Family Law FACT-SPECIFICITY of family law cases: The Trends: 1. federalization 1. constitutionalization 2. uniformity of state law (UMDA, etc.

) Role of womens movement, no-fault divorce, reproductive technology, decline in morality STATE INTEREST IN FAMILY FORMATION State priority for marriage -- remedy for poverty, self-sufficiency, social order

THE RIGHT TO PRIVACY: ROOTS AND EVOLUTION Negative v. Positive Rights: Freedom from v. freedom to Jurisprudence of Privacy: 1. Spatial--search and seizure, bedroom 2. Decisional -- right to choose 3. Associational -- freedom of association 4. Informational -- right to access information

Pierce v. Society of Sisters (1925): family privacy

Moore v. City of East Cleveland (1977): family right of cohabitation

Prince v. Massachusetts (1944) Wisconsin v. Yoder: family privacy (Trio: Pierce, Meyer, and Yoder) THE RIGHT TO PRIVACY: SEXUAL EXPRESSION Lawrence v. Texas

Reliable Consultants v. Earle (5th Cir., 2008)

GETTING MARRIED: CONTROVERSIES AND CONTRACTS Rivkin v. Postal: breach of promise to marry (2001) Fowler v. Perry: gifts in contemplation of marriage (2005) Injured party gets/keeps the ring, or its value: conditional gift, fraud, unjust enrichment

Simeone v. Simeone: premarital agreements: contrary to public policy? NOT valid for child support or child custody agreements Uniform Premarital Agreement Act (UPAA) -- unenforceable if unconscionable

In re: Marriage of Shanks (2008) Getting Married: Marriage as a Right standard of review=strict scrutiny, compelling state interest Loving v. Virginia: Warren (1967) Race restrictions

Zablocki v. Redhail: Marshall (1978) Poverty restrictions Turner v. Safley (1987): Incarceration restrictions GETTING MARRIED: SUBSTANTIVE RESTRICTIONS: INCEST, POLYGAMY, AGE, FRAUD Annulment=marriage is void Void (bigamy and incest): invalid from inception, attacked by parties, collateral Voidable (fraud, duress and nonage): judicial action to establish invalidity Consanguinity (blood) and affinity (few states) Lawrence has not been interpreted so broadly as to create a fundamental right to engage in all forms of private sexual conduct.

In re Adoption of M. (1998)

State v. Holm: polygamy and right to privacy? States interest in promoting marriage Kirkpatrick v. District Court: age=marital stability Void (common law); now voidable Blair v. Blair (2004): fraud Essentials (stricter test) or material (more liberal test) --marriage is voidable rather than void. But no divorce=no alimony GETTING MARRIED: SUBSTANTIVE RESTRICTIONS: GENDER Goodridge v. Department of Public Health (2003) Challenges: due process, equal protection, right of association, free exercise --impact of Lawrence v. Texas --Defense of Marriage Acts (DOMA) federal and state: nonrecognition of same-sex marriages in other states Kerrigan v. Commissioner of Public Health (2008)

Perry v. Brown (2012)

PROCEDURAL RESTRICTIONS, INFORMAL MARRIAGES, AND NONMARITAL COUPLES Carabetta v. Carabetta (1980) No license=no marriage? Putative spouse doctrine: good-faith belief in validity of marriage Jennings v. Hurt (1989): common-law marriage?

1) agreement to enter into marital relationship; cohabit; and hold themselves out and wife conflict of laws: initial residence in a common-law jurisdiction

as husband

Marvin v. Marvin (1976): palimony --courts will enforce express agreements on distribution of property so long as illicit sexual relations are not part of the deal

BEING MARRIED: EVOLVING MODELS OF MARRIAGE AND WORK-FAMILY CONFLICT Marriage as contract and as status: coverture (fiction of marital unity) McGuire v. McGuire (1953): family privacy v. spousal duty to support

Neal v. Neal (1997): naming rights and freedom of association

Henne v. Wright (1990)

Vaughn v. Lawrenceburg Power System (2001): work-family conflict

Caldwell v. Holland of Texas (2000): FMLA issues

Parental leave policies: Pregnancy Discrimination Act: pregnancy as a disability Family Medical Leave Act (FMLA): unpaid leave TORT AND CRIMINAL LAW IMPLICATIONS OF MARRIAGE: LITIGATION Heartbalm Litigation: most states abolished alienation of affection as COA 1. breach of promise 2. seduction -- damaged goods 3. alienation of affection--master/servant

4. conversion -- men only 1. valid marriage; 2) defendants wrongful conduct; 3) loss of consortium; and 4) causal connection Jones v. Swanson (2003)

Bailey v. Faulkner (2006) G.L. v. M.L. (1988): interspousal immunity?

