Professional Documents
Culture Documents
Fluidity
Detachability
Interchangeability
Husband-Wife relationship has become the “central zone” of the modern family
Pre-modern family was “open lineage” with outer boundaries relatively weak and permeable
in contrast to the close-knit, inward-turning modern family
Loose
Loose
Moore v. City of East Cleveland-U.S. SC struck down a city ordinance prohibiting head of
household from housing more than one line of dependent child. Strict scrutiny used
because privacy rights of family & grandparents raising their g-children was in
traditional definition of family (grandmother living with two grandsons, who were first
cousins) (Non-traditional families as Ps try & align with Moore for a higher level of
scrutiny)
Belle Terre-SC upheld a zoning ordinance that did not affect related individuals (blood,
marriage, consanguinity) applying a lower level of scrutiny than Moore to unrelated
college students living together (Municipalities argue Belle Terre)
Hann v. Housing Authority-Y, because unmarried couples can create a positive family situation
for children and so many unmarried couples with children in society that bizarre for
court not to consider them as a family.
Braschi-Y, in NY for purposes of rent control law, NY court looked at exclusivity and longevity
of relationship, protection of individuals from sudden dislocation, couple held
themselves out as a family to society, and interdependence of couple for daily
operations.
What about rights of foster family compared with rights of biological family?
Problem 1-1(b)(p.18)-Substantive due process analysis is required. Does the foster family have a
protectable liberty or property interest when the state agency decides to move their
foster child back with his mother, with whom he has had little to no contact? Court
says yes, but not nearly as much of an interest as the biological parent and the
notification process followed by the state was enough to protect the foster family’s
interests.
Eisenstadt v. Baird- Same logic in Griswold (about the Constitution protecting a couple’s
privacy rights within a marriage) used to argue for this same privacy right for
individuals.
Doe v. Duling- If the state cannot forbid unmarried people’s decision to bear and begat a child
(Eisenstadt), then consensual sexual activity between unmarried adults is as protected as
if they were married. This decision was vacated because no case or controversy—no
realistic threat of prosecution. If problem-let legislature fix it.
Bowers v. Hardwick-SC refused to expand the issue & in fact narrowed it saying this case
applies to whether there is a fundamental right to engage in homosexual sodomy not
just sodomy period.
Akenbandt v. Richards-SC said diversity jurisdiction exists because this is a tort case NOT a
case about divorce, alimony, or child custody (in which case they would have upheld
TC & AC’s rulings of no federal diversity jurisdiction because of domestic relations
exception.)
Abstention-discretionary standard because the court technically has jurisdiction, but there are
prudential reasons for abstaining
Ankenbrandt Doctrine-policy reasons for federal courts staying out of divorce, alimony, & child
custody cases
States have better expertise & federal dockets are already busy.
States have controlled the law in this area for a long time & it has been effective—why should we
step in when it’s already working.
Snob factor from federal judges—Art. III judges—why would we want to deal with divorce &
family law?
State courts have closer access to the administration of family law & source of info than federal
courts
Section 4: The Future—And Inevitability –of Federal Involvement in Family Law
FMLA of 1993
Martha Fineman: Think of family policy in terms of functions we want the family to perform and
leave behind our obsession with form.
Advent of Christianity profoundly affected both social attitudes toward marriage and marriage
law
Matrimonial Causes Act of 1857 transferred disputes over marriage and divorce to the civil courts
In the United States marriage and divorce has always been subject to the civil law—with
substantive and formal marriage requirements originating from ecclesiastical law and
practice
Zablocki v. Redhail-U.S. SC used strict scrutiny in an equal protection analysis to strike down a
Wis. Law requiring parents to have met their child support obligations and proof that
they would continue to meet this obligation before the state would issue them a
marriage license. P argued equal protection because he was in a class of people (poor)
singled out by the state in limiting their ability to marry. Strict scrutiny required a
“compelling” governmental interest and the means necessary (but no more restrictive)
to further that interest. Court said compelling governmental interest of supporting
children, but statute not well tailored for this purpose.
Problem 2-1 (p. 57)-Prisoner who wanted to marry (& was not allowed to without Warden’s
permission based on a compelling reason to marry) argued Redhail & strict scrutiny
applied. Prison argued rational basis—prisoners not afforded rights of full members of
society, no historical reason to allow prisoners to marry, prison officials are responsible
for prisoner’s living arrangements & should be deferred to on this subject. Court went
with intermediate scrutiny. Court went with intermediate scrutiny in this equal
protection claim—compelling, important, and permissive state’s interest and the means
must be necessary, substantial, and xxxx.
An attempted marriage that does not comply with state regulations may be void, voidable, or
partially valid.
Voidable marriage-is effective until it is formally voided, usually by means of a court order
One at a Time
Reynolds-Congress made a distinction between belief and actions. You are allowed to believe
whatever you want, but state has police power authority consistent to the constitution to
limit your actions. (Mormon challenged a federal law criminalizing bigamy when Utah
was applying for statehood.)
Potter v. Murray City-The state is justified by a compelling interest, consistent with the history
and traditions of this country of promoting monogamy, in upholding and enforcing its
ban on plural marriage.
Questions:
Should a national standard apply to states that have a history and tradition of polygamy?
Why not let states make this choice for themselves—lots of different living arrangements are
currently within the Law?
Of Different Sexes
Baehr v. Lewin-In a challenge, based on Hawaii’s Constitution, to the law banning homosexual
marriages (completely adequate & independent of federal law), the state SC instructed
the AC that for purposes of an EP analysis under the Hawaii Constitution sex is a
“suspect category.” A strict scrutiny standard should be applied thus placing the
burden on the D (state) to overcome the presumption that HRS § 572-1 is
unconstitutional by demonstrating that it furthers compelling state interests and is
narrowly drawn to avoid unnecessary abridgements of constitutional rights.
Baehr v. Miike-the state’s AC held that the state’s interests (child-rearing, procreation, morals &
traditions—law was over-inclusive and under-inclusive) were not sufficient to keep
this law banning homosexual marriages. By bringing this suit in state court you
immunize the judgment of the state court from Federal SC review.
Judge entered stay one day after this decision and constitutional amendment offered by
legislature.
Hawaii’s legislature adopted domestic partnership law & several corporations challenged—battle
continues.
If Hawaii allowed same-sex marriages, would these marriages be recognized in other states?
Mostly no, because violation of the public policy of other states in state statutes. Absent statute,
states acquiesce to federal policy & no recognition.
Note 7 (p. 75) Congress passes U.S.C.A. § 1738C-- No state is required to observe the lawfulness
of a same-sex marriage, if that type of marriage is not recognized as valid in that state.
Vermont Constitution said Vermont laws were to benefit all citizens of Vermont—with no
difference for sex, etc. Vermont Legislature could modify the marriage laws allowing
same sex marriage or come up with some kind of a civil union statute giving same sex
couples benefits of married couples.
Transsexual marriages? Here, states split, in England person’s gender is determined at birth only
In Littleton, Co a wife (genetically male w/ sex change) & husband were married when the
husband died. Wife sued for wrongful death and was denied because court ruled not
genetically female so not wife so no standing to bring wrongful death claim.
In SAT a court clerk gave Jessica & Robin (two females) a marriage license (even though Jessica
was born Mark). Clerk looked at three Gs: genetics, gonads, and genitalia AT
BIRTH.
Unrelated by Blood
Why not?
Religion
Genetics
Sexual Imposition
Israel v. Allen-CO SC held that it was okay for a girl who was adopted by her stepfather to
marry her stepfather’s biological son (her adoptive brother). Here, family supported
the marriage so no threat to family harmony, they were teens when parents married,
no blood relation, & CO criminal law does not prohibit sex between adoptive siblings
in law against incest.
Of Sufficient Age
Moe v. Dinkins-NY Court applied rational basis analysis (because children are more regulated
than adults) & concluded that the state’s law requiring parental consent was rationally
related to the State’s legitimate interests (mature-decision making with respect to
marriage and fundamental privacy right of parent to act in the best interests of child)
& does not offend the constitutional rights of minors.
