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I. INTRODUCTION: WHAT CONSTITUTES A FAMILY?

A. FAMILIAL STRUCTURES & THE LAW


1. NUCLEAR FAMILY, SINGLE-PARENT & EXTENDED FAMILIES
What is a family? - financial dependence/economic cooperation - blood ties - legally connected individuals marriage certs, adoption, civil union - living in same household - emotional support - caregiving - people who share responsibility for others in the unit - multiple people - intergenerational - engage in communal activities or shared dining - others view unit as family - often have connection to extended family - aspire legal recognition as family - shared cultural values and history - legal duties - children & reproduction Extended Family: - Moore v. City of East Cleveland (1977) ordinance keeps grandma from living w/ her 2 grandsons who are 1st cousins faces criminal punishment. Grandma wins. - City justification: overcrowding at schools, minimizing traffic and parking congestion, and overcrowding. - Courts focus: Constitution protects sanctity of family b/c deeply rooted in nations history and tradition (not limited to nuclear family). Focus is on the biological ties (dif than bunch of college kids) - Brennan concurrence extended families very prevalent in certain groups (African Americans) - Stanley v. Illinois (1972) Unmarried parents lived together on and off for 18 years. When mom dies, 3 kids taken from dad. Il had rule that kids of unwed father become wards of state when mom dies. Govs interest in efficiency and protecting interests of child not compelling enough to outweigh Ss fundamental right. - Holding: -(1) Stanley denied procedural due process b/c his kids taken from him w/o hearing, and should be entitled to hearing for that kind of deprivation -(2) Stanley denied equal protection b/c not given same process that other parents (wed fathers and unwed mothers) were given. Communal Living: - U.S. Dept of Agriculture v. Moreno (1973) Food Stamp Act defined household as related individuals b/c concerned about hippie communes. 3Ps here: 1. diabetic living and sharing expenses w/ another woman and kids 2. family who takes in emotionally needy woman 3. woman sharing apt w/ another woman so can be closer to deaf kids school. - Holding: unrelated person is irrational classification that violates equal protection fails rational basis review

Douglas Concurrence banding together is freedom to associate and penalizes people for helping others

- Village of Belle Terre (1974) small Long Island town has ordinance saying no more than 2 unrelated people can live together. 6 students living together students lose. - Holding: Ordinance bears reasonable relationship to state objective of limiting noise and promoting family values. No fundamental right at stake But see .- Glassboro v. Vallorosi Court adopted functional standard holding 10 students living together to be single housekeeping unit b/c ate together, shared household tasks and expenses, plan to stay together 3 years - Reconciling Moreno & Belle Terre: - BT dealt with quiet, secluded town, students could have lived elsewhere, less like a family and more just place to live not working as unit. - Moreno Ps were poor and this was only way for them to function. Ps more sympathetic, more like a family Unmarried Cohabitation: North Dakota Housing Council v. Peterson (2001) unmarried couple challenged ND statute prohibiting cohabitation. 2nd ND housing statute says cant discriminate based on marriage status. - Holding: Statutes dont conflict b/c 1st regulates conduct, not status. Anti-cohabitation law okay b/c state has other laws that reinforce belief (like bigamy laws) and chose not to repeal Smith v. Fair Employment & Housing Commission (1996) landlord denied housing to unmarried couple for religious reasons (God would judge her b/c premarital sex) and wanted protection under 1st amendment. - Holding: CA law forbidding discrim based on marital status was neutral to religion and didnt substantially burden her religions exercise. Unmarried Cohabitation: - Homosexual Couples Braschi v. Stahl (1989) Gay couple lived together 11 yrs. When the registered tenant bf dies, landlord tries to evict Braschi from rent-controlled apt in NYC. Braschi wins. - Factors: life partners for over 10 years, hold themselves out to world as couple, regarded by friends and family as spouses, families accepting and considered each other inlaws, Brashi lists apartment as his address and receives mail, men shared obligations and budget. - Functional Approach: based on totality of circs. Allows recognition of dif family structures based on a multitude of factors that reflect the reality of family life. (exclusivity, longevity, emotion and financial commitment, the manner in which the parties conducted their everyday lives and held themselves out to the public) - Criticism: For protection under this approach, Braschi had to be out (arises in Vasquez) Vasquez v. Hawthorne (2001) V&S homosexual couple in long term, stable, cohabitating relationship. S dies, and V sues estate b/c he wants share of the couples community property. Dispute about level of relationship(Ss family didnt think he was gay) so court remands. Rule equitable claims not dependent on legality of relationship b/w parties or by gender/sexual orientation Factors to consider whether a family: - Hold yourself out - Addresses on documents - Commingling of money - Inheritance rights

Exclusivity and longevity of relationship Level of emotion and financial commitment Reliance parties place on e/o for daily family services

- federal law doesnt prohibit housing discrim based on sexual orientation (but some states do) - so far no case like Smith dealing w/ refusing to rent to homosexual couples for religious reasons Inheritance: - inheritance laws treat unmarried cohabitants differently than legal spouses. - problems w/ some courts refusing to recognize domestic partnerships from other states (becomes issue in property distribution) - adult adoption - Create inheritance rights - Decisionmaking authority & visitation for medical - Insurance benefits - Almost all states allow - BUT - some states dont allow for homosexuals or require certain age difference - terminates legal relationship w/ partners biological family, so affects inheritance rights

B. PRIVACY & FAMILY DECISIONMAKING


Due Process: - is there a fundamental right? - If no, then use rational basis (basically what happened in Eisenstadt where rational basis review used) - If yes, - has the fundy right been infringed? - Is there sufficient justification for the action? - if yes, are the means appropriately tailored? (ex: Moore case court thought it overstepped) - if no, the action or policy wont stand fails review Equal Protection: 1) fundamental right 2) suspect class (e.g. race, national origin, gender) - If yes, which group? Strict scrutiny, intermediate - is there sufficient justification? If yes, are the means appropriately tailored? *yes = ok; no = fail If no, fail Family & Right to Privacy Generally Griswold v. CT (1965) Statute prohibited contraceptives, and Planned Parenthood directors convicted of counseling married people about contraceptives. - interest sweeps too broadly. Overinclusive, cant enforce in every bedroom - penumbra of rights stemming from various clauses of Bill of Rights. - Focused on intimate relationship b/w husband and wife!!! (sacred precincts of marital bedrooms) (focuses on how noble of an institution marriage is). - Harlan Concurrence violates Due Process b/c violates basic values implicit in the concept of ordered liberty *** 1st privacy case ***states that the right to privacy is fundamental (ie strict scrutiny applies)

Eisenstadt v. Baird (1972) statute only allows distribution of contraceptives by MDs and pharmacists and to married people only. - Rational basis review - EP b/w married and unmarried - . Takeaway Right to privacy extended to unmarried people - if the right of privacy means anythingto be free from governmental interference with decision to bear and beget a child - Re-characterizes Griswold (G was talking about a right of seclusion, E is talking about a right of affirmative decision making) - Carey v Population Services Intl.(1977) extends the right to privacy to minors contraceptive choices. Meyer v. Nebraska (1923) teacher convicted of violating state law prohibiting teaching foreign languages when she teaches German. - Holding: Mere knowledge of German isnt harmful, so statute arbitrary an no reasonable relation - Takeaway Recognizes parents power to control upbringing of their children as they see fit. Also recognized a due process interest of the teacher to have the right to contract and engage in the profession of his choice. Pierce v. Society of Sisters (1925) Statute reqd parents to send children to public school. - Holding: Statute unreasonably interferes w/ liberty of parents to direct upbringing of children - Takeaway Meyer & Pierce form a foundation for privacy in Griswold/Eisenstadt (substantive due process limits the authority fo the government to interfere in certain family matters). G&E rely on M&P when establishing constitutional right to privacy. Growth of Privacy - Reproductive Choices Arguments For Recognizing Privacy Interest: - avoid need for state support of mothers/children - the woman is in the best position to decide what should happen with her body - limit state intrusion into private realm - avoid women having to get illegal abortions - health concerns for women and avoid risks - avoid health risk of pregnancy - already overpopulation - avoid having ones genetic material out in the world - norms against good Samaritan rules - decisional autonomy - bodily integrity - physicians interest in not being punished for doing abortions - right of association 1st amendment - 3rd amendment right re: quartering of soldiers recognizes right not to have to support people - recognizing important therapeutic relationships - discrimination b/w women and men - we already permit birth control so not much different - instances of rape Arguments Against Recognizing Privacy Interest: - fetus is a person - fetus may feel pain - interest in potential life

- encourage responsibility - avoid or minimize illicit sex - in societys interest to support family - avoid psychological harm for women after abortion - availability of adoption - supports interests of the father - state right to criminalize murder - recognizes the expertise of legislatures vs. judges Violinist Hypo: Judith Jarvis Thomson Article Kidnappee told shes the only person who can save this violinist b/c of rare blood type and so has to be hooked up to this violinist for the next 9 months in order to ensure that he lives. (nice b/c dont have to deal w/ whether fetus = life) Violin Hypo Arguments that Analogous: - coercive action - burden physical, psychological, etc imposed - duration of burden - idea of being punished for special gift or ability - violation of bodily integrity - forced sharing of genetic material Violin Hypo Arguments that Not Analogous: - voluntariness of action - womans movement not constrained in the same way hypo more drastic - difference in the amount of genetic material being shared (blood vs. 50%) - duration of burden - special status of the burden Feminist Take - Sidney Callahan Article - Women will never climb to equality and social empowerment over mounds of dead fetuses - Why should state provide day-care, child support, require workplaces to accommodate maternity and childrearing needs if have permissive abortion? - Furthers view that pregnancies and children are womans private individual responsibility Roe v. Wade (1973) Tx statute made it illegal to obtain/attempt an abortion or to provide medical advice about abortion, unless to save life of mother. - Basic state justifications are discouraging pre-marital sex, health of mom, pre-natal life - Strict Scrutiny creates a fundamental right for a woman, in consultation with her physician, to decide. o Right to privacy is now found in the 14th A, not in the 9th or penumbras of the B of R (G & E) - Holding: Right of privacy broad enough to encompass womans decision whether or not to terminate pregnancy. State does have interests that become compelling after 1st trimester. - Roe Rules: - 1st trimester: unqualified right to abortion. No more dangerous than childbirth - 2nd trimester, until viability state may regulate abortion in interest of mothers health - 3rd trimester: after viability, state interest in protecting life of baby justifies regulation or even prohibition (must have exception for moms health) - Note court only balancing interests of woman and state b/c historically fetuses not viewed as persons - Criticism: Did courts line drawing confuse the right at stake? Is it a right to terminate your pregnancy, or that you dont want to have your genetic material out there (reproductive autonomy)?. Is forcing woman to have baby similar to forced genetic mutation or cloning? - Rehnquist Dissent much more narrow view of privacy. nothing private about an abortion.

Harris v MacRae states can refuse to pay for non-therapeutic abortions. Spousal consent invalidated (Danforth) but parental notification allowed (as long as judicial bypass exists)

Planned Parenthood of SE PA v. Casey (1992) PA law that Dr can provide abortion unless receive signed statement signed by woman that has told husband or that pregnancy result of sexual assault, not the husbands, or notifying husband will cause someone to inflict harm on her. - Holding: Spousal notification is undue burden. If balance b/w woman and man, womans interests are more direct. State cant give man dominion over wife as parents have over their children - Trimester framework is out o Before viability woman has a right to abortion without undue interference from state o After viability state may restrict abortion providing they have a life/health of mother exception o State has a legitimate interest throughout the pregnancy in protecting maternal health and pot. life. - Takeaway new undue burden standard announced for abortion. No longer a fundamental right, now considered a liberty interest (b/w strict and rational basis scrutiny.) Only those restrictions that pose an undue burden (have the purpose or effect of placing a substantial obstacle in the path of the woman) are subjected to strict scrutiny. Some say this is a departure from Roe others that its an extension of most important aspects from Roe. You get the sense that this is here to stay. - Requires both a life and health exception for the mother. Planned Parenthood of N. New England v. Heed (1st Cir. 2004) NH statute prohibited abortion on minor w/o written notice to parents at least 48 hours before, w/ exception if abortion necessary to prevent death and insufficient time. Minor may request hearing from state judge to authorize abortion if doesnt want to tell parents. - Holding: Court invalidates. Nothing protected for health, Dr. still cant do abortion even if best option of other options available (judicial bypass can take too long, a period in which the minors health may be compromised). - Qualifies Caseys undue burden standard applies when a regulation will affect a large number of cases (not solely when there is an imaginable set of circumstances under which the regulation would be ok.) Stenberg v. Carhart (2000) statute prohibits partial birth abortions unless necessary to save life of mother. - Holding: Statute unconstitutional b/c lacks exception for health of mom and imposes undue burden on womans ability to choose partial birth abortion (doesnt differentiate b/w the types) - Takeaway Court is sticking by Caseys undue burden test (would have regulated a pre-viability proc.) - Scalia dissent takes issue with undue burden standard. totally unclear hard to determine how youd apply that standard. health exception swallows the rule and gives doctors a lot of leeway. - Kennedy Dissent concerned that court placing too much focus on doctors role over states interest. State should be free to make moral judgments about kinds of procedures its citizens should be able to obtain. Gonzalez v Carhart (2007)upheld a federal statute that banned D & X abortion procedure - Holding: - Gives greater power to the right of the sate to protect fetal life. - Allowed even though there is no health exception. - Ginsberg dissent blurs the viability line drawn by Casey and privileging the rights of the state against women. John Leland, Inside an Abortion Clinic talks about how few doctors will do them in AR Intimate Associations

Lawrence v. Texas (2003) TX statute made it crime for adult homosexuals to engage in deviate intimate conduct. The men charged were in their home and consensual. - Holding: Court strikes it down saying not going to allow this kind of limitation b/c liberty interest under 14th amendment that is much broader than what earlier decision in Bowers allowed - Interpreting right narrowly to just be about sex belittles relationship - Decided on the broader due process grounds (liberty to engage in intimate personal relationship), NOT EP o Because it recognized a liberty interest in sexual autonomy (not fundamental right), strict scrutiny doesnt apply. - Overrules Bowers - couple significant Court decisions b/w Bowers and Lawrence showing change in how we think about privacy. Casey & Romer, which invalidated CO amendment targeting gays and lesbians and specifically deprived them of protection. - Moral disapproval are no longer sufficient justification to regulate moral legislation. - Scalia Dissent if wont up hold TX statute b/c its regulation of immoral and unacceptable behavior, then better be ready to stop laws against bigamy, same-sex marriage, adult incest, prostitution, adultery, bestiality, etc. Choices at the End of Life Cruzan v Director MO Dept of Health (1990) Nancy was in persistent vegetative state (motor reflexes but no indication of significant cognitive function). Issue was whether they could stop providing her with nutrition. Question over MO statute requiring evidence of incompetents wishes for withdrawal of treatment to be established by clear & convincing evidence. - Ps argued that MO should accept substituted judgment of close family members even in absence of substantial proof that their views reflect views of patient (rely on Michael H importance of traditional family) o Procedural safeguard surrogate can act for the patient when there is clear and convincing evidence of the patients wishes. - Holding: Court upholds statute saying heightened evidentiary req is legitimate to safeguard personal element of choice over life/death. Better safe than sorry approach to risk of error. - Scalia concurrence this is a murky area in which court should stay out of - Washington v Glucksberg court found that the asserted right to die is not objectively rooted in American history and tradition, and therefore not a fundamental right. o Majority emphasizes that the right at issue in Cruzan was forced treatment (a battery) - Schiavo case good example. Who constitutes persons family? (probate court later found that Cruzans had satisfied burden and took out the feeding tube) * Do Cruzan + abortion cases = foundation for right to assisted suicide? See Caseys sweet mystery of life passage Choices re: Guardianship In re A.C. (DCC 1990) in virtually all cases, the question of medical treatment is answered by the pregnant woman, on behalf of herself and her fetus. If the patient is incompetent or otherwise unable to give informed conse, her decision must be ascertained through substituted judgment. - Substituted judgment: court, acting with the same motivations and considerations of the incompetent, substitutes itself to make a decision for the person.

