here was s allowing his daughter to live in California during the school years this is not a sufficient contact in itself to justify jursidition. Allowing a child to spend more time elsewhere than required by a custody decree can hardly be purposefully availing oneself of the benefits and protection of California laws. Fairness points to s state of domicile as the proper forum of adjudication in this case. resided there at all times during the marriage and continues to do so. The single act of allowing the daughter to live with the mother (that any reasonable parent would do) should not result in having to litigate 3,000 miles away.  To make jurisdiction turn on where bought his daughter a ticket, or unsuccessfully sought to prevent her departure would impose on family relations an unreasonable burden Notes: This decision didnt leave the ex-wife without any remedy or force her to undergo expenses to litigate 3,000 miles away The Uniform Reciprocal Enforcement and Support Act (URESA)(a version of which was passed in California) allows one in ex-wifes position to file a petition, for example, in California and have its merits adjudicated in NY without either party having to leave their respective state. (can also collect support payments under this legislation). Additionally, anytime goes to visit his children in California, he would be subject to their jurisdiction via personal service. Uniform Interstate Family Support Act 1992 (UIFSA) replaced URESA -- contains new procedures to establisheing, enforcing, and modifying support orders. To ensure acceptance by the states, Congress made enactment of UIFSA a condition for federal funding for child support enforcement, under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (mandated states to enforce support orders).

Modification and Enforcement Draper v. Burke (Mass. 2008) 83

Rule of law: The federal Full Faith and Credit for Child Support Orders Act preempts the Massachusetts Uniform Interstate Family Support Act (UIFSA) as to the issue of subject matter jurisdiction. Facts: Mother (Draper/) and Father (Burke/) resided in Oregon and received a divorce judgment their in 1997. Oregon court gave mother physical custody of the two children and legal custody of them to both parties. was obligated to pay child support until the kids were 18 y/o, or until 21 y/o if they attended college, but the order didnt discuss college expenses, however the parties agreed theyd be split. After the divorce, moved with the children to Mass, and moved to Idaho. In 99 and 2004, filed complaints in Mass for a modification of the award to increase s contributions toward college expenses. While doesnt contest the courts personal jurisdiction over him, he contends that Mass does not have subject matter jurisdiction, and moved to dismiss for lack thereof. Specifically, contends that the UIFSA doesnt allow , as an in-state resident, to file in Mass for modification of a prior, out-of-state divorce judgment. Trial court denied s motion to dismiss and ordered him to pay a portion of the childrens college expenses. appeals. Analysis: UIFSA does not allow for a resident of Mass to petition a Mass court for modification of an out-of-state divorce judgment where the obligor ([Burke]) lives elsewhere. To do so, would have to petitioner Idaho courts for modification. contends that the federal Full Faith and Credit for Child Support Orders Act preempts UIFSA as to subject matter jurisdiction. SCOUS agrees. The federal act allows for modification of an out-out-state judgment where the original court not longer has personal jurisdiction over the participants. Movant must also file the complaint in a state that has personal jurisdiction over the non-movant. Here, Oregon no longer has personal jurisdiction over any of the parties involved. No other state has modified the original Oregon judgment. doesnt contest Masss personal jurisdiction over him, t/f the federal act confers subject matter jurisdiction in Mass. B/c there is a clear conflict between the state and federal acts, the state act is preempted. Note: The federal act recognizes the needs of a mobile society, and allows complaints for a modification for child support to be filed in their current home state when all of the parties had left the state that entered the original divorce order. The federal act was intended to avoid jurisdictional competition and conflict among state courts in the establishment of child support orders (a lack of uniformity of laws encourages noncustodial parents to relocate to avoid jurisdiction). The federal act obligates States to enforce child support orders issued by another State, and imposes limitations on a States authority to modify child support orders issued by another state.

Separation Agreements Richardson v. Richardson (Mo.2007) Public Policy v. Sanctity of Contracts y Rule of law: 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. y Facts: Joseph () and Ida () divorced in 97. As part of the divorce, parties entered into separating agreement that the court incorporated into the decree of dissolution. Agreement obligated to pay $2,425/month until s remarriage or death of either party. The agreement specifically included a non-modification provision that barred later 84

attempts at modification, regardless of the circumstances. In 2004, filed suit to terminate his payment obligations on the grounds that allegedly tried to have him killed. Trial court found the agreement could not be modified. appealed. Analysis: Missouri statute states that the court may incorporate a separating agreement into a dissolution decree if the agreement is not unconscionable (determined at time of the creation of the contract, not later). There are criminal and tort laws in existence to respond to s alleged behavior. The court must respect the statute and the language of the contract AFFIRMED. Notes: The court here interpreted the terms of the contract language strictly. Court may have decided the case differently if s complaint wasnt based simply on allegations.