Modern legislation deals with capacity to consent to marriage, not mental or emotional
capability to function in a marriage or with genetic problems that may be passed on to
the children
Consent to Marry
Party lacked capacity at the time the marriage was solemnized or was induced to enter by force,
duress, or fraud involving the essentials of marriage.
Party lacks the physical capacity to consummate and at the time the marriage was solemnized the
other party did not know of the incapacity.
Party was under the age of 16 and did not have consent of parent, guardian, or judicial approval
Marriage is prohibited.
Larson v. Larson-There is a presumption that a marriage is valid, and to show it is not valid
for lack of capacity the party challenging the validity must show that at the time of
solemnization one of the parties was incapable of understanding the nature of the act and
unable to give consent.
Smith v. INS-In a ruling on an INS statute requiring a nonresident spouse to leave the
country for two years before giving residency status, only if deportation proceedings had
been initiated before the marriage, the SC used rational basis review to rule that Congress had
broad powers to regulate immigration and the statute was rationally related to the reduction of
fraud or sham marriages.
Solemnization and Licensing
When a marriage application has been completed and signed by both parties and at least one party
has appeared before the clerk and paid the fee the clerk shall issue a license and a
marriage certificate form upon being furnished:
Marriage may be solemnized by judge of a court of record, a public official whose powers
include solemnization of marriages, or in accordance with any mode of solemnization
recognized by any religious denomination, Indian Nation or Tribe, or Native Group.
Marriage Certificate Form shall be completed and forwarded to the clerk.
If a party to marriage is unable to be present, he may authorize in writing a 3p to act as his proxy
and marriage may be solemnized by proxy.
If the person solemnizing the marriage was not legally qualified to do so but one or both of the
parties believed him to be qualified, then the solemnization of the marriage is not
invalidated.
Requires capacity.
If parties stop living together and 2 years pass with no commencement of action to prove CL
marriage, then there is a presumption that the parties had not agreed to be married.
Cohabitation; and
“Holding out” to the public that they are H & W (allows 3p’s objective view on whether there
was an agreement to be married)
Note: Courts carefully scrutinize the evidence and require that the marriage be established by
clear and convincing evidence.
Execute and record a sworn Declaration of Informal Marriage as a means of “proving up” a CL
marriage
Estate of Keimig-On night divorce was final couple decided to resume living as married.
Subsequently, they split and had relationships with others. Years later woman sued estate as
surviving spouse. Court said no present marriage agreement when woman and man resumed
cohabitation. Looked at parties’ INTENT evidenced by facts.
Some states say no “holding out” if couple does not cohabitate for two years
Putative Spouse Doctrine-derives from the civil law, was recognized in the Uniform Marriage
and Divorce Act (UMDA), and has spread to a number of CL states
UMDA § 209-A p. who has cohabited with another to whom he is not legally married in the good
faith belief that he was married to that person is a putative spouse until knowledge of
the fact that he is not legally married terminates his status and prevents acquisition of
further rights. The putative spouse acquires the rights conferred upon a legal spouse. If
there is a legal spouse in addition to the putative spouse the rights of the putative spouse
do not supersede the rights of the legal spouse BUT the court shall apportion among the
claimants as appropriate in the circumstance in the interest of justice.
In Re Estate of Vargas-Man died with two spouses—one putative and the other legal. Court
divided the estate between the two. Texas recognizes the putative spouse doctrine.
Chapter 3: The Legal Significance of Marriage—Rights and Obligations, Lost and Gained
William Blackstone: “The husband and wife are one, and the husband is that one.”
CL
Wife’s pp and rp became H’s upon marriage with wife retaining a dower interest in all real
property her H owned during the marriage—which prevented him from alienating it
without her concurrence.
Restored to the married woman the rights (like owning property) she had had when unmarried
Common Law States: Separate property states creating a regime of individual ownership and
management of property acquired during marriage. Who has title? Works well if both
spouse’s earnings are about the same.
Criticism: Unfairness--CL states take no account of the fact that marriage is a form of
partnership to which both spouses contribute and that the contribution of each is equally
important to the family welfare and to society.
Answer to criticism: Every jurisdiction that follows CL approach has developed equitable or
statutory rules to mitigate the harshness of one spouse making all the $ & the other
spouse staying home.
Criticism: Uncertainty—Whose property if one spouse made a down-payment and the other paid
monthly installments? While CL states follow title, at dissolution they throw it all
together & distribute according to equitable or statutory doctrine
Statutory doctrine: Think innocent spouse doctrine. In a CL state without this statute, if the
house was in the drug-dealer’s name then the innocent spouse lost it.
Death: In most CL states the wife’s dower right has been replaced with a spousal “right of
election” or “forced share” that entitles a surviving spouse to a prescribed minimum
fraction of the decedent spouse’s property at death, usually ½ to 1/3. Living spouse can
renounce the will & demand minimum share of deceased spouse’s estate. This applies to
rp and pp.
Problem: Elective share fraction applies to what would be separate assets in a community
property system without regard to duration of the marriage
Community Property: Each spouse holds an equal, undivided interest in all community assets.
Works well where there is a discrepancy between the earning amounts of the two
spouses.
Separate property remains the property of the individual. (property acquired by devise, descent,
or gift)
Generally, CP rules tend to protect spouses who have little to no outside earnings during marriage
Uniform Marital Property Act: Only adopted by one state; Separate property is that acquired
before marriage or during marriage by descent, devise, or gift.
Uniform Probate Code--New reform aim: to infuse the elective share with community property
concepts by expanding the percentage that the surviving spouse is eligible for in
proportion to the length of marriage. See p. 129.
TX: Community property includes lost wages & income from separate property—excludes
personal injury recoveries
AZ: Community property includes personal injury recoveries & excludes income from separate
property
§ 3.101: Each spouse has the sole management, control, and disposition of his or her separate
property.
§ 3.102: During marriage, each spouse has the sole management, control and disposition of the
community property that he or she would have owned if single, including but not limited
to:
personal earnings;
the increase and mutations of, and the revenue from, all property subject to his or her sole
management, control, and disposition
Mixed or combined community property is subject to joint, management, control, and
disposition of the spouses unless the spouses provide otherwise.
Martin v. Martin-In one party to a marriage spending community $, court looks at whether the
expenditure benefited the community or occurred with its express or implied consent?
(H spent $ on mistress)
Andrews v. Andrews-TX case which stated that a court will not order reimbursement for gifts of
community property made during the marriage UNLESS there is a fraud on the
community—other spouse is not held to a trustee standard
General Rule
McGuire v. McGuire-The living standards of a family (with a couple living together as husband
and wife) are a matter of concern to the household, and not for the courts to determine.
Necessaries Doctrine: allows wife and children to purchase essential goods or services on
husband’s credit and makes husband liable; differs from agency because husband was
responsible for regardless of his knowledge or consent
Modern-mainly used by hospitals and medical bills; courts tend to construe expansively; some
states have abolished entirely; some states do not apply doctrine after permanent
separation
Sharpe Furniture, Inc. v. Buckstaff-For necessaries doctrine to apply, the creditor must show
the item was a necessary (“reasonably needed”) and the other spouse failed or refused
to provide the item—don’t have to show intent or willful refusal.
Rights of Creditors
CL: A creditor of one spouse MAY NOT attach the property of the other spouse to collect debt,
unless the doctrine of necessaries applies
TX §§ 3.201, 3.202—A creditor may attach a debtor spouse’s separate property as well as
property over which the spouse has sole or joint management power.
Tort Judgments in Comm. Property States: Most states permit the tort judgment creditor to
attach at least the tortfeasor’s half of the community. Some states distinguish between
a “separate” and “community” tort.
