FAMILY LAW

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jarosale
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216815
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FAMILY LAW
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2013-04-30 14:41:57
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Family law Exam
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  1. 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
  2. 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

    • ·      
    • Recently challenged
  3. 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
  4. 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.
  5. 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

    •                                    
    • ii.     Due
    • Process protects

    • 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?
  6. 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.
  7. 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
  8. I.     
    CONSTITUTIONAL FORMS OF MARRIAGE REGULATION pp. 70-89

    Entering Marriage
    • a.    
    • Substantive Rules to Enter Marriage

    •                                                   
    • i.     Consent
    • (mutual)

    •                                                  
    • 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

    •                                                   
    • i.     Marriage
    • license

    •                                                  
    • ii.     Religious
    • or civil ceremony exchanging vows of commitment

    • c.    
    • Restrictions from Marriage

    •                                                   
    • i.     All
    • states have barred

    • 1.    
    • Bigamous and

    • 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
  9. 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

    • b.    
    • EPC analysis:

    •                                                   
    • i.     What
    • burden of justification the classification must meet, by looking to the nature
    • of the classification and the individual interests affected.
  10. A.    Due Process Clause
  11. a.    
    • Right to be free from restrictions on
    • fundamental freedoms
  12. 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

    • 1.    
    • Burden by P

    • 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

    •                                                 
    • iv.     Due
    • Process Clause

    • 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
  13. 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

    • 3.    
    • Animosity of a group

    • a.    
    • (see
    • sodomy/same-sex privacy right below)
  14. a. Intermediate Scrutiny(Quasi-suspect)(middle
    tier)
    •                                                    i.     Presumption
    • of unconstitutionality:

    • 1.    
    • The following Classifications are considered
    • Quasi-Suspect:

    • a.    
    • Gender

    • b.    
    • Illegitimate status of a non-marital child

    • c.    
    • Sexual orientation?


    • i.     Rebuttable
    • presumption

    • 1.    
    • Lesser burden by state

    • 2.    
    • State must prove that classification is
    • “Substantially Related” to the achievement of an “important” state interest
  15. a.     Heightened Scrutiny(Strict Scrutiny)
    • i.     Presumption
    • of unconstitutionality

    • 1.    
    • The statutory classification interferes

    • a.    
    • “directly” and

    • b.    
    • “substantially” with a

    • c.    
    • fundamental liberty right deeply rooted in this
    • Nation’s history and tradition and

    • d.    
    • unnecessarily impinge on the right

    • e.    
    • born from animosity of a group

    •                                                  
    • ii.     Rebuttable
    • Presumption

    • 1.    
    • presumed to invalid unless the state can carry
    • the extraordinary burden of proving that the discrimination is

    • a.    
    • Necessary or

    • b.    
    • Narrowly tailored to achievement of a Compelling
    • public interest (not merely legitimate)

    •                                                
    • iii.     Equal
    • Protection Clause

    • 1.    
    • The following Classifications are suspect class
    • if there is a law relating to distinguishing (EPC)

    • a.    
    • Race

    • b.    
    • Alienage

    • c.    
    • National origin

    • d.    
    • Gender? (pg123 v. p78)

    •                                                 
    • iv.     Due
    • Process Clause

    • 1.    
    • substantive due process review where the
    • government acts to deprive a person of an aspect of liberty deemed fundamental
    • strict scarcity will apply

    • 2.    
    • Ex of DP fundamental Freedoms subject to strict
    • scrutiny:

    • a.    
    • Whether to use contraception/ procreation /
    • childbirth

    • b.    
    • Fundamental freedom to marry

    • c.    
    • Parent’s liberty to rear children as they see
    • fit

    • d.    
    • Family’s decision to live together in a common
    • home

    • a.    
    • Ex: Racial Classification by statute

    •                                                  
    • v.     Racial
    • classification is especially suspect in criminal statutes

    •                                                 
    • vi.     Substantive
    • Due Process analysis

    • 1.    
    • The freedom to marry = is a liberty and a vital
    • personal rights essential to the orderly pursuit of happiness by free men.