UNIFORM MARRIAGE AND DIVORCE ACT 306 separation agreement -To promote amicable settlements of disputed between parties to a marriage upon their separation or the dissolution of the marriage, the parties can enter into a written settlement agreement containing provisions for the distribution of property, maintenance of either of them, and support, custody, and visitation. - in a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds that the agreement is unconscionable. Public Policy: at one time, separation agreements were held to violated public policy b/c they facilitated divorce by removing uncertainty about how a court would resolve the financial incidents. In contrast, todays UMDA makes the parties amicable settlement of disputes and explicit policy objective.

VII. CHILD CUSTODY

Post divorce custody is characterized by the dual rationale of private dispute resolution and child protection. There is a fundamental tension between respect for family autonomy versus the need for state intervention. When the parents agree on child custody, the state defers to family autonomy. However, in 10-20% of cases, parents cannot agree. PARENTAL DISPUTES CONCERNING CHILD CUSTODY Standards for selecting the custodial parent: Presumptions? Devine v. Devine (Ala. 81) Tender Years Presumption y Rule of law: The tender years presumption is an unconstitutional gender-based classification in violation of the EPC. y Facts: Chris () and Alice () were married in Dec. 66 and separated in 79. taught high school, was a member of faculty at a university. Both children were enrolled in the Universitys lab school. While there was no preponderance of evidence in favor of either party, trial court awarded custody of the children to , on the basis of the tender years presumption which holds that in custody cases involving children of tender 85

years in the absence of evidence to the contrary, the natural mother is the proper person to be awarded custody. appealed. Analysis: 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 imposes an evidentiary burden on the father. SCOUS has held that statutes that impose obligations on husbands but not wives establish a gender-based classification subject to scrutiny under the 14th amendment. This presumption is an unconstitutional gender-based classification b/c it discriminates between fathers and mothers in child custody proceedings solely on the basis of sex. REVERSED. Notes: The tender years presumption has been replaced by the purportedly gender neutral best interests of the child standard. This highly discretionary standard is based on a list of factors (usually statutory) regarding the childs needs. ALI prohibits a court from considering the gender of either parent or child in awarding custody.

Primary Caretaker Presumption briefly superseded the tender years presumption in some jurisdictions. According to this presumption, best interests of the child are served by placing the child with the parent who has taken primary responsibility for the childs care. This presumption has continued validity in some jurisdictions, but only as one factor in the determination of the childs best interests.

Best interests of the child standard UNIFORM MARRIAGE AND DIVORCE ACT -- 402 BEST INTEREST OF CHILD -Court shall award custody in accordance with the best interest of the child. Court shall consider: -Wishes of the childs parent or parents as to his custody -Wishes of the child as to his custodian -Interaction and interrelationship of the child with his parent or parents, his siblings, and any other person that may significantly affect the childs best interests. -The childs adjustment to his home, school, and community - The mental health and physical health of all individuals involved. -The court shall NOT consider conduct of a proposed custodian that does not affect his relationship with the child Constitutional Factors Palmore v. Sidoti (SCOUS 84) RACE y Rule of law: A court cannot justify a racial classification as a basis of removal of a child from the custody of its natural mother. y Facts: Wife Palmore () and husband Sidoti () were divorced in May 80 and was awarded custody of their 3 yr old daughter. In 81, filed a petition for custody of the child due to changed conditions based on the fact that was cohabitating with an African-American man, whom she married 2 months later, and alleging that she didnt properly care for the child. After a hearing, the court concluded that the best interests of 86