Private Support Obligations, Public Benefits
Section 4. Names
Habitual Use Rule: Married woman may use whatever name she chooses, in different contexts
Kruzel v. Podell-No law requires a woman to take her husband’s name at marriage—a woman’s
name does not automatically change by law after marriage.
BUT in several states marriage may still affect a legal name change in one context or another
CHECK
Problem: Possible fraud on creditors if you keep married name after divorce—keep married
name to increase your credit limit
So, Mayo says you can change it or not if you divorce and ex can get an order against you ever
using it fraudulently
CL-Interspousal immunity--husband and wife were one legal person; neither could sue the other
in tort
Would reward the D spouse for his own wrong since both parties live together—both share in the
judgment CRAZY
Modern-Married Woman’s Property Acts-allowed wife to bring action against husband for
tortious acts against her property interest
Intentional infliction of emotional distress only where the conduct has been so outrageous in
character and so extreme in degree, is it a cause of action. It can be part of a divorce
action/up to TC.
Heart Balm Actions-actions for wrongful interference with family relations (criminal conversion
= adultery)
Abolished in TX
Examples of:
Alienation of affection-allowing a spouse to recover for 3p’s conduct that has caused the P’s
spouse to transfer his/her affections to another, not necessarily to D
Spousal Consortium Claims-a derivative action against a 3p tortfeasor who has intentionally or
negligently injured one’s spouse so as to deprive the P of his/her services, society and
conjugal relations
Grants to family members the right to make decisions about the withdrawal of life support in case
of terminally ill p no longer able to make decisions with no agent or living will
Preferences
Values
Beliefs
Uniform Rights of the Terminally Ill Act § 7(d)-a decision to grant or withhold consent is not
valid if it conflicts with the expressed intention of the individual
Parent’s interest in child is higher order than states interest, SO states will not protect the children
from parent’s actions regarding the minor child’s well-being.
TX Health and Safety Code Chapter 313: Consent to Medical Treatment (clarifies CL)
Patient’s spouse
Adult child who has a waiver and consent of all other qualified adult children to act as sole
decision-maker
Patient’s parents
Individual clearly identified to act for the patient by the patient before he/she became
incapacitated
Electro-convulsive treatment; or
Key—“life-saving treatment”
Spouses have an affirmative obligation to obtain medical assistance for each other.
A spouse does not have a duty to overrule a reckless decision of the other spouse to refuse
treatment.
In Casey, the court adopts an “undue burden standard” saying in cases of domestic violence
requiring the pregnant woman to tell her husband she planned to get an abortion would
put an undue burden on her.
Marital Rape
Warren v. State-A woman does not give up her right to state protection from violent acts of rape
and aggravated sodomy performed by her husband.
Rape not as bad within a relationship as between strangers (Mayo & I disagree)
Here, court held no marital rape exception BUT in some states marital rape is punished less
severely than stranger rape.
Cladd v. State-Where H & W were separated and H broke into W’s apartment, court said that
“since burglary is an invasion of the possessory propery rights of another, where the
premises are in the sole possession of the wife, the H can be guilty of burglary if he
makes a nonconsensual entry into her premises with intent to commit an offense.”
Dissent-compared it to a summer home, concerned because couple not legally separated and
Pandora’s box opened
In McGuire the state treats the case delicately in not wanting to inquire.
Has been used as a defense for a W who had retaliated against an abusive H—primary emotion is
FEAR
Emphasizes woman’s state of mind from being battered repeatedly over time
Theory differs from self defense because the threat is not usually immediate
Women who do not want their batterer arrested may be discouraged from calling the police
Diversion to counseling-may be pre or post conviction and may lead to charges being dropped
Arguments against:
Revenge/fabrication?
Reconciliation?
Is it really a deterrent?
State v. Hodges-Ohio SC said TC erred in not allowing expert testimony of battered woman’s
syndrome and in not instructing the jury to apply the reasonable person with battered
woman’s syndrome (objective/subjective test) instead of just the RP standard (objective
test).
Applying the standard of a RP with battered woman’s syndrome lessens the importance of
whether the harm was immediate or imminent.
Note: “The proper inquiry is not the immediacy of the threat but the immediacy of the response
necessary in defense.” Robinson
Basis of the opinion must be generally accepted within the expert’s particular scientific field
Adverse testimony privilege-permits witnesses to refuse to testify against their spouses and, in
some jurisdictions, gives parties the power to prevent their spouses from testifying
against them—exists only during marriage, but may be asserted for events that
happened prior to the marriage.
Trammel is the federal rule, but in some states D still is the holder of the privilege.
Exception: In some states, an exception has been made for spouse abuse and competency charges
allowing the state to force a spouse to testify against the other.
Exception: D in a criminal trial cannot be prevented from testifying in his own defense about
confidential marital communications even if his spouse wishes to invoke the privilege.
TX: Civil and criminal law allow for privilege within a marital relationship
Maynard v. Hill-Marriage is more than a mere contract; it is the creation of a relationship that
the state has a vital interest in maintaining. Thus there are three parties: husband, wife,
and the state. State has an interest in children, property rights, etc.
Walton v. Walton-Since the state has a substantial public interest in marriage, the marriage K or
transaction is deemed to incorporate and contemplate, not only the existing law but, the
reserve power of the state to amend the law for the public good. Due process was
satisfied with the legislative process and state’s police power (general welfare of the
public) is broad enough to change the law
General Rule-No one has a vested right in the law staying the same—including property
interests and other types of interests.
If the legislature changes the law during marriage, the state has an interest in applying the new
law equally both to conditions that took place before the change and to conditions that
occurred after the change in law.
Section 2. Variability of the Marriage Status by Agreement Before Marriage (Note: Marriage
is a K and a status.)
Fiduciary relationship
Fair-dealing
Public policy
Modern-a couple may, with some limits (and no consensus between states on exactly what
limits), determine property rights and support obligations at divorce as well as death.
Think:
Encourage divorce?
Procedural Fairness
In writing
State’s standards differ on disclosure. Was there a duty to inform, and if so to what extent? Was
there a duty on other party to investigate, and if so to what extent?
Duress
Did party waiving rights receive advice from independent counsel? (helps determine whether it
was signed voluntarily)
Most courts will rule duress if the agreement is presented on the day of the wedding without time
to confer with genuine legal counsel.
Unconscionable
Different unconscionability tests in states from “ward of the state” to degree of hardship
compared with previous lifestyle.
Some states allow parties to divide marital assets in any manner they wish as long as a spouse is
not destitute or a public charge.
Other states (Button v. Button—Wis.) will not enforce unless it is “fair and reasonable” when
signed and “not unconscionable” at the time enforcement is sought.
Overreaching
Has to be a reasonable connection between the law of the state chosen and the parties involved
AND the law cannot violate an important policy of the forum jurisdiction.
Substantive Fairness
Should fairness be judged at the time of signing or at the time of divorce? States differ.
Gross considered change in circumstances as a consideration for whether spousal support part of
the agreement was unconscionable.
The right of a child to support may not be adversely affected by a premarital agreement
(b) Not enforceable if the modification or elimination of spousal support causes one party to be
eligible for public assistance (but unlike Gross, spousal support is measured at the
time of agreement so change in circumstances does not matter as long as not eligible
for public assistance)
Note: UPAA did not set forth all grounds available to challenge a premarital K.
“CL defenses” and ordinary K defenses (except lack of consideration which is specifically
barred) are available
Summary
Disclosure: Important
Most states will apply the law of the state chosen by the parties
Modern—apply law of the state where the parties have the most significant contacts
Incorporating Noneconomic Provisions in a Premarital Agreement
Provisions relating to children, including child custody and support, are unenforceable.
Frequency of sex
Waiver of right to divorce-(maybe for a very short period of time—longer time not usually
enforced)
Borelli v. Brusseau-CA AC ruled that one spouse has a pre-existing duty to care for the other
and a postnuptial agreement requires consideration, so H agreeing to provide for W in
his will in exchange for W caring for ill H at home (instead of nursing home) was not
enforceable.