    • 2.    
    • Marriage is one of the basic civil rights of
    • man, fundamental to our very existence and survival, which cannot be infringed
    • by the State

    • 3.    
    • The 14th Am requires that the freedom of choice
    • to marry not be restricted by invidious racial discrimination

    • 4.    
    • Under the Const., the freedom to marry, or not
    • marry, a person of another race resides with the individual and cannot be
    • infringed by the State

    • 5.    
    • “To deny the Lovings the right to marry is to
    • deprive them of a fundamental right of human existence”

    •                                               
    • vii.     Equal
    • Protection

    • 1.    
    • No state may deny to any person the equal
    • protection of the laws

    • a.    
    • Invalid argument to assert compliance with EPC:
    • Equal punishment of interracial couple

    • b.    
    • Distinctions drawn according to race are
    • generally “odious to a free people” and are subject to “the most rigid
    • scrutiny” under the EPC

    • c.    
    • Restricting the freedom to marry solely because
    • of racial classifications violates the central meaning of the EPC

    • d.    
    • “There can be no question but that Virginia’s
    • miscegenation statutes rest solely upon distinctions drawn according to
    • race.” 

    • b.    
    • Inmates Constitutional Right to Marry

    •                                              
    • viii.    
    • Prison inmates retain those constitutional
    • rights that are not inconsistent with his status as a prisoner or with the
    • legitimate penal objectives of the corrections system

    •                                                 
    • ix.     4
    • reasons Marriage is vital in the prison context:

    • 1.    
    • Emotional support and symbol of public
    • commitment

    • 2.    
    • Spiritual significance

    • 3.    
    • Marriage most likely consummated upon release

    • 4.    
    • Substantive Marital benefits

    •                                                   
    • x.     Reconcile
    • with the broad view

    • 1.    
    • Prisoners have restrictions and rights taken
    • away while confined

    Marriage is a right that cannot be taken away  even while confined
  16. I.     
    SAME-SEX MARRIAGE pp. 89-100, 110-127

    Introduction
  17. a.    
    • 2003—Lawrence overruled Bowers
    • case, striking down as a violation of substantive due process a TX law
    • criminalizing same-sex sodomy
  18.                                                         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
  19. Griswold
    • 1.    
    • established that the right to make certain
    • decisions regarding sexual conduct extends beyond the marital relationship

    • a.    
    • contraception case
  20.                                                         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

    • 4.    
    • Majority

    • a.    
    • Due process

    • b.    
    • opaque holding

    •                                                                                                              
    • 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

    • 5.    
    • concurrence

    • 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

    • c.    
    • no state interest

    •                                                                                                              
    • 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
  21. 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

    •                                                     
    • iv.     Rule:

    • 1.    
    • States should refrain from

    • a.    
    • Defining the meaning of the relationship or

    • b.    
    • To set its boundaries absent

    •                                                                                                              
    • i.     Injury
    • to a person or

    •                                                                                                            
    • ii.     Abuse
    • of an institution the law protects 
  22. 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”
  23.                                                         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

    •                                                      
    • ii.     Govt
    • Role

    • 1.    
    • To define the liberty of all

    • 2.    
    • NOT to mandate state’s own moral code

    •                                                     
    • iii.     EPC:

    • 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

    • c.    
    • Consenting adults

    • d.    
    • Court must respect private lives

    • b.    
    • Prohibited Criminal Sexual Behavior with Legit
    • State Interest

    •                                                        
    • i.     Bigamy

    •                                                      
    • ii.     Adultery

    •                                                     
    • iii.     Incest

    •                                                     
    • iv.     Bestiality

    •                                                       
    • v.     Rape

    •                                                     
    • vi.     Sex
    • with minors

    • c.    
    • The Privacy Right of sexual orientation
    • establishes a Broad and Narrow View

    •                                                        
    • i.     Broadly

    • 1.    
    • The right to control your personal relationships


    • 2.    
    • Grounded in liberty prong of constitution –
    • right to personal autonomy

    •                                                      
    • ii.     Narrow


    • 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
  24. A.    Judicial Recognition of Same-Sex Marriage
    • a.    
    • Reasons for banning same-sex marriage

    •                                                        
    • i.     Stability
    • for children