In Re Guardianship of Kowalski (1991) Sharon K suffered severe brain damage. Lesbian partner T wants guardianship (they had exchanged rings, e/os insurance beneficiaries, lived together 4 years, but Sharons parents unaware). Sharon wants her and partner does well with her, but cant get guardianship b/c of Sharons parents would rather a family friend have it. - Holding: Trial court abused discretion in not giving guardianship to T. T is the best fit guardian, and S wants to be with her. - Casey Charles Article talks about how Thompson couldnt get in to see Sharon right after accident b/c not a family member. Lots of cases where this happens to gay & lesbian couples. Uniform Rights of the Terminally Ill Act permits adult spouse, adult child, parent, nearest sibling to decide. Continuum from sole focus on privacy to sole focus on state interests: Griswold, EisenstadtLawrence..Roe..Casey/StenbergCruzanBowers - Griswold court focused on individual privacy and doesnt talk about state interest - Eisenstadt court promotes interest of individual privacy interest but recognizes state interest - Lawrence demotes issue from fundamental right to liberty interest but highlights importance of autonomy regarding sexual intimacy. - Roe middle ground between individual interest and state interest - Stenberg emphasizes the health exception and individual choice of women but allows for the potential for pre-viability abortion limitations - Casey promoting individual interest but blurs line of when state interest becomes important - Cruzan assumes right of competent individuals to decide to refuse nutrition but doesnt extend it to incompetent persons. (State has high control over the decisions for the latter group with c & c standard) - Gonzalez v Carhart only reviews state interest and assumes an individual interest in privacy right o Same as Gluscksberg - Bowers (overturned) only discusses state rights

II. STATE REGULATIONS OF MARRIAGE


A. CONCEPTIONS OF MARRIAGE
Is marriage a contract (private agreement b/w two people) or a status (public institution regulated b/w the state)? Or both? Maynard v. Hill (1887) Marriage is institution, in the maintenance of which in its purity the public is deeply interested. Marriage, unlike other Ks, cant be modified. Legislature can grant divorces. Court views marriage as more status than contract. Susan Moller Article marriage thought to be contract, but doesnt conform w/ modern contract principles. For example, parties can only have 1 partner and must be opposite sex, cant choose the terms, parties dont have to be familiar w/ terms before entering it. Why People Marry: - have a family - religious reasons - traditions - love - to have children - financial reasons

- societal expectations - economic benefits (health insurance, convey property, tax benefits, entitled to public benefits, joint insurance, unemployment benefits, wrongful death benefits, tort damages for loss of consortium, veterans discounts, social security, medicare benefits) - safety & security - people might think you more suitable for certain jobs, etc - pregnancy - immunity in trials so if criminal its good - citizenship - sex for life - for the wedding - combat stigma - get away from your parents - dont want to be single anymore - international diplomacy

B. IN CONTEMPLATION OF MARRIAGE
Breach of Promise to Marry: - most states have abolished action for breach of promise to marry (those that havent have limitations) w/ antiheart balm legislation - only a few states permit a heart balm action for breach of promise to marry - 17 states and DC allow for tort liability for the art of seduction (when a chaste unmarried woman consent to intercourse in reliance of a mans promise to marry) but express is as intentional misrepresentation. Rivkin v. Postal (2001) P gets involved with married man R music producer. They have a child and began to live together. Her family gave her lots of trouble b/c not married to him s he gives her an engagement ring allegedly to appease her family. Eventually divorces wife, but by time he does Rivkin is no longer living with gf and son. She sues for breach of promise to marry. - Holding: P didnt satisfy burden of proof by producing written evidence of the contract or testimony of 2 disinterested witnesses - state statute requires that the promise to marry be established by either signed, written evidence or the testimony of 2 disinterest parties Gifts in Contemplation of Marriage - since traditionally, Bride pays for wedding, groom for engagement ring, critics say women bear disproportionate burden for broken engagement - common law barred recovery or retention of ring Fowler v. Perry (2005) F&P lived together and had baby. They break up. F wants the money back from her engagement ring. - Gifts can be absolute or condition Engagement rings are generally considered conditional gifts (conditioned on the performance of the act of marriage.) - Most states do a fault based approach where donor gets ring back only if engagement broken by mutual agreement or unjustifiably by donee. (he broke promise) - Minority state adopt no-fault approach that ring should always be returned (purpose is to test permanency, dont want to penalize donor for taking step to prevent unhappy marriage) - Holding: Court adopts minority, no-fault rule. F gets the money back from the ring. Pre-Marital Contracts

Simeone v. Simeone (1990) Catherine was 23 nurse, Fredrick was 39 neurosurgeon. He had way more assets. Night before wedding Catherine signs prenup. During divorce proceedings Catherine says wasnt fully informed about prenup, and terms are unfair. - Holding: prenups are Ks and so should be evaluated by same criteria as any other K enforceable whether you read, whether reasonable, and whether represented by council or not. Reasonableness would undermine parties actual agreement. No duress so the prenup is upheld. - Prenups will be upheld if there is a reasonable provision for the spouse OR it was entered into by both parties after a full and fair disclosure of the general financial position of the parties. - Dissent society doesnt view marriage as mere contract for hire. - This court is only reviewing the contract for procedural fairness and not for substantive fairness. In re Marriage of Shanks Binek v. Binek (2004) Older couple entering both 2nd marriages. He has way more money. She signs prenup, and parties dont commingle their money, but he supports her through the marriage.. After 18 years of marriage, Ruth seeks divorce. Now Ruth has none of her money left. Ted still has $200,000 left. - Court doesnt use UPA b/c state adopted it after their prenup signed, and its not retroactive - Rule presence of independent council not prereq to enforceability - Rule Short notice for prenup signing doesnt alone render agreement unenforceable - Holding: Ruth understood agreement, not unconscionable at time of execution. Enforces agreement. - Unlike Simeone, doesnt see as regular contract and underscores need for special protection UPAA Uniform Premarital Agreement Act 6 prenup not enforceable if party against whom enforcement sought proves that: 1. party didnt execute agreement voluntarily OR 2. agreement was unconscionable when executed and before execution of the agreement, that party: (i) wasnt provided fair and reasonable disclosure of the other partys obligations (ii) didnt voluntarily waive in writing any right to disclosure of obligations of other party beyond that which already provided (iii) didnt have or reasonably couldnt have had adequate knowledge of the property or financial obligations of the other party - adopted in 28 states - supports wide latitude of permissible matters ALI Principles - prenups must meet standards of procedural fairness (informed consent and disclosure) and substantive fairness (whether enforcement would work a social injustice based on a change in circumstances) - rebuttable presumption that agreement satisfies informed consent if 1. executed at least 30 days before marriage 2. both parties had or were advised to have counsel 3. if one of parties didnt have counsel, agreement contained understandable info about parties rights and adverse nature of their interests - prenups increasingly popular, in part, b/c high rates of divorce, remarriage, cohabitation, and delayed marriage age - Before 1970s, courts thought they violated public policy as inducement to divorce - many courts (and UPAA) wont enforce prenups if it would render one spouse a public charge - general rule that prenups cant restrict judicial discretion re: child custody or child support b/c state interest

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- Difference b/w prenups and ordinary Ks: 1. subject matter 2. relationship of parties to e/o (confidential relationship, uneven bargaining power) 3. prenups to be performed in future in context of relationship parties havent started yet

C. REGULATION OF MARRIAGE
Loving v. Virginia (1967) VA had antimiscegination law prohibiting whites from marrying non-whites. White man and black woman cant get married in VA, so marry in DC, then return to VA. - States argument: promote racial integrity, prevent mixing of races, preserve racial pride, equal application. There shouldnt be any federal intervention here. Regulation should be left exclusively to state control under the 10th amendment. - strict scrutiny (b/c fundamental right of marriage and race involved) - Holding: restricting freedom to marry based solely on racial classifications violates EP and deprive Lovings of liberty w/o due process of law b/c freedom to marry is vital right - Takeaway Right to marry constitutionally protected, but unclear if through substantive due process or EP * States didnt remove laws right away after Loving. Alabama as recently as 2000. Even though couldnt enforce it b/c of Loving. Kept it there as a symbol of what the state thinks about it. Zablocki v. Redhail (1978) WI statute said that anyone who had a minor not in his custody that obligated to support cant get married w/o first obtaining court order granting permission. Have to give proof that meeting support reqs and that child unlikely to become public charge. R wants to get married but cant b/c his daughter already getting public assistance. - Strict scrutiny (only when direct and substantial interfere w/ fundamental right of marriage. Use minimal scrutiny when considering reasonable regulations that dont significantly interfere w/ decisions to enter into marital relationship) - Holding: statute invalid b/c violates Equal Protection. Plainly recognizes marriage as fundamental right more clearly than they did in Loving and cites Griswold and Loving in making this determination. - Casey-like approach to marriage recognition of important right but allowance for efforts to regulate by state that doesnt directly interfere w/ exercise of that right - Stevens Concurrence outmoded and overinclusive b/c not taking into account that marriage might improve financial situation. Turner v. Safley (1987) inmates challenging statute saying that inmates can only marry with superintendants permission and for a compelling reason (like pregnancy). - States arguments: necessary for penalogical reasons and security reasons - Holding: goals of marriage unaffected by confinement. Right to marriage is fundamental, even in context of prison. Problem with this statute is also restricting civilians (who do have constitutional right to marry). Doesnt even satisfy rational basis. - Takeaway good picture of how important and fundamental right to marry is, but no further clarification on what standard of review right to marry gets. o Institution of marriage is subjected to significant restrictions upon incarceration but many of its attributes remain (emotional support and public commitment, exercise of religious faith, receipt of government benefits). Enough to create a marital relationship when one party in prison. State Procedural Requirements - laws re: marriage typically fall to states

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number of procedural prereqs that typically apply. Typically licensing reqs, solemnization, waiting periods, blood tests, procedural variations like proxy marriages and confidential marriages. State Procedural Requirements - Licensure: - essentially concerns how marriages are validated or legitimized by state. In absence of legal means of legitimization, various cultural groups have own ways. (ex: jumping the broom) - Every state has its own procedure - Non-compliance can result in criminal sanctions and invalidation of marriage. - Certain consequences where procedural deficiencies. NY case called Reneary v. Reneary which invalidated marriage by religious group. - Certain circs where failure to get marriage license wont invalidate marriage - Justifications: (1) help enforce marriage laws by reqing persons not qualified to marry, b/c of age, health, or existing marital status, to disclose that (2) public health measure that prevents marriages that would be damaging to health of one spouse or produce unhealthy children (3) proof that marriage occurred - Putative Spouse Doctrine - most important mitigation device - recognizes marriage of individual who participated in marriage ceremony in good faith, believed valid marriage took place, and in ignorance of impediment making marriage void or voidable (i.e. age, preexisting marriage) - UMDA 209 Any person who has cohabitated w/ someone to whom not legally married in good faith belief that was married is putative spouse, until knowledge of non legalness terminates status and prevents acquiring any further rights. Rights of putative spouse dont supercede rights of legal spouse or other putative spouses. Allows for spousal support and division of property. o Putative spouse individual who participated in a marriage ceremony in good faith, in the belief that a valid marriage took place and in ignorance of an impedent making it voidable. Carabetta v. Carabetta (CT 1980) couple got married and had 4 kids, but hadnt gotten marriage license. Trying to decide whether marriage void due to noncompliance w/ statutory req, despite solemnization. - Rule marriage that was solemnized, but legalized is voidable, not void. - Policy public policy arg crazy to invalidate long term marriages for no real reason. Would undermine what state trying to do. We value long-term relationships and valid marriages. Variations on some of the Procedural Reqs: - Proxy Marriage at least 1 party represented at ceremony by an agent or proxy (used during war, particularly to legitimize chidren, circumvent immigration laws, prisoners) - Confidential marriages secret marriage purpose is to encourage cohabitants to legalize their existing relationship by avoiding embarrassment from public disclosure of their belated marriage - Marriage by declaration - Marriage by contract - Marriage by tribal customs (Nevada permits) - Marriage by estoppel a man, already in a common law marriage with another woman when he married his 2nd wife, is not allowed to question the validity of this 2nd marriage (as long as the 2nd wife didnt know of first marriage). - Common law marriage (another example of informal marriages) - has roots in ecclesiastical law. - 4 components

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1) capacity to enter into marital contract 2) present agreement to be married 3) cohabitation 4) holding yourself out to world as married couple - UMDA silent on validity of common law marriage - more common when areas of country werent very settled. Wanted to legitimize marriages in areas where no access to clergy members. - In recent times, less popular mostly b/c people now have access, concerns about fraud, desire to protect/encourage formal marriage - Now, 11 states + DC now recognize common law marriages - Should common law marriage be retained? Arguments Against Retaining: Prevention of property fraud. We dont need it because people arent as spread out anymore Administrative reasons like keeping health testing i.e. HIV test, etc. Reasons for Retaining Common Law Marriage: People should have freedom to order their relationships how they want personal autonomy Reliance people used to it and rely on it being there. - Jennings v. Hurt (1989) actress lived w/ and had baby w/ William Hurt while he was still married and claiming to be his common law wife. He signs paternity agreement. Didnt hold themselves out as being married - Holding: Hurt was still married at that time, so couldnt have also been married to J. state reluctant to declare common law marriage unless strong proof and competent testimony. - Couple had lived in SC where common law marriages are allowed. NY abolished common law marriages but gives them effect if they are recognized as valid under the law of the state in which it was supposedly contract (full faith and credit) Void Marriages - Invalid from inception. Either party or 3rd party can challenge validity at any time and in any proceeding - Ex. Substantive defects same sex, bigamous, incest Voidable Marriages - Valid until subsequently declared invalid Can only be challenged by 1 of parties during marriage and cant be collaterally attacked in related proceeding - Ex: Failure to comport w/ AIDS requirements, age State Substantive Requirements: Incest - state interests at stake: - Protection from gene pool from imbreeding - Protection against exploitation - Protection of family from assumption of incompatible roles by some memebers - Protection of societal concepts of decency In Re Adoption of M (1998) married couple adopted 15 yr old girl. 6 years later she became pregnant with child of the husband (her adopted father). Adopted father and 22 yr old girl wanted to get married and dad