Some states have statutes similar to UPAA determining enforceability of postnuptial agreements
Curry v. Curry-Ga SC adopts the same standard used to enforce prenuptial Ks in enforcing a
reconciliation agreement
Mayo does NOT like this because already married & consideration was staying married—not
giving up something
Meretricious relationship: a stable, marital-like relationship where both parties cohabit with
knowledge that a lawful marriage between them does not exist
Marvin-Express K between nonmarital partners should be enforced EXCEPT to the extent that it
is a K for sexual services.
Marvin-If no express K the court should inquire into parties conduct to determine whether
conduct demonstrates:
Implied K
D received a benefit
Note: Usually only allowed where reasonable to expect compensation, and claim is offset by
other support received by the claimant during the relationship.
Severance Doctrine: Meretricious sexual activities (illegal consideration) can be separated from
activities legally recognized as consideration for valid K. (companionship &
homemaking services)
Man’s arguments:
Man would have to prove whether his marriage was beyond redemption
CL—Couple would be in CL marriage & Family Code would govern the property division.
TX???
Hewitt v. Hewitt-IL Court refused to enforce express oral K (traditional rule) in a long-term
meretricious relationship because to do so would erode the integrity of marriage (why
marry if you can get same property division without) & question of nonmarital
agreements was within the province of the legislature.
Allowing one p to keep all property acquired in his name during the relationship can discourage
marriage
Marvin—What it does
Connell v. Francisco-WA SC ruled that property that would have been community in character
had the parties been married should be distributed between the parties following a
meretricious relationship. (Only in WA)
Continuous cohabitation
Duration
Purpose of relationship
VT Civil Union Statute—gave the relationship all the benefits of marriage without calling it
marriage
Section 3. Paternity
No inheritance rights
A child born to a married woman is presumed to be the child of her husband and traditionally
neither spouse could testify to nonaccess by the husband.
Modern: Illegitimacy has little bearing on a child’s rights or his parent’s obligations. But the
determination of paternity will typically (although not invariably) establish a legal father-
child relationship.
A child born to a married woman living with her husband is presumed to be a child of the
marriage
Lack of access
Unavailability
Physical impossibility
Blood tests
Michael H. v. Gerald D.-SC used DPC to decide that if a child born within a marriage was
presumed to be legitimate, then the putative father has no liberty interest or fundamental
right to a hearing on this issue.
Policy: To protect the intact family unit and best interests of the child
Equitable Estoppel
Party not allowed to take opposite position when he has already benefited from the original
position
(1) Married to the mother when the child is born or child is born 300 days after the marriage is
terminated
(2) Before the child’s birth, the man and mother have attempted to marry (although the attempted
marriage could be declared invalid) and the child is born within 300 days after the
termination of cohabitation (if invalid without a court order) and within 300 days after
the termination of the marriage (if attempted marriage could be declared invalid only
by a court)
(3) After the child’s birth man and mother have attempted to marry and
he is obligated for child support under a written voluntary promise or by court order
(4) While child is a minor he receives it into his home and holds it out to be his own
Files a written acknowledgment of paternity with the appropriate agency that the mother does not
contest after receiving notification from the agency.
§ 6 Standing
Existence of paternity-a child, his natural mother, or a man presumed to be his father may
bring an action at any time
XXXXXCHECK NOTES
§7
An action to determine the existence of the father and child relationship as to a child who has
no presumed father under § 4 may not be brought later than 3 years after the birth of the
child.
However, if child’s paternity has not been established, then an action can be brought by or on
behalf of the child up to three years after the child reaches the age of majority.
Removing the Stigma of Illegitimacy
Levy v. Louisiana-In a case involving EP, the SC ruled that no distinction should be made
between the rights of marital v. nonmarital children to recover for the wrongful death of
a mother.
Intestate succession—very unsettled; Courts usually uphold state statutes that impose reasonable
prerequisites upon an illegitimate child’s inheritance—States want a just and orderly
disposition of property and hard to prove when dad is dead-opportunity? CHECK
OUTLINE FOR LABINE, LALLI
Establishing Paternity
“The attitude that the paternity action is brought primarily for the benefit of the public persists.”
G.E.B. v. S.R.W.-Child was not bound by an agreement (not filed in a court proceeding or
approved by a judge) between the mother and putative father that released the putative
father from assuming paternal responsibility.
State has an interest in father’s supporting their children—keeping them off the welfare roles.
Requires each state to permit the paternity establishment at any time prior to a child’s eighteenth
birthday.
UPA § 14—bars e. (of mother’s sexual activity) other than at the time of conception if offered by
the alleged father, BUT any such e. is admissible if offered by mother.
Imposes on states a range of requirements aimed at early paternity establishment including the
following provisions:
Example: Alleged father cannot falsely represent his paternity for the purposes of avoiding child
support and later claim he is the father for the purpose of sharing in wrongful death
award.
Chapter 7: Adoption
Process:
Stepparent adoptions:
In Re J.M.P.-SC focused on the child’s psychological bonds with the adoptive parents and the
natural mother’s biological relationship in deciding (after two years) to award the child
to adoptive parents (bio mom changed her mind on consent within the time allowed).
Note: If no psychological ties to adoptive parents (yet) and bio mom fit: child returned to bio
mom.
Generally, SC has placed importance on the father’s efforts and commitment to parenting the
child
Stanley-Ill. Statute that presumed every father of a child born out of wedlock to be an unfit
person to have custody was ruled unconstitutional (DP—putative father living with
mother and raising children for 18 years was entitled to a hearing on his fitness & state
could not presume) (EP—no state’s interest in making a gender distinction)
Quillon-Bio father’s DP was not violated in an adoption by the child’s stepfather when the bio
father had not attempted to recognize the child until after the adoption proceeding.
Caban-EP claim of father (who had a relationship with his children) was upheld when SC
reversed the lower court’s authorization for his children to be adopted by their
stepfather.
Lehr v. Robertson et al.-SC used intermediate scrutiny to decide that a putative father’s due
process and equal protection rights were not violated by a NY law that did not require
notice to putative fathers who had never contributed to or visited the child. NY law
requires notice if: father’s name is listed in the putative father registry, father identified
on the birth certificate, or identified by written statement by the mother.
Note: Mere existence of biological ties is not enough for protection under the law.
Note: The court may look at the father’s conduct from the point he learns of the pregnancy to
decide if he is grasping the opportunity to build a relationship with the child.
Uniform Adoption Act (UAA): “any individual to adopt or be adopted by another individual for
the purpose of creating the relationship of parent and child between them.” UAA § 1-102
Many states: one spouse cannot adopt without the consent of the other.
In the Matter of Jacob, In the Matter of Dana, G.M.-NY AC broadly interpreted two NY
adoption statutes (one centering on property rights saying that bio parent must terminate
rights to their child for other to adopt—enacted in 1938) to allow long-term unmarried
partners (one hetero and one homo) to adopt the other partner’s bio child.
Mayo thinks the court just did what they wanted to do.
A statute that facially prohibited a couple from adopting a child of another race would be
unconstitutional.
Adoption Assistance Act prohibits racial matching in adoption—but Indians are exempt.
Think cultural, ethnical, and racial background of the child and the capacity of the prospective
parents to meet child’s needs.
Michaud v. Wawruck et al.-SC of CT upheld an open adoption agreement allowing the bio
mom to continue visitation with the child because the agreement was negotiated in good
faith and was in the best interests of the child. (relationship established with child)
Open adoptions may make some more willing to put child up for adoption.
Some states recognize a tort for wrongful adoption—agency withholds info regarding child’s
health or psych background.
In the Matter of the Adoption of a Child by N.P. & F.P.-When a couple used their financial
means to jump to the head of the line & adopt a baby from Chile, the NJ court did not
disapprove the adoption because the parents were fit and it was in the best interest of
the child. However, parents could be prosecuted for violating statute that limited items
adoptive parents could pay for. (not airfare, foreign attorney’s fees, etc.)
