Family Law Outline—Fall 2001

Prof. Tom Mayo, http://faculty.smu.edu/tmayo

Chapter 1: American Family Law: Definitions, Policy and Trends

Section 1: The New Family and The New Family Law

The New Family—Mary Ann Glendon

Three important attributes of the modern family

Fluidity

Detachability

Interchangeability

Circumscribing the Family Unit: The Law of Companionate Marriage

Husband-Wife relationship has become the “central zone” of the modern family

Pre-modern family included a wider circle of people

Pre-modern family was “open lineage” with outer boundaries relatively weak and permeable
in contrast to the close-knit, inward-turning modern family

Bonding of the New Family—Marriage

Loose

Bonded more by emotional than economic ties

Marriage is no longer so important as a determinant of wealth, rank, and status making it

easier for “freedom to marry” to be established as an important legal principle.

Bonding of the New Family—Parents & Children

Loose

Decline of parental control over a marriage decision