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divorced original wife. So now father is natural father and legal grandfather of the child. Dad wants to get adoption annulled so she can marry her dad (NJ statute says no incest marriage). - 2 prong test (1) best interest of child - court doesnt focus much on b/c shes an adult (2) exceptional circs - court focuses on prong 2 and relies on factors like womans willingness to enter into the marriage, the notion that the marriage would be valid but for the adoption (no blood relation), burden that dad/granddad bears in having to wear both hats. - Holding: Annulment allowed - Criticism Does harm to the mechanisms behind adoption b/c the court hinting that they arent really family; also makes you wonder what relationship w/ daughter was like before Bigamy - lack of criminal intent not necessarily defense to bigamy - Enoch Arden statutes person who remarries after disappearance of 1st spouse, w/o knowledge that 1st spouse is alive isnt guilty of bigamy - opponents of same sex marriage think it will lead to legalization of polygamy - Elizabeth Joseph Article talks about how its not oppressive for the women b/c live together as community. Enables women to fully meet career, mothering and marriage obligations State v. Green (Utah 2004) Green is someone who engages in plural marriage for reasons that he says are religious in nature. Has essentially 9 wives hasnt had legal relationship with each of them. Fathered 25 children. Green challenges the statute as unconstitutional and makes arguments under the 1st amendment that it violates free exercise of religion - Legit interest in regulating marriage, and polygamy often goes hand in hand with certain types of abuse, limiting fraud. - Rational basis review because the statute is neutral and of general applicability. - Holding: both facially and operationally neutral cohabit doesnt have religious undertones, it can apply to anyone, so we dont buy that statute isnt facially neutral. ok to burden polygamists, but statute isnt in any way targeting people who practice polygamy for religious reasons. - Criticism: Is state meddling here and imposing its own morality? Nothing to suggest that Green isnt taking care of all these children. Green is in prison State v. Holm (Utah 2006) upheld conviction of polygamist who challenged anti-bigamy statute. Court distinguished Lawrence b/c Holm case implicates institution of marriage (rather than private consensual sexual conduct) and involved a minor Age - all states have minimum age for marriage (most are 18) minors below that have to parental and/or judicial consent - some states allow pregnant minors to marry at younger age - Justifications - Maturity necessary to establish stability - Teens who have nonmarital birth and then marry but then divorce are worse off than those who dont marry - Teen moms more likely to have 2nd birth quickly if they marry - Leads to decreased educational attainment for girls - Teen dads earn less in early adulthood than males who delay parenting until after 20 - Often involve high levels of domestic violence - some states make age void, others voidable

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Kirkpatrick v. District Court (2003) 15 yr old wants to marry 48 year old. Under NM law cant marry, so 15 yr old and mom travel to Vegas where allowed to marry if court says ok and 1 parent says ok. Divorced dad wants the marriage vacated. - Ks argument: statute violates his constitutional interest in care, custody, and management of his daughter since doesnt give him consent or opportunity to be heard - Holding: abortion statutes dont require 2 parent consent. Requiring only 1 parent recognizes that many live in single parent households. Only right K lost over his daughter s right to exercise control over her but has all other legal and social attributes of fatherhood. The law strikes a good balance (requires one parent and a court to ok marriage as in the childs best interest). o Because the right to parent is fundamental, doesnt mean it is absolute. State may limit parental authority. o Right to marry is also fundamental and should rest primarily in individuals with minimal government intrusion. - Other: Sets out nicely conflicts that can come up b/w parents more generally when issues of parenting concerned. Not just a case about age more going on. Question of when should state (if ever) require parents to speak together about an issue.

Fraud & Duress - fraud/duress vitiate consent and serve as grounds for annulment - annulment declares no marriage occurred b/c some impediment at time of ceremony. Divorce terminates valid marriage. - Annulment jurisdiction exists at either partys domicile, the state where the marriage was celebrated or any state with personal jurisdiction over the spouses. Benefits lost by reason of marriage will be re-instated upon annulment. - Divorce jurisdiction rests on domicile. - b/c of policy favoring marriage, many courts apply strict test for fraud where have to show essentials (like willingness to engage in sexual relations or childbearing) to render the marriage voidable. - NY requires that the fraud be material, that the wouldnt have married but for the fraud. Blair v. Blair (2004) couple come together after brief affair few years before. She says child from then is his. She divorces her then-husband. Then Blairs get married and have another child. Turns out she lied about 1st son being his. - Husband wants marriage annulled b/c he wouldnt have married her or seen her again if not for her misrep. Evidence that he questions arose before and he adopted both children - Holding: Not enough for fraud to show that someone lied. Have to show that its material and real reliance and injury here. (husband only showed that he resumed his relationship because of the representation of the childs paternity, not that he decided to marry her because of it) - Fraud requires a showing of the following elements: a representation by a Wife, its falsity, its materiality, wide knowledge of its falsity or ignorance of its truth, wifes intention that the representation be acted upon by Husband, Husbands ignorance of the falsity of the representation; Husbands reliance on the truth of the representation, Husbands right to rely on the representation and Husbands sustained consequent and proximate injury.

MARRIAGE RIGHTS FOR GAYS & LESBIANS


- Lawrence case is probably most important case. Hernandez case from sup readings meaning of Lawrence is very much up for grabs.

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Same Sex Marriage Goodridge v. Dept of Public Health (Mass 2003) Bunch of gay couples challenged inability to get marriage license. - State argument: statute provides favorable setting for procreation, ensures optimal setting for child rearing (2 parents, 1 of each sex) and preserves scars state and private financial resources - Holding: Mass ban on same sex marriages violated Massachusetts Constitution. Marriage has big benefits and fundamental right. Says statute doesnt survive rational basis. Alarms about affect of barring antimiscegination statutes, expansion of rights of married woman and no-fault divorce havent hurt institution of marriage. - Takeaway Groundbreaking decision. Mass became 1st state to permit SSM - Dissent all individuals free to marry, whether or not chooses to marry b/c of sexual orientation isnt courts business. No intentional discrimination against anyone (unlike Loving). Same sex marriage is not deeply rooted within our nations history and traditions Arguments For SSM - Procreation interests we dont bar marriages b/w heterosexuals who cant have children (age, infertility, etc) - could encourage procreation by other means - dont require people to promise to procreate. - doesnt mean that homosexuals will instead enter into heterosexual marriages and procreate so doesnt serve the goal. - Already permit same sex couples to adopt - same sex adoptive parents would benefit, and their children too, from being married - administrative efficiency - Banning SSM doesnt encourage heterosexual marriage. - Civil union structure is separate and unequal. - Stigmatizing to exclude from marriage, which Griswold tells us is the foundation. - Tradition/History argument is overrated. - Same sex relationships no more likely to be fraudulent - Wrong for state to endorse religious beliefs Establishment Clause - Having different names for institutions could still lead to inequality - Antidiscrimination statute not allowing inconsistent with antidiscrimination point weve already adopted. Arguments Against SSM - state has interest in creating favorable setting for procreation. - alternative is creation of civil unions - doesnt deny equal protection b/c all homosexuals can marry just cant marry person of same sex (courts made this argument in response to antimiscegenation laws). - Children benefit from having two-opposite sex parents. - but we havent prohibited same sex adoption so not consistent and shows that this interest not particularly strong. - Marriage is to encourage opposite sex couples to enter stable relationship b/c more likely that their casual sexual relations will produce child. Same sex couples have to affirmatively decide to have a child. - No Due Process violation b/c no fundamental right for SSM. - Concern about fraud college roommates not in committed relationship who want benefits of marriage. Having civil unions is a way of averting fraud. - Tradition weve always done it this way. Why should we change it now? - Religion - Civil Unions might lead to greater acceptance.

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Stigma is totally different from race b/c everyone knows race is suspect classification, but gays and lesbians arent suspect class and dont have same history of discrimination so we dont have to be as concerned here. Allowing SSM would put a real burden on state coffers how do we manage the system? We have interest in maintaining certain uniformity within U.S. as a whole. Recognizing SSM might lead to violence against gays and lesbians.

DOMA Defense of Marriage Act (federal) - enacted 1996 - federal definition for marriage (union b/w man and a woman) and spouse (only person of opposite sex) - states not reqd to give effect to SSM under Full Faith & Credit Clause - so far as withstood challenges to its constitutionality State DOMAs - courts divided on consitutionality - 40 states have passed DOMA statutes that define marriage as being between a man and a woman. Civil Unions - CT, VT, CA, NH NJ and OR have civil unions that give all same benefits of marriage except term marriage - must not be in any other civil unions and must be same sex - Baker v. State (VT 1999) statue constitutional common benefits clause reqd that same-sex couples be afforded same benefits as married persons Domestic Partnerships - Domestic Partnerships important now and fairly common or more so than before. States like Hawaii, ME, WA and DC, and NYC, Chicago, San Fran, Boston, New Orleans, Boulder, Iowa City permit domestic partnerships. - Scope varies and types of benefits varies. Tend to allow limited benefits, hospital visits, health benefits, insurance, wrongful death - No federal benefits - Progression from domestic partnerships which are fairly easy to dissolve, to civil unions which are harder and have steps to dissolve. Then to same-sex marriage. Guest Speaker, ACLU - constitutional claims brought by ACLU in favor of same sex marriage o substantive due process claim (fundamental right to marry) o equal protection (gender based distinction is being applied to heightened scrutiny should be applies. In the alternative, sexual orientation should provoke higher scrutiny) winning on a rational basis review is difficult because it only requires that a legitimate state interest be rationally furthered by the state action. Currently burden rests on the ACLU to demonstrate why there is no rational basis. Under heightened scrutiny, the state would have the burden to show the connection between the interest and the act. Adult Adoption In Re Swanson adoption court approved adoption of grown man by his partner as a way of ensuring that they could receive same rights as heterosexual married couples in estate planning. Unusual case.

E. BEING MARRIED
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Rules & Responsibilities in Marriage John Blassingame Article Slaves experiences with respect to marriage really underscores the public nature of marriage. Decisions about marriages by slaves were typically made by slaveholders rather than the slaves themselves. Couldnt do anything about it when slaveowners separated families (most separated before reaching 6th anniversary) Rich Article notion of marriage as a fairytale choice for many women. She asserts that marriage is not necessarily a conscious choice for women. Bernard Article men need marriage more than women do b/c profit greatly from having wife to help them. Most divorced and widowed men remarry. More wives than husbands consider their marriages unhappy. More women than men in marriages experience psycho and physical anxiety. Wives make more of the adjustments in marriage than husbands. Blackstone Article view of marriage unfavorable for women. Sheds light on some of the more arcane rules. women and men arent real partners. Women could not bring actions for redress w/o husbands, no control over any real property, couldnt possess or dispose of personal property, no right to contract. Only real protection was right of dower. Men also responsible for any misdeeds that wife engaged in. Husbands free to discipline their wives in moderation as they would a servant or a child. Marital Property Regimes 1) common law approach - Most jurisdictions - Husband and wife own all property separately (person who acquires it, owns it unless another form of ownership is chosen). - Most follow equitable distribution at divorce 2) community property approach - Own some property jointly. Each spouse has a present, undivided, one half interest in all property acquired by the efforts of either spouse during marriage. o Except for property that is brought into the marriage and property acquired by means of gift or inheritance (those are considered separate property) - equality is cardinal precept of community property system - 9 states - UMPA imposes sharing rule from beginning of marriage. Permits single spouse to control his/her own property if in their own name. Common law disabilities: - Coverture husband acquired all interest of his wife during their marriage. If a child was born out of the marriage, then the husband was entitled only to a life estate. Wife had no power over property. - Dower wife possessed a life estate in one third of any land of which her husband was seized of at any time during their marriage. Husband couldnt affect this portion without her consent. Duty of Support McGuire v. McGuire (1953) husband not a good provider. Despite having plenty of $, no bathroom, sink, running water. Took forever to get furnace. Wife puts up with this until she gets sick. She seeks support from husband through justice system.

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Holding: adheres to doctrine of nonintervention - state wont interfere while marital relation still intact (Griswold home is protected as private). As long as a couple is living together, it can be presumed that the husband is giving support. Debate: she knew he was frugal should court come in a fix her mistake? She made that choice. But she is ill now not complaining about not having a fur coat. Many feminists criticized this case as being harmful to women. How do you police things if courts wont get into homes (like domestic violence)

Common law doctrine of necessaries duty of support of dependents where both spouses liable for support of family members (also called family expense statutes). allowed merchants to sue husbands for the cost of necessaries that they had provided to the wife. Now courts will say the financially stable spouse is required to cover necessary expenses in some cases, even when divorce or separation is imminent. Constitutional limitations on Sex Stereo-typed Role Assignments Reed v Reed, 1971: SC invalidated an Idaho law that gave preference to men as administrators of estate Craig v Boren, 1976: SC applied intermediate scrutiny to a statute the proscribed different drinking ages for mean and women (statute was invalidated) US v CA, 1996: SC elevated the standard of review slightly and now requires an exceedingly persuasive justification for gender classifications. BUT SEE Michael M v Superior Court, 1981: SC upheld gender classifications that realistically reflect that the sexes are not similarly situation in certain circumstances. Name Selection - historically, always understood that marriage would change females last name. - Now trend for wives to change their name is still strong. Only 2% of women keep birth names after marriage and 5% use hyphenate. Still very common to give child last name of the husband. - 3 approaches to deal w/ name disputes b/w parents (1) custodial parent presumption (2) presumption favoring status quo (3) best interests of child test (majority of jurisdictions follow) Neal v. Neal (1997) couple separates while wife is pregnant. When she files for divorce, asks that her maiden name be restored. Son born and gives him her maiden name and doesnt put fathers name on birth certificate. Divorce is finalized. Court on its own corrects the birth certificate so that childs last name reflects dads surname and mother appeals. - Must give notice to other party when seeking to have childs name changed b/c best interests of child. Case remanded Henne v. Wright (1990) married woman not allowed to name another man as father of newborn, so she names her husband even though not his and theyre divorcing. Another woman wants her later childs surname to match older siblings(she just liked the name no connection to anyone) - Meyer and Pierce dont establish absolute right to make decisions relating to children free from all gov regulation. They establishes a right to make child rearing decisions (such as training and education). Naming ones child doesnt have a relationship to those areas of parenting. - Holding: No American tradition supports extension of right of privacy to cover right of parent to give child surname w/ which child has no legally recognized parental connection. While statue could be tailored more closely, does bear rational relationship to states interest (promoting welfare of children, insuring that the names of its citizens are not appropriate for improper purposes and inexpensive/efficient record keeping). Employment