Baby selling
BUT
Early cases dealt with whether a child conceived by artificial insemination was legitimate.
Now, all states have statutes regulating the status of children born through artificial insemination
to married women.
Statutes often provide unclear guidance when an unmarried woman makes use of artificial
insemination.
Generally, if H consents to W having the procedure (express or implied) he is the child’s legal
father and is estopped from later denial.
Jhordan C. v. Mary K.-CA court held that because bio mom had not followed the statute that
foreclosed the sperm donor from asserting his legal rights as the child’s natural father
by obtaining the sperm from a physician’s office and because, through her conduct, she
had preserved the father’s status as a member of the child’s family sperm donor was
properly declared the child’s natural father.
Uniform Status of Children of Assisted Conception Act (USCACA) § 3: the H of a woman who
bears a child through assisted conception is deemed to be the father if he does not
challenge his paternity in court within two years after discovering the child’s birth.
USCACA § 4: A sperm donor is not a parent of a child conceived through assisted conception.
Uniform Putative and Unknown Fathers Act (UPUFA) § 1: “Putative father” excludes sperm
donors who are unknown or who did not anticipate having an interest in the resulting
child.
Some states say if the sperm donor is known he is the natural father.
Davis v. Davis-SC ruled that parties had management authority over their embryos so if they
agree follow their choice—if they do not agree look to see if there is a prior agreement
—if NOT:
Entity—Special interest somewhere between property and person (But SC gives no deference to
this “special interest”)
Factors
Here, father’s interest in not having children outweighed the mother’s interest in donating the
embryos—closer if no donation.
Summary
Preferences
Prior agreement
Court refused to go with models (p. 370) for bright line test.
Section 3. “Surrogate” Motherhood
Most surrogacy arrangements involve artificial insemination of a woman with the sperm of a
prospective “buyer” whose wife is infertile.
A woman is a “gestational mother” when she carries the fetus, but does not provide the gamete.
CHECK
Difference between surrogacy and baby selling: child is buyer’s genetic child
Genetic
Gestational
Intentional
Surrogacy Ks-are usually between the bio father (H) and the surrogate mother and are framed as
a service K (K to sell child void as against PP)
Adoption law gives surrogate mom the rights of natural mom that cannot be terminated except by
statute.
Matter of Baby M-NJ SC held that a surrogacy K was invalid and unenforceable on both legal
and PP grounds
Legal:
Statute says mother cannot agree to terminate her rights to the child before birth
Public Policy:
Takes the child from the mother regardless of her wishes and maternal fitness
Johnson v. Calvert-Surrogate K was upheld because the embryo came from the H’s sperm and
W’s ovum. H & W were genetic and intended parents—surrogate was gestational
parent only.
But for the couple’s intention to create a child and the understanding that the gestational mother
would not assert claims to the child, there would be no child.
TX Fam. C. 151.103:
Buzzanca: CHECK see Supp.-Court uses the analogy of artificial insemination, in a case where
the intending parents divorced while the surrogate was carrying their biological child, to
find that since the husband consented he is considered the father.
Modern law: Courts have recognized some children’s rights but not all disabilities have been
removed.
Reasons Children are Treated Differently Than Adults Under the Constitution:
Vulnerability of children
Emancipation: Removes the minor from parental authority and ends parental obligation
Kingsley v. Kingsley-FL AC ruled that the TC’s error in allowing a boy to file petition in his
own name was harmless because petitions were filed by the foster father, the guardian
ad litem, and the child’s attorney.
Attorney
Wisconsin v. Yoder-SC used strict scrutiny and a balancing test between the state and individual
rights to say that an Amish family’s right to prevent their 15 year old child from
attending school was constitutionally protected.
General Rule: Parents ultimately decide whether medical care is to be provided and what that
care is to be—NOT ABSOLUTE
State’s Authority: State is permitted to override certain parental decisions concerning medical
care for the child when the child’s welfare & best interests demand it
When medical treatment involves little risk to the child, but a failure to provide the treatment
would substantially endanger the child’s life, the state may step in and court may order
medical treatment over parent’s objection.
Parham v. J.R.-In parents committing child involuntarily to a mental institution, the child’s
protectable DP rights for admission procedure are limited but his liberty interests
include: to be free from unnecessary bodily restraint and to not be erroneously labeled
bc of improper decision by hospital.
Rule: Presumption is that the parents will act in the best interest of the child—not absolute &
unreviewable.
Involving the child in the commitment procedure may undercut his opportunity to benefit from
future treatment—hurt him to know what all is wrong with him.
Arbitrary
In Re Green-Jehovah’s Witness case where child will not die but will be paralyzed without
surgery that is not life-threatening. Court balances risk of an incorrect decision v.
severity of the injury and when there is no immediate risk of death and the child will
soon be old enough to make his own medical decisions if the child agrees with the
parent (no medical procedure) then no court order and child can do something later if he
changes his mind at majority. If the child does not agree with his parents then the court
may look to see whether there is a reason to overrule their decision.
Maine Medical Center v. Houle- Does this child have a constitutional right to life? Y, born
alive so as much a right to life as anyone else.
Have we satisfied the requirements of the constitution by running it by ethical board of the
hospital, etc. etc. etc. and then all agreed that child should not have the surgery?
Remember constitution applies to protection against one’s pursuit of life, liberty, or health by the
state under the 14th and Congress under the 5th.
Normal rule: with no opportunity to get parental consent, the hospital is entitled to take necessary
measures to keep child alive—other possibility is to listen to parent’s & do what they
need to do.
Remember case where parents had prearranged with doc to not keep baby alive and hospital
overruled and even refused to transfer mom before birth. Private hospital kept the baby
alive. TC: 65M. AC: take nothing judgment. Currently, SC looking at cert.
Followed the Baby Doe case where infant with Down’s was allowed to starve to death after 15
days because parents did not get it a minor surgical procedure.
To receive federal funding the state must show that it has procedures in place to respond to
reports of deprivation or denial or “medically indicated treatment” applies only to infants
up to 12 months.
Now legislative mechanisms impose standards on state offices to make medical decisions for
abused/neglected children in order to make them eligible for federal funds.
If with the treatment survival would be nearly futile and the treatment would be inhumane
(inhumane in terms of physical pain)
Section 4. Contraception and Abortion: A Special Case of Medical Decision Making
Jane Doe IV
What level of burden should there be for a minor girl to get a judicial bypass?
The minor is mature and sufficiently well-informed to make the decision without notifying the
parents.
Notification:
L-lature had to allow for a judicial bypass or the statute would be unconstitutional because unduly
burdensome—Casey.
Two Prongs:
Employment
Extra-curricular activities
Age
Sufficiently well-informed
In Re T.G.-Court says CPS did not stay in close enough contact with the family to determine
whether deficits found on one visit were long-standing-- whether parents were capable.
Whitner v. State of South Carolina-US SC recently ruled that this violates the constitutional
rights of individual mothers. Still possible for a private hospital to conduct blood tests
& turn it over to the police without violating the 14th Amendment.
Where do you draw the line with statutes protecting the unborn child from the mother’s actions?
Overinclusive or underinclusive
Since you can legislatively wipe it out—you can legislatively regulate it.
In The Interest of M.M.L.-When a Kansas court followed a strict “best interests” of the child
standard (saying that removing the child from her foster family would create
extraordinary or unusual circumstances that would substantially endanger the child’s
welfare) even though the father was not unfit, SC says “best interest” of the child is not
enough to protect the father’s C rights.
In the Matter of the Guardianship of J.C., J.C., and J.M.C., Minors-Absent a finding of
parental unfitness parental rights can be terminated in NJ when it would be harmful for
the child to be taken out of foster care & put back with the parent—need “clear and
convincing” evidence and maybe the child’s relationship with bio parent can be
maintained after termination of parental rights.