the child would be served by granting custody to the father (). The wife/petitioner has chosen for herself and for her child, a life-style unacceptable to the father and to society (interracial marriage). COA affirmed. SCOUS grants cert. y Analysis: Although made allegations to the contrary, s ability to properly care for th child was not an issue. While the court correctly found that the most import factor was the best interest of the child, such a determination was made on the basis of the race of s husband. While a childs best interest is a substantial government interest for purposes of EPC analysis, racial classifications cannot be utilized to justify the removal of a child from its natural mother who is an otherwise appropriate caretaker. REVERSED. y 14th Amendment prohibits government discrimination on the basis of race. To be upheld, racial classifications must serve a compelling state interest. y Notes: ALI prohibits courts from considering the race or ethnicity of the child, parent or other members of the household when making custody arrangements. Sagar v. Sager (Mass. App. Ct. 2003) RELIGION y Rule of law: One parent must demonstrate a compelling state interest to justify restricting a fundamental right of the other parent in a custody dispute. y Facts: Two devout Hindus, wife () and husband () entered into divorce proceedings after a contentious marriage marked by s controlling behavior. The parties had one minor child, and with only one exception, they substantially agreed on her upbringing. This exception involved a religious ritual that the considered essential for the child and the considered peripheral (of minor importance) to the Hindu faith. During divorce proceedings, judge declined s request for permission to perform the ceremony. The courts decree incorporated that order while also ordering that the parties would share joint legal custody of the daughter. The decree required that the ritual not be presumed until either the parties agreement or when the daughter was old enough to make the decision for herself. appealed, arguing that the order denying his request to perform the religious ritual violated his state and federal constitutional rights to the free exercise of religion. y Analysis: A parent must demonstrate a compelling state interest to justify restricting a fundamental right of the other parent in a custody dispute. The trial court seems to have denied s claim because of a perceived lack of a sincerely held religious belief, but motives of control doe not mean that s request for the ritual lacked a sincerely held belief. Instead, his request fails because he demonstrated no compelling state interest for permanently repudiated the wifes fundamental parent 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 s fundamental rights either. o Under these circumstances, the trial court took the properly narrow course of not awarding the choice to either parent, thereby respecting both parents fundamental rights. AFFIRMED. y Notes: Both parents won, and both parents lost. o Compelling State Interest = defense to an alleged EPC violation that a state action was necessary in order to protect an interest the government is under a duty to protect.

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o In adjudicating custody disputes regarding childrens religious upbringing, courts generally take one of 3 approaches:  (1) Religion may be one, but not the sole factor in custody decision making  (2) Religion may be considered only to the extend that it affects the childs secular well-being  (3) Religion may be considered only for children with ascertainable religious preferences or for whom religion has become an important part of their identity. o Constitutional limitations: constrains judicial consideration of religion. According to 1st amendments free exercise clause, a court may NOT interfere with a parents right to practice/not practice his or her religion. According to the establishment clause (requiring separation between church and state and forbidding excessive government entanglement with religion), a court may not weigh the relative merits of parents religious or favor an observant parent over a nonreligious one. o ALI principles prohibit a court from considering religious practices of either parent or child except if (1) religious practices present sever and almost certain harm to the child (and then a court may limit the religious practices only to the minimum degree necessary to protect a child) or (2) if necessary to protect the childs ability to practice a religion that has been a significant part of the childs life

Fitness Fulk v. Fulk (Miss. Ct. App. 2002) SEXUAL ORIENTATION y Rule of law: 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. y Facts: Dude and chick married in 1999. Separated in 2000. One child was born of this couple in Jan. 2001. After the birth of the child, the woman briefly returned to the marital home. After more problems, mother took baby and left marital home permanently. Dude filed for divorce on grounds of cruel and inhumane treatment adultery, and irreconcilable differences. He also sought custody of the child. Hearing held and dude was granted temporary custody of the child woman was granted only limited and supervised visitation. y Best interest of the child standard. Factors (Albright v. Albright Miss. 83): o age, health, sex of child o determination of the parent that had continuity of care prior to separation o which has the best parenting skills and which has the willingness and capacity to provide primary child care o the employment of the parent and responsibilities of that employment o physical and mental health and age of the parents o emotional ties of parent and child o moral fitness of parents 88