    •                                                      
    • ii.     Living
    • models of what a man and woman are like

    •                                                     
    • iii.     Childrearing
    • and procreation

    •                                                     
    • iv.     Religious
    • freedom

    •                                                       
    • 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

    •                                                     
    • iii.     Privacy
    • rights

    •                                                     
    • iv.     Equal
    • protection

    •                                                       
    • v.     Designation
    • of “Marriage” as opposed to “Domestic Partnership” is meaningful
  25. a.    
    Perry v. Brown
    •                                                         i.     First
    • issue

    • 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 

    •                                                      
    • ii.     rationale


    • 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


    • a.    
    • proponents reasons

    •                                                                                                              
    • 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

    •                                                     
    • iii.     holding


    • 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
  26. 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
  27. a.    
    DOMA—Federal Defense of Marriage Act 1996
    •                                                         i.     2
    • key provisions

    • 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”
  28. a.    
    Windsor v. United States, 699 F.3d 169
    (2012)
  29. 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
  30. 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
  31. 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
  32. 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
  33. A.    
    Marriage Definition by Legality or Custom
    (spiritual, non-state sanctioned marriages)
    • a.    
    • Utah:

    •                                                        
    • 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
  34.                                                         i.     State v. Holm
    • 1.    
    • bigamy statute

    • 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

    • b.    
    • argument

    •                                                                                                              
    • 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

    • c.    
    • holding

    •                                                                                                              
    • 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.     Reynolds


    • 1.    
    • see above
  35.                                                                                                               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

    • 1.    
    • narrow

    •                                                                                                            
    • 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

    •                                                                                                           
    • iv.     holding

    • 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.
  36. a.    
    arguments for state internets for polygamy
    married couples who do not have mnogymous relationships
  37. I.     
    MARRIAGE FORMALITIES/ALTERNATIVES TO FORMAL
    MARRIAGE pp. 152-184

    A.    Core Requirements
    • i.     Marriage
    • license

    •                                                      
    • ii.     Solemnization


    •                                                     
    • iii.     Consent

    •                                                     
    • iv.     States
    • may add additional requirements however the core requirements apply to every
    • state
  38. 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

    • 1.    
    • majority

    • a.    
    • 18

    • 2.    
    • minority

    • a.    
    • allow minors(16 and 17) to marry with parental
    • or judicial consent

    • 3.    
    • under 16

    • 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
  39. A.    Consent to Marriage
    • a.    
    • Void vs. Voidable marriage

    •                                                        
    • i.     Void

    • 1.    
    • Marriages that offend very strong public
    • policies

    • 2.    
    • Absolutely void even without request for
    • annulment

    • a.    
    • Ex: same-sex, bigamy, incest

    •                                                      
    • ii.     Voidable

    • 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

    • c.    
    • Impotency

    •                                                        
    • 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

    • d.    
    • Capacity to consent

    •                                                        
    • 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

    • 2.    
    • Mental condition

    • 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

    • 3.    
    • Lack of mutual assent

    • a.    
    • In jest or without serious thought

    • 4.    
    • Duress

    • 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)

    • 6.    
    • Fraudulent Inducement

    • 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

    •                                                                                                            
    • ii.     NJ
    • Law

    • 1.    
    • the essentials of marriage vary from case to
    • case

    •                                                                                                           
    • iii.     narrower
    • terms

    • 1.    
    • CA law

    • 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

    • 2.    
    • Ohio

    • general rule that false representation as to character, health, wealth
    • and external conditions do not constitute such frauds as will annul a marriage
    • contract
  40.                                                         i.     In Re Estate of Santolino
    • 1.    
    • Issue

    • a.    
    • NJ Motion
    • to dismiss

    • b.    
    • may a court annul a marriage after the death of
    • one party to the marriage

    •                                                                                                              
    • i.     Yes


    • 2.    
    • grounds

    • a.    
    • impotent

    • b.    
    • unable to consent

    • c.    
    • fraud as to the essentials of the marriage

    • d.    
    • equitable reasons to declare the marriage void

    • 3.    
    • impotent

    • a.    
    • (cannot have kids)(sterile)