Does the state have a legitimate interest besides division of property and custody issues?
Fault is often quicker to obtain because many no-fault statutes require a waiting period
Spousal support & property may be affected by whether divorce is obtained on fault grounds
In a few states, no-fault is available only if both spouses agree—if not a showing of fault is
required.
Always have been jurisdictions in U.S. or elsewhere where you could get a no fault divorce—DP
question of whether a state should recognize divorce from another jurisdiction
If you have fault-based grounds you are allowed to prove fault & no-fault in the alternative.
Separation is one of the no-fault ground that TX provides & requires waiting 3 years
Fault Divorce
Lynch v. Lynch-Court says no divorce because no cruel and unusual punishment (W called H a
“faker”) and no desertion when the party being deserted has no objection.
Marriage is serious & can only get out for good reason.
Status quo is prized—lots of complication in public policy issues when people divorce, remarry,
and have more children.
Every effort should be made to keep a marriage together when children are involved.
(paternalism)
Mayo thinks requiring fault-based grounds for divorce would put people in more casual
relationships—keep them from marrying.
Capps v. Capps-VA SC would not give W a divorce because “one hit/beating was not enough
unless it is enough to endanger a life” and would not give H a divorce because W did
not really desert him when she left out of concern for her safety. WOW
Hollis v. Hollis-H used connivance defense—late in the game to sue on the grounds of adultery
when you put me up to it.
Texas
16.008: Condonation-just because the spouse has condoned it does not mean not entitled to
divorce on those grounds
6.001: Insupportability:
No-Fault Divorce
No-Fault Grounds
Uniform Marriage & Divorce Act: One or both allege irretrievably broken with a finding
supported by evidence—court must make an inquiry at a hearing.
Hagerty v. Hagerty-Court grants divorce for H (when H is an alcoholic & wife wants him to get
treatment—not a divorce) because if one party says the marriage is irretrievably broken
then it is irretrievably broken
State is abdicated from any responsibility for determining whether a divorce should be granted—
but paternalism & what are the state’s real interests?
Welfare of children
Property issues
Collateral issues
Unilateral no-fault divorce may leave the spouse who does not want the divorce without the chip
(ammunition) for property division etc. that fault-based divorce would have given them.
Boddie v. Connecticut-Court agrees that since there are no alternative ways to get a divorce
other than through a court proceeding it was a denial of DP not to allow access to the
courts for divorce because a couple couldn’t pay court fees. No rational basis divorce
turning on wealth. It is arguable that Boddie establishes a right to divorce.
Residency Requirements
Sosna v. Iowa-Since W had not met Iowa’s one-year residency requirement and states have an
interest in insulating their divorce decrees from outside collateral attack—okay for Iowa
statute to delay divorce by residency time requirement for divorce. This allocates
judicial work to a state that has a greater interest in the case.
Domicile = residence + intent to make the place your home for an indeterminate period of time.
If state divorce statute has residency requirement, then domicile is easier to prove & divorce more
impervious to collateral attack.
TX § 6.302—If the respondent is domiciled in TX, the petitioner does NOT have to be. So, P can
come from another state & divorce respondent in TX if respondent is domiciled in TX.
Jurisdiction asked to grant the divorce will follow its own laws—NOT the law of the state where
the marriage was entered into.
Remember if the marriage is valid in the state where it is entered into then it is valid in other
states.
Except void as against that state’s public policy—Mayo has never seen it.
What obligation do sister states have to recognize divorces from other states?
All the old ideas of jurisdiction, including in personam, quasi in rem, and in rem, are subjected to
the fundamental rule that some combination of minimum contacts and substantial
justice & fair play come from the DP clause of the 14th A to govern the state’s process
for exercising jurisdiction.
U.S. states apply state law & not foreign law to problems of divorce.
Consent
Marriage—in rem—the thing is the status & is with each party to the marriage.
Does the person in the state have sufficient contacts with the state such that it would be fair to
exercise jurisdiction over the person not in the state?
If the person is domiciled in the state for a sufficient period of time the state has in rem
jurisdiction.
TX § 6.304—Military: If service men or women have been in the state for at least 6 months & in
a military base for at least 90 days, TX has jurisdiction for divorce.
Once jurisdiction is established, court can exercise it & affect the legal interests of a non-
domiciliary D based on the contacts the P has with the state.
In Re Estate of Steffke—Full faith and credit does not apply to foreign divorces, so States do not
have to recognize a divorce from a foreign country on grounds that they are not obligated
to accept.
Wisconsin was not obligated to recognize the divorce under full faith & credit.
Note: If you hold out in a bigamist marriage (good faith) after the real spouse has died, then after
death the bigamist marriage becomes valid—Mayo knows of no time period
requirements.
Kazin-When 2nd H drove W to Mexico for W to divorce 1st H, 2nd H’s knowledge, participation,
and acceptance of benefits of the subsequent marriage estop 2nd H from denying the
validity of their marriage.
Williams Case—Absent D who did not appear or contest has a chance to contest jurisdiction
when the divorce decree is presented in the state. The D can argue no jurisdiction in the
other state when decree comes up under full faith & credit. Just because a state has
jurisdiction to grant a divorce—jurisdiction over status does not mean they have
jurisdiction over custody or property issues—personal jurisdiction.
Kulko—SC said not enough for CA jurisdiction over absent father (in NY) that father benefited
by saving collateral expenses by voluntarily allowing child to attend school in CA rather
than providing for kid’s school in NY.
General Rule: Jurisdiction for TX court to divide property outside the state requires a basis for
personal jurisdiction over both parties.
General Rule: Jurisdiction for TX court to divide property inside the state requires jurisdiction
over only one of the parties to the dispute.
Due Process: If property is inside the state, even with an absent D, chances are good that the
circumstances are such that it would be fair to assert jurisdiction over the absent D.
Dawson-Austin v. Austin (handout)—General rule that a state court has jurisdiction over
property located in the state as long as one of the parties to the dispute is domiciled in the
state is conditioned on the thought that something/circumstance connects the absent
respondent with the property in the state. Here, H unilaterally attempts to manufacture a
basis for jurisdiction with no action whatsoever on behalf of W so no jurisdiction.
TX Family Code
Laws state that divorce & property claims are non-divisible BUT
Long Arm Statute of TX Family Code: To the full extent of the U.S. Constitution
Problem
Finding the obligor who leaves the state & invoking the procedure that will make your order
enforceable
Frequently two state establishing & modifying orders—question of whose order controls
Now, federal law requires every state to have a statute that governs the enforcement of support
orders (UIFSA) to receive federal financial support.
Questions
Think
Self-help
Present order to (out of state) ex-spouse’s employer and seek garnishment—no registration
required
Employee ex-spouse can object within the required period and go to court
§ 159.201: Things that subject you to jurisdiction of the state
CHECK
If you cannot exercise long arm jurisdiction from your home state you can:
Expensive
Hassle
Start the proceedings in one state & that state transfers it to ex-spouses domiciliary state
Second state will give requisite notice and the person initiating the suit will not have to be present
in the 2nd state for the proceeding—lawyer can represent.
Second state can issue an order enforceable by that state & 2nd state will have continuing
exclusive jurisdiction.
Court of the other state no longer has continuing, exclusive jurisdiction because that state no
longer is the child’s state or the residence of any contestant; or
Within six months of initiating proceeding & a parent continues to live in the state
Other states have declined because court of this state is more appropriate forum
UCCJEA superceded UCCJA—See Supp. p. 71.
Jurisdiction to grant
Jurisdiction to modify
PKPA—Primarily addresses when a state must give full faith & credit to the proceeding of
another state
UCCJEA adopts the PKPA approach to establishing initial jurisdiction giving preference to the
home state
No more exclusive continuing jurisdiction if neither the child or the child’s parents, or person
acting as a parent live in the granting state—no more substantial e., no more
substantial connection.
BUT if one of the parents remains in the granting state and the other parent moves w/ child to
another state the granting state has continuing exclusive jurisdiction.