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home, school, community record of the child the preference by law stability of home environment and employment of each parent other factors relevant to the parent-child relationship MARITAL FAULT SHOULD NOT BE USES AS A SANCTION IN THE CUSTODY DECISION, NOT SHOULD DIFFERENCES IN RELIGION, PERSONAL VALUES, AND LIFESTYLES BE THE SOLE BASIS FOR CUSTODY DECISIONS. Chick asserts that the court erred by considered each factor above thoroughly. Court had determined that these factors weighed in favor of the father. Continuity of care favored the father, fathers employment weighed in his favor (mother unemployed at time). Court also determined that the mothers affair with an emotionally unstable woman did not speak well of the mothers moral fitness and t/f rules that moral fitness of home environment weighed in fathers favor. Chick assets too much emphasis was put on her lesbian relationship. Dude counters that the court wasnt weighing the lesbian nature of the relationship, but rather that the unstable woman testified shed still be apart of the chicks life and t/f be around the baby. (Unstable person = bad influence on child) Here, both parties have things against them mother lives with her parents, who dont have jobs either; father used to use drugs/alcohol regularly (mother contends he still does). Additionally, dude had been arrested on DV against chick in past. Court ruled that the lower court chancellor had abused his discretion. It had granted total custody to biological father of the baby. Chick was only granted 1-hour visitation at a McDonalds on Sunday mornings. By restricting mother to visitation with her child of very tender months (baby not child), not years, the restricted visitation imposed flies in the face of general Mississippi visitation guidelines. If the lower court, after appropriate findings are determined, grants custody to the father, then the mother should be granted overnight and unrestricted visitation, provided no evidence of harm to the child was presented. Notes: Judgments that decide custody based on parental conduct not shown to adversely affect the child are commonly reversed. According to the Uniform Marriage and Divorce Act (UMDA) a parents sexual conduct is relevant to custody determinations only if the conduct has an adverse effect on the child. (= nexus approach) Jurisdictional approaches to same-sex sexual conduct: o (1) homosexuality constitutes an irrebuttable presumption of unfitness (the per se rule) o (2) homosexuality evokes a rebuttable presumption of unfitness and requires that the parent prove the absence of harm (absent such proof, the presumption of unfitness applies o (3) the parents sexual orientation must have, or will have, an adverse impact on the child in order to lead to a denial of custody (nexus approach) 6 states currently follow the per se rule. But most jurisdictions follow the nexus test. o o o o o

Rowe v. Franklin (Ohio Ct. App. 95) CAREERS

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Rule of law: The court must consider the best interests of the child in determining custody issues in a divorce proceeding. Facts: Rowe (mother/) and Franklin (father/) married in 87, had a son in 88. In 91, woman () left the home with their son and filed for divorce and a motion for temporary residential parenting rights and support. Child remained in custody pending custody determination. During this time moved to Ky to be closer to her job as a pilot in the army and to her law school. was an unemployed ironworker. Trial court required that neither party remove the child from the state without a court order. In 93, filed motion to modify the court order so she could establish residency in Ky, where she was in school and had become pregnant by new Bf. Trial court concluded that both parents loved and cared for the kid, and that child had good relationship with both parents and that the child got along with s new son and her new BF. However, the investigation recommended custody to be granted to and allocated custody and full parental rights to . appeals. Analysis: Rather than making decisions as to what lifestyles are correct, the court should consider how parental conduct may affect the physical, emotional, or social development of the child. Despite findings of the childs relationship with the mother, court concluded that the child should be removed from s custody. This determination was made based on the relative living situations of the parents. the trial court place an inappropriate emphasis on the mothers () priorities and not enough on the best interests of the child. t/f the court abused its discretion in relying on an erroneous standard in granting custody. The court had concluded that the mothers accomplishments in school and her career demonstrated that she wasnt as committed to the childs best interests as she should be, and expressed concern about the mothers involvement with another man so soon after her separation. The COA found that the evidence failed to demonstrate that any of these factors had a negative effect on the child. REVERSED Notes: Relative wealth of a parent is not a decisive factor unless one parent is unable to provide adequately for the child. o ALI principles prohibit the court from considering the parents relative earning capacities or financial circumstances unless the parents combined financial resources set practical limits on the custodial arrangements

IS time a factor? Should the amount of time a parent has available to spend with the child be a relevant factor? -Governing standard is best interests of the child; only occasionally is time ever enumerated as a statutory factor. Time factor enters the determination implicitly, either b/c of vague statutory language or b/c of wide judicial discretion. -Problems taking time into account quantity of time doesnt necessarily reflect the quality of that time, nor does it guarantee that the available time will be spend with the child. Additionally, taking time into consideration freezes the status quo that is, it measures the parents present time constraints against the present availability of the other parent to the present needs of the child.