    • b.    
    • only a party to the marriage can claim annulment
    • on the ground of impotency

    • 4.    
    • lack of consent

    • a.    
    • grounds

    •                                                                                                              
    • 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

    •                                                                                                            
    • ii.     lack
    • of mutual assent

    •                                                                                                           
    • iii.     duress

    •                                                                                                           
    • 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

    • 5.    
    • equitable reasons

    • a.    
    • court states you can demonstrate that the
    • marriage was “somehow illicit”
  41. A.    
    Marriage Formalities
    • a.    
    • 2 Requirements:

    •                                                        
    • i.     Marriage
    • License

    • 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

    • c.    
    • Licensing Defects

    •                                                        
    • 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

    • d.    
    • Marriage by Proxy

    •                                                        
    • 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
  42. 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)

    • b.    
    • licensing defects

    •                                                        
    • 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
  43. I.     
    COMMON-LAW MARRIAGE    p.168-184
    • A.    
    • 10 jurisdictions still practice common law marriage

    • B.    
    • Elements

    • a.    
    • Competent to enter marriage (capacity)

    •                                                        
    • i.     consent

    •                                                      
    • ii.     age

    •                                                     
    • iii.     impotency


    •                                                     
    • iv.     etc.

    • b.    
    • Cohabitation

    • 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

    • 3.    
    • Use of common names,

    • 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

    • C.    
    • purpose

    • a.    
    • protect women

    • b.    
    • protected the welfare when they are vulnerable

    •                                                        
    • i.     widowed

    •                                                      
    • ii.     abandoned

    • c.    
    • protected their reliance upon and investment in
    • a long term relationship of trust

    • d.    
    • protected their contributions of labor and
    • property

    • D.   
    • Standard of Proof

    • 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
  44. A.    
    In Re
    Estate of Hunsaker
    • a.    
    • Whether a common law marriage existed

    • b.    
    • elements

    •                                                        
    • i.     competent

    •                                                      
    • ii.     mutual
    • consent

    • 1.    
    • wore engagement ring

    • a.    
    • didn’t wear wedding ring because they
    • didn’t  have a formal wedding

    •                                                                                                              
    • i.     wedding
    • ring

    • 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

    •                                                     
    • iii.     cohabitation


    •                                                     
    • iv.     public
    • repute

    • 1.    
    • a common
    • law marriages does not exist fi the parties have kept their relationship a
    • secret

    • 2.    
    • facts

    • a.    
    • sing in front home of home X residence

    • b.    
    • grandfather clock

    • 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
  45. I.     
    Putative Spouse Doctrine
    • A.    
    • Introduction

    • 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

    • B.    
    • Elements:

    • 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

    • e.    
    • equity

    •                                                        
    • i.     property
    • rights

    • 1.    
    • All states that recognize doctrine apply it to
    • property rights

    •                                                      
    • ii.     spousal
    • supports

    • 1.    
    • some states apply spousal doctrine to spousal
    • support
  46. 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”
  47. I.     
    COHABITATION pp. 261-284
    • A.    
    • Intent (Contract-Based Agreements)

    • a.    
    • Intro

    •                                                        
    • 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

    • b.    
    • Express Contracts

    •                                                        
    • 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

    •                                                     
    • iii.     Presumption

    • 1.    
    • Parties intended to deal fairly with each other

    • B.    
    • Intent
  48.                                                         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

    • 3.    
    • Facts

    • 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.     consideration


    • B.    
    • Remedies
  49. A.    
    Remedies
    • a.    
    • Contract-Based Remedies

    •                                                        
    • i.     Breach
    • of Express Agreement

    • 1.    
    • Express, specific, written (SOF)

    • 2.    
    • Enforceable unless prostitution
    • (immoral/illegal)

    •                                                      
    • ii.     Breach
    • of Implied in Fact Agreement

    • 1.    
    • an agreement the  parties presumably intended to make, either by tacit
    • understanding or by their assumptions

    • 2.    
    • judged by the actions of the party

    •                                                     
    • iii.     Breach
    • of Implied in Law Agreement

    • 1.    
    • is an obligation imposed by law because of the
    • parties’ conduct, because of some special relationship between them or because
    • one of them would be unjustly enriched

