-
State interest in Regulating/Promoting
Marriage
- Efficiently allocating scarce state
- resources
- o
- The state offers benefits to married
- couples à in instances of polygamy, the state
- wants to make sure that more than one spouse is not benefitting from the state
- (policing power)
- ·
- Stable unit for raising children -
- Ensuring the welfare of children
- ·
- Foundational unit for inculcate social
- values
-
Conjugal View
- traditional,broadly reflected in law and culture model - marriage is a sexual union of
- husband and wife who promise each other sexual fidelity, mutual caretaking and
- the joint parenting of any children they may have
- ·
- Fundamentally child-centered
-
Close Relationship Model
- emerged in recent decades – marriage is a private relationship created primarily to
- satisfy the needs of adults
- ·
- If children arise from the union, so be
- it, but marriage and children are not seen as intrinsically connected
- ·
- This model seriously undermines the law’s
- historic role to seek to protect the best interests of children
-
Defining the Family
Moore v City of East Cleveland Supreme
court of United States (1977)
- Facts: Appellant, Mrs Moore, lives with her son and her two
- grandsons – two cousins. John came to live with them when his mother died. Mre
- Moore received notice of violation from the city stating that Jon was an
- “illegal occupant” and directing her to comply with the ordinance. She failed
- to comply and sentence to five days in jail and a $25 fine.
- Held: Ordinance cannot survive. The city doesn’t have legitimate
- goals (prevent overcrowding ect) – the ordinance serves them “marginally at
- best.” Importance of privacy. The constitution protects the sancity of the
- family. Idea of uncles, aunites, grandparents, cousins living in the same
- household is equally deserving of constitutional recognition.
-
A. Defining the Family (living arrangement)
and the Law (Due Process)
i. Constitution protects
- 1.
- The sanctity of the family bc the institution of
- the family is deeply rooted in this Nation’s history and tradition
- 2.
- Liberty, guaranteed by Due Process Clause
- a.
- Includes a freedom from all substantial
- arbitrary impositions and purposeless restraints
- b.
- Certain interests require careful scrutiny of
- the state needs asserted to justify their abridgment
- 1.
- Freedom/liberty of personal choice in matters of
- marriage and family life
- 2.
- Marriage is a Private realm of family life which
- the state cannot enter
-
- iii. Analysis
- If govt intrudes on choices concerning family living arrangements:
- 1.
- What Govt interest is advanced?
- 2.
- The extent to which govt interest are served by
- the challenged regulation?
-
A. State interest in Regulating/Promoting
Marriage
- i. Efficiently
- allocating scarce state resources
-
- ii. Stable
- unit for raising children and Ensuring the welfare of children
-
- iii. Foundational
- unit for inculcating social values, moral, and culture.
-
A. Conflicting views regarding governmental
involvement in marriage:
i. Tension between
- 1.
- Extensive public regulations of the
- relationship/marriage – private contract between 2 agreeing parties (no gov’t
- involvement) v. deep public interest in marriage (gov’t involvement)
- 2.
- Private realm of family life which the state
- cannot enter v. Regulating the institution of marriage – determining who may
- marry, how they shall marry, which obligations and entitlements are required,
- and whether conditions permit a marriage to end
-
I.
CONSTITUTIONAL FORMS OF MARRIAGE REGULATION pp. 70-89
Entering Marriage
- a.
- Substantive Rules to Enter Marriage
-
- ii. Minimum
- age (jurisdiction)
-
- iii. Not
- already married to someone else (bigamy)
-
- iv. Not
- have a close familial relation with the intended marriage partner (incest)
- b.
- Procedural requirements
-
- ii. Religious
- or civil ceremony exchanging vows of commitment
- c.
- Restrictions from Marriage
- 2.
- Incestuous marriages and
-
- ii. All
- states have set minimum age for consent to marry
-
- iii. Marriage
- regulation that has risen and receded over the years
-
A. Equal Protection Clause
- a.
- no state may deny to any person the equal
- protection of the laws
- a.
- Right to be free from discrimination
-
- i. What
- burden of justification the classification must meet, by looking to the nature
- of the classification and the individual interests affected.
-
-
a.
- Right to be free from restrictions on
- fundamental freedoms
-
A. The Right to Marry
a. Rational Basis is the General Rule
- i. Presumption
- of constitutionality of non-suspect classes
- 1.
- Under the rational basis test
- a.
- such classifications are presumed to be
- constitutional l and will be struck down only where a litigant challenging the
- law can show that the differential treatment bears no rational relationship to
- a legitimate public interest
- If a law neither burdens a fundamental right nor targets a suspect
- class, legislative classification will be upheld so long as it bears a rational
- relation to some legitimate end for govt to pursue (not one for a private
- actor—see Prop 8 case Perry v. Brown
- 1.
- Highly deferential to rationality advance
- legitimate state interest
-
- ii. Rebuttable
- Presumption
- 2.
- Law will be struck down only if P can show that
- the differential treatment bears no rational relationship to a legitimate
- public interest
-
- iii. Equal
- Protection Clause
- 1.
- The const. permits govt to differentiate among
- people in many ways
- 2.
- So long as the distinction is rationally related
- to a legitimate state interest
- a.
- Ex of EPC: age, place of residence, income,
- occupation
- 1.
- The general rule for substantive due process
- review is the rational basis test
- 2.
- government is broadly permitted to limit the
- liberty of individuals -insisting for ex
- a.
- pedestrians cross streets only at crosswalk;
- drivers have to wear seat belts
- b.
- so long as the imposition can be rationally
- supposed to advance a legitimate state interest
-
a. More searching form of Rational Basis
- i. Presumption
- that there is not a legitimate state interest when
- 1.
- The law exhibits a bare desire to harm a
- politically unpopular group
- 2.
- Moral disapproval of a group
- a.
- (see
- sodomy/same-sex privacy right below)
-
a. Intermediate Scrutiny(Quasi-suspect)(middle
tier)
- i. Presumption
- of unconstitutionality:
- 1.
- The following Classifications are considered
- Quasi-Suspect:
- b.
- Illegitimate status of a non-marital child
- 1.
- Lesser burden by state
- 2.
- State must prove that classification is
- “Substantially Related” to the achievement of an “important” state interest
-
a. Heightened Scrutiny(Strict Scrutiny)
-
I.
SAME-SEX MARRIAGE pp. 89-100, 110-127
Introduction
-
a.
- 2003—Lawrence overruled Bowers
- case, striking down as a violation of substantive due process a TX law
- criminalizing same-sex sodomy
-
i. Bowers
- 1.
- dismissed the suggestion that homosexual conduct
- could qualify for constitutional
- protection as a fundamental right
- 2.
- court found no connection between (family,
- marriage or procreation) and homosexual activity
-
Griswold
- 1.
- established that the right to make certain
- decisions regarding sexual conduct extends beyond the marital relationship
-
i. Lawrence
- 1.
- Petitioners are entitled to respect for their
- private lives
- 2.
- their right to liberty under the due process
- clause gives them the full right to engage in their conduct without
- intervention of the government
- 3.
- The Texas statue furthers no legitimate state
- interest which can justify its intrusion into the personal and private life of
- the individual
-
- i. does
- not declare fundamental right (concurring O’Connor)
- 1.
- does not matter no state interest, wins under
- rational basis
-
- ii. others
- interpret it as a fundamental right
-
- iii. regardless
- no state interest and does not pass rational basis
- a.
- when a law exhibits such a desire to harm a
- politically unpopular group, we have applied a more searching form of rational
- basis review to strike down such laws under the Equal protection clause
- b.
- Texas statue makes homosexuals unequal in the
- eyes of the law by making particular conduct and only that conduct subject
- criminal sanction
-
- i. would
- fail under rational basis
- d.
- a law
- branding one class of person as criminal based solely on the state’s moral
- disapproval of that class and the conduct associated with that class runs
- contrary to the values of the constitution and the equal protection clause,
- under any standard of review
- b.
- 2004—first time state allowed same-sex marriage
-
- i. Before
- that, idea of marriage necessarily assumed a union of 1man + 1woman
- c.
- 2012—Obama approval of same-sex marriage
-
A. Privacy, Same-Sex Intimacy, and the Constitution
a.
Right Of Privacy Of Sexual Behavior Outside Of
Marriage
- i. The
- right of the individual, married or single, to be free from unwarranted govt
- intrusion into matters so fundamentally affecting a person as the decision
- whether to bear or beget a child
-
- ii. Right
- to make certain decisions regarding sexual conduct beyond the marital
- relationship
-
- iii. Sexual
- behavior is most private, especially in the home and govt should not control
- personal relationship that is within the liberty of persons to choose without
- being punished as criminals
- 1.
- States should refrain from
- a.
- Defining the meaning of the relationship or
- b.
- To set its boundaries absent
-
- ii. Abuse
- of an institution the law protects
-
Casey
- 1.
- Our laws and tradition afford constitutional
- protection to personal decisions relating to marriage, procreation,
- contraception, family relationships, childrearing, and education
- 2.