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To what extent are these conflicts involving work/family informed by attitudes surrounding respective roles of men and women. Bradwell v. Illinois (1873) married woman wanted law license and rejected b/c married woman incapable w/o husbands consent of making legally binding contracts. Also interferes w/ womans traditional role in the family as wife and mother (separate spheres argument). Parenting Williams Article - 1940s there were few provisions dealing specifically w/ pregnancy. - 1960 many employers just fired pregnant ones. - Then 1970 lots of women in workforce even after kids. - In 1974 Supreme Court case said that discrimination on basis of pregnancy was not sex discrimination (so not as activist an approach needed). In reaction to these case, Congress passed Pregnancy Discrimination Act requiring pregnancy to be treated under equality model and has transformed employment policies. PDA doesnt mandate pregnancy leave, but requires employers to treat it the same as other physical conditions. PDA criticized for failure to protect woman discriminated against after the pregnancy. * Will PDA cover infertility treatments? Cleveland Bd. of Educ v. La Fleur (1974) school board forcing women to take unpaid maternity leave once 5 months pregnant. No promise of reemployment, just given priority in reassignment (looking at OH and VA statutes) - Schools arg: firm cutoff dates necessary to keep continuity of classroom instruction. Some teachers become physically incapable of adequately performing certain duties during later part of pregnancy so protecting their health and students safety - Holding: Sweeps too broadly w/ arbitrary cutoff dates that dont have rational relationship to state interest (continuity of classroom instruction between served by letter teachers stay as long as they can). Not equal protection issue, but looks at it as a matter of due process requiring more individual determination. o due process requires a more individualized assessment of when a teacher is physically incapable of performing her job. California Fed Savings & Loan v. Guerra (1987) trying to determine whether statute reqing employers to provide leave and reinstatement to employees disabled by pregnancy was preempted by Pregnancy Discrimination Act of 1978 ( arguing that the PDA requires that pregnant workers be treated the same as other workers, ie no qualified right to re-instatement). Court says its not. b/c not inconsistent w/ it. Geduldig v Aiello, 1974: SC eliminated equal protection as a vehicle for attack on legislation that singled out pregnancy for special treatment (not sex discrimination because statutes allow non-pregnant women the benefits) Balancing Work & Family Family and Medical Leave Act (p.289) - sec 2612 Leave Requirement: sets out provisions of act. You are entitled to leave under the act. 12 weeks of leave per year for birth or son of daughter, placement of kid through foster care, dealing with someone with serious health condition. The hitch is that it is not paid leave. - Both to equalize conditions for men and women and to support balance of conflicting demands of work and personal life

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Findings #5: Due to the nature of the roles of men and women, the primary responsibility for family caretaking often falls on women and affects their working lives more than it affects mens. Allows eligible employees to take up to 12 work weeks of leave a year for serious health conditions afflicting immediate family members. Criticism: mandates unpaid leave meaning many who need it the most cant afford to take it. Criticism: what about gay couples? Unmarried heterosexual cohabitants? A few states extend to domestic partners

Caldwell v. Holland of Texas (2000) C worked at KFC 3 years w/ great record. Then son had emergency ear issues and missed work. Fired w/o being able to discuss her absence. C says violated FMLA. Issue is whether son received continuing treatment remanded b/c SJ was error Malin Article on Fathers & Parental Leave in contrast to many pregnancy policies, the leave is unpaid. When mom and dad trying to figure out who will take the leave, it makes most sense for lower paid person (often female) to take it and the mother as the primary caregiver. Reinforces traditional gender roles. Workplace hostility can also deter fathers from taking their leave. Dike v. School Board (1981) Teacher wanted to breast feed baby. Cant do it on campus, principal wont let her leave. Tried to pump, but baby wouldnt eat. Had to take unpaid leave of absence. Sued school board saying their rules inferred w/ right to nurture her child by breastfeeding - Breastfeeding = most elemental form of parental care intimate to degree of being sacred and so is protected interest. Trial will determine whether schools interests in avoiding disruption and teacher distraction are legitimate. - * strict scrutiny later overruled in favor of balancing test approach More on breastfeeding: - limited fed legislation permits woman to breastfeed on any federal property where women and children have right to be - dif state approaches for statutory protection for breastfeeding 1. exempt breastfeeding from public nudity and other criminal statutes 2. provide affirmative right to breastfeed wherever mothers and babies are authorized to be present 3. protect breastfeeding via civil rights remedies 4. mandate or encourage employer accommodation for breastfeeding 5. exempt breastfeeding women from jury duty

DOMESTIC VIOLENCE
- hard issue to remedy b/c attitude that what happens in home is sacred shielded from outsiders (privacy) Film Defending Our Lives - women getting harsher sentences for killing their batterers. DAs office doesnt have the resources to prosecute abusers but they always have the resources to prosecute women who kill their abusers. - for attys, ethical questions come up about how to draw the line, how aggressive to be, how involved to be with the woman, etc.? Raises some issues about what the line is b/w being a rigorous advocate and being too involved. - what happens when what is recognized as a private marriage becomes public. The Griswold-ian intimate, private home isnt the case anymore. What do you do when this becomes public. Battered womens syndrome is one example of this. Bell Hooks Article - given patriarchy of society, necessary for feminists to focus on extreme cases to get peoples attn, but that exclusive focus leads us to ignore more common cases of occasional hitting

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women less likely to acknowledge occasional hitting for fear that they will be seen as someone in bad relationship term battered woman places primary emphasis on physical assaults and extreme violence. Also strips them of dignity usually sexual relations dramatically altered once hitting has occurred b/c trust broken

Gelles & Strauss Article - the greater the stress, higher likelihood of violence - direct relationship b/w violence in childhood and likelihood of becoming a violent adult. Observing violence b/w your parents is more powerful contributor than being a victim - underneath, are controversies about power - risk greater when all decision making concerntrated in hands of one of the partners - bedroom and nighttime most dangerous DOJ Article - 22% of murders in 2002 were family murders - Most common reason for not reporting incident to police is that it was a private matter and also to protect the offender Battered Woman Syndrome - Theory based on Lenore Walkers research - 3 phase cycle: 1. tension building phase w/ gradual escalation during which batterer displays hostility and dissatisfaction and woman attempts to placate him 2. acute battering incident where batterer explodes w/ uncontrollable rage 3. contrition phase where batterer shows remorse and promises never to do it again - Criticism: - promotes stereotype of women as helpless - inaccurately portrays women as mentally ill and hysterical - doesnt explain that victims respond in different ways - special treatment to defendants in violation of equal treatment and ant discrim ideals - subject to sexist applications by judges and juries - before BWS, battered women commonly used insanity plea - when a battered woman kills, shes at the end of the line and absolutely desperate. Believes w/ good reason that if she doesnt kill, she will be killed - English common law recognized right of husband to discipline wives w/ physical force and interspousal immunity precluded tort recovery - Problems w/ self-defense arguments -1. must use proportional force against unlawful armed force - woman may use lethal force against man attacking w/ hands -2. victim must reasonably fear imminent danger (and precedents developed in bar room brawl context, not bedroom) - man may be incapacitated (asleep or drunk) when the woman finally reacts -3. victim cant have been aggressor - woman appears to be aggressor in fatal attack -4. in some juris, victim must attempt to retreat 1st - husband is lawful occupant of dwelling; majority of jurisdiction have decided that the duty to retreat doesnt apply when the and the victim are occupants of the same house. - BWS tries to overcome above deficiencies by showing why reasonable

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Hawthorne v. State (1982) woman on trial for murdering her husband. Experts witness on BWS excluded. Testimony would have been that b/c suffered from BWS, it was reasonable for her to have remained in home and believed life and kids lives in imminent danger. - Holding: Court orders new trial with testimony allowed b/c jury wouldnt understand why wife would remain, and expert can help with that. - self defense requires a showing that the accused reasonably believed it was necessary to use deadly force to prevent imminent death or grave bodily harm to herself or her children. Testimony re BWS foes to reasonableness of that belief. - Conviction eventually revd - All 50 states admit evidence of BWS, regardless if they follow a Frye or Daubert standard of admissibility o Frye evidence is admissible if it has become generally accepted by scientists in the particular field of study o Daubert (applies to all federal courts and some state courts that have adopted it) evidence may be admitted if it is helpful to the trier of fact and if the methodology is scientifically valid. Duties of Law Enforcement Why Police may not intervene in domestic violence 1. police perception that woman just wants to scare abuser, get him out of house, transportation to hospital 2. family cant afford economic impact of an arrest 3. acceptability of abuse in spouses culture 4. concern that abuser may retaliate 5. criminal justice intervention might lead to familys dissolution 6. concern that prosecutors wont prosecute b/c high attrition rate 7. belief that mans home is his castle 8. difficulty of securing womans cooperation in testifying against him Arguments for Mandatory Arrest 1. societal msg that behavior wont be tolerated 2. immediate relief to victims 3. empowers victim to change situation 4. equalizes position of woman 5. clarifies role of police by giving guidelines 6. decreases police injuries during domestic disturbances 7. ensures equal treatment of perps 8. reduce recidivism Town of Castle Rock v. Gonzales (2005) Woman had restraining order against ex-husband. He kidnapped their 3 kids. Police wouldnt enforce the order. Later that night he killed all the children, himself, and opened fire at police station. Issue whether mom had constitutionally protected property interesting having police enforce restraining order when probable cause of its violation exists - Holding: Enforcement of restraining orders isnt mandatory; there is a tradition of police discretion and the discretion to enforce at a particular time. No due process violation and no property interest in enforcement. - Like DeShaney case (special relationship doctrine advanced- absent a special relationship, the state has no constitutional duty to protect its citizens against deprivation of life, liberty or property committed by private individuals). Cause of action can also arise if the state discriminates in providing protection to the public in violation of equal protection. - Stevens Dissent majority didnt appropriately consider purpose of restraining orders

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Martial Rape - spousal rape more harmful b/c feelings of betrayal, entrapment, isolation common; harder to guard against; undermines womans ability to maintain confidence in forming healthy relationships w/ trust for intimates, humiliation. - DE, OK and SC havent eliminated the marital rape exception. People v. Liberta (1984) H beat wife, so she got restraining order (but w/ visitation w/ their son). He asked her to bring son to hotel and friend supposed to be present. He raped her at hotel in front of son. Statute classified rape as victim being someone not married to perp, but w/ exemption if living apart. Only males can be convicted - Holding: no evidence that marital rape less harmful than other rape. Fails rational basis - Holding: equal protection violated b/c exempts females from criminal liability for forcible rape - A marital rape exception doesnt further marital privacy because this right to privacy extends to consensual acts and not violent sexual acts.

III. DISSOLUTION OF RELATIONSHIPS


A. DIVORCE
England used to be a divorce-less society only way to do it was to seek private bill from Parliament which was hard to do and only possible for the very rich. In New England, legislatures were a little more lenient. With independence, some changes. - South generally adhered to anti-divorce - Courtroom divorces became the norm in northern states. - some states at the time trying to expand grounds on which divorce could be obtained. What followed was a real struggle b/w those who thought divorce laws should be broader and those who didnt By 1950s, you see divorce rates being very high likely b/c of stresses put on families by WWII. Then stabilized, and then rose again in the 1970s. No real decline seen until 1998 where divorce rates went back to what they had been in early 1970s. Why do people want to get divorced? Some people say breakdown in family. Others say its a result of changes in general. Some say change in sexual mores.

Bohannon 6 Stations of Divorce Article 1. emotional divorce deteriorating marriage 2. legal divorce 3. economic divorce money & property. parties lose economies of scale. Easier to run 1 household with twice as much money than 2 with half as much. 4. coparental divorce deals w/ custody, single-paertn homes, visitation 5. community divorce changes of friends and community 6. psychic divorce regaining individual autonomy Hetherington Good & Bad Marriages Article - pursuer distancer marriages 1 spouse wants to confront and discuss problems and feelings, while other wants to avoid confrontations, denies, or withdraws - most problems for W - most problems for H

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disengaged marriages couples share few interests, activities, or friends. Low conflict, low affection and sexual satisfaction - most problems for W operatic marriages extreme emotional arousal intensely attracted, attached, volatiele frequent fighting and passionate lovemaking - less problems for W cohesive individuated marriages yuppie feminist ideal. Equity, respect, warmth, mutual support, both partners retain autonomy to pursue own goals and own friends - fewest problems for W traditional marriages husband is main income producer, wife is nurturer - fewest problems for W

Fault Based Grounds - Adultery - Gender bias used to exist: to prove adultery against men, have to show a pattern of conduct, for women, only had to show one incident. - At common law, adultery could only be with a married woman. Today, it focuses on intercourse with someone that is not your spouse. - caselaw splits on whether same sex acts count as adultery for purposes of divorce Lickle v. Lickle (1947) H is appealing from the divorce decree. Theyd been married for 30 years. H taking up with married woman whose husband had been overseas. H denies it. - Burden on complainant to show by clear and convincing evidence that o (1) opportunity to commit adultery and o (2) disposition to commit - Divorce decree stands Note: NY is reliant on fault based divorces. - Fault: cruel and inhuman treatment; abandonment for a period of 1 year; confinement of for 3 or more years after marriage; adultery - N0-fault: legal separation (judicial decree) for 1 or more years; written agreement of separation (doesnt have to be judicial) followed by a period of non-cohabitation for 1 year or more. Hall & Fincham Article - infidelity leading cause of divorce Fault Based Grounds Cruelty - most common allegation - Types of things that have been deemed cruel: denial of sex, insistence on birth control, physical abuse, homosexuality Muhammad v. Muhammad (Miss 1993) H&W moved to Islamic community. W didnt like. After few years, ran away w/ kids. Claims the practices in this community were abusive and hampered her quality of life enough that she thought she had grounds to abandon (women werent allowed to leave compound. Meals restricted. Mail censored. Very regulated community. Women reqd to breast feed, allegations of physical abuse) - Have to show adverse health effects AND a course of conduct of cruel behavior. - One instance of physical violence might not be enough. Conduct must be habitual so that its recurrence may be reasonably expected whenever occasion or opportunity presents itself. - General meanness doesnt suffice - Affirms divorce

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NY has strict reqs for proof of cruelty need course of conduct and adverse effect to physical or mental well-being. Reflect historical concern re: preventing easy divorce Fault Based Grounds Desertion - Ground for divorce in 27 jurisdictions, including New York - Requires cessation of cohabitation w/o cause or consent, but w/ intent to abandon, for statutory period of time o Subsequent intent formed after separation will suffice - Constructive desertion = intolerable conduct by one spouse toward innocent spouse causing innocent to leave abode - Illustrates the notion of emotional divorce (wife claims that husband was emotionally distant) Reid v. Reid (1989) Reeds marry in 1965. H happy, W cited sexual inactivity, Hs excessive work, lack of intimacy, no help w/ kids. Counseling didnt work. She leaves. H says desertion, W says constructive desertion. - Holding: W did intend to desert. Gradual breakdown in marriage relationship, but fact that she filed for divorce within 2 months of separation shows intent to desert and means no spousal support - Legislature eliminated fault as a bar to spousal support in all cases except for adultery. Other grounds Fault (not especially common) - Willful non-support of ones wife (RI) - Criminal conviction or imprisonment (AL) - Drunkeness and drug addiction - Impotence - Insanity Fault Based Defenses Recrimination: - Equal guilt of complainant bars right to divorce (must come into court w/ clean hands) - Largely abandoned and rarely successful - Justifications - makes divorce more difficult so promotes marital stability - deter immorality since spouse less likely to commit adultery etc if knows may bar from seeking divorce later - protects Ws economic status - prevents people who are poor marriage risks from being freed to contract and probably ruin another marriage - Parker v. Parker (1988) W has beauty shop on property. H spies on her, causes her to go out of business, alleges shes having an affair, when he actually is. - Holding: justifications above impractical and not modern. Marriage has deteriorated to there being no marriage Condonation: - Def: spouse who has once condoned a marital transgression by mate is then barred from using it as grounds for divorce. - Some courts limit application of the defense to adultery - Haymes v. Haymes (1996) long marriage. Then H started refusing sex and moved out couple years later. H adulterous. Divorce started. Attempted reconciliation. Now want to throw divorce based on abandonment out since they lived together again briefly.