    • b.    
    • Equitable Remedies

    •                                                        
    • i.     Restitution

    •                                                      
    • ii.     Unjust
    • enrichment

    • 1.    
    • one party would be unjustly enriched if you
    • don’t enforce the K

    • 2.    
    • someone contributes services or money and
    • another benefits

    • 3.    
    • Someone contributes a lot of money and services
    • where the other person benefits and if contributor doesn’t get a remedy, it
    • would constitute unjust enrichment. No reason person would give their money
    • away

    •                                                     
    • iii.     Constructive
    • trust

    • 1.    
    • Equitable remedy intended to prevent a person
    • who has obtained property through actual or constructive fraud from benefiting
    • at the expense of another person

    • 2.    
    • Imposed when one party has contributed
    • consideration or time and labor to the other party’s acquisition of property

    • 3.    
    • Someone who obtains property through fraud, it
    • would be unfair to allow the party to keep the property

    • a.    
    • some jurisdictions allow parties to receive
    • through a resulting trust which a court can impose as a means of transferring
    • title when circumstances indicate that the parties actually intended for the D
    • to hold property on behalf of P

    •                                                     
    • iv.     Resulting
    • trust

    • 1.    
    • Impose as a means of transferring title when
    • circumstances indicate that the parties actually intended for the defendant to
    • hold property on behalf of (in trust for) plaintiff

    • 2.    
    • COA arises where the D holds title, but the P
    • provided some or all the money used to purchase the property

    • 3.    
    • Circumstance that it is reasonable to infer that
    • one party intended for the other party to hold the money in trust

    •                                                       
    • v.     Quantum
    • Meruit

    • 1.    
    • Compensation for services

    • 2.    
    • Unmarried cohabitant to seek the value of
    • services rendered or benefits congerred upon the other cohabitants

    • 3.    
    • For the reasonable value of household services
    • rendered less the reasonable value of support received if he can show that he
    • rendered services with the expectation of monetary reward

    • c.    
    • Palimony

    •                                                        
    • i.     Palimony
    • is a COA for support between unmarried persons

    •                                                      
    • ii.     Elements
    • (NJ)

    • 1.    
    • Marital-like relationship

    • 2.    
    • With the promise to support (express or implied)


    • a.    
    • Courts should consider the entirety of their
    • relationship. NJ is using “marriage-like relationship” as proxy to find facts
    • that can be implied to show an agreement

    •                                                                                                              
    • i.     Intention
    • to commingle property

    •                                                                                                            
    • ii.     Hold
    • themselves out to the public as husband and wife

    •                                                                                                           
    • iii.     Time
    • spent together

    •                                                                                                           
    • iv.     Cohabitation


    • 3.    
    • Cohabitation (not required in NJ; required in
    • WA)

    • a.    
    • It will not be upheld if it is a “dating
    • relationship”

    • b.    
    • There may be circumstance where a couple may
    • hold themselves out to others as if they were married and yet not cohabit

    •                                                                                                              
    • i.     Ex:

    • 1.    
    • Couples who are separated due to employment

    • 2.    
    • Military

    • 3.    
    • Educational opportunities 

    • c.    
    • Differences in analysis of NJ and WA

    •                                                                                                              
    • i.     NJ

    • 1.    
    • NJ trying to find implied contract (factors to
    • find implied contract, but if there is other proof with facts, they will
    • consider it)

    • 2.    
    • Actual result of finding a contract flows from
    • the contract

    • 3.    
    • Implied contract—terms have to be implied

    • 4.    
    • There may have been factual determinations
  50.                                                                                                               i.     Devaney v. L’esperance (NJ)
    • 1.    
    • Issue

    • a.    
    • whether cohabitation is an indispensable element
    • of a cause of action for palimony

    • 2.    
    • Holding

    • 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

    •                                                                                                                                                                    
    • i.     ex

    •                                                                                                                                                                  
    • ii.     couples
    • who are separated due to employment

    •                                                                                                                                                                 
    • iii.     military

    •                                                                                                                                                                 
    • iv.     educational
    • opportunities 