Peters-Riemers v. Riemers (N.D. 2002) DOMESTIC VIOLENCE

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Rule of law: In North Dakota, acts of domestic violence can prevent a parent from being awarded custody of a child in divorce proceedings. Facts: During his marriage to , committed numerous acts of DV (serious physical abuse, punching in face, kicking in stomach while pregnant, etc.). occasionally retaliated, but the trial judge found that she committed her violent acts mostly in selfdefense. During course of marriage, had watched their child fall down stairs and cry, while doing nothing about it b/c on the phone. Additionally, had porn throughout the home that the child would occasionally come into contact with. The trial court used these findings to support an award of custody of the parties minor child to . appealed, arguing that the trial judge erred by not making the required findings of DV and by not finding that had also committed DV. Analysis: s claim that the trial judge failed to make specific findings of DV is w/out merit. Additionally, trial court found that any DV committed by was in self-defense. Using the finding of DV against on the issue of custody is consistent with ND statutory law, which creates a presumption that a parent in s circumstances should not have sole or joint custody of a child. s assertion that the trial court erred by finding he inflicted extreme mental cruelty on also has no merit evidence of s physical violence, as well as of s affairs supports trial courts findings. AFFIRMED. Notes: s DV here also arguably directly involved the parties child (kicking pregnant woman in stomach, and pinning womans arm behind her back while shes holding baby in other arm) Would the findings have been different if the child wasnt involved? o Virtually all states now require courts to consider DV in custody decisions. DV is a factor when considering the best interests of the child. Emerging trend evidence of DV creates a rebuttable presumption against awarding custody to the abusive parent (states differ on whether the presumption applies only to awards of joint custody or precludes both sole and joint custody) o Proof states differ in regard to amount of proof required to trigger the presumption some require one severe incident or a pattern of abuse; some require a criminal conviction, and others merely require reasonable grounds to believe that a child has been abused or neglected. o Completion of treatment programs may be used: to rebut the presumption that a batterer should not be given custody; visitation may be conditioned on completion of such a program o Bifurcating DV and custody decision making: some courts will not consider DB as a factor in custody determinations unless the violence has been directed at the child. (compare this to research that shows 49% of batterers physically abuse their children compared to 7% non-battering men. Note on physical disability Physical health of parents is another relevant factor in the best interests determination Used to be that a parent with severe physical disabilities was per se unfit. This changed with case law of 1970s, although courts occasionally impose restrictions on disable parents

Joint Custody: Presumption, Preference, or Option? Bell v. Bell (Alaska 90) 91

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Rule of law: Joint legal custody is appropriate where it is determined to be it the childs best interests. Facts: The bells separated after 16 months of marriage. Dude () filed for divorce, and decree was entered leaving the issues of child custody, support, and property division for a later trial. On appeal, challenged the trial courts award of legal and physical custody of their son to his ex-wife (kids mother) (). When the parties had separated, they had agreed to share physical custody of the child, alternating every week. The court approved the arrangement recommending that the child remain in the babysitting care of a particular individual when at both residences. This arrangement continued until began placing the child at a daycare center. The trial court awarded legal and physical custody of the child to , and visitation to . appealed arguing the court erred in not awarding joint custody to both. Analysis: State law allows for the awarding of shared custody where it is determined to be in the best interests of the child. Here the trial court denied joint custody and determined legal custody should be granted to , subject to s visitation rights. There is an express policy favoring joint custody regardless of the physical custody arrangement so that both parties share the rights and responsibilities of child rearing. The trail court had found that joint custody was inappropriate b/c and were incapable of meaningful communication and/or negotiation regarding matters relating to their childs best interests. This was erroneous. While the parties disagreement over daycare related to a fundamental childcare issue, resolution of this issue didnt require denial of joint legal custody. REVERSED & REMANDED Notes: An award of joint custody gives the parent both legal custody and physical custody over the child. Legal custody requires them to share responsibility in major decisions affecting the chills welfare. Physical custody entitles both of them to the childs companionship. Policy: Joint Custody is based on the belief that the child benefits form frequent contact with both parents. Recognizes that fathers, as well as mothers, play important roles in child-rearing. o legal custody- confers responsibility for major decision making (childs upbringing, health, welfare, and education) o physical custody determines the childs residence and confers responsibility for day-to-day decisions regarding physical care. o Parental agreement: Many states mandate that there must be parental agreement as a prerequisite to joint custody awards. However, other jurisdictions award joint custody even if one party objects is joint custody to unwilling parents going to succeed? Three approaches to joint custody: o presumption of joint custody o preference of joint custody (Bell) o some states make joint-custody one option in the best interests analysis = most common