Either 2nd State is the child’s home state or was the home state of the child within six months
before the commencement of the proceeding AND
Either the 1st State determines that it lost JD under § 202 OR the 2nd State determines that the 1st
state lost JD because none of the parties lives in the 1st State, hence no longer evidence
or substantial connection with 1st State.
Note: Findings that may be made by issuing state are different than findings that may be made by
modifying state.
Initial Custody Determinations Under The UCCJEA and PKPA
Greenlaw v. Smith—Even though child has a new home state, WA is the state to modify custody
agreement because continuing exclusive jurisdiction: the father still lived there, child had
a significant connection, substantial evidence in the state
IMPORTANT
In most states, even if a court exercises “home state” jurisdiction to render an initial decree, it
may retain “substantial connection” continuing jurisdiction, even if the child has
established a new home state.
Texas: Jurisdiction to modify custody is lost when the child establishes a new home state. §
155.003(b)(1).
Friedrich v. Friedrich—When Mom argues grave psychological risk to the child the court said
relative merits of the two localities are for the German court to determine.
Purpose of Hague Convention: to deter parents from taking their children out of the country
without court or other parent’s permission by restoring the status quo
Was presently exercising lawful custody rights or would have been but for the removal—his acts
did not constitute an abandonment or relinquishment of rights
No jurisdiction of determining the merits & to take a narrow view would suck the courts in to the
merits
Four Affirmative Defenses for the Abducting Parent
Proceeding was commenced more than one year after removal of the child.
Grave risk that return of the child would expose the child to psych or physical harm.
Return of the child would not be permitted by the fundamental principles of the requested State
relating to the protection of human rights & fundamental freedoms.
NOTE: Standard of proof for first two affirmative defenses is preponderance of the
evidence—second two must be proved by clear and convincing.
Consider
Non U.S. resident can bring a federal issue (Hague Convention matter) in federal
court.
Mayo says that familiarity with one system or the other is the most common reason
for lawyers to choose one system over the other.
Chapter 13: Child Custody in Divorce
Legal
Physical
Both—States vary widely in whether joint custody means legal, physical, or both
Miller v. Miller—Good intro to notion of best interests—Children are not competent to sue on
their own behalf. They are non-entities in regards to their legal abilities to retain and
control counsel.
Guardian ad litem: Reports to the court as to the “best interests” of the children with
independent, dispassionate, interest in children.
Ad litem is supposed to take the children’s desires into account (considered, but not dispositive)
BUT court decides for itself
Courts are showing an increasingly willingness to entertain the question of when the children’s
desires should be taken into account.
In Miller, children are asserting that they should have some Constitutional procedural rights in the
right to choose which parent to live with.
Interests protected
BALANCE
Risk of erroneous deprivation of those interests by the chosen procedure and the probable value,
if any, of additional or substitute procedural safeguards
TFC 153.008: If the child is 10 or over, the child may choose who will have custody subject
to court approval—almost establishing a presumption that the court should follow the child’s
wishes unless good reason not to exists.
Section 2. Parent v. Parent—Determining the Best Interests of the Child
Tender years doctrine v. award custody to the parent who performed the majority of the
caretaking duties for the child before separation.
Palmore v. Sidoti—When a TC took custody away from a fit mother and awarded it to the
child’s equally fit father because the mother was living with a black man, the US SC said the
mother’s EP was violated because race had been improperly employed. TC had expressed
concern about prejudice from the community the child might experience.
Davis v. Davis—NY Case—Biracial marriage where the child was given to the white mom.
Black dad petitions for custody when white mom hooked up with white man—dad claiming
that the child’s identity would be better nurtured by being brought up by biracial parents.
Racial considerations cannot justify the removal of a child when the parent with custody is a
fit parent.
Owan v. Owan—When TC (on notice that domestic violence might exist) accepted social
worker’s non-finding on the subject and granted custody to the father, the SC said the court
should not have delegated their responsibility—should have sought more information.
TFC § 153.003: Court shall consider e. of abuse (physical or sexual) of one parent against
the other parent, a spouse, or a child.
TFC § 153.013: Legislature’s provision for parents possibly lying about child abuse because
child abuse is a factor in custody disputes.
Jones v. Jones—TC gave father custody saying that over the long haul his situation (living
on the family farm) was more stable. Are best interests as a standard unduly predictive?
Good science tends to be broad—does not address individual situations & circumstances.
The more specific and predictive the testimony is on best interests the less scientific, and
more opinionated, the testimony tends to be.
Garska v. McCoy—Two states have adopted the primary caretaker presumption. If the child
is not old enough to express a preference and if both parents meet the minimum, objective
standard for being a fit parent then there is a presumption for the primary caretaker.
Joint Custody
Beck v. Beck—Joint custody was awarded even though the parents didn’t want it. Should
we do this—what about giving primary physical custody to one parent with liberal visitation
to the other & joint legal custody?
All states allow an award of joint custody—but not all states favor it.
In most states, the trial judge may not impose joint physical custody on unwilling parents.
Most states--nonresidential parent is entitled to continuing contact and visitation with his or her
child except in unusual circumstances.
Schutz v. Schutz—FA SC held that the mother had an affirmative duty to the children and to the
noncustodial parent to encourage and nurture the relationship between the child and the
noncustodial parent AND any “incidental burden placed on her right of free expression
essential to the furtherance of state’s interests.”
Morgan v. Foretich—When W refused to produce daughter for visit with ex-H (because she was
convinced ex was sexually abusing daughter, even though TC said not enough evidence
to meet the burden—preponderance of the evidence), she was jailed for 16 months for
contempt—civil coercive? W invoked the defense of necessity BUT it didn’t work
because no statutory violation—statutory duty was imposed by a direct order of the court
—she had already had an appropriate inquiry (DP) about the order as it applied to her.
Some courts are trending toward placing more emphasis on the interests of the child and less on
the rights of the parent.
Painter v. Bannister—Using the “best interests” standard the court decided that g-parents home
was better for the child because:
Grandfather was the child’s psych father
Court was guided by the presumption in favor of the natural father, but threw it all away for what
it considered the child’s best interests.
Texas
153.373—Presumption in favor of the natural parent is overcome when the natural parent
voluntarily relinquishes possession for over a year and custody of the non-parent is in
the child’s best interests.
Beagle v. Beagle—In an intact family, parents have an autonomous right to determine their
child’s visitation with grandparents. This right is protected by the privacy doctrine and a
law allowing anyone to obtain visitation with the child is unconstitutional. States cannot
show a compelling government interest in promoting g-parent’s right to visitation that
would overcome the parent’s interests.
Policy:
Best that state does not get involved in scheduling visitation within a family.
Troxel (in Supp.)—SC says apart from a finding of non-fitness, the natural parent is entitled to
deference under the privacy right in the 14th. In the TC not deferring to this mom at all,
her C-rights were not protected HOWEVER SC did not say that no person who is not a
parent can never obtain visitation rights.
Touchstone—“changed circumstances”
Child gets the choice if the child is 12 years or older—book says 10 years, but it has been
changed to 12 years across the board
When the conservator has voluntarily relinquished custody for 6 months or more.
NOTE: Courts are reluctant to relitigate on changed circumstances within a short period of
time of the previous order.
Levine v. Bacon—While father (primary custody) is C-free to travel and move anywhere he
would like, he may not move the daughter to another state if it would negatively impact the
mom’s relationship with the daughter and her ability to participate in major decisions
concerning the daughter.
Note—States vary greatly in this area from liberal to strict approaches to relocation—all
relevant facts & circumstances, child’s best interests, yes ok to move unless motives for
moving are vindictive, “exceptional circumstances” necessitating the move—state’s have a
compelling interest in the child growing up with the love and support of both parents.
Increase the transaction costs of divorce—make couples take marriage more seriously
Punishment of a wrongdoer spouse
Theory that since you have an obligation to support during marriage, there are reasons to continue
that obligation for a certain period of time—especially where there is evidence of reliance
by the parties.