    • 4.    
    • court should consider the entirety of their
    • relationship

    • a.    
    • intention to commingle property

    • b.    
    • cohabitation

    • c.    
    • time spent together
  51. A.    
    Determining Property Rights in the Absence of an
    Agreement
    • a.    
    • WA

    •                                                        
    • 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

    • 4.    
    • Pooling of resources

    • 5.    
    • Intent of the parties

    •                                                     
    • 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

    •                                                        
    • i.     “Easy
    • Prong”

    • 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

    •                                                      
    • ii.     Fall
    • Back Provision

    • 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
  52. I.     
    Establishing Parenthood
    • A.    
    • General

     

    • a.    
    • common law

    • 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
  53. 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. 

    • c.    
    • ex

    • 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
  54. 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

    •                                               
    • i.     Michael
    • H. Gerald
  55. 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

    •                                            
    • iv.     S.
    • CT held

    • 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
  56. 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 

    •                                             
    • ii.     Facts


    • 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

    •                                            
    • iii.     S.
    • CT

    • Stanley did not require GA to grant Quilloin a veto because he had not
    • shouldered significant responsibility for the child’s upbringing
  57. 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

    •                                             
    • ii.     S.
    • CT

    • 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
  58. 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

    •                                            
    • iii.     S.
    • CT

    • 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

    •                                            
    • iv.     dissent

    • 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
  59. 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

    •                                             
    • ii.     claim


    • 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

    •                                            
    • iii.     facts

    • 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

    •                                            
    • iv.     history

    • 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

    •                                              
    • v.     S.
    • CT

    •                                            
    • vi.     Michael’s
    • Claims

    • 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

    • a.    
    • Claim

    •                                                                                                     
    • 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

    • b.    
    • liberty standard

    •                                                                                                     
    • i.     must
    • be an interest traditionally protected by out society

    • c.    
    • Issue

    •                                                                                                     
    • 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

    • d.    
    • Holding

    •                                                                                                     
    • 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

    • e.    
    • Analysis

    •                                                                                                     
    • 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

    •                                                                                                  
    • iii.     Leher


    • 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

    •                                                                                                  
    • iv.     However


    • 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

    •                                           
    • vii.     Victoria’s
    • claim

    • 1.    
    • due process challenge

    • a.    
    • claims a due process right to maintain a filial
    • relationship with both Michael and Gerald

    • b.    
    • Analysis

    •                                                                                                     
    • 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
  60. 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
  61. a.    
    Dual paternity and
    A.    
    Voluntary Paternity Registrations Systems
    • a.    
    • Dual paternity

    •                                               
    • 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
  62. Determining Maternity 















    A.    
    general

    a.    
    the woman who gives birth to a child has
    historically been presumed to be the mother

    Johnson v. Calvert
    • a.    
    • facts

    •                                               
    • 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

    • b.    
    • procedural history

    •                                               
    • 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

    • c.    
    • Issue

    •                                               
    • i.     This
    • case is to be decided on the parties intent manifested in the surrogacy
    • agreement

     

    • d.    
    • Analysis

    •                                               
    • 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
  63. A.    
    Defining parenthood
    • a.    
    • law has multiple potential bases for determining
    • parent hood

    •                                               
    • i.     contract


    •                                             
    • ii.     intent


    •                                            
    • iii.     marriage


    •                                            
    • iv.     biology


    •                                              
    • v.     best
    • interest of the child
  64. 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

    • 5.    
    • Donor agreement

    • 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

    •                                             
    • ii.     Procedural

    • 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

    •                                            
    • iii.     issue

    • 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

    •                                            
    • iv.     Analysis

    • 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

    • 5.    
    •  

    •                                              
    • v.     holding

    • 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
  65. 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
  66. 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
  67. 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

    • e.    
    • Trial court

    •                                               
    • 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


    • f.     
    • trial court held

    •                                               
    • i.     Renee
    • retain primary physical custody and Jorge pay $899 monthly in child support

    • g.    
    • Court of appeals

    •                                               
    • i.     Jorge
    • contends the trial court improperly concluded that Renee’s behavior did not
    • detract from her ability to parent

    • h.    
    • Analysis

    •                                               
    • 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