--no immunity for negligent transmission of disease OR domestic abuse TORT AND CRIMINAL LAW IMPLICATIONS OF MARRIAGE: DOMESTIC VIOLENCE Hawthorne v. State: battered womens syndrome

Town of Castle Rock v. Gonzales (2005): procedural due process? DeShaney v. Winnebago -- no Sec. 1983 suit (affirmative duty to protect)

No drop, dual arrest -- criminalization of victims People v. Liberta (1984): marital rape FAULT-BASED DIVORCE Lister v. Lister: adultery (2008) Circumstantial evidence: inclination and opportunity Muhammad v. Muhammad: cruelty (1993)

Reid v. Reid: desertion (1989)

Fault-Based Defenses Parker v. Parker: recrimination (1988): both parties are at fault

Haymes v. Haymes: condonation (1996)

Ruling: one attempt at reconciliation does not condone Other grounds: collusion, connivance - fabricating evidence In re Blanchflower: what is adultery? (2003)

NO-FAULT DIVORCE Bennington v. Bennington: what is cohabitation? (1978) 1. Living separate and apart

2. Incompatibility 3. Irretrievably broken (UMDA, New York) 4. Residual relevance of fault -- award of spousal support Feltmeier v. Feltmeier (2003)

ACCESS TO DIVORCE Boddie v. Connecticut (1971)

--but no right to counsel. DIVORCE LAWYERING FINANCIAL CONSEQUENCES OF MARITAL DISSOLUTION 1. common law jurisdiction - spouse who acquired it 2. community property jurisdiction 3. equitable distribution - statutory factors - distribution of separate & joint prop Traditional factors: fault, need, status (style she was accustomed to) Modern: value of homemaking, contribution, limited role for fault

Property Distribution and Alimony -- Theory and Application Traditional: need, fault Modern: self-sufficiency Ferguson v. Ferguson (1994): pensions and retirement benefits

Mani v. Mani (2004)

Michael v. Michael (1990) Rosenberg v. Rosenberg (1985) OSpecial Problems and Calculating Future Interests Lucas v. Lucas (2003): modification of spousal support Change in circumstances so substantial & continuing -- terms unconscionable In re: Werthen (2003): property award or spousal support?

Traditional rule: property divisions dischargeable; spousal support not Bankruptcy Act: some property divisions nondischargeable In re: Marriage of Roberts (1996): what is property? Professional licenses and degrees

PARENTS, CHILDREN AND THE LAW: CUSTODY DETERMINATIONS 1. 2. 3. 4. paternal - prior to 19th tender years best interest of the child joint custody - one factor in best interest

Devine v. Devine (1981); tender years presumption

Palmore v. Sidoti (1984): race and child custody

Sagar v. Sagar (2003): religion

Fulk v. Fulk (2002): sexual orientation

Rowe v. Franklin (1995): careers

VISITATION AND RIGHTS OF NON-BIOLOGICAL PARENTS Hanke v. Hanke (1992): conditions on visitation

Abuse of discretion! Turner v. Turner (1995): non-payment of child support & visitation Troxel v. Granville (2000) Beth R. v. Donna M. (2008): parental rights of same-sex couple Role of: Childs preference--required by UMDA sec. 402(2) Counsel for the child (GAL) Expert testimony

CHILD SUPPORT Wallis v. Smith (2001): no tort liability for misrepresentation of contraception

Elisa B. v. Superior Court (2005): same-sex parental responsibilities

Downing v. Downing (2001)

Olmstead v. Ziegler (2002): employment change

State v. Oakley (2002): deadbeat dads

ESTABLISHING A PARENT-CHILD RELATIONSHIP Who is (and isnt) a parent? Stanley v. Illinois (1972): violation of procedural due process Indicia of parenthood = constitutional protection of parental rights ADOPTION: PARENTAL CONSENT AND PLACEMENT Scarpetta v. Spence-Chapin Adoption Service (1971) Adoption of Kelsey S. (1992)

Indian Child Welfare Act of 1978 (ICWA): existing Indian family

Lofton v. Secretary of the Department

CHILD NEGLECT AND ABUSE In re: Juvenile Appeal (1983): burden of proof In re: A.H. (2004)

Santosky v. Kramer (1982): termination of parental rights

fair preponderance of evidence to clear and convincing evidence Course Themes Role of race, ethnicity, gender -- privacy --dependence upon public benefits -- intrusion Creation of traditional families --low marriage rates among minorities, low income Public contestation v. family privacy Private marital relationships v. state police power Marriage for procreation v. personal fulfillment/non-marital procreation State law v. federal law -- minimal requirements, loss of funding (adoption) Parental autonomy v. best interest of child (Troxel, Michael, Yoder) Classification: equal protection v. race (adoption) and religious freedom (bigamy) 1. Family and the State -family as a social construct -right to privacy v. state police powers -disaggregation of functions (conception, gestation, etc.) -state enforcement of definitions (Scalia) -adjudication of disputes (Shelley v. Kramer) 2. Commercial v. Intimate Relations -Marvin, palimony and commercializing sex -reproductive technologies -- market for bodies -spousal, child support and cash nexus -privatizing risk 3. Changing families -Moore, Belle Terre, Moreno -marriage as rite of passage -evolving family law -role of federal courts (federalism)