Standards governing the non-custodial parent: Visitation Hanke v. Hanke (Md. Ct. Spec. App. 92) Restrictions on Visitation

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Rule of law: The ultimate test for custody and visitation is the best interests of the child. y Facts: (wife) and (husband) separated after found out that had sexually abused her child from a previous marriage. As part of the criminal charges stemming form that sexual abuse, agreed to supervised visitation with the child had with , who was four years old. When the parties were divorced, was awarded custody, with the issue of visitation to be determined later. Court ordered mental health evaluations for , which found that he should not be placed in a situtation where he was along with his daughter. (he had been drunk when he abused his step-child). After one of the visitations that was allowed, his 4-year-old kid told her stepsisters friend that her father had touched her in appropriately. examined the child along with child services and vaginal scarring was found. The trial judge, nevertheless (because he was unhappy with /didnt believe she was scared) awarded overnight visitations with his daughter, merely requiring that one of four ppl he knew would be there. appealed. y Analysis: Trial judge was clearly wrong. Disagreeing with s fear regarding the safety of the child, the judge racted by removing her from her custody without proper protection. The court stated that whether or not the judge agreed with s fear was immaterial. In cases where there is evidence of past incidents of sexual abuse, the parent should never be required to submit the child w/out adequate protection provisions in place. Turner v. Turner (Tenn. Ct. App. 95) DENIAL OF VISITATION y Rule of law: Denial of visitation rights is warranted only when the non-custodial parent is financial able to support his or her children and refuses to do so. y Facts: Wife () and husband () had two kids. Then they divorced, custody of their children was placed with and was given visitation rights and was ordered to pay child support. Basically this guy failed to pay his support a bunch of times, was held in civil and criminal contempt because of his failure to do so. After in arrears after multiple times, court ordered s arrest and suspended his visitation rights. The court denied s petition requesting modification of his child support and seeking reinstatement of his visitation. Appeals y Analysis: While a termination of visitation is appropriate in some cases, it was not warranted here. Child custody and visitation decisions should be determined in accordance with the childs best interests. They are NOT intended to be punitive. The general rule is that the custody arrangement promotes the childs relationship with both parents. claims that the childrens best interests are adversely affected because doesnt support them and that their interests will be served by terminating s visitation rights, but this is unsubstantiated because is able to provide for their needs. Denial of visitation rights is only warranted when the non-custodial parent is financially able to support his children and refuses to do so. The trial court didnt address this issue. Reversed and Remanded. y Notes: A court may limit of deny a non-custodial parents visitation rights on parental neglect grounds. The parental neglect must be considered with the childs best interests. Where a parent can financially support his children and refuses to do sosuch conduct amounts to parental neglect warranting denial or limitation of visitation rights. y 93

Standards governing Parent v. non-parent disputes Troxel v. Granville (SCOUS 2000) y Rule of Law: The state has no right to question the ability of a fit parent to make decisions concerning rearing of that parties children. y Facts: Man and women live together and dont get married. Have two daughters together. The couple separated and the husband moved in with his parents (the kids grandparents). He would bring the children over for frequent visits. Husband kills himself. The grandparents sue for continuing visits of the grandkids. y Analysis: The statute the grandparent sue under says that any person at any time may petition for visitation so long as it is in the best interest of the child. The statute, as applied, violates the due process clause. The interest of a parent in the custody of their children is a fundamental interest. Furthermore, fit parents are presumed to always be acting in the best interest of the child. The statute as applied contravenes this traditional presumption and gives no special weight to the fit parents determination of the best interest. You cannot infringe upon someones fundamental right simply because a judge things that it is a better decision. y Stevens Dissent: a parents rights with respect to her child have never been regarded as absolute, but rather are limited by existence of action, developed relationship with a child, and are ties to the presence or absence of some embodied family. Court is creating a constitutional rule that says a biological parents liberty interest in the child may be exercised arbitrarily.