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- courts should examine the totality of the circumstances around the reconciliation (was it entered into w/ good faith, was it successful and who initiated it) Rule effort to reconcile meaningless w/o good faith - Rule cohabitation and/or sex alone insufficient to invalidate a separation agreement or claim to divorce. - Holding: Short period of cohabitation doesnt amount to condonation of cruel and inhuman treatment asserted Criticism: practical effect is do-or-die on innocent spouse in hour of crisis. Must decide immediately whether to leave or continue to try and forfeit right to dissolve if doesnt work out. Penalizing effect of rule is to trap in bad marriage parties who made laudable, though unsuccessful, attempts to reconcile

Insanity serves as both a grounds for divorce and a defense. Connivance express or implied consent to misconduct alleged (generally used when condonation only applies to adultery) Collusion idea that couple commits some marital offense in order to get a divorce. - Differs from connivance b/c has to be action on part of both spouses, not just one No Fault Divorce - all states have some form of it, but considerable variation. They simply added a no fault grounds to their statute, creating a hybrid regume. - common models are CA version and UMDA - Began in Cali around 1970. - California Model - Justifications were high divorce rate, adversary process created too much hostility, acrimony, and trauma, recognition of inevitability of divorce for some and allow them to move on - dissolution should be granted when legit objectives of marriage destroyed and no reasonable likelihood that marriage could be saved - grounds were irreconcilable differences or incurable insanity - UMDA Model - focuses on irretrievable breakdown and notion that parties lived separately for at least 180 days - NY: - unilateral no fault divorce unavailable Living Apart - States have very different rules. Some states say living in separate bedrooms is enough, some say separate addresses, Ohio requires some proof of living separately for requisite time period. Some states have shorter time period if mutual consent to separate, but longer if there isnt agreement. In NY, the fact that you have merely cohabitated, doesnt destroy the meaningful period of termination. Bennington v. Bennington (1978) parties who were married for 30 years, no children. At year 17, wife has terrible stroke and is left totally disabled. Paralyzed, cant conduct most of normal activities, including sex. Husband has to take care of her and he gets frustrated. Complains about her keeping house too warm, bolting the door, becomes too much for him and moves out. Starts living in a van adjacent to the house. But he continues to take care of the wife. Does that equal separation? - Holding: living in van next to house not living apart for purposes of statute b/c no cessation of marital duties and relations. May have been apart physically but not in marital sense - Criticism: This case showing that if you want a divorce you have to stop caring for the other party, which doesnt seem to make sense or be a goal we want. Dont want to discourage good-will by parties, especially if there are kids involved. What if not financially able to leave home?

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Role of Fault in No Fault: Feltmeier v. Feltmeier (2003) married 11 years and then get divorced. After divorce, the Mrs. Sues her exhusband for IIOED. Complaint alleges that he repeatedly demeaned her, physically abused her during the marriage and stalked her afterward. - Holding: bad behavior just shouldnt be tolerated, whether in a marriage or not. On question of whether of not youll have frivolous suits, there is a such high standards of proof reqd in this context. No redundancy b/c no other similar suit can be brought in Illinios. Covenant Marriages (Louisiana) - couples can choose covenant marriage where sign declaration of intent that have gotten premarital counseling and promise to seek marriage counseling if problems - divorce permitted only for adultery, felony conviction resulting in death or imprisonment, desertion of at least 1 year, physical or sexual abuse of spouse or child, or 2 year separation w/o reconciliation - worry that might put undue burden on right to make decisions regarding family life Access to Divorce Boddie v. CT (1971) CT welfare recipients challenged state statutes reqing payment of $60 in fees and costs to commence a divorce action and claim in their suit that the reqment was unconstitutional. - Holding: Access to divorce implicates due process b/c state has monopoly on divorce b/c no one else can grant and marriage extremely important - Landmark case even though the case is about divorce, court looks at the importance of marriage. Pro Se Divorce - rise in no fault means growth of pro se and diminished role for lawyers - concerns about unauthorized practice of law (self help kits) - creates difficulty for judges who have to decide how to assure fair trial w/o compromising neutrality Aflalo v. Aflalo (1996) Orthodox Jews where H refuses to get a get which is necessary for a Jewish divorce. W trying to get court to make him b/c w/o it she cant remarry in eye of Jewish Law - a law that could affect the free exercise clause of the C must have both a secular purpose and a secular effect (beyond disagreement with a religious tenet or practice). This statute at bar is an intrusion on into the freedom of religion. - Holding: May be unfair that H can refuse to provide the get, but that unfairness comes from Ws own religious beliefs. She agreed to enter into the ketubah and be obligated by those laws, and the court cant remedy it b/c would involve court in religion NY Get Statute part of NY domestic relations law providing that no final judgment can be obtained unless party bringing action has already taken any steps within their power to remove any barrier to others remarriage. In 1982 amended to allow judge to look at effects of barriers to remarriage in post-divorce property determinations Role of Counsel Guest Speaker ADR Specialist - NY is one of the most contentious place to get divorced in country. A lot of that has to do with way law is written. NY family law is a disaster. - NY doesnt have no fault divorce. - so much of the law is non-determinative (no formula). Substantive law gives the judges an enormous amount of discretion.

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- very vague standard for custody best interests of the child other states have presumptions of joint custody that can be rebutted, primary caretaker standard so you pretty much know if youre the one whose been raising kid youll get it. Those arent necessarily better, but lead to less litigation. Litigation often leaves legacy of wrecked relationships and impaired future dealings. Bitter aftertaste where everyone feels he or she has lost. Hes never seen a divorce litigation where someone came out feeling like a winner. 3 levels of conflict: 1) position: I want the house 2) interest: why do you want the house? 3) solution: - always probe underneath the position the kids with the orange example Mediation model: you have mediator, parties, then the attorneys. The parties communicate with each other, the mediator, and their attorneys. Law is one of many factors you can look at. - This doesnt work for everyone. Wont work in domestic violence situations. If any indication of DV, dont do mediation. - Also wont work well with power imbalance b/w the parties. - have to be careful in advising your clients where to go. Judicial model: you have the judge, the attorneys, then the parties all surrounded by the law. The communication is happening b/w attorneys and judge only Collaborative Law: Parties dont want to do mediation for some reason and know they dont want to go to court. Then the parties sign contract not to resort to litigation agreeing that attys there to do a deal for the parties, and if negotiations should break down, the parties cant go to court with those attys. Theres no mediator, but can call one in if need to. Law plays more or less the same role as it does in mediation in that one of many factors you can look at. Lawyers and parties all communicating with e/o - 16 years ago, no one had heard of this, but burned out litigator invented and it spread

Kressel Article - attorney often in position of being bearer of bad news - can be conflicts of interests - lawyers get paid more if they litigate - husbands generally pay Ws legal costs so may be having his fee paid by other side - 6 Roles of attorney 1. Undertaker thankless and messy job 2. Mechanic trying to get what client wants 3. mediator 4. Social worker 5. therapist 6. moral agent Moses v. Moses (1975) Lawyer trying to get reimbursed for fees for representation of needy W, but it was the H who had to pay lawyer bill. - Holding: Counsel has obligation to control excessive demands on his tiem, energy and intellect if other spouse will be paying the bill. Florida Bar v. Dunagan (1999) Lawyer who helped with real estate for couple later represents husband in divorce. - Holding: Lawyer cant represent conflicting interest unless client consents

Financial Issues Upon Dissolution of Marriage


end of marriage gives states significant opportunities for intervention in matters left up to private resolution in intact families

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Consequence of no fault has been that guilty spouse can now just get a divorce, which reduces bargaining power of innocent spouse (often wife) who will get less now in the settlement. Even if fault has no role in the actual divorce, what role should it play in property division? 3 systems to divide marital assets at divorce o Separate property courts determined who owned the title to the assets and returned that

property to the title-holding spouse (ignored the financial and non-financial controbitions of the non-title owning spouse.
o o Equitable distribution Community property

Property Division Ferguson v. Ferguson (1994) H contesting trial courts award of half interest in his pension plan to W of 24 years, says its his b/c based solely on his efforts. - Rule fairness is prevailing guideline in marital division - Holding: Rejects title theory and adopts equitable distribution. Upholds award of pension fund b/c wife contributed to marriage as homemaker. - Takeaway most states adopt equitable distribution by statute, but Miss did it judicially in this case - In an equitable distribution regime, chancellors should look at: o Substantial contribution to the accumulation of the property o The market and emotional value of the assets o Tax and other economic consequences of the distribution o The parties needs o Any other factor in equity that should be considered Equitable Division - often treats income or appreciation from separate property as marital property - applied by the majority of states, including NY Uniform Marriage & Divorce Act 307 Disposition of Property (p.601) - used the definition very common in community property systems, recognizing some property as separate and other as marital. - Factors for court to consider: - duration of marriage - prior marriage of either party - prenup - age - health - station - occupation - amount and sources of income - vocational skills - future opportunities of each - contribution or dissipation in acquisition, preservation, depreciation or appreciation in value of estates - value of spouse as homemaker - Most states use this model - Reflects American Rule where assets traceable to separate property are treated like separate property (i.e. appreciation and income from it) - Deferred community property model (not until marriage dissolves to you begin to consider something as marital property) with LOTS of judicial discretion.

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Alternative A: - uses hotchpot approach in that it authorizes division of all property irrespective of whether it was acquired during the marriage or through marital efforts. Not at all concerned about fault. Thinking is that it would make it easier for courts to just look at property. - dispenses with fault and simply looks at ALL property and determines an equitable way of distributing it Alternative B: just for community property states. Says courts can only divide community property not separate property acquired before the marriage. Community property approach only community property will be divided- separate property not considered

ALI Recommendations 4.12 - durational factor really comes in strongly. This model is designed to do justice by assigning separate property to become marital property over time. - claims to reflect reasonable expectations of spouses b/c after while you think of assets are available for joint retirement, medical crisis or either spouse, or other personal emergencies - hotchpot approach b/c after awhile you dont see your property as separate - Allows for separate property to become marital property over time (partnership theory- the more you invest, the more you get upon dissolution) o each state determines how long a marriage must exist to trigger a higher percentage of property division. o Can avoid application of this section to gifts or inheritances received during marriage by giving written notice of that intention to the other spouse within the time period following the propertys receipt. o Doesnt apply to property if the preservation of the propertys separate character is necessary to avoid substantial injustice. ALI 4.09 - presumption of equal division of marital property. Disregards fault in part to achieve predictability and facilitate settlement o only financial misconduct with marital assets will be considered. Title Theory common law scheme where title of property determines ownership. Property acquired or earned during marriage belongs to acquiring or earning spouse. Hybrid System court distributes nonmarital property only after distribution of marital property, if equity demands

Spousal Support
Various theories for support or alimony: - need idea is that award of support places the obligation to provide that support on the party who has decided to share the pleasures of that spouse by entering into marriage. But what is a necessity? It is bare necessities, or maintaining standard of living, or rehabilition to be able to take advantage of opportunities previously foregone. - lost compensation Feminist scholars say need basis fails to take into account contributions woman has made in return for foregoing opportunities. Lost compensation is way to internalize that investments and payments arent symmetrical over time.

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- breach of marital contract entitling non-breacher to get restitution relies to some extent on notions of fault. Treats marriage as a contract/ partnership and provides maintenance to the spouse that didnt breach. - equal income sharing conscious effort to achieve equality b/w spouses who have divided their labors during marriage. Idea is that should be a truly even division during marriage. Mani v. Mani (2005) couple worked together for longtime and retired in 40s to extravagant lifestyle. Most of money came from Ws stock from before marriage. H had affair, & W wanted divorce. H wants alimony (a lot). - Rule To extent that marital misconduct affects economic status quo of parties, it may be taken into consideration in calculation of alimony. Where marital fault has no residual economic consequences, it cant be considered in alimony award. Exception for egregious fault (giving your spouse a disease). o Economic misconduct is what is relevant to the question of alimony. Non-economic fault is almost impossible to calculate. - Factors to consider when determining alimony: actual need and ability of the parties to pay, the duration of the marriage, age, physical and emotional health of the parties, the standard of living established in marriage and the likelihood that each party can maintain a reasonably comparable standard of living, the parties earning capacities, the equitable distribution of property ordered, etc. - Holding no allegation that James marital fault had economic consequences or was egregious so remand to consideration of alimony w/o regard to fault - Dissent stupid distinction b/c you can easily argue marital misconduct affected the parties economic life UMDA 308 Maintenance (p.610) reasonable needs approach (not a standard award). (a) court may grant maintenance only if it finds that spouse seeking it: 1. lacks sufficient property to provide for reasonable needs 2. unable to support himself through appropriate employment or has custody of child where conditions make it so not required to seek outside employment (b) no regard to marital misconduct and must consider all relevant factors including 1. financial resources f party seeking maintenance (marital property, ability to meet needs independently, provision to child living w./ party 2. time necessary to acquire sufficient education or training to enable appropriate employment 3. standard of living during the marriage 4. duration of marriage 5. age and physical and emotional condition 6. ability of spouse who would provide maintenance to still meet own needs - UMDA makes maintenance remedy of last resort only when reasonable needs remain unmet b/c of absence of sufficient property or income from appropriate employment - ends once the party can provide for themselves; not meant to be permanent. - Criticized by Weitzman as unrealistic and partly responsible for economic harm suffered by women and children from no-fault divorce ALI 5.04 Compensation for Loss of Marital Living Standard (p.610) lost compensation approach (1) when significant wealth disparity or earning capacity, less well off person entitled to compesnaton for portion of loss in standard of living would otherwise expect, if marriage was sufficient duration, most treat loss as spouses joint responsibility (2) presumption of entitlement when specified duration and spousal income disparity (3) state should set presumptive award of periodic payments by applying specified % to difference b/w the incomes (durational factor). % should increase w. duration of marriage until it reaches maximum value set by rule - Presumption under 5.04 that spouse entitled to award when married 5+ years. And spouse with income 25% greater than theirs. Capped at 40 yrs.