TX p. 795—Narrow statute—strictly construed regarding when alimony is available and for what
period of time.
Problem p. 798—15-4
Marriage duration
For Alimony
Avoid destitution
Olsen court thinks things have changed and alimony exists because it has always existed.
Posner—Economic rationale
Alimony is to give the wife severance or unemployment as compensation for her housekeeping &
childrearing work.
Landes—Alimony is for women to better care for themselves so they can do better in the
remarriage market.
Against alimony
Rutherford—Expectancy (not reliance or restitution) should be the measure of alimony & when
couples marry they expect to share income.
Think: Social engineering (most desirable roles for men & women) with thoughts regarding
alimony.
Equipping women to go into the market by supporting them while they learn to support
themselves?
Compensating & rewarding women for their household talents so they can feel good about
themselves & more quickly find another man?
If these things do NOT count then woman have less choices because they need to make a career
outside marriage & pay for duties not valued by alimony awarded—childrearing &
housekeeping.
Section 1. History
Roe v. Doe—In an intact family the father’s support obligation to his 20 year old college student
child was subject to his right to impose reasonable restrictions & rules. Father didn’t
have to pay if she refused to follow reasonable rules. When she abandoned the home, she
forfeited her right to support.
Intact families have discretion as to whether to pay for child’s college or not.
Many states: To be an emancipated minor the child must be employable & that age is 16. States
have a strong interest in parents supporting children under 16 to keep them out of jail,
out of the hospitals, and off welfare roles.
Elaborate enforcement system in place because, with absence, the relationship often suffers
making the parent reluctant to pay.
Biological Parents
Straub v. B.M.T.—Parent cannot contract away child’s support rights. Since couple did not go
through artificial insemination procedures mandated by statute, the bio father was
responsible as the child’s father & sex as consideration for K agreement makes
agreement void.
Wiese v. Wiese—Mayo: Since stepdad allowed his name to be put on the child’s birth certificate
& filed a declaration in court stating that he was the child’s father, there is some
argument that he should be estopped from denying that he is the father. Court said the
burden is on the mom to establish that the stepdad’s actions precluded the child from
seeking support from the bio father before the stepdad could be ordered to support the
child. Remember child was NOT a party & did not sign off that stepdad was his father.
Adult Children
Cannon v. Juras—Court holds the adult child responsible for reimbursing the state for his
indigent mother’s care, requiring a clear showing of an affirmative action to show mom
had abandoned him in childhood relinquishing him from responsibility for her care.
Majority of states—have relative responsibility laws requiring adult children to provide for their
indigent parent’s medical needs.
TX & some states--% of obligor, varies whether net or gross & what is counted
Some states—Melson formula, each parent gets a minimum self-support allowance & the court
backs out the basic needs of the child
Question: If, because of business or lifestyle decisions, the obligor has an income that is
drastically above or below, how much can those discretionary decisions be reviewed
and taken into account?
Defining Income
William R.T. v. Bonnie R.T.—Father starting a new business wants to deduct his operating
expenses and reduce his cash flow. Child support would be based on reflection of lower
income. Court said fundamentally unfair to deny him that depreciation now & if he can
grow his business & increase his income capacity within a reasonable time, the child
benefits through a modification of an award. Conversely, if he can’t put enough back in
the business to make it successful, he might not be able to pay as much support.
Rich Obligor
McGinley v. Herman—Question is apart from or beyond the minimum needs of the child, to
what extent do children have a right to share in the parent’s lifestyle? Fundamental
fairness issues have to be struggled with here. CA’s general principle is that children
share in the lifestyle of their parents. In TEXAS, $6K of monthly income is the
maximum amount to which the table can be applied. For income above 6K, the child’s
extraordinary expenses & proven need may be considered to determine how much to give
to the child.
No consensus
Some states—statutes have an absolute minimum for child support—varies from $20-$50.
Irrebuttable presumption
Some states—discretionary
Some states—when parent is below the poverty level, guidelines will presume an award of $50 &
appropriateness of the award can be rebutted downward.
Texas--% of income with no minimum stated, but amount totally calculated by % of obligor’s
income
Joint & Split Custody
Bast v. Rossoff—Having a large reduction in child support because the non-custodial parent
receives a few extra days of custody does NOT make a lot of sense because a few extra
days does not cut the custodial parents’ expenses by much.
Cliff rules—reduce the amount of the decree by some amount according to non-custodial parent’s
extra visitation days.
Visitation
Hours spent
Days spent
Overnights spent
Age of majority does not necessarily define the duration of the support obligation
Texas—As long as the child is full-time enrolled in secondary education she gets child support
up to and including age 19?
Texas § 154.013—Arrearages are not subject to obligee’s creditors or are not subject to the
obligee’s estate. Instead, they are treated as if they had already been paid avoiding the
hardship of making the arrearages subject to creditor’s claims.
Most states have concluded that a divorce court may constitutionally permit a court to order a
separated parent to support his child during college, with or without a statute giving the
court authorization.
Minority of states courts will not order a non-custodial parent to support his child during college
because they believe the classification is invalid.
Classification: young adults classified according to the marital status of their parents,
establishing for one group an action to obtain a benefit enforceable by court order that
is not available to the other group.
Courts will uphold a prior agreement between parents for one of them to pay child’s college
expenses.
Taxation
Section 1. Overview
Ongoing Marriage
Marriage penalty—combined incomes of married people, generally speaking, will hit a higher
marginal tax rate than it would if they were not married
Standard deduction—for a married couple is less than double that of a single person.
Lots of reform
At Divorce
Alimony
Alimony is worth less to the recipient and is cheaper for the obligor to pay than child support.
Child Support
IRS can re-qualify the payments if they are not characterized correctly.
Spread created allows room for negotiation & cost of that negotiation is felt by the federal
government.
Changed circumstances
Couple of states build a modification due to changed circumstances into the initial order.
Controversy exists as to whether, if child’s needs are being met, an increase in the obligor’s
income should result in an increase in the child’s support.
Stability
Flexibility
Section 2. Modification Based on a Shift in Income
Marriage of Meegan—Because good faith was present, children were older, and wife was able
to provide for herself financially, court allowed H to decrease his alimony payments to
zero. (Much closer question if W was unable to provide for herself.)
DuBois v. DuBois—When H moved so 2nd W could live closer to her children & could find no
job that paid as much as his previous one had, the court said the move was involuntary
and he was not underemployed allowing him to reduce his support obligation to his 1st
family.
Carter v. Carter—In deciding whether to reduce alimony because W found a job enabling her to
provide more of her own support, courts consider the partnership theory of marriage,
equitable factor (W’s age & prospects for employment), and public policy rationale of not
discouraging individuals from seeking employment by taking away all support if they
find work. In this case, TC granted a reduction from $350 to $100, but when W retires
she may be able to get her alimony increased.
Strong Dissent: Cohabitation partnership was based on necessity & W was not to be blamed for
what she had to do to live since W was not receiving support from H.
Most states—Cohabitation creates a rebuttable presumption that circumstances have changed &
less need for support.
A Stepparent
Subsequent Children
Miller v. Tashie—Revision in child support can be based in a change in financial status and in
income. SC says additional children are to be considered in whether someone can get a
decrease in support obligation.
Traditional Rule: Additional children are not considered in a motion for decrease of obligation.
Trend: Courts consider additional children in deciding whether to grant a decrease in child
support.
If you can avoid paying the fine by doing something (even though the fine is owed to the court),
then the fine is civil.
Only ones who go to jail on this are the ones who have the means to pay.
Effect is if you have failed to pay, you can be punished up to $5K fine or imprisonment not more
than 6 months.
Hicks on Behalf of Feiock v. Feiock—CA court presumes that an obligor is able to pay. Obligor
has the burden to show that he cannot pay. A determinate sentence with a purge clause is
civil in nature.