Beth R. V. Donna M. (NY Sup. Ct. 2008) y Rule of Law: Both parents in a lesbian relationship have parental rights to the children. y Facts: Pair of lesbians who live in NY get married in Canada and have kids together through artificial insemination. Marriage is not legal in NY at this time. They held themselves out to be married to everyone. Invited people to their wedding, naming each other on life insurance, on health insurance, shared in the child rearing (this would be funnier if it were a gay couple), held the children out as their own. As with all lesbians, there fake love soon faded and they separated. The mom, who is actually not the mom, is suing for custody and the ability to support. y Analysis: The best interests of the child will be served by giving her two moms. Parents by estoppel: a person who acts as a parent in circumstances would estop the childs legal parent from denying claimant parental statutes. See page 752 De facto parents: A person, other than a legal parent or parent by estoppel, who has regularly performed equal or greater share of caretaking as the parent with whom the child primarily lived, lived with the child for a significant period, and acted as the parent for non-financial reasons. See page 752 The role of special particpants McMillen v. McMillen (Pa. 1992) THE CHILDS PREFERENCE 94

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Rule of Law: If both homes of the parents are considered equal, the desire of the child can be taken into account to tip the scale on with him he should live. Facts: The parties married in 1975 and produced a son. The parties divorced in 1981, with the Wyoming curt awarding primary custody of Emmett to the mother, subject to the reasonable visitation of father. In 1982, father instituted an action seeking partial custody of Emmett. The court awarded general custody to the mother with the right of visitation in the father, limiting the fathers visitation to alternating weekends and holidays, one day every other week and two weeks during the summer. Father sought modification 4 times over the next 6 years and mother sought modification once. Each time the court significantly expanded fathers visitation rights. From 1986 on Emmett repeatedly and steadfastly expressed his preference to live with his father. In 1988 the court awarded general custody to the father. Analysis: The trial court correctly found that both households were equally suitable and therefore Emmetts preference to live with his father tipped the scale in favor of granting the father custody. The court found the testimony of 11 year old Emmett that he wished to live with his father. The express wishes of a child are not controlling in custody decisions, but they do constitute an important factor. The preference must be based on good reasons, with the childs maturity and intelligence being considered. Emmetts preference is supported by the facts that his stepfather frightens, upsets and threatens him, his mother does nothing to prevent this, he does not get along with either his mother or his stepfather, and he gets along well with his stepmother.

Leary v. Leary (Md. Ct. Spec. App. 93) REPRESNTATION FOR THE CHILD. y Rule of Law: Childrens counsel must serve various roles, varying between the attorney as guardian and advocate and the exact role does not need to be stated by a judge. y Facts: Appellant contends that the trial court erred in awarding his ex-wife sole legal custody by failing to instruct the childrens counsel as to her duties. He claims due process requires the parties to know precisely the role of the childs representative from the time of appointment in order to prepare for and respond to the evidence. y Analysis: When the court appoints an attorney to be a guardian ad litem for a child, the attorneys duty is to make a determination and recommendation after determining the best interests of the child. The attorney has a responsibility primarily to the court, and has absolute immunity for judicial functions, including testifying and making reports and recommendations. In Re Rebecca B (N.Y.S. 94) y Rule of Law: The testimony of mental health experts is helpful in determining child custody. In order to be properly informed the expert should meet with all parties involved in the custody hearing. y Facts: n 1986 Renee B. filed for divorce and sole custody of her daughter Rebecca against Michael B. The family court granted both motions. In 1992, Renee petitioned to eliminate Michaels overnight visitation and to require supervised visitation upon discovery that Michael was sleeping in the same bed as Rebecca. Michael cross-

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petitioned for sole custody. The Family Court denied his cross-petition and affirmed the award of sole custody to the mother. Father appealed. Analysis: The Clinical Director and a psychiatrist, and a social worker, each had spent time with both parents and the child. All of them agreed that the father should have custody. The mother brought in one psychiatrist who had interviewed the mother but neither the father nor the child. Thus, it was an error to rely on the testimony of the one expert witness who has a weak opinion, over the three who have well founded opinions.

Parental Alienation Syndrome- see page 766 at Note 5.

RELOCATION Ciesluk v. Ciesluk (Colo. 05) y Rule of Law: Each parent has an equal burden to persuade a court that a proposed relocation will promote or undermine a childs best interest. y Facts: A divorced couple had a separation agreement regarding their child. Mother was primary residential parent, both parents had parental responsibility. Mom lost her job and wanted to move to a different state for a job offer. Father objected to her move. y Analysis: Courts must begin their analysis on equal footing. All competing interests are equal. Both parents have constitutional interest in the child. Must make the decision that is in the best interest of the child and apply an equal burden on each party to show this.

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