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- this approach allows for greater predictability - person married to someone of significantly greater wealth or earning capacity is entitled at dissolution to compensation for a portion of the loss in the standard of living he or she would otherwise experience when marriage was of a sufficient duration. Rutherford Income Sharing approach - add the incomes of former couple and divide total equally among all those to be supported - exception if spouses didnt divide labor b/c not married long enough or b/c didnt have children. - promotes norm of family sharing and caring w/o reliance on fault *** even if economically dependent spouse need support after dissolution, why is it the former spouses responsibility rather than parents, children, state? *** - SC invalidated gender specific alimony rules in Orr v Orr Applying Theories of Property & Support Michael v. Michael (1990) married for 15 years, no kids, they followed the wifes career. H worked a bit, but then homemaker, but not very good. - Holding: Court remands to get a more even divide of assets b/c though the hubbie didnt do that great as a homemaker either, he was employed for 1/3 of the marriage and would need maintenance to get skills to go back into the workforce - Rule maintenance is awarded when one spouse has detrimentally relied on the other spouse to provide the monetary support during the marriage o if the relying spouses withdrawal from the marketplace so injured his or her marketable skills so that he or she is unable to provide for their reasonable needs, then maintenance may be awarded o rehabilitative maintenance is appropriate when there is substantial evidence that the party seeking maintenance will or should become self-supporting. Rosenberg .v Rosenberg (1985) rich people-he cheated a lot. W great homemaker and entertainer for his business. She develops alcohol problems, has a psychotic episode. She filed for dissolution, and got a large monetary award, including money he had tried to transfer to his new wife, alimony, half the house, as well as assets from his benefit plan - Stock treated as separate property b/c he didnt control it - W gets a lot in recognition that spouses who dont work outside home often do a lot in supporting the relationship - Dissipation: H tried to dissipate marital assets by loaning money to mistress. Most states treat as loan and say it should have been counted as marital property. - ALI 4.10 dissipation must occur within specific period of time *** support and equitable distribution are distinct concepts, but together are entire field of financial settlement in divorce. So where one expands the other has to recede *** Changing Circs - most attorneys ask for $1 to leave open that there may be a change of circ later. Lucas v. Lucas (2003) H wants to stop paying spousal support b/c W in de facto marriage w/ another man - Rule primary standard for whether court should modify award is substantial change in circs - Need financial evaluation comparing financial status and parties needs at time of divorce when original award made and now, taking into account effects of the de facto marriage. - Courts can choose not to reduce alimony given the potentially unstable nature of a de facto marriage

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Courts must make a factual investigation as to the financial circumstances of the de facto marriage to determine the recipients continuing need, if any, for support.

UMDA 316(b) unless otherwise agreed in writing or in decree, obligation for maintenance ends upon death of either party or remarriage of party receiving maintenance - many states follow - NY explicitly provides for modifications if one party re-marries or co-habits. - other states give court discretion to decide whether recipients remarriage warrants termination

Special Issues
Bankruptcy - one way to secure obligation is to impose a lien on obligors property in favor of oblige - 3 most prevalent reasons for bankruptcies are job loss, family dissolution, and health problems In Re Werthen (2003) Divorce decree awarded W child support and alimony until their death or her remarriage. 90 days later H files for bankruptcy. W trying to make sure that past bonus and stock awards werent subject to discharge. - Court acknowledges the bankruptcy statute is bad. - Alimony could be altered, but property division could not. Here, alimony was given in lieu of property, leaving the wifes interest vulnerable where if the property were divided, it wouldnt have been. - The court looks to whether the award was meant to assuage need, the language of the court, to see what the awarding court intended - The court concludes that there should be an elimination of the split between alimony and support for bankruptcy purposes - This was later simplified to Domestic Support Obligations not being dischargeable under the BAPCPA 2005 act for chapter 7 voluntary bankruptcies, though not for other types family home is usually biggest asset a couple has, court might order the house sold so that they can split the proceeds. However, when children are involved, this could be unfair to them, so courts are starting to give the house over to whomever has custodial support. Pensions & Employee Benefits: Bender v. Bender (2001) Upon divorce, no real assets despite H making a lot of money, so W given interest in his pension. H arguing that not property subject to equitable distribution. - Holding: Interest in unvested pension benefits not mere expectancy, but rather, a presently existing property interest subject to equitable distribution - * this is majority rule 3 Approaches to valuing pensions

1.

present value approach: whats it worth now, which effects the continuing of economic ties and continuing involvement of the court, but risks a loss to one side if the pension never vests-only where there are sufficient assets to offset this risk is that feasible 2. present division method: determine the percentage at the time of trial that a spouse will get when the pension vests 3. reserved jurisdiction method: the trial court waits to decide until the benefits have matured-serious probs with holding second hearing that requires witnesses

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Investments in Spouses Future Successes - most courts and ALI reject Ws claims that degree = marital property - ALI rejects treating earning capacity as divisible property bc anything can happen to the working spouse to take that capacity away-instead it proposes compensatory spousal payments for actual contributions made - argument that spouse who is capable of supporting someone thru school can support herself after, but wealth of marriage also depleted by cost of professional degree leaving few assets to divide - NY takes minority stance that degree and professional licenses are subject to equitable distribution (supporting spouse gets equitable portion of property based on present value of enhanced earning capacity of spouse) - Goodwill can also be considered marital property, but only usually if its considered distinct from the individual - those that take a flexible approach and consider degree as marital property: o cost value approach court calculates the supporting spouses contributions (including services) during marriage o opportunity cost approach court considers income sacrificed because the student spouse attended school instead of working o return on investment theory compensates the supporting spouse according the the present value of the student spouses enhanced earning capacity. In Re Marriage of Roberts (1996) Couple gets divorced right before H graduates law school. - Holding: Hs law degree not considered marital asset subject to distribution. Hs loans are included in valuing marital estate, but H solely responsible for their repayment.

Separation Agreements
most settle their financial issues themselves and submit agreement to court for approval separation agreements used to be held to violate public policy (perhaps transition from fault to no-fault helps) without judicial decree, agreements have weight of contracts

UMDA 306 Separation Agreement (p.716) (a) to promote amicable settlement parties can enter written agreement for distribution of property, maintenance, support, custody, and visitation of children (b) agreement binding on court unless unconscionable (c) if unconscionable, court may request parties to submit revised agreement or make orders itself (d) if not unconscionable, but not satisfactory, 1. parties ordered to perform them OR 2. if not setting out terms, identify agreement and say court has found the terms not unconscionable (e) terms enforceable by all remedies available for enforcement of judgment (f) except for support, custody or visitation of children, decree may preclude or limit modification of terms ALI Principles - formulaic approach designed to enhance predictability - middle ground short opportunity to challenge terms after experiencing agreements operation - requires parties to opt out of default rules that would otherwise govern Unmarried Couples Rights at Dissolution - not everyone is married when dissolve or has right to marry - ALI applies same rules to financial claims of domestic partners (same or opposite sex) as to marial couples at dissolution (p.396)

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Marvin v. Marvin (1976) Lee Marvin was a big time actor and Michelle an entertainer. Cohabitated for 7 years but never married. Michelle left her career and takes care of household. When they break up, Michelle says they had express oral agreement to share all of the property they accumulated during their relationship. He disagrees - Lees arguments: oral agreements should be against public policy. The agreement would effect his former wifes community property stuff. Should be barred by statute b/c claim she was attempt to resurrect the now-defunct common law breach of promise to marry action. - Holding: couples can contract with each other so long as not for sexual services. Didnt buy his prior wifes community property award. Not persuaded by the breach of promise argument. - Rule so long as agreement doesnt rest on illicit meretricious consideration, parties may order their economic affairs as they choose and no public policy reason not to enforce (especially considering prevalence on non-married cohabitation - court really looking at it more like a contract than a married couple A few courts refuse to recognize agreements b/w cohabitants. - Hewitt v. Hewitt held themselves out as H&W for 15 years and 3 kids. Court reasoned that recognizing cohabitation property rights would equate cohabitation w/ abolished doctrine of common law marriage and undermine marriage Alternative to Divorce: Annulment of marriage (void marriage incestuous, bigamous, solemnized by unauthorized officials) (voidable marriage underage, lacks sufficient understanding to consent, physical incapacity, manifests force, duress or fraud to secure consent, incurable mental illness for at least 5 years) OR Judicial separation (will be granted for cruelty, abandonment, nonsupport, adultery, incarceration)

CHILD SUPPORT
- These child support guidelines essentially create rebuttable presumption of correct amount of child support. - ALI 3.05 (8) treats family home by custodial parents as form of additional child support - federal law requires state child support guidelines to allocate health care costs 3 Approaches: 1. Income Share Model - most popular approach used by 35 states including NY - rely on chart listing combined parental income allocated for child support at different income levels, which parents divide in proportion to their incomes - flexible - Criticism: may reduce incentive for custodial parent to increase her work effort b/c may lower child support payments Downing v. Downing (2001) W got sole custody. Hs income increased a lot and now she wants more child support. - Holding: Court rejects share the wealth approach b/c increase in child support above childs reasonable needs primarily accrues to custodial parent and gives them power over discretionary spending for kid (3 pony rule). - Rule Court can take addl resources into account, but large income doesnt require noncustodial parents to support a lifestyle he doesnt approve of 2. Percentage of Income Model - 14 states

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- allocates fixed fraction of noncustodials income for child support - praised for simplicity - Criticism: requires non-custodial parent to pay same amount whether they earn nothing or equal to what custodial parent does. Doesnt take into account what custodial parent can bring - ALI rule builds off this approach 3. Melson Formula - 3 states - pro-rates b/w parents and childs support needs based on net income Modification of Child Support - ALI doesnt recognize general duty of support by stepparents - most jurisdictions dont allow retroactive modifications. Under federal law, no automatic adjustments burden is on custodial parent to initially raise the issue. - While Pohlmann case prioritizes 1st family, some states take 2nd family first approach - Uniform Marriage and Divorce Act applies the same standard for modification of awards for support context and child support context. Pohlmann v. Pohlmann (1997) Former H wants to reduce child support obligation b/c changed circs including his remarriage and 3 new children and former Ws remarriage. - Holding: Fine that statute prioritizes children from first marriage b/c otherwise those children might find their standard of living substantially decreased by voluntary acts of noncustodial parent - Dissent state shouldnt involve itself in divorced parents decision to start new families. This makes noncustodial parents appear as wicket stepparents to own children by requiring new ball gowns for 1st born while supplying hand-me-downs to their later children. - Zablocki burden on marriage When a parent changes jobs: - states take dif approaches - Some look at whether change was in good faith. - Others use best interest standard. - Others use balancing test. - VA case that wasnt assigned where dad walked away from job that would have allowed him to cover his support obligations and wanted modification downward so that he could accommodate support awards with the job that he has. Court said he was still liable for that initial payment. Fact that hed turned down a job that would have paid more was a factor b/c circs were of his own making. - sense is that this issue is very fact based. Enforcement of child support a whole other issue. Afraid that ex going to benefit.

D. CHILD CUSTODY ISSUES UPON RELATIONSHIP DISSOLUTION


Making Determinations Re: Custodial Parents 3 Presumptions 1. Tender Years presumption - that children belong w/ the mother during tender years. Fathers have to present evidence of material unfitness to overcome it.

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- Divine v. Divine (1981) father challenged TY presumption under EP. Court agreed saying it discriminates on basis of sex - TY presumption not used by states now except maybe for very young still breastfeeding or something. While helps w/ predictability, unfair to fathers. - replaced by more gender neutral best interests of child standard 2. Primary Care presumption - that parent who acted as primary caretaker is the best person to receive custody of the child. Seen as advantageous b/c of facial gender neutrality. - Lots of criticism for this presumption as well. Overvalues time for times sake and doesnt give courts opportunity to look into quality of time. Also standard is pretty vague how do you determine who is the primary caretaker - now used as one factor of many in determination of childs best interests 3. parental rights presumption (less used) - that the rights of parents should be respected. Often an undertone in these cases and less often mentioned as explicit presumption. But some refer to it as one of the presumptions. Advantages of having presumption of these sorts? - gives clear standard for courts to apply - ensures that parties know what to expect - avoids costly litigations - corrects for biases against women (Mary Becker might have some issues on how primary caretaker presumption gets applied) Disadvantages of having presumptions? - creates bias in favor of women - puts one party to the action at a disadvantage - doesnt take into account unique circs of families - doesnt adequately address childs interests - vagueness or uncertainty - ALI 2.12(1)(b) prohibits courts from considering gender of parents or child in determining custody - most courts dont factor in childs gender anyway, although some studies show that children awarded to parents of same sex do better - moms still win custody more often - ALI 2.06(1) if parents agree, court should enforce their agreement unless not voluntary or would be harmful to the child. - ALI 2.08(1) if parents dont agree, court should award custody based on allocation of caretaking responsibility prior to separation (looks like adoption of primary caretaker presumption, but differs in a few ways: 1. ALI contemplates spectrum of possibilities (ex: equal allocation of custodial time if parents shared caretaking responsibilities) 2. ALI rule may be rebutted b specific factors such as prior parent agreement, kids preference, need to keep siblings togther, harm to childs welfare, avoidance of impractical custody arrangements, need to deal w/ parental relocation UMDA 402 Best Interests of Child Court shall determine custody based on best interest of child and consider all relevant factors including: 1. parents wishes 2. childs wishes 3. relationship of child to parents & siblings, and other people who may affect his best interests 4. childs adjustment to home, school, community 5. mental and physical health of individuals involved

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Mnookin Article best interest is overwhelming principle in custody. Greater incentive to litigate b/c can always make argument about why youre better. Means cases less likely to be decided alike. Lack of consensus about values that makes standard indeterminate might also make formulation of rules inappropriate Race Palmore v. Sidoti (1984) Mother w/ custody began to live and remarried w/ African American man. - Dads reasoning: mom chose lifestyle unacceptable to dad and society. Kid is school aged and will be subject to environmental pressures not his choice - Rule effects of racial prejudice, however real, cant justify a racial classification removing infant child from custody of natural mom found to be appropriate Before Palmore, Courts adopted 3 approaches: 1. race irrelevant to custody (this is ALI approach 2.12(1)(a)) 2. race could be one factor in consideration 3. race couldnt be used as determinative factor. Policy Does judicial exclusion of race as factor promote best-interests? Or work to childs detriment. Think of with adoption race cases also!! Joint-Custody - based on belief that kid does best w/ frequent contact w/ both parents - legal custody responsibility for major decisionmaking - physical custody childs day-to-day residence and day-to-day decisions about care - States have 3 approaches to JC 1. presumption of joint custody 12 states- where parties agree on issues. 2. Preference for joint custody similar to Bell case 3. joint custody one portion in best interests determination most states - Criticism of JC: stability and minimization of conflict. Healthy emotional dev requires omnipotent parent on whom child can rely for all important decisions, tension when involuntarily imposed, inappropriate when domestic violence, way to reduce child support - Parenting Plans: many states make parents seeking custody file parenting plan specifying caretaking and decisionmaking authority for their children and how future disputes will be resolved Bell v. Bell (1990) Parents had been sharing custody before divorce decree when mom awarded custody. Dad says should have been joint. - Conflict over babysitting is not so irreconcilable that parties cant do joint custody Visitation - visitation not normally conditioned upon payment of child support (example is Turner) - only about half of all custodial parents owed child support receive full amount owed, and even fewer get it on time. need for reliable record keeping - need to consider child support and visitation issues concurrently - need to create and evaluate mechanisms for enforcement of both child support and visitation orders - importance of interventions with divorcing parents to increase communication skills and reduce anger/hostility Turner v. Turner (1995) Dad owed child support and court order said that if he doesnt pay, his visitation rights will be suspended - Rule denial of visitation warranted only when noncustodial parent is financially able to support children by refuses to. Preference is children to have relationships w/ both parents. Concerns about linking the two b/c of liberty interests of the parent in child/parent relationship.