- “The liberty protected by the constitution
- allows homosexual persons the right to make their own choice”
-
i. Romer
- 1.
- EPC protects against discriminating and singling
- homosexuals as a solitary class of homosexuals, lesbians, or bisexuals via
- orientation, conduct, practices, or relationships
- 2.
- EPC Prevents laws Born from animosity toward
- homosexuals, and that have no rational relation to legitimate governmental
- purpose
- 1.
- To define the liberty of all
- 2.
- NOT to mandate state’s own moral code
- 1.
- Class-based legislation directed at homosexuals
- is a violation of EPC
- 2.
- There is no rational relation to a legitimate
- govt purpose
- a.
- Majority public opinion is insufficient reason
- to uphold unconstitutional law
- b.
- Intimate decision not to produce offspring is a
- protected right
- d.
- Court must respect private lives
- b.
- Prohibited Criminal Sexual Behavior with Legit
- State Interest
- c.
- The Privacy Right of sexual orientation
- establishes a Broad and Narrow View
- 1.
- The right to control your personal relationships
- 2.
- Grounded in liberty prong of constitution –
- right to personal autonomy
- 1.
- 2 consenting adults have the right to have sex
- in the privacy of their own homes – state cannot criminalize sexual conduct
- between 2 consenting adults
-
- iii. How
- we determine such rights
- 1.
- Kennedy (Majority) – “fundamental”
- 2.
- Scalia (Dissent) – deeply rooted
-
A. Judicial Recognition of Same-Sex Marriage
- a.
- Reasons for banning same-sex marriage
-
- ii. Living
- models of what a man and woman are like
-
- iii. Childrearing
- and procreation
-
- v. Parents
- right to control their children’s education
- b.
- Reasons for allowing same-sex marriage
-
- i. Gender
- discrimination against males traditional position of superiority in law,
- society, and family life
-
- ii. Fundamental
- right to marry
-
- v. Designation
- of “Marriage” as opposed to “Domestic Partnership” is meaningful
-
a.
Perry v. Brown
- 1.
- Prop 8 singles out same-sex couples for unequal
- treatment by taking away from them alone the right to marry, and the this
- action amounts to a distinction constitutional violation because the equal
- protection clause protects minority groups from being targeted for the
- deprivation of an existing right without a legitimate reason. pg 116
- a.
- courts addresses this issue first because courts
- generally decide constitutional questions on the narrowest ground
- available
- 1.
- court first looks at the amendment before the
- authoritative construction of California’s supreme court (Romer)
- 2.
- court says prop 8 only took away the designation
- of marriage and not the rights of same sex couples
- 3.
- court recognizes the important societal
- differences between being designated as married and as domestic partnership
- 4.
- Question is answered by whether the people of
- California have legitimate reasons for enacting a constitutional amendment that
- serves only to take away from same-sex couples the right to have their lifelong
- relationships dignified by the official status of marriage and to compel the
- state and its officials and all others authorized to perform marriage
- ceremonies to substitute the label for domestic partnership for their relationship
-
- i. fathering
- California’s interest in
- childbearing and responsible procreation
- 1.
- no effect prior to the proposition they could
- adopt children
- 2.
- also same sex couples pose no risk of
- procreation(not possible)
-
- ii. proceeding
- with caution before making significant changes to marriage
-
- iii. protecting
- religious freedom
- 1.
- argument is in no way addressed by Prop 8 and
- could not have been the reason for proposition 8
-
- iv. preventing
- children from being taught about same-sex marriage in schools
- 1.
- both before and after Prop 8, schools have not
- been required to teach anything about same-sex marriage
- 2.
- before and after prop 8, schools and individual
- teachers have been prohibited from giving any instruction that discriminates on
- the basis of sexual orientation
- a.
- students could not be taught the superiority or
- inferiority of either same or opposite sex marriage
- 3.
- even if taught about same sex marriage, the
- prospect of children learning about the laws of the state and society’s
- assessment of the legal rights of its members does not provide an independent
- reason for stripping members of a disfavored group for those rights they
- presently enjoy
- b.
- propistion
- 8 did not further any of these interests
- 1.
- by using their initiative power to target a
- minority group and withdraw a right that it possessed, without a legitimate
- reason for doing so, the people of California violated the equal protection
- clause
- by withdrawing the availability of the recognized designation of
- marriage, prop 8 enacts nothing more or less than a judgment about the worth
- and dignity of gays and lesbians as a class
-
a.
Domestic Partnerships & Civil unions, pp.
285-288
- i. Grant
- unmarried cohabiting couples some or most of the benefits and rights of
- marriage
- 1.
- Benefits vary from state to state and don’t
- conger full marital rights
-
- ii. Problem:
- states may not give effect to an out-of-state civil union
- b.
- General rule for marriages recognized out of
- original state
-
- i. A
- marriage will be recognized everywhere as valid unless it violate the strong
- public policy of another state which had the most significant relationship to
- the spouses and the marriage at the time of the marriage
- 1.
- **41 states in 2011 have enacted statutes or
- const. amendments to specify strong policy objections to same-sex marriages and
- will refuse to recognize it and refuse to adjudicate same-sex divorce
-
- ii. Full
- Faith and Credit—settled by DOMA
-
a.
DOMA—Federal Defense of Marriage Act 1996
- 1.
- Same-sex couple married under state law will not
- be recognized as married for any purposes of fed law (i.e. fed welfare,
- benefits, tax obligations)
- 2.
- No effect need be given to marriages performed
- in other states
-
- ii. 3
- Constitutional Issues w/ DOMA:
- 1.
- CONGRESS exceeds its power by effectively
- nullifying the full faith and credit obligation
- 2.
- Non-recognition might be challenged on the same
- constitutional grounds used to challenge bans on same sex marriage in the first
- instance
- 3.
- A forum state’s refusal to recognize a temporary
- visitor’s marital status might be challenged as a violation of the fundamental
- right to interstate travel guaranteed by the federal constitution
-
- iii. Obama
- no longer defends DOMA in court bc it unconstitutionally discriminates against
- gays and lesbians
- b.
- Fla. Const. Art. 1 § 27; Fla. Stat. § 741.212
-
- i. “marriage”
- means only a legal union between one man and one woman”
-
- ii. “no
- other legal union that is treated as marriage or the substantial equivalent
- thereof shall be valid or recognized”
-
a.
Windsor v. United States, 699 F.3d 169
(2012)
-
a.
MISC
i. supporters
of same-sex marriage must overcome a considerable hurdle when they rely on the
argument of sex discrimination under the equal protection clause because unlike
gender and race, sexual orientation has not yet been established as a suspect
basis for classification under the equal protection analysis by the U.S.
Supreme Court
-
i. Kerrigan
v. Commissioner
- 1.
- held that gays and lesbians constitute a
- “quasi-suspect” class triggering intermediate constitutional scrutiny
- 2.
- same test for gender discrimination under the
- federal constitution
-
I.
POLYGAMY pp. 127-143
Introduction
- a.
- Polygamy was very common in ancient
- civilizations
- b.
- Polyandry – having more than one husband –
- common in Asia
- c.
- 1890 abandonment of polygamist practice
- d.
- US criminalized polygamy in 19th Century
- e.
- 10,000-100,000 Americans are currently living in
- polygamous unions, scattered mostly in rural settlements in Western states
-
A.
First Amendment dealing with Polygamy
- a.
- (1878)(Reynolds)Criminalization of polygamy is
- not unconstitutional bc the Free Exercise Clause entitled polygamists to
- believe in polygamy as a tent of their faith but not to act on that belief if the conduct would otherwise be in
-
- i. violation
- of social duties or
-
- ii. subversive
- of good order
- 1.
- Argument: it can lead to despotism (tyranny in
- large communities); rivalry/tensions; authoritarian male-dominated gender
- inequality; increased domestic violence; sexual abuse; high infant mortality;
- gender stereotype
- Counterargument: culture; religion; hypocrisy of banning polygamy in the
- face of multiple partner intimacy outside of marriage—adultery
-
A.
Marriage Definition by Legality or Custom
(spiritual, non-state sanctioned marriages)
-
- i. Marriage
- includes legal marriages and non-state sanctioned marriages
- 1.
- Purport to marry = solemnization by which 2
- individuals commit themselves to undertake a marital relationship + cohabitation
-
i. State v. Holm
- a.
- a person is guilty of bigamy, when knowing he
- has a husband or wife or knowing the other person has a husband or wife, the
- person purports to marry another person or cohabits with another person
-
- i. D
- argued that he was not legally married to Stubbs
-
- ii. claimed
- statute refers to legally married and not a ceremony that does not give to any
- legal benefit
-
- i. term
- marry as used in the bigamy statue, includes both legally recognized marriages
- and those that are not state sanctioned because such a definition is supported
- by the plain meaning of the term, the language of the bigamy statue and the
- Utah code
- 2.
- Holm’s conviction does not offend the federal
- constitution
- a.
- Court states Green and Reynolds are still good
- law
-
i. Green
i. Green
- 1.
- a state may, even without furthering a
- compelling state interest, burden an individuals right to free exercise so long
- as the burden is imposed by a natural law of general applicability
- 2.
- court
- concluded that Utah’s bigamy statue is a neutral law of general applicability
- and that any infringement upon the free exercise of religion occasioned by that
- law’s application is constitutionally
- permissible
- b.
- D argues Lawrence v. Texas
-
- i. Court
- in Lawrence takes plain language to rule about law that regarding acts of gay
- and lesbians
-
- ii. also
- the court went out of its way to exclude from protection conduct that causes
- “injury to a person or abuse of an institution the law protects”
- 1.
- Utah may protect citizens from actions they
- believe to be harmful (polygamy)
-
- iii. distinction
- between Lawrence
- 1.
- this case involves a minor
- 1.
- Lawrence does not prevent legislature from
- prohibiting polygamous behavior
-
- ii. Liberty
- interest in Lawrence does not include
- 1.
- Conduct that causes injury to a person (i.e. sex
- with minors) OR
- 2.
- Abuse of an institution the law protects
- (formations of relationships that are marital in nature is of great interest to
- the state)
- a.
- State wants to ensure smooth operations of law
- and proliferation of social norms
- b.
- Preventing marriage fraud
- c.
- Legit purpose of the stat was to prevent all the
- indicia of marriage repeated more than once.
-
a.
arguments for state internets for polygamy
married couples who do not have mnogymous relationships
-
I.
MARRIAGE FORMALITIES/ALTERNATIVES TO FORMAL
MARRIAGE pp. 152-184
A. Core Requirements
-
- iv. States
- may add additional requirements however the core requirements apply to every
- state
-
A. Minimum Age at Marriage
- a.
- All states have a minimum age requirements to
- marry;
-
- i. to
- marry, each spouse must be of sufficient age
-
- ii. most
- states have statues prescribing the minimum age for marriage
- a.
- allow minors(16 and 17) to marry with parental
- or judicial consent
- a.
- may marry in exceptional cases
-
- i. approval
- both from a parent and from a court
- b.
- conflicting rules on age requirement and
- statutory rape
-
- i. in
- one case a pregnant 14 year old Nebraska girl traveled to Marry her 22 year old
- boyfriend because Kansas law then allowed marriage without parental consent
-
- ii. their
- marriage did not affect the husbands liability for statutory rape
- c.
- there cannot be distinction between setting a
- lower age for males or females
-
- i. invalided
- on equal protection grounds
- d.
- Right of minors to marry
-
- i. the
- second circuit held that the right of minors to marry has not been viewed as a
- fundamental right deserving strict scrutiny
-
- ii. Applying
- rational basis test, court held the state’s age restriction on marriage plainly
- served New York important interest in promoting the welfare of children by
- preventing unstable marriage among those lacking the capacity to act in their
- own best interest
- e.
- Discrimination of Age btw males and Females
-
- i. EPC
- allows discrimination as long as the state interest is rational
-
A. Consent to Marriage
- a.
- Void vs. Voidable marriage
- 1.
- Marriages that offend very strong public
- policies
- 2.
- Absolutely void even without request for
- annulment
- a.
- Ex: same-sex, bigamy, incest
- 1.
- Offend
- less strident public policies relating to marriage formation
- 2.
- Legally valid unless and until one party goes to
- court to have it annulled
- a.
- Ex: underage, lack physical capacity, induced by
- fraud or duress
- b.
- Valid Marriage requires mutual consent of both
- spouses
-
- i. Only
- a party to the marriage can be an applicant for annulment on the ground of
- impotency only if unknown to the other spouse and not ratified
-
- ii. Impotency
- makes a marriage voidable, but only for one of the parties to the marriage, not
- a 3rd party.
-
- iii. Strong
- State interest in protecting the health and welfare of the public, including
- potential children of marriage or another spouse
-
- i. Must
- be capable of understanding the rights, duties, and responsibilities of
- marriage at the time of the marriage contract
-
- ii. A
- party who enters marriage without capacity to consent but later regains mental
- competence can then validate the marriage by ratifying the decision to marry
-
- iii. Does
- not require that claim is brought only by one of the parties to the marriage
-
- iv. Types
- of Lack of consent:
- 1.
- Inability to give consent
- a.
- Dementia, Alzheimer’s, Influence of intoxicants,
- drugs, alchohol
-
- i. courts
- have held that to give valid consent to marriage, a party must be capable of
- understand the rights, duties and responsibilities of marriage at the time of
- the contract
- 1.
- statutes recognize the possibility that a party
- might lose mental capacity temporarily because of influence of alcohol, drugs
- or other incapacitating substances
- a.
- In jest or without serious thought
- 5.
- Fraud in the Essentials of the marriage
- a.
- One spouse omits to mention or misrepresents an
- issue so marital that it goes to the very essence of the marriage relationship
- constituting grounds for annulment
- b.
- Decided on a case-by-case basis and varies with
- jurisdiction
-
- i. Ex:
- after H entered into contract for marriage by proxy with W (Cuban resident), W
- refused to join H in the US. W committed fraud and constituted annulment
-
- ii. Ex:
- H was deeply religious muslim and W misrepresented that she was a practicing
- muslim
-
- iii. Ex:
- H wanted children but signed a prenup agreement saying couple would not have
- children
- c.
- Not essentials of Marriage
-
- i. False
- representations as to fortune, character, and social standing
-
- ii. It
- is against public policy to annul a marriage for fraud or misrepresentations as
- to personal qualities (i.e. honesty)
- a.
- a party’s consent to marriage is legally
- ineffective if induced by fraud
-
- i. in
- most jurisdictions the fraud must relate to the essence of marriage
- 1.
- the essentials of marriage vary from case to
- case
- a.
- A man who falsely led his fiancée to believe he
- was a well-educated millionaire with expertise in real estate and finance did
- not satisfy fraud in the inducement
- b.
- Woman who later discovered her husband tried to
- murder his first wife by shooting her as she slept and was suspected of arson
- and other crimes did not satisfy the essence of a marriage relationship
-
- i. husbands
- criminal record played no part at all in marriage until wife became aware, ten
- years later
- general rule that false representation as to character, health, wealth
- and external conditions do not constitute such frauds as will annul a marriage
- contract
-
i. In Re Estate of Santolino
- b.
- may a court annul a marriage after the death of
- one party to the marriage
- c.
- fraud as to the essentials of the marriage
- d.
- equitable reasons to declare the marriage void
- a.
- (cannot have kids)(sterile)
- b.
- only a party to the marriage can claim annulment
- on the ground of impotency
-
- i. inability
- to give consent
- 1.
- court found the fact that an 81 ½ year old man
- who was diagnosed with lung cancer and was heavily medicated, was undergoing
- chemotherapy, required the daily assistance of an in-home nurse and was hooked
- up to an oxygen tank during the wedding could satisfy lack of capacity to
- consent
-
- iv. fraud
- as to the essentials of the marriage
- 1.
- decided on a case by case basis since the
- essentials to the relationship of the parties in marriage may be considerably
- less significance in another
- a.
- court states you can demonstrate that the
- marriage was “somehow illicit”
-
A.
Marriage Formalities
- 1.
- Application, identities, marital histories, age,
- location, other info,
-
- ii. Solemnization
- (ceremony)
- 1.
- By judge of a court of record, public official,
- or in accordance with any mode of solemnization recognized by any religious denomination
- 2.
- Send marriage certificate to clerk to register
- the marriage
- b.
- Officiant authorization: Jurisdiction
- Flexibility
-
- i. Some
- courts are highly deferential to qualified officiants
-
- ii. Others
- deem the marriage void/voidable if unauthorized officiant performs marriage
-
- i. Most
- courts emphasize strong public policy to permit failure to comply with marriage
- license requirements
-
- ii. Some
- courts require strict compliance with licensing requirement
-
- i. If
- a party cannot be present, he may authorize in writing a 3rd person to act as
- his proxy
-
- ii. Sometimes
- there are double proxy solemnization
- e.
- Premarital Counseling, health screenings and
- educational programs are encouraged by states
-
a.
Persard v. Balram
- i. Parties
- had marriage ceremony but never obtained a valid marriage license
-
- ii. court
- says if it walks like a duck and quacks like a duck and looks like a duck it’s
- a duck
-
- iii. statue
- establishes that where parties participate in a solemn marriage ceremony
- officiated by a clergy man or magistrate wherein they exchange vows, they are
- married in the eyes of the law
-
- iv. parties
- failure to obtain a marriage license does not render this marriage void
-
- v. strong presumption favoring validity of
- marriages (NY Law)
-
- i. some
- jurisdictions contrary to Persad require strict compliance with licensing
- requirements
-
- ii. these
- jurisdictions have held that ceremonial marriages undertaken without a valid
- marriage licenses are legally ineffective
-
I.
COMMON-LAW MARRIAGE p.168-184
- A.
- 10 jurisdictions still practice common law marriage
- a.
- Competent to enter marriage (capacity)
- c.
- Holding themselves out as married and reputation
- as married (not secret)
-
- i. Circumstantial Evidence:
- 1.
- Understandings of neighbors, business
- associates, and family members;
- 2.
- Filing status on tax returns; real estate deeds
- or leases, loan applications, and other official documents
- 4.
- Intermingling of financial affairs
- d.
- Mutual intent to be married
-
- i. once
- formed, a common-law marriage was fully valid for all legal purposes and could
- be dissolved only through divorce
-
- ii. some
- jurisdictions require a present agreement to marry (not a future promise to be
- married)
-
- iii. timing
- of marriage creation will dramatically affect the parties’ entitlements
- b.
- protected the welfare when they are vulnerable
- c.
- protected their reliance upon and investment in
- a long term relationship of trust
- d.
- protected their contributions of labor and
- property
- a.
- Clear and convincing evidence
- E.
- Common-Law marriage preceding or following a
- formal marriage
- a.
- Extra burden on the party seeking to prove
- present agreement but it is not determinative
- b.
- CLM with a former spouse following a divorce and
- reconciliation demands proof of a new agreement to marry, cohabitation, and
- holding out after the dissolution of the formal marriage
- F.
- No CLM if no Capacity to Marry
- a.
- Bigamy, incest, violation of substantive
- prohibition, mental incapacity, incapacity to give consent
-
A.
In Re
Estate of Hunsaker
- a.
- Whether a common law marriage existed
- a.
- didn’t wear wedding ring because they
- didn’t have a formal wedding
- 1.
- precedent case found wedding ring to satisfy
- mutual consent
- b.
- grandfather clock with both initials
- 2.
- court found that the P had satisfied mutual
- consent
- 1.
- a common
- law marriages does not exist fi the parties have kept their relationship a
- secret
- a.
- sing in front home of home X residence
- c.
- answering machine that held themselves out as
- husband and wife
- d.
- witness testified Maurice called Anne “my wife”
- e.
- an attorney who represented Maurice thought they
- were married
- 3.
- court found these facts to satisfy public repute
- B.
- Common law marriage preceding or following a formal
- marriage
- a.
- a party to a formal marriage seeks to establish
- that the couple established a common law marriage before the wedding ceremony
-
- i. this
- circumstance may impose an extra burden on the party seeking to prove present
- agreement but is not necessarily determinative
- b.
- establish common-law marriages with a former
- spouse following a divorce and reconciliation
-
- i. courts
- have demanded proof a new agreement to marry, cohabitation and holding after
- the dissolution of the formal marriage
-
I.
Putative Spouse Doctrine
- a.
- Equitable remedy resemble the relief the party
- would have received if the attempted marriage had ended in divorce
-
- i. Does
- not validate the defective marriage; the marriage remains void
-
- ii. Unlike
- Common Law Marriage, Putative Spouse doctrine does not create a valid marriage,
- a putative spouse is not hindered from entering into a separate legal marriage
- a.
- Provides an Equitable Remedy where
-
- i. A
- proper marriage ceremony was performed and
-
- ii. An
- innocent spouse has
-
- iii. Relied
- in Good Faith on
-
- iv. A
- mistaken belief in the validity of the marriage (honest and reasonable belief
- that marriage was valid—defective marriage—couples would be shocked that they
- are not actually married)
- 1.
- However, when a person receives reliable info/red
- flags that an impediment exists, the person cannot ignore the info, and has a
- duty to investigate further
- 2.
- Once a spouse learns of the impediment, the
- putative marriage ends
- 3.
- Award of alimony if there was fraud and bad
- faith (jurisdiction)
- b.
- When a marriage is legally void, under Putative
- Spouse Doctrine, the civil effects of a legal marriage flow to the parties who
- contracted to marry in good faith and entitled to rights as an actual spouse
- c.
- the putative spouse doctrine does not validate
- the defective marriage
- d.
- the attempted marriage remains void, but the
- doctrine provides for relief that closely resembles the relief the party would
- have received if the attempted marriage had ended in divorce
- 1.
- All states that recognize doctrine apply it to
- property rights
- 1.
- some states apply spousal doctrine to spousal
- support
-
A. Williams v. Williams
- Facts: Marcie and Richard
- Williams married at the time that Marcie thought she had obtained a divorce
- from her former husband. Neither had gone through with the paperwork. The marriage was void.
- Discussion: Under the Putative Spouse
- Doctrine - When a marriage is legally void, the civil effects of a legal
- marriage flow to the parties who contracted to marry in good faith.
- ·
- States differ on what constitutes a “civil effect.”
- ·
- The doctrine has two elements:
(1) a proper marriage ceremony was performed,
- (2) one or both of the parties had a good-faith
- belief that there was no impediment to the marriage and the marriage was valid
- and proper.
- ·
- Here they adopt the doctrine and apply it to the Williams case:
- o
- Property is equally divided between the parties, No award of alimony
- after an annulment à doesn’t provide for an award of spousal support.
- ·
- Williams limits the scope of Nevada’s putative spouse doctrine to cases
- in which one party relies in good faith on a defective ceremonial marriage.
- ·
- Excludes the possibility of a putative common-law marriage.
- For
- fraudulent claims in pursuit of an annulment, fraud must go at the “essence of
- the marriage”
-
I.
COHABITATION pp. 261-284
- A.
- Intent (Contract-Based Agreements)
-
- i. cohabitants
- have been subject to comparatively few laws governing their rights during their
- relationships or upon ending their relationships
-
- ii. in
- absence of settled law, cohabitants have pursued various theories to establish
- their claims against each other and states have developed laws according rights
- to non-marital relationships
-
- iii. civil
- unions or domestic partnerships, allow cohabitants to obtain legal recognition
- of their relationship while they are ongoing
-
- iv. legal property and support rights arising
- from cohabitation is also referred to as palimony
-
- i. Courts
- should enforce express contracts btw non-marital partners
- 1.
- Unless K is founded on the consideration of
- meretricious sexual services
- a.
- The facts that a man and woman live together
- without marriage, and engage in a sexual relationship, does not in itself
- invalidate agreements btw them relating to their earnings, property, or
- expenses
- b.
- Invalid contract only if sexual acts form an
- inseparable part of the consideration for the K (or exclusively as a paramour)
- c.
- Any separable portion of the K supported by an
- independent consideration will still be enforced
- c.
- Implied Contract (In absence of an express
- contract)
-
- i. Courts
- should inquire into the conduct of the parties to determine whether the conduct
- demonstrates an implied contract, agreement of partnership or join venture or
- some other tacit understanding between the parties
-
- ii. Property
- divided in accord with the parties’ own tacit understanding
- 1.
- In absence of understanding, courts will fairly
- apportion property accumulated through mutual efforts
- 1.
- Parties intended to deal fairly with each other
-
i. Marvin v. Marvin (CA)
i. Marvin v. Marvin (CA)
- 1.
- Courts should enforce express contracts between
- non-marital partners expect to the extent that the contract is explicitly
- founded on the consideration of meretricious sexual services
- 2.
- In absence of an express contract, the courts
- hold inquire into the conduct of the parties to determine whether the conduct
- demonstrates an implied contract, agreement of partnership or join venture or
- some other tacit understanding between the parties
- a.
- P claims she and D entered into an oral
- agreement that while the parties lived together they would combine their
- efforts and earnings and would share equally any and all proeprty accumlated as
- result of their efforts whether individual or combined
- b.
- P agreed to give up her lucrative career as
- entertainer in order to devote her full time to D as a companion, homemaker,
- housekeeper and cook in return D agreed to provide for all P’s financial
- support and needs for the rest of her life
-
-
i. Devaney v. L’esperance (NJ)
- a.
- whether cohabitation is an indispensable element
- of a cause of action for palimony
- a.
- Cohabitation is not an essential requirement for
- a cause of action for palimony, but a marital-type relationship to support a
- palimony action
- 3.
- cohabitation is a relevant factor in the
- analysis of whether a martial type relationship exists
- a.
- there maybe circumstance where a couple may hold
- themselves out to others as if they were married and yet not cohabit
-
- ii. couples
- who are separated due to employment
-
- iv. educational
- opportunities
- 4.
- court should consider the entirety of their
- relationship
- a.
- intention to commingle property
-
A.
Determining Property Rights in the Absence of an
Agreement
-
- i. WA
- is trying to find “Status” of the couple of a Meretricious Relationship (aka
- committed intimate relationship) with facts
-
- ii. Committed
- relationship—5 factors to see whether it meets this standard (mix question of
- law and fact)
- 1.
- Continuous cohabitation
- 2.
- Duration of the relationship
- 3.
- Purpose of the relationship
-
- iii. Meretricious
- relationship can begin even before divorce to former spouse
-
- iv. Rebuttable
- presumption: any acquired property belongs to both parties
- 1.
- Rebutted by showing that he acquired the
- property with funds that would otherwise be characterized as separate property
- if he was married
- 2.
- The fact of sole title to property is not enough
- to rebut the presumption of common ownership
-
- v. Don’t
- req state of mind or implied contract
-
- vi. Property
- rights of a meretricious relationship survive after death
- b.
- ALI Principles of the Law of Family Dissolutions
- 1.
- partners are domestic partners when they have
- maintained a common household for a continuous period that equals or exceeds a
- duration called the cohabitation parenting period , set in a rule of state wide
- application
- 1.
- lived together and shared” life together as a
- couple”
- 2.
- life together a couple is determined to all the
- circumstances including
- a.
- the oral or written statements or promised made
- to one another or representations jointly made to third parties regarding
- relationship
- b.
- parties intermingled their finances
- c.
- economic dependence of one party
- d.
- the parties engaged in conduct and assumed
- specialized or collaborative roles in furtherance of their life together
- e.
- the relationship wrought change in the life of
- either or both parties
- f.
- parties acknowledged responsibilities to each
- other,
-
- i. by
- naming the other beneficiary of life insurance of a testamentary instrument or
-
- ii. eligible
- to receive benefits under an employee benefit plan
-
I.
Establishing Parenthood
- a.
- married husband and wife were presumed to be the
- father and mother of children born into the marriage
- b.
- when biological parents were not married to each
- other
-
- i. children
- had no legally recognized relationship with either biological parent, and the
- aprent had no recognized familial relationship with the child
-
- ii. until
- the 19th century most states enact laws recognizing illegitimate
- children
- c.
- illegitimate children laws
-
- i. children
- were part of their mothers’ families
-
- ii. slave
- children were treated like illegitimate children because of their social status
- derived from their mothers and their fathers had no parental rights
-
- iii. children
- from a white male and black female were illegitimate
-
a.
Stanley v. Illinois
- a.
- until Stanley v. Illinois, most states granted
- fathers of nonmarital children few rights with respect to custody or consent to
- adoption
- b.
- Unless they had legitimated their children,
- fathers could not exercise parental powers and in effect were defined as
- non-parents
- b.
- The marital presumption exits in some form in
- virtually all states today, but the husband, the wife, and the biological
- father have the opportunity to rebut the presumption in most states.
- a.
- If the woman’s husband is not the biological
- father but the presumption is never challenged, then the husband will always be
- the legal father
- b.
- If the presumption is challenged by the offer of
- genetic evidence, a number of states have held that a court can refuse to admit
- that evidence if contrary to the child’s best interests
- c.
- Other courts have reached the same result on the
- basis that the party offering the rebuttal evidence is estopped because of
- detrimental reliance of the other party or sometimes, the child
-
A.
Determining Paternity
- a.
- When the biological father and mother are not
- married to each other, state laws establish how nonmarital fathers can
- establish their paternity
-
a.
Stanley v. Illinois
- i. court
- struck down a state statute that made children of nonmarital fathers wards of
- the state following the death of the mother
-
- ii. Petitioner,
- Stanley sought the right to raise his 3 children following the death of the
- their mother who he had lived on and off for 18 years
-
- iii. State
- argued that it had an interest in the moral, emotional, mental and physical
- welfare of the minor and the best interest of the community
- 1.
- the statute violated the 14th
- amendment’s due process and equal protection clauses, finding that Illinois had
- incorrectly presumed that all nonmarital fathers were unfit
-
- v. Stanley
- requires only that nonmarital fathers receive procedural justice concerning their
- parental rights
-
a.
Quilloin v. Walcott
- i. Rights
- of a putative father(one who is presumed to be the father of an illegitimate
- child) were defined more clearly in Quilloin v. Walcott
- 1.
- mother had raised her nonmarital child without
- the presence of the biological father
- 2.
- when her husband, the step-father, attempted to
- adopt the child, the biological father attempted to block it
- 3.
- GA statute only required the nonmarital child’s
- mother approve the adoption
- Stanley did not require GA to grant Quilloin a veto because he had not
- shouldered significant responsibility for the child’s upbringing
-
a.
Caban v. Mohammed
i. facts
- 1.
- father had lived with and had a relationship
- with his two illegitimate children prior to the ending of his relationship with
- the children’s mother
- 2.
- Step-father attempted to adopt the children
- 1.
- Court held that Caban could block the adoption
- by the children’s new stepfather and struck down a NY statute that, like the
- Quillion statue, required only the mother’s consent for adoption of a
- nonmarital child
- 2.
- Court held the statute violated equal protection
- because Caban’s “substantial relationship” with his children was different from
- Quillion’s failure to act as a father
-
a.
Lehr v. Robinson
i. facts
- 1.
- nonmarital father challenged his daughter’s adoption
- by the mother’s new husband
- 2.
- Lehr filed an action for visitation,
- determination of paternity, and support
- 3.
- He was informed that the girls stepfather had
- adopted her a month prior
-
- ii. on
- his motion to vacate the adoption he argued the statute deprived him of his 14th
- amendment due process liberty interest in a potential relationship with his
- child
- 1.
- held that the biological relationship between a
- father and child does not warrant constitutional protection unless the father
- had developed a substantial relationship with the child
- 2.
- Lehr did not provide support or lived with the
- child, the state’s interest in protecting the child outweighed the putative
- father’s interest in blocking the adoption
- 1.
- Lehr attempted to establish a relationship with
- his child, the mother had concealed her from him
- 2.
- the biological connection is itself a
- relationship that creates a protected interest
- 3.
- No state interest is substantially served by
- denying Lehr adequate notice and a hearing
-
A.
Constitutional Framework
a.
Michael H v. Gerald D.
i. Law
- 1.
- Under Ca, law, a child born to a married woman
- living with her husband is presumed to be a child of the marriage
- 2.
- the presumption of legitimacy may be rebutted
- only by the husband and wife, and the only in limited circumstances
- 1.
- presumption infringes upon the due process
- rights of a man who wishes to establish his paternity of a child born to the
- wife of another man, and the claim that it infringes upon the constitutional
- right of the child to maintain a relationship with her natural father
- 1.
- Gerald D and Carole D were married, the couple
- resided in CA
- 2.
- In the summer of 78, Carole became involved in adulterous
- affair with a neighbor, Michael H and she conceived a child
- 3.
- Gerald D was listed on the birth certificate of
- the child and has always held Victoria out to be his daughter
- 4.
- Soon after delivery, Carole informed Michael,
- that she believed he might be the father
- 5.
- In October 81, a blood test was done that showed 98% ?Michael was father
- 6.
- Carole spent close to a year living with Michael
- and Victoria
- 7.
- Carole in the end moved back with Gerald and had
- two more children
- 8.
- In Nov 82, Michael filed an action to establish
- his paternity and right to visitation
- 1.
- court granted summary judgment in favor of
- Gerald, since Gerald and Carole demonstrate that the two were cohabiting at
- conception and birth and that Gerald was neither sterile nor impotent
- 2.
- rejecting Michael’s and Victoria’s challenges to
- the constitutionality of the statute
- 1.
- procedural due process
- a.
- phrased as an presumption, but the rule of
- evidence is the implementation of a substantive rule of law
- b.
- conclusive presumption not only expresses
- state’s substantive policy but it furthers it, excluding inquiries into the
- child’s paternity that would be destructive of family integrity and privacy
- c.
- procedural claim fails
- 2.
- Substantive due process
-
- i. protection
- of Gerald’s and Carole’s marital union is an insufficient state interest to
- support termination of that relationship
-
- ii. this
- is predicated on the assertion that Michael ahs a constitutionally protected
- liberty interest in his relationship with Victoria
-
- i. must
- be an interest traditionally protected by out society
-
- i. whether
- the relationship between persons in the situation of Michael and Victoria has
- been treated as protected family unit under the historic practices of our
- society, or whether on any other basis it has been accorded special protection
-
- i. the
- court finds it impossible to think that a persons in the situation of Michael
- and Victoria has been treated as protected family unit under the historic
- practices of our society
-
- ii. It
- is actually to the contrary, our traditions have protected the marital family
-
- i. the
- presumption of legitimacy was a fundamental principle of common law
-
- ii. lack
- of evidence of case law that it is a natural fathers right to assert parental
- rights over a child born into an existing marriage might defeat this case
- 1.
- court observed that the significance of the
- biological connection is that it offers the natural father an opportunity that
- no other male possess to develop a relationship with his offspring
- 1.
- where the child is born into an extant marital
- family, the natural father’s unique opportunity conflicts with the similarly
- unique opportunity of the husband of the marriage and it is not
- unconstitutional for the state to give categorical preference to the latter
- a.
- claims a due process right to maintain a filial
- relationship with both Michael and Gerald
-
- i. Victoria’s
- challenge is if anything weaker than Michael’s
- the claim that a state must recognize multiple fatherhood has no support
- in the history of traditions of this country
-
Children’s interest in identifying their
biological father
- i. knowing
- the identity of the father helps the child obtain information about medical
- history and genetic heritage
-
- ii. might
- benefit the child to establish a parental relationship
- 1.
- society has interest in ensuring that children
- receive adequate financial resources from their fathers, thereby decreasing
- their need for public assistance
-
a.
Dual paternity and
A.
Voluntary Paternity Registrations Systems
-
- i. Louisiana
- recognizes that a child may have both a biological and a legal father
- B.
- Voluntary Paternity Registrations Systems
- a.
- A number of states created punitive father
- registries after Lehr upheld their general constitutionality
- b.
- Where a man believes he is or may be a child’s
- father, a registry statutes place the burden on him to register(generally state
- department of health or similar agency) if he wishes to claim paternity and
- receive notice of a prospective adoption
- c.
- once the man receives notice he may seek to
- establish paternity and assert his right to veto adoption
- d.
- Some states have statute of limitations for the
- father to register within the registry, failure to do so constitutes waiver not
- only of the right of notice but also of the right to contest an adoption
- e.
- the putative father’s lack of knowledge of the
- registry does not necessarily excuse non compliance
- f.
- the putative father’s lack of knowledge of the
- registry existence does not necessarily excuse noncompliance with the
- registration provisions
- g.
- noncompliance is likewise not typically exused
- because the nonmarital father asserts he did know about pregnancy or birth
-
Determining Maternity
A.
general
a.
the woman who gives birth to a child has
historically been presumed to be the mother
Johnson v. Calvert
-
- i. Couple
- wanted to have another child, mother had a hysterectomy, still could produce
- eggs
-
- ii. they
- found a surrogate, Anna Johnson
-
- iii. the
- couple and Ann a signed a contract providing that an embryo created by the
- sperm of Mark and the egg of Crispina would be implanted in Anna. The child would be taken into Mark and
- Crispina’s home as their child
- 1.
- They were to pay Anna, $10k and pay for her life
- insurance
-
- iv. Blood
- results excluded Anna as the mother
-
- i. trial
- court ruled that Mark and Crispina were the child’s genetic, biological and natural
- father and mother
-
- ii. Anna
- had no parental rights to the child and that the surrogacy contract was legal
- and enforceable against Anna’s claims.
- The court also terminated the order allowing visitation
-
- i. This
- case is to be decided on the parties intent manifested in the surrogacy
- agreement
-
- i. both
- women presented evidence as to them being the mother, Anna cited to California
- law recognizing only one natural mother and the Uniform Parentage Act and
- Crispina used genetic evidence
-
- ii. The
- K clearly favors the couple as being the intended parents
- 1.
- Anna would not have been given the opportunity
- to deliver the child prior to the implementation of the zygote
-
- iii. no
- reason appears why Anna’s later change of heart should terminate the
- determination that Crispina is the child’s natural mother
-
- iv. Constitutionality
- of the Determination that Anna Johnson is not the Natural Mother
- 1.
- Anna relies mainly on theories of substantive
- due process, privacy, and the procreative freedom, citing decisions recognizing
- the fundamental liberty interest of natural parents in the custody and care of
- their children
- 2.
- Her argument depends on a prior determination
- that she is the child’s mother
- a.
- CA law provides Crispina is the mother
- 3.
- Anna relies on Michael H v. Gerald D
- a.
- this requires that society traditionally protect
- the right of a woman who gestates and delivers a baby pursuant to an agreement
- with a couple who supply the zygote from which the baby develops and who intend
- to raise the child as their own
-
- i. this
- scenario is to recent of an origin
- to claim protection of tradition
-
A.
Defining parenthood
- a.
- law has multiple potential bases for determining
- parent hood
-
- v. best
- interest of the child
-
A.
Two Mothers
K.M. v. E.G
i. facts
- 1.
- K.M filed a petition to establish a parental
- relationship with twin 5 year old girls born to E.G, her former lesbian partner
- 2.
- KM alleged that she is the biological parent of
- the minor children because she donated her egg to EG
- 3.
- KM filed a motion for custody of and visitation
- with the twins
- 4.
- Hearing held at which E.G testified that she
- first considered raising a child before she met KM at a time when she did not have
- a partner. She met KM in 92 and
- became romantically involved in 93
- a.
- EG would only accept her ova if KM would agree
- that that she would be considered a donor and that EG would be the mother of
- any child, and that she would not even considering permitting KM to adopt the
- child for at least 5 years until she felt the relationship was stable and would
- endure
-
- i. EG
- told LM that she had seen too many lesbian relationships end quickly and that
- she did not want to be in a custody battle
- b.
- EG and KM agreed not to tell anyone that KM was
- the ova donor
- c.
- KM denied EG claim and stated that she agreed to
- raise the child together and never mentioned she wanted to be a single parent
- and said she would not donate the ova if she knew EG intended to be the sole
- parent
- d.
- KM in 95 signed form entitled consent form for
- ovum donor
-
- i. stated
- she understood that she waives any right and relinquish any claim to the
- donated eggs or any pregnancy or offspring that might result from them
- e.
- KM stated there odd clause that did not pertain
- so she singed the document believing she was still the parent
- 6.
- LM was not on the birth certificate
- 7.
- EG listed children as beneficiary for all
- benefits, KM did not do the same
- 8.
- EG referred to KM’s parents as the twins
- grandparents and KM’s brothers and sisters as the twins aunts and uncles
- 9.
- Two school forms listed both parties as the
- parents
- 1.
- KM singing the form was analogous to that of a
- sperm donor; who is treated as a legal stranger to a child , granting motion to
- dismiss case
- 1.
- whether a woman who provided ova to her lesbian
- partner so that the partner could bear children by means of intro fertilization
- is a parent of those children
- 1.
- Distinguished from Johnson, intent in Johnson
- was clear
- 2.
- not a true egg donation, KM did not simply
- intend to donate egg to EG, she intended to donate her egg to EG, her lesbian
- partner
- a.
- thus the statute does not apply pertaining to
- donating egg to physician
- 3.
- Distinguished form Johnson, also because that
- was claim for exlsuive mothership rights
- 4.
- KM acknowledges that EG is the mother and is not
- claiming to be the twins mother instead of EG
- 1.
- The CA statue 7613(b) does not apply to a
- lesbian couple who raised the children in their joint home (the circumstances)
- 2.
- Because the statute does not apply, KM’s
- parentage is determined by the usual provisions of the UPA
- 3.
- Under UPA, KM’ genetic relationship to the twins
- constitutes evidence of a mother and child relationship
-
A.
Adoption
- a.
- adoption create the legal status of a parent and
- child between the child and the adoptive parents, and terminates the child’s
- legal relationship with the biological parents
- b.
- once an adoption decree has been issued, the
- adoptive family becomes the legal equivalent of the biogenetic family
-
Child Custody
I.
Contemporary Interpretations of the Best
Interests of the Child
- A.
- Best interst of the child
- a.
- Divorce Act and American Law Institute’s
- Principles of the Family law Dissolution are the two leading approaches for
- defining best interst of the child
- b.
- Uniform Marriage and Divorce Act
-
- i. The
- court shall determine custody in accordance with the best interst of the
- child. The court shall consider
- all relevant factors including
- 1.
- the wishes of the child’s parent or parents as
- to his custody
- 2.
- the wishes of the child as to his custodian
- 3.
- the interaction and interrelationship of the
- child with his parent or parents, his siblings, and any other person who may
- significantly affect the child’s best interest
- 4.
- the child’s adjustment to his home, school and
- community and
- 5.
- the mental and physical health of the
- individuals involved
-
- ii. totality
- of the circumstances
- 1.
- majority of states have specified factors for
- courts to consider in assessing child custody claims, but some states expressly
- rely on a totality of the circumstances test for determining best interest of
- the child
-
- iii. abuse
- of controlled substances or alcohol
- 1.
- some states use this as a factor
- c.
- American Law Institute
-
- i. the
- court should allocate custodial responsibility so that the proportion of
- custodial time the child spends with each parent approximates the proration of
- time each parent spend performing caretaking functions for the child prior to
- the parent’s separation or, if the parents never lived together, before the
- filing of the action
-
I.
Allegations of Immorality
A.
Zepeda v. Zepeda
- a.
- Husband alleges that his ex-wife is addicted to
- cyber sex
- b.
- From July 1999 to October she was engaged in
- highly erotic discourse on the internet with 2 different adult men
- c.
- Renee did have sexual relations several times
- with another man in July 1999
-
- i. the
- two engaged in sexual intercourse in Renee and Jorges’ apartment while their
- son was sleeping
- d.
- Jorge sued for divorce in September 1999
-
- i. citing
- her sexual affair and addiction cyber sex
-
- i. A
- Dr. cited that Renee’s internet use was not an addiction
- 1.
- he noted that neither parent has issues in their
- past that would indicate an inability to provide adequate care for the child
-
- ii. court
- granted temporary custody on the conditions
- 1.
- not to have any men in the house when the child
- was present
- 2.
- she was to refrain from alcohol
- 3.
- she could not use the internet throughout the
- duration of the divorce and custody proceedings unless required by her
- employment
-
- iii. she
- satisfied these conditions
- 1.
- although records showed the computer was logged
- on for up to 7 hours one day however this did not indicate that she used it for
- cyber sex
-
- iv. Social
- worker testified child attached to both parents, no red flags, and both parents
- are vary caring
-
- v. she
- also cited their sons strong attachment to their mother at the daycare facility
-
- i. Renee
- retain primary physical custody and Jorge pay $899 monthly in child support
-
- i. Jorge
- contends the trial court improperly concluded that Renee’s behavior did not
- detract from her ability to parent
-
- i. court
- recognizes general principles in weight evidence
- 1.
- parental fitness, stability, primary caretaker,
- child’s preference, harmful parental misconduct and separation of siblings
-
- ii. However,
- the most important interst is the best interest of the child
-
- iii. harm
- is self-evident when misconduct occurs in the presence of a child mature enough
- to perceive it
- 1.
- court found Renee’s internet use had no
- demonstrable effect on Jorgito
- 2.
- court found no harmful effect on Jorgito during
- the sexual interaction at their apartment, when Jorgito was sleeping
-
- iv. court
- is in no position to review the evidence, absent clear proof of error the court
- must defer to the trial court
-
- v. the
- court does not condone Renee’s misconduct, but the court cannot hold that trial
- court was clearly erroneous when it ruled that the misconduct had no harmful
- effect on Jorgito
-
A.
Nexus Test
- a.
- the contemporary approach to establish that
- parent’s immoral behavior warrants denial of custody (applied in Zepeda)
-
- i. the
- other parent must demonstrate a nexus between that behavior and harm to the
- child
- b.
- infidelity harms children
-
- i. courts
- currently find harm where the parent’s adultery has been outrageous rather than
- discreet, the infidelities have
- been numerous, the adultery has been obsessive to the point of
- neglecting the child or the child has witnessed adulterous acts
-
A.
sexual orientation
- a.
- custody disputes involving a biological parent
- who is gay, lesbian, bisexual or transgendered court use 2 approaches
-
- i. the
- court may not deprive a parent of custody unless the parent’s sexual
- orientation causes or will cause, harm to the child
- c.
- per se(minority approach)
-
- i. treats
- a parent’s identity as gay, lesbian, bisexual or transgendered as proof of
- immorality and creates a presumption that such a parent should not have custody
- of a child
-
A.
Domestic Violence
- a.
- Courts vary when it comes to the harmful impact
- of a child who witnesses violence between parents
-
- i. the APA found that some courts minimize
- the harmful impact to a child who witnesses violence between parents
-
- ii. some
- courts ignore the advice of psychologists that “it may be better for children’s
- development to restrict the father’s access to them and avoid continued danger
- to both mothers and the children
-
a.
Wissink v. Wissink
i. facts
- 1.
- dispute over custody of a teenaged girl who has
- expressed a clear preference to live with her father
- 2.
- both parents seem fit, however the father has a
- history of domestic violence directed at the mother
- 1.
- trial court erred in awarding custody to the
- father without first ordering comprehensive psychological evaluations to ensure
- that this award of custody was truly in the child’s best interest
- 1.
- Putting aside the established fact of the
- father’s abusive conduct toward her mother, Andréa’s father appears to be a
- truly model parent
- a.
- he is involved in her school work and
- extracurricular activities
- b.
- they enjoy their company
- 2.
- while Andrea’s mother is not involved in her
- school work or extracurricular activities, and Andrea does not enjoy spending
- time wither mother
- 3.
- However, the trial court erred by not considering
- the domestic violence more than superficially
- 4.
- Andrea witnessed severe domestic abuse towards
- her mother
-
- i. pulled
- her hair , hit and kicked her when she was an infant
-
- ii. kicked
- her and chocked her during a super bowl party
-
- iii. held
- an a knife 8- 10 inches long against her throat while Andrea was in her mothers
- lap (age nine)
-
- iv. chocked
- her and asked Andrea to close her nose so her mother couldn’t breath (recent)
- 5.
- A child who observes such abuse learns a
- dangerous and morally depraved lesson that abusive behavior is not only
- acceptable , but may even be rewarded
-
- iv. trial
- court did not entirely ignore the legislative mandate in considering the
- domestic abuse however, the court the consideration afforded by the trial court
- was sorely inadequate
- b.
- All 50 states and District of Colombia require
- courts to consider domestic violence committed by one parent against the other
- in resolving a visitation or custody dispute between parents
-
- i. many
- or most of the statutes fail to define what acts rise to the level of domestic
- violence or the level of proof required to show that such violence occurred
- c.
- Some states have rebuttable presumption
-
- i. some
- states have a rebuttable presumption that the spouse who had perpetrated
- domestic violence may not be award sole or joint custody unless the presumption
- has been overcome
- B.
- Expert testimony regarding parents’ fitness
- during divorce proceeding
- a.
- courts must be cautious
- b.
- a leader in forensic child psychiatry has stated
-
- i. “it
- is an egregious error for a clinician to be selected by one party, to perform a
- one-sided evaluation, or to offer an opinion based on interviews with only one
- of the parties”
-
- ii. “mental
- health professionals performing child custody evaluations should do so only if
- they have been court appointed or agreed to by all sides”
-
I.
Siblings and Religion
A.
Arthur v. Arthur
- a.
- Father appeals approved shared parenting plan
- for the couple’s four minor children
- 1.
- Family moved to Colombus Ohio, where after
- moving to Ohio the family became heavily inovled with World Harvest Church
- (Church)
- 2.
- their lives centered around the church,
- including worship, friendships and acitivites
- 3.
- children’s contacts outside the church were
- limited
- 4.
- Husband was working for the church and left his
- poisiotn to work for another company
- 5.
- prior to leaving his employment with the church,
- husband began to disassociate himself from the church and its members
- 6.
- Later in 95, husband informed wife his desire of
- divorce, he moved out of the house and the wife filed a complaint for divorce
- 1.
- temporary order designated wife as residential
- parent and legal custodian of the four children for school purposes
- 2.
- throughout the proceedings husband contested the
- issue of custody and the children’s enrollment at the academy
- 3.
- Dr. Mason (appointed psychologist)
- a.
- children initially expressed interest to live
- with their mother
- b.
- however after visits with their father, the 3
- children told Mason they watned to live with their father
-
- i. children
- reiterated this potion over the course of their visits with Mason
- c.
- Mason testified that sports are paramount in the
- boys lives
- d.
- Initially Megan said that did not want to attend
- Bible college, Megan later told Mason that the mom allowed her to make the
- choice regarding Bible college
- e.
- opinion about the school
-
- i. limited
- social contract the children had outside of the church environment
- 1.
- below average class size
- 2.
- problems with staffing
- 3.
- teachers lacked practical experience
- 5.
- lack of extra curricular activities amiable to
- the children, limited to noncompetitive activities
- a.
- wife was named residential parent for school
- purposes of Megan and Marry
- b.
- Husband was named the residential parent for
- school purposes of Jacob and Eric
- c.
- Wife maintains the trial court abused its
- discretion is separating the four children by ordering a shared parenting plant
-
- i. whether
- the trial court abused it’s discretion
- 1.
- look to the totality of the circumstances and
- determine whether the trial court acted unreasonably, arbitrarily or unconscionably
-
- i. generally
- the court would not encourage a trial court to resolve a custody dispute in
- such a manner(splitting the kids) however, under the totality of the
- circumstances, the appellate court does not find that the trial court abused
- its discretion in ordering split custody
-
- i. boys
- interest of activities outside of the church were extremely important to them
-
- ii. the
- children are together 185 days during the year and 72 partial days during the
- year
-
- iii. resulting
- in only 108 days of separation
- g.
- Wife claims trial court improperly considered
- her religious consideration
-
- i. law
- states a parent may not be denied custody on the basis of his or her religion
- unless probative evidence that practice adversely affect the mental or physical
- health of the child
-
- i. trial
- court stated concerns of the children’s education at the academy
-
- ii. trial
- court did not indicate any concerns regarding the religious philosophy of the
- church
- i.
- Trail court did not deny wife custody of all the
- children based upon her affiliation with the church
-
- i. rather
- the trial court merely raised concerns about the education the children were
- receiving at a school that happens to be church affiliated
-
A.
Keeping siblings together
- a.
- ALI principles proposes that in allocating
- custody, one objective should be :to keep siblings together where the court
- finds that doing so is necessary to their welfare
- b.
- other exceptions to the general rule against
- split custody can be found when
-
- i. the
- siblings have never lived together or have been separated for a substantial
- amount of time
-
- ii. the
- siblings express a strong preference to live with different parents
-
- iii. the
- siblings do not get along well with one another
a significant age difference separates the siblings
-
A.
religion
- a.
- most jurisdictions hold that each parent has a
- right to expose the child to the religious practices he or she observes, absent
- a clear showing of harm to the child
-
- i. mother’s
- religious view that caused her to refuse to vaccinate the child, the court
- awarded responsibility for making all medical decisions
- c.
- preserving choice for the child
-
- i. some
- courts have held that religion or religious ceremony will not be decided until
- the child is of sufficient age to make the determination themselves, absent a
- written agreement between the parties
-
- i. contemporary
- trend is to treat pets as if they are members of the family
-
- ii. some
- courts have focused on the best interest of the pet rather than of the adult
- owners
-
Post Judgment Custody Disputes
I.
Disputes about major Childrearing Decisions
A.
Collapse of Joint Parenting
-
- i. the
- gulf dividing the parents at divorce frequently generate post-divorce disputes
- over religious upbringing, relocation, educational choices and access to the
- children’s daily activities
- b.
- Generally there is a strong presumption to Joint
- Custody
- 1.
- mother and father fighting over religion of
- children
- 2.
- ex couple fought over everything including new
- spouses
- 3.
- mother Jewish and Christian father
- 4.
- both parents wanted their kid to be a certain
- religion
- 1.
- court put ordered the following main principles
- a.
- parents will communicate only by email and in a
- civil non-sarcastic manner
- b.
- the children shall continue to be formally
- raised Jewish
- c.
- the children shall not attend church with the P
- (father) except for those holidays which have a secular component to them such
- as Easter and Christmas, and any other celebrations such as baptism, funerals
- and weddings
-
- i. children
- shall not take part in any sacrament event such as receiving communion or ashes
- nor shall they be encouraged to engage in any Christian rituals such as
- kneeling and making the sign of the cross
- d.
- joint custody when parents express animosity
- toward each other
-
- i. court
- reversed the trial court’s order continuing joint legal custody where the
- parents were “unable to engage in civil discourse” and could not cooperate in
- smooth transfer of the child for visits, daily decisions or major educational
- and medical decisions
-
- i. courts
- in many jurisdictions appoint parenting coordinators in high conflict divorce
- cases
-
A.
Relocation
-
- i. current
- trend to look at case by case basis for parent moving and trying to take the
- kids
-
- i. a
- parent’s relocation does not constitutes a substantial change in circumstances permitting
- medication of custodial arrangements unless the “relocation significantly
- impairs either parent’s ability to exercise responsibilities the parent has
- been exercising or attempting to exercise under the parenting plan
-
- ii. if
- one parent moves a long distance, the move may easily significantly impair the
- arrangements of parents with joint physical custody or generous visitation
- pattern
-
- iii. The
- ALI principles expressly provide that the court should allow the apparent who
- exercises the “clear majority of custodial responsibility” to relocate (after
- giving notice to the other parent) for a valid purpose, in good faith top
- location that promotes the purpose
-
- i. moving
- away from presumptions favoring the custodial parent’s freedom to relocate and
- toward decision making on a case by case basis
-
a.
Fredman v. Fredman
i. facts
- 1.
- Mother appeals a final order prohibiting her
- from relocating with the parties’ children to Texas
- 2.
- parties divorced in 2002
- 3.
- the parties shared parental responsibility with
- the mother being the primary residential apparent and the father having liberal
- visitation, specifically including a minimum of one night per week and every
- other weekend
- 4.
- both parties live in Hillsborough County
- 5.
- the mother is in a relationship with Mr. Melton
- who lives in Texas and who she later married
- 6.
- The mother filed a supplemental petition seeking
- to modify the Father’s visitation because she would be marrying Mr. Melton and
- relocating with the children to Mr. Melton’s home in Texas
- 7.
- the court entered a temporary injunction prohibiting
- the Mother from moving the children to Texas
- 1.
- mother testified to the benefits of moving the
- children to the small community of Ponder Texas, particular Mr. Melton’s new
- 3000 square foot home and the amenities at the nearby public school
- 2.
- the mother earns $58,000 per year and has the
- possibility for advancement at her current Florida employment
- 3.
- the mother testified she planned to be a
- stay-at-home in ponder
- 4.
- the only people her children know in Ponder are
- Mr. Melton and his son
- a.
- mother has no family in Ponder, her family lives
- in Oklahoma, two and half hours away from Ponder
- 5.
- Mr. Melton works in oil and gas industry, that
- he earns $70-90k per year, and that he could not find employment in his field
- of work in Florida
- a.
- father exercises visitation with his children on
- Tuesdays and every other weekend
- b.
- father helps with their homework and he enjoys
- recreational activities with his sons, include bowling and fishing
- c.
- father extended family lives in Hillsborough
- county, including grandmother, uncles, aunts and cousins
- a.
- found that the proposed visitation plan was
- adequate to foster a continuing, meaningful relationship between the children
- and the Father but found, considering all the factors, that the move was not in
- the children’s best interst
- 1.
- mother challenges the facial constitutionality
- of relocation statute
- 1.
- court affirms trial court, holding the that the
- statute is constitutional on its face and
- that the trial court did not abuse its discretion in denying her request
- to relocate
-
- i. mother
- contends that the relocation statute violates a primary residential parent’s
- right to privacy because it empowers the state to dictate where the primary
- residential parent may or may not live
- 1.
- (right to be let alone and free from
- governmental intrusion into the person’s private life)
-
- ii. Mother
- is arguing that she has a fundamental right to decide as a parent to decide
- where her children live
- b.
- court states that the father shares the same fundamental
- right
- c.
- court concludes that the mother does not have
- reasonable expectation of privacy to decide in what state her children live,
- with respect to the father
-
- i. although
- she would have a reasonable expectation of privacy as to a third party
- d.
- based on the particular circumstances the
- mother’s right to privacy is not implicated
- e.
- you have this fundamental right but so does DAD,
- f.
- you cant trump because you’re the primary parent
-
- i. the
- relocation statute violates her fundamental right to travel by requiring her to
- obtain court permission to relocate to another state
- b.
- the relocation statute does not prevent the
- mother from relocating to another state, but it does restrict her in moving
- with the children to another state
- c.
- but when she does take the children the father’s
- interest comes to
- d.
- competing interests, DAD still has parental
- right to make decisions
-
- i. the
- primary residential parents must obtain permission to relocate, while secondary
- residential parents need not obtain permission to relocate from the area their
- child resides.
-
- ii. Mother
- cites no equal protection
- b.
- the statute’s purpose was to preserve the rights
- and familial relationship of the noncustodial parent with respect to his or her
- child
- c.
- the mother as the primary residential parent,
- must obtain permission to relocate with the children because relocation would
- affect the secondary residential parent’s fundamental right to parent and would
- limit the father’s access to the children
- d.
- however, if the father chooses to relocate out
- of state, it does not deny the mother access to her children
-
- i. the
- parties are not similarly situated; thus the statute does not violate the equal
- protection clause
- 3.
- Denial of request to relocate
- a.
- standard of review for trial courts order on
- relocation is abuse of discretion
- b.
- Trial court held, that relocation would not be
- in the best interest of the children but rather the best interest of the wife
- c.
- Based on the record the court cannot say that
- the trial court abused its discretion in denying the mother’s request to
- relocate with the children to Texas
-
a.
constitutional right to interstate travel
- i. Indiana
- court stated that while chilling the right to interstate travel “can violate
- the constitution” other consideration may outweigh an individual’s interst in
- travel.
- Court states it is clear that the child’s interests are powerful
- countervailing consideration that cannot be swept aside as irrelevant
-
a.
Burdens of proof
- several jurisdictions employ burden of proof rules
- or rebuttable presumptions, highly favorable to a primary residential parent
- who wishes to relocate
-
a.
Bad faith
- i. if
- a court suspects that the move is motivated wholly or partly by desire to
- frustrate the other parent’s access to the child, the court will normally
- refuse to allow the move, either by barring the move or by modifying custody if
- the current custodian moves
- 1.
- it is bad faith when a parent relocates in
- effort to promote or thwart the relationship between the child and other parent
-
A.
Third Party Visitation
a.
Troxel v. Troxel
i. Facts
- a.
- permits any person to petition a superior court
- for visitation rights at any time and authorizes that court to grant such visitation
- rights whenever visitation may serve the best interst of the child
- b.
- Grandparents petitioned to obtain visitation
-
- i. father
- of the child commit suicide
- c.
- mother did not want the children visiting with
- the grandparents
- d.
- visitation order was in place, where children
- would spend 2 weekends a month and two weeks visitation each summer
- 1.
- visitation order is an unconstitutional
- infringement on Granville’s fundamental right to make decisions concerning the
- care, custody and control of her two daughters
- 1.
- due process clause does not permit a state to
- infringe on the fundamental right of parents to make childrearing decisions
- simply because a state judge believes a “better” decision could be made
- 2.
- Statute is breathtakingly broad
- a.
- that language effectively permits any third
- party seeking visitation to subject any decision by a parent concerning
- visitation of the parent’s children to state-court review
-
a.
Grandparent visitation rights
- i. State
- statutes regarding third party visitation, often perceived as creating rights
- for grandparents, in fact generally only give grandparents and others standing
- in court to seek visitation rather than creating substantive rights
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