    • a.    
    • isolated incident

    •                                            
    • 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
  68. 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
  69. A.    
    sexual orientation
    • a.    
    • custody disputes involving a biological parent
    • who is gay, lesbian, bisexual or transgendered court use 2 approaches

    •                                               
    • i.     nexus


    •                                             
    • ii.     per
    • se

    • b.    
    • nexus

    •                                               
    • 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
  70. 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
  71. 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

    •                                             
    • ii.     holding


    • 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

    •                                            
    • iii.     Analysis


    • 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

    • a.    
    • he:

    •                                                                                                     
    • 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”
  72. I.     
    Siblings and Religion

    A.    
    Arthur v. Arthur
    • a.    
    • Father appeals approved shared parenting plan
    • for the couple’s four minor children

    • b.    
    • facts

    •                                      
    • i.     prior
    • to court

    • 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

    •                                    
    • ii.     child
    • custody trial

    • 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

    •                                                                                          
    • ii.     school
    • factors

    • 1.    
    • below average class size

    • 2.    
    • problems with staffing

    • 3.    
    • teachers lacked practical experience

    • 4.    
    • lack of curriculum

    • 5.    
    • lack of extra curricular activities amiable to
    • the children, limited to noncompetitive activities

    • 4.    
    • Trial court holding

    • 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


    • d.    
    • Standard of review

    •                                      
    • 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


    • e.    
    • holding

    •                                      
    • 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

    • f.     
    • analysis

    •                                      
    • 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

    • h.    
    • Court’s response

    •                                      
    • 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
  73. 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
  74. 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

    • b.    
    • religion and medicine

    •                                      
    • 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

    • d.    
    • pets

    •                                      
    • 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
  75. Post Judgment Custody Disputes

    I.     
    Disputes about major Childrearing Decisions

    A.    
    Collapse of Joint Parenting
    • a.    
    • general

    •                                      
    • 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

    • c.    
    • Nicita v. Kittredge

    •                                      
    • i.     facts


    • 1.    
    • mother and father fighting over religion of
    • children

    • 2.    
    • ex couple fought over everything including new
    • spouses

    • a.    
    • over 70 motions 

    • 3.    
    • mother Jewish and Christian father

    • 4.    
    • both parents wanted their kid to be a certain
    • religion

    •                                    
    • ii.     holding


    • 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

    • e.    
    • Parent coordinators

    •                                      
    • i.     courts
    • in many jurisdictions appoint parenting coordinators in high conflict divorce
    • cases

    • B.    
    • Relocation
  76. A.    
    Relocation
    • a.    
    • generally

    •                                      
    • i.     current
    • trend to look at case by case basis for parent moving and trying to take the
    • kids

    • b.    
    • ALI

    •                                      
    • 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

    • c.    
    • Trend

    •                                      
    • i.     moving
    • away from presumptions favoring the custodial parent’s freedom to relocate and
    • toward decision making on a case by case basis
  77. 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

    •                                    
    • ii.     Final
    • hearing

    • 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

    • 6.    
    • father

    • 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

    • 7.    
    • Trial court holding

    • 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

    •                                   
    • iii.     issue


    • 1.    
    • mother challenges the facial constitutionality
    • of relocation statute

    • a.    
    • right to privacy

    • b.    
    • righto travel

    • c.    
    • equal protection

    •                                   
    • iv.     holding


    • 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

    •                                     
    • v.     Analysis


    • 1.    
    • Constitutionality

    • 2.    
    • right to privacy

    • a.    
    • Her claim

    •                                                                                            
    • 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














    • 1.    
    • right to travel

    • a.    
    • mothers claim

    •                                                                                            
    • 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

    • 2.    
    • equal protection

    • a.    
    • mothers claim

    •                                                                                            
    • 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

    • e.    
    • Holding

    •                                                                                            
    • 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
  78. 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
  79. 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
  80. 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
  81. A.    
    Third Party Visitation

    a.    
    Troxel v. Troxel
                                          i.     Facts


    • 1.    
    • Washington Statute

    • 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 

    •                                    
    • ii.     holding


    • 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

    •                                   
    • iii.     analysis


    • 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
  82. 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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