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Troxel v. Granville (2000) Troxels are the grandparent and their son has kids w/ G. When they break up, son brings kids to Troxels, and they develop strong relationship. Son commits suicide, but G continues to bring kids to Troxels for visits for about 6 months, but then says its not going to work and limit visitation to one short visit a month. Troxels seek more visitation under a WA statute, which allowed any person to petition court for visitation at any time and court can grant it whenever it determines that visitation would serve the best interest of the child. - States extension of statutory rights to people other than childs parents puts burden on due process liberty interest of parents in care, custody, and control of their children - Statute too broad because it allows anyone to petition for visitation. - Since G is fit parent, presumption that she acts in best interests of children and normally no reason for state to interject. - doesnt reach question of whether due process requires a showing of harm for visitation award of this sort. Also really avoid question of standard of review to be applied - Stevens Dissent circs contrary to pluralitys view where it would be permissible for court to award visitation under the statute such as disputed custody cases, temporary foster care or guardianship. Lets not give up on the statute. Also disputes the notion that harm should be a prereq for making a determination about visitation. Also says that children themselves may have a liberty interest here that we should be attuned to. * case highlights different forms families can take Before Troxel, states had 4 kinds of grandparent visitation statutes 1. conditioned on related parents rights (derivative theory) 2. based on family disruption (death of parent or divorce) 3. based on best interests theory 4. requiring substantial relationship b/w grandparent and child Child Autonomy - Approaches for consideration of childs wishes: 1. modeled after UMDA, which require consideration of childs wishes 2. require consideration of kids wishes after preliminary finding of maturity 3. require deference to kids preference for children of specified age (usually 12-14) 4. give judge full discretion about whether to consider childs wishes 5. ALI 2.08 courts should depart from policy of deference to primary caretaker to accommodate preference of children of specified age (11-12) with more weight the older a child is. - what about if parent purposely alienates child from other parent? - childs preference more likely to be considered when both parents fit or at least about equal. Serves as tie-breaker McMillen v. McMillen (1992) Mom got custody of son w/ visitation for dad. 4 subsequent modifications where dad got more visitation. Son steadfastly expressed preference to live w/ dad. Court finally switched custody to dad. But then it was revd and dad fighting it. - Rule Wishes of child not controlling in custody decision, but are important factor - Rule Kids wishes must be based on good reasons and must consider maturity and intelligence - Holding: Sons wishes well supported. Doesnt get along w/ mom and stepdad, mom interferes w/ his sports, etc. No abuse of discretion giving custody to dad Representing the Child - Models of Representation: 1. court designated investigator who investigates and makes recommendations to court 2. atty who represents childs wishes (23 states)

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3. advocate for childs best interests 4. facilitator/mediator 5. some combo of above Leary v. Leary (1993) Says error in awarding ex-wife sole legal custody b/c didnt instruct guardian ad litem as to her duties. Court says no - Illustrates how hard it is to have normal client-lawyer relationship w/ the kid. What happens when kid wants what GAL thinks isnt in best interests? Role of Experts: In Re Rebecca B (1994) Mom found out Dad was sleeping in same bed as daughter and petitioned to eliminate dads overnight visits and to require supervised visitation. However, expert said that dad was much better influence than mom, child found him more loving, mother more physical in punishment, mother trying to exclude dad, no suggestion of improper conduct by dad, dad more likely to foster relationship w/ noncustodial parent. - Court goes w/ experts - Case shows example of Parental Alienation Syndrome, where parent tries to alienate child from other parent - Turns out dad was worse, and she ended up going back to mom and never heard from dad again Modification of Custody: - concern about child welfare gives courts continuing power to modify custody orders - Standards for Modification: - standard for modification is higher than for initial awards of custody in order to ensure stability for child. P has burden of showing by POE that conditions since dissolution decree have so materially and substantially changed that childs best interests require a change of custody - Few states have more stringent rules influenced by UMDA 409(b) requiring endangerment for nonconsensual changes. Otherwise, UMDA 409(a) provides for 2 year waiting period following initial decree - Few states have more liberal req that modification serve best interests of child - ALI 2.15(1) & (2) recommends modification if a substantial change in circs on which parenting plan based makes modification necessary to childs welfare or harm to the child Relocation -w/in 4 years of divorce, 75% of custodial mothers relocate - many courts consider good faith of custodial parent as threshold req in relocation cases - issues b/w freedom to travel and whether not allowing parent to move infringes on parental autonomy and family privacy, also EP. - ALI 2.17(1) permits a primary parent to relocate w/ child if parent has been exercising significant majority of custodial responsibility and has legit reason for moving to a location that is reasonable in light of the purpose. Relocation justifies a custody modification only when it significanty impairs either parents ability to exercise custodial responsibilities gcant find another comparable job in CO. Able to get new job in AZ, which is where her dad, brother, sister-inlaw and nephew reside mom trying to modify parenting time so she can relocated. - 3 approaches 1. WY relocating parents right to travel elevated above other interests 2. MN eliminates need to balance parents competing constitutional rights in favor of elevating childs welfare to compelling state interest

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3. NM all competing interests are equal so all share equally in burden of demonstrating how childs best interests will be impacted by proposed relocation. Holding: Court adopts NMs 3rd approach. Decide that son best off staying w/ mom shell be happier w/ job and good to be around extended family

Mediation - broad latitude for divorcing couple to work things out themselves. California was 1st state to require - argument that not good for women b/c unequal bargaining power. Special dangers for domestic violence situations McLaughlin v. Superior Court (1983) statue requires prehearing mediation of child custody and visitation disputes in marital dissolution hearings. Based on this, court adopted local rule that required mediator to make recommendation to court if parties dont agree in mediation and prohibits cross examination of mediator by parties. Counsel wanted protective order prohibiting mediator from making recommendation.

IV. REGULATING FAMILIES: CHILDREN, PARENTS, & THE STATE


A. CONTOURS OF CHILD-PARENT RELATIONSHIP
Child Abuse & Neglect - Privacy is valuable, but comes w/ costs like child abuse and neglect. The more privacy, the easier to conceal it - state intervention can be bad b/c family integrity is broken or weakened and shakes kids belief that parents all powerful. Steele Article (p.876) - common for abusive or neglectful caretakers to have history of significant degree of neglect, w/ or w/o accompanying physical abuse - 4 conditions necessary for abuse to occur: 1. caretaker has predisposition for abuse related to psychological residue of neglect or abuse in own early life 2. crisis of some sort placing extra stress on caretaker 3. lack of lifelines or sources of help for caretaker b/c either unable to reach out of facilities not available 4. child perceived as being unsatisfactory in some way - these factors interact in mutually reinforcing way. In Re Juvenile Appeal Mother of 5s kids in state custody for 3 years. Her 9month old mysteriously died and no one could figure out cause of death. Also apartment was filthy. State took other kids b/c under statute permitting summary seizer if probable cause to believe in immediate physical danger. Turns out baby had viral lung infection. - Best interests of child almost always to stay in home - Holding: it was error to grant temporary custody when no immediate risk of danger to children shown. Statute is constitutional b/c compelling state interest when immediate risk of danger but misapplied here. DeShaney v. Winnebago County Dept of Social Services (1989) dad got custody of son. Son repeatedly in hospital for physical abuse. Child protection team allows him to go back to father, but made monthly visits. Despite more problems, DSS didnt take more actions. Then dad beat him so severely that son went into coma and

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now permanently mentally retarded and institutionalized. Mom arguing that special relationship existed and state had duty to protect him - Holding: just b/c state took temporary custody once doesnt give them duty. Son was no worse off than if they hadnt intervened. State not guarantor of individuals safety b/c once helped him. Harm didnt happen in state custody, happened w/ dad who is not state actor. WI free to create system to create duty, but wont be thrust on them w/ due process clause - Brennan Dissent Boddie showed that states actions may impose on the state certain positive duties * 2 exceptions to DeShaneys no affirmative duty rule: 1. state-create danger 2. custodial relationship i.e. when state takes person into custody against their will - do compulsory school attendance laws create custodial relationship?

PARENTAL AUTONOMY:
Meyer v. Nebraska Pierce v. Society of Sisters Troxel v. Granville (grandparents) Prince v. Massachusetts (1944) Woman and 9yr old niece were ordained Jehovahs Witness priests in community and were supposed to distribute Watchtower magazine. Mrs. Prince generally didnt allow her kids to go out at night to distribute these materials, but she does on one occasion, and is convicted of violating states child labor laws. Mrs. Prince challenges convictions saying they violate her right to freedom of religion and due process clause arguing that her parental rights had been violated. - No showing of harm to child required - Parents can choose to be martyrs but cant make their kids be. Honors the rights of parents but doesnt declare them free from any state intervention. Wisconsin v. Yoder (1972) Amish parents who are convicted of violating compulsory education attendance law b/c they refuse to allow their kids to go to school beyond the 8th grade. They challenge these convictions as violations of freedom of religion - uses balancing test where it recognizes the important interests of the state in educating future citizens and the important interests of parents in making determinations about the upbringing of their kids. - Holding: States interest has to yield to parents. Parents win here. Otherwise, the 2 years in high school will effectively influence or determine religious future of the child. - Avoids deciding whether Amish children have own right to secondary education - Dissent should canvass students individually and let them choose * who you are and what beliefs you hold are more mainstream can affect determinations of what harm is or what risk of harm is. Michael H. v. Gerald D (1989) wife has affair w/ her neighbor (Michael). She gets pregnant and lists name of her husband (Gerald) on birth certificate, but later blood tests show that Michael is likely the father. Wife separates from Gerald and lives with Michael for awhile and then reconciles w/ Gerald. Michael wants to visit the child and prohibited from doing so. Cali law at this time presumed that children born from a married mother were presumed to be children of the marriage - Scalias analysis based on whether we historically protect right of visitation b/w unwed father to married womans kid, which we dont. Policy against making child illegit. Doesnt consider childs liberty interest in maintaining relationship w/ biological dad. - Dissent being too specific w/ tradition analysis. * raises important questions about deference afforded to fathers, particularly unwed fathers * based on assumption that kid can only have 1 father

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Lehr v. Robertson (1983) Court upheld NY adoption statute dispensing w/ notice of adoption proceedings for some dads of nonmarital children. Bio dad never contributed to kids support and only had seen her infrequently. When child 2, adopted. Dad complaining that DP and EP violated b/c Stanley reqd giving him notice. The law reqd notice if Dad had registered w/ putative father registry, be identified on birth cert, lived openly w/ child and childs mother or were married to mother before child was 6 months old. - Holding: Court rejects dads claims b/c hadnt assumed any responsibility for care of child. If he grasps that opportunity, and accepts some measure of responsibility for the childs future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the childs development. - Dissent what if the mom prevents dad from establishing relationship? Takeaway Quilloin, Caban, Lehr cases stand for principle that unwed dad is entitled to constitutional protection of his parental rights so long as he is willing to accept responsibilities of parenthood. AKA the biology plus test. UPA 201 Establishment of Parent-Child Relationship (all on p.472-73) (a) mother child relationship if woman gives birth (except if provided otherwise in gestational or surrogacy agreements) adjudication of womans maternity adoption by woman adjudication confirming woman as parent of child born to a gestational mother if agreement validated under art 8 or enforceable under other law (b) father child relationship by unrebutted presumption of mans paternity of child under 204 effective acknowledgement of paternity by man under Art 3 unless rescinded or successfully challenged adjudication of mans paternity adoption by man consented to assisted reproduction by a woman which resulted in birth adjudication that man parent of child born to gestational mother UPA 204 Presumption of Paternity (p. 473) - 204 is an improvement. UPA 607 Limitation: Child Having Presumed Father (a) unless otherwise provided, proceeding must commence within 2 years after birth (b) proceedins to disprove father child relationship can be at any time court determines . 1. no cohabitation w/ mom or sexual intercourse during probable time of conception 2. presumed father never openly held out child as his own -6 states have adopted new UPA - Old version of UPA had presumption for paternity of married father, but also looked at whether unmarried father held himself out as the father in the same way. Unclear how Michael H would have come out under that older version of the act. Under section 4 of that old act, the presumption could be supported by certain evidence of control. - under revised act, Michael H has an even harder time. - Most states have rebuttable presumption of legitimacy - presumptions probably developed before scientific way to prove paternity

CHILDRENS AUTONOMY

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Emancipation: - ends certain disabilities of minority before age of majority allowing children to free themselves from parental control - Cali Rule: - must be 14, willingly living rpart from parents w/ their acquiescense, managing own financial affairs and no income derived from criminal activity - Gives adult status for legal purposes like parental support, control over earnings, capacity to enter binding contract, make a will, establish residence, enroll in school - In some states, children have to initiate that way parents cant divorce their children to avoid paying support - At common law, becoming a parent emancipates a minor - facts matter. One case where child only living apart b/c not room in the apartment wont emancipate. - Mature minor rule many jurisdictions have exception to common law rule reqing parental consent for medical treatment of minor in that child close to majority can consent if capable of appreciating nature, extent, and consequences of the treatment State v. C.R. & R.R. (1990) 15 year old ran away and state awarded custody. His parents saying that their duty of support ended when he voluntarily left to live elsewhere. They were willing to support him in their home if he abided by their rules. Case remanded Kingsley (FL) child too young to terminate his mothers parental rights, but court held that others could do so and remanded for further proceedings of adoption. Foster parents who wanted to adopt him was party to proceeding. Challenges parental autonomy and states role Divorcing Parents Ryan v. Ryan (2004) Parents who are fighting with teenage daughter about her behavior and friends and decide to send her to boarding school. Judge has connection with her boyfriend, inserts himself as does an atty. - Trial court wrongfully interfered in Ryan familys life on basis of unrecognized claim by atty. No weight given to presumption that parents were fit. Procedural rules designed to protect parents from risk of erroneous deprivation of parents liberty interest in managing their children * Ryan ties in nicely with Yoder, Prince, etc., because talks about extent that family is deeply rooted in tradition and right of parents to control kids education. Exit Rights Ex: Boy allowed to divorce his father who was seriving life term for murdering boys mom. Father relinquished parental rights under a settlement. should children have right to consent or withhold consent when state seeking to terminate their parents rights?

B. SPECIAL ISSUES IN CREATION OF PARENT-CHILD RELATIONSHIP


Creating Traditional Families - 2 types of artificial insemination: 1. (AIH) homologous insemination wife artificially impregnated w/ semen of husband 2. (AID) heterologous insemination wife gets semen from 3rd party donor. In Re Adoption of Anonymous (NY 1973) couple has kid through AID. Later divorced. Wife remarried and new husband wants to adopt kid. 1st husband says no (he has faithfully visited and satisfied support). Now ex-wife and new husband saying dad isnt real parent.

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Holding: child born through AID (donor) should be treated as legitimate child of mom and dad such that any attempt to change parentage has to be consented to by original parents. Going to regard this child as child as marriage, not as child of the donor. many states have similar statutory approach to what court achieves here. 1973 UPA 5 recognizes as father husband who consents in writing to AID performed by licensed dr. and states that donor of semen provided to dr. for AI of person other than donors wife is treated in law as if not natural father. New UPA 702, 704 husbands failure to consent to assisted reproduction doesnt preclude recognition as father, if man and woman during first 2 years of kids life, reside in same household and openly hold child out as own FDA Regulations re: donated reproductive tissue requires testing for specific diseases, including HIV and hepatitis. Also says any man who has had sex with another man in previous 5 years is high risk (means gay men cant donate) Posthumous Insemination: Gillett-Netting v. Barnhart (2004) Husband got cancer, but before started treatment harvested sperm. He dies soon after, and wife uses it to get pregnant. After twins born she tries to get social security benefits based on his earnings. Trying to figure out if twins satisfy requirement of being husbands dependents. - Every child is legitimate child of his/her natural parents. b/c twins are natural children, they are deemed dependent and entitled to insurance benefits. * When should donors be regarded as parents and when shouldnt they be? Clearly he wanted his wife to be able to create children. * common law presumption that children born within 9 months after death of mothers husband are legit, but now reproductive technologies blurring line. Drs can even extract sperm from dead man. * should presumption of inheritance rights arise merely from existence of parents cryopreserved reproductive material? * What about if husband consented to donors sperm before death? - New UPA 707 deceased individual not parent of resulting child unless deceased spouse consented in a record that if assisted reproduction were to occur after death, deceased individual would be parent of the child Hecht v. Superior Court (1993) Decedent willed his sperm to his girlfriend. Adult children trying to get sperm destroyed to protect existing family members from financial and emotional distress - Decedents interest made the sperm property that could be willed and no public policy against insemination of unmarried women or argument by decedents children sufficient to overcome his will. Court allowed release of sperm, but didnt decide if resulting child could inherit as his heir Self Insemination - women have been doing it a long time - AI palces lesbian custody of children beyond reach of governmental regulation and allows women to escape having to share parental rights with men since sperm donor is anonymous. Accelerates power shift from man to woman - AI = literal market that is free and open. Low price for gametes Surrogacy: Field Article - fears - commercialization of childbearing and childrearing, - exploitation of women and poor,

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- attack on our concept of family - explain to existing child why giving the new one away (same as some adoptions) - South African woman gave birth to own grandchildren Baby M Case child was genetically linked to father and gestational mother. No genetic link to intended mother. When it was time for surrogate to terminate relationship w/ baby M she didnt want to do it. Fairly poor and had children of her own, but felt she had developed relationship with child and didnt want to return. Sterns sue to enforce the contract and win at local court. - NJ supreme found K unenforceable as against public policy. Problematic that she had no rights after birth. Contract at odds with notion that parental unfitness should play in. * Now more advanced technology so can do IVF w/ egg from intended mother or from donor, but not egg from woman who will gestate. In-Vitro Fertilization - Catholic church found IVF morally illicit b/c deprives child of being a fruit of a conjugal act in which spouses can become cooperators w/ God for giving life to a new person. - Some data that children of IVF have higher incidence of birth defects - Feminist argument that new reproductive technologies really only there to satisfy mens desires for genetically related offspring - Many doctors refuse to inseminate unmarried women - Some successful challenges to restrictive insurance coverage under ADA for IVF arguing that its a treatment to an illness of infertility. Related issue about whether can deduct costs of fertility treatment as medical expenses on tax return - Should Medicaid provide assistance for poor persons seeking fertility treatment? Lifchez v. Hartigan (1990) Fertility doctors suing for declaratory judgment that Ill statute making it a crime to experiment on a fetus produced by fertilization unless therapeutic to fetus (but doesnt prohibit IVF) is unconstitutionally vague. - Implicates amniocentisis, any time someone doing technique for first time. Amnio was experimental fairly recently and now common. What about embryo transfer? - Unconstitutionally vague and impermissibly restricts womans fundamental rights of privacy to make reproductive choices free of gov interference recognized in Roe and Casey. * whether we should think about liberty interests at stake in this context in same way we thought about them in abortion context. Is there something different about involving the state in becoming a parent. A.Z. v. B.Z. (2000) parties to this dispute each signed consent form for freezing preembryos, but wife always signed last and filled it out. She indicated that at end of day, embryos should go to her if they separate. They divorced and now husband wants them destroyed. - Holding: husband should prevail even if the agreement had been valid b/c he has a right not to procreate that had to be honored. That right outweighed the interest his wife had in procreating. * Casey is helpful in looking at this right not to procreate where 2 people have right to material. Right of a women vis a vis her husband to make choices about her genetic material. Should also think about Roe for this particular conflict. before A.Z., most authorities assumed that agreements would determine disposition of frozen embryos. Without a controlling agreement, courts have balanced progenitors competing interests. Some courts consider last procreative chance A few legislative responses to what to do w/ frozen embryos. Research to help w/ genetic disease

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Issue of attempting to use contract to deal w/ private ordering in the future in other contexts also (prenups, right to die, separation agreements, so why doesnt court allow it here? Right to Die: whats the alternative when someones unconscious? One person making choice for themselves (with baby 2 people deciding), not affecting people who dont like your decision directly K.M. v. E.G. (Cal 2005) woman provided egg to lesbian partner, but agreed that partner would be the legal mother. E.G. said no adoption for at least 5 years until sure relationship is stable. K.M insists only provided egg b/c agreed to raise child together. K.M signed form that included waiver to any claim and agreed not to tell anyone it was her egg. Soonafter the couple married. Some school forms had both as mother. Eventually broke up and E.G. moved to Mass w/ twins. K.M. wants to be considered a parent - Not a true donation b/c intention to raise child in own home - UPA not intended to apply when relationship is so close (registered domestic partners at time) - Holding: Both women are mothers under UPA - Dissent abide by the K. ignores that many people intend to raise children w/o being a parent (nannies, stepparents, grandparents) * this arrangement allowed both women to establish biological ties to the child Orenstein Article points out that K also said I wont attempt to discover the identify of the recipient, believed she had to sign to go thru w/ procedure UPA Act of 1973 indicates that genetic parentage establishes legal parentage New UPA revised b/c of technological advances. Generally treats egg donors as sperm donors, w/ no legal status and makes intended mother the legal mother w/o gov intervention. Model always recognizes as legal mother woman giving birth w/ her husband as presumed father - 801 Gestational Agreements Authorized (see p. 1141) - 803 validation of gestational agreement requires procedures tantamount to preconception adoption, including home study and judicial approval - 807 makes intended parents childs legal parents - 806 parties can terminate validated gestational agreement only before the pregnancy begins, or a court can do so for good cause - 809 gestational agreement w/o validation is not enforceable, but intended parents may be liable for support Limits for payment for egg donation? Some fertility clinics have programs where patients get reduced fees for exchange donate some of their eggs to other patients (autonomy, protection from exploitation, fair compensation for hormonal therapy and surgery?)

ADOPTION
- traditionally focuses on best interests as guiding principle - themes - conflict b/w right to privacy and states authority to intervene in family decisionmaking in context of adoption and its alternatives - official recognition to certain relationships, while making others legally irrelevant - a family isnt necessarily one that looks exactly the same. Presser Article and Historical Background - adoption in Roman times served to avoid extinction of family and perpetuate rites of family religious worship. - 19th century American adoption statutes to provide for welfare of dependent children Parental Consent

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- agency adoptions - usually begin when birth parents surrenders child to licensed agency who takes custody and then sets up the adoption where court will issue adoption decree. - Often times the birth and intended parents are not known to one another. If placement fails initially, returned to agency, not birthmom. Today, most involve older children in foster care - Example = Scarpetta - independent placement - Birth parents might select who the adopted parents will be, sometimes with the assistance of an individual like atty, or adoption broker. - Child placed directly with the family pending the final adoption decree. - Example = Adoption of Kelsey S. - Criticism: - primarily help adults seeking a child to adopt at expense of child welfare (often called gray market b/c adoptive parents often pay birth parents expenses - UAA 2-408, 2-409 parent can revoke relinquishment of consent w/in 8 days of childs birth - many states invalidate consent procured by fraud or coercion Scarpetta v. Spence-Chapin Adoption Service (1971) unmarried 32 yr old got pregnant in Colombia by married man. Came to NY to have baby and surrendered baby to agency. 5 days after baby placed w/ family, she requests return of child - Prospective adopters might have given child some material advantages over what natural mother could, but cant outweigh mothers tender care and love unless clearly established that shes unfit to assume duties and privileges of parenthood. Best interests served by mom * more legal battle after, and adoptive parents got to keep child * in response, NY amended its law so that parents who consented have no right to custody of child superior to that of adoptive parents and custody will be awarded solely on best interests principles w/ no presumptions Unmarried Fathers Rights - Putative Father Registries used by several states. Eliminate need for adoption notification or consent for a man who failed to take initiative by registering. Problematic to his privacy - Publication approach reqing notifying unidentified father s by posting or publication. How will these achieve actual notification if exclude the moms name to protect her privacy? - Uniform Adoption Act 3-504 (c)-(d) allows termination of birth fathers rights if he hasnt demonstrated interest in parenting his child unless he can show compelling reason for failure to do so. Court can still terminate his rights if in childs best interests. - Uniform Adoption Act 3-404 protects birth mothers right to remain silent about birth faither, but must advise her that choice may delay adoption or subject it to challenge, that lack of genetic and medical info may be detrimental to adoptee, and she faces civil penalty for knowingly misidentifying father Adoption of Kelsey S (1992) birthdad objected to birthmom putting son up for adoption b/c he wanted to raise him. He got temporary custody, but adoption statute said only moms consent necessary b/c he wasnt presumed father. Question whether natural fathers constitutional rights violated if mother can unilaterally preclude him from obtaining same legal right as presumed father to withhold consent to his childs adoption - Cites Lehr about establishing relationship and latches on to language about biological connection b/w father and child unique and worthy of protection if dad grasps opportunity - Adoption isnt necessarily proper gov objective, no evidence that this is related to childs best interest - Rule If an unwed father promptly comes forward and demonstrates full commitment to his parental responsibilities, his due process rights prohibit termination of his parental relationship absent a showing of his unfitness

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Concurrence could have reached same conclusion under equitable estoppel footnote that biological father consent not necessary when pregnancy result of sexual assault does this discriminate against fathers since they have to decide early in pregnancy, but moms can wait until after birth to withhold consent? Baby Jessica mother purposely misidentified father when relinquishing the child. Later marries him and able to halt adoption proceeding Baby Richard mother falsely told birth father that baby had died. Later they married and wanted child returned. Court held father had shown sufficient interest in child to preclude termination of his rights based solely on childs best interests and invalidated the adoption of the then 4 year old. (they later separated, and child left in birth mothers custody) Choosing an Adoptive Family In Re Baby Boy C (2005) birth mom Native American and registered member of tribe. Both birth parents consent to adoption and notice that baby may be Indian Child under the Indian Child Welfare Act, and she was waiving its preferences to permit childs adoption. Tribe moved to intervene in adoption ICWAs purpose is to protect best interests of Indian children and promote stability and security tribes. Want the babies to go to adoptive homes that will reflect unique values of Indian culture Child has no fundamental right to adoption its just a creature of statute Bartholet Article: Where Do Black Children Belong? - very few white children compared to large pool of would be white adopters - Lots of confrontations w/ race and whether its racist to want same race baby - 1960s is when relative openness to transracial adoptions began largely due to international adoptions - 1972 National Association of Black Social Workers said transracial adoption = genocide. Attack on black community that harmed black children by denying their black heritage and survival skills for a racist society Consequences of Adoption - many courts hold that adopted children inherit from adoptive parents, not biological - New UPA adheres to general rule of severing ties w/ biological family, but provides that adoption doesnt terminate former parents duty to pay arrearages for child support - Some statutes provide for inheritancec by adopted children from their biological parents Secrecy versus Disclosure - Since WWII secrecy shrouded adoption law in most states (stigma of illegit birth, fear of intrusion on adopted families, belief that adoptive families should imitate bio families) - Courts have rejected adult adoptees constitutional challenges to sealed record laws that right to privacy doesnt include a fundamental right to know ones biological parents. Adoptions not suspect class under EP - Most sealed records allow disclosure if good cause - Sealed records create special problems for adoptive parents of special needs children whose medical histories might be very important - Alaska and KS allow adult adoptes to view birth records - Some states have voluntary registries - Birth moms challenged these laws b/c promised confidentiality and opponents who claim the reforms will encourage abortion over adoption

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Open Adoption - rise of open adoptions b/c increasing number of older children w/ established bonds w/ birth parents, decreased availability of most sought after infants b/c abortion, and belief that open system avoids damaging psychological effects of anonymity for all in process - most adoptions today not anonymous - several states allow voluntary open adoption, but permit adoptive parents to determine whether they will adhere to the agreements - UAA 4-113 provides for judicial enforcement of visitation agreements in stepparent adoptions - UAA fails to dictate enforceability of open adoption agreements in general Groves v. Clark (1999) biological mom and adoptive parents work out an agreement. It was a liberal one that allows visitation with the child. Dispute arises b/c birthmom wants to take child on trip and adoptive parents say no. - Holding: agreement is enforceable given the relationship that birthmom and kid already have that it would be detrimental to the child not to have contact. No State Reg ________________________________________________________________Heavy Reg Sex AI IVF Surrogacy Adoption * think about degree to which production of a child would be imminent when you think about the level of regulation. Possibility of child when you have sex but no guarantee. AI more targeted, but still hard. Surrogacy and adoption more tangible risks at stake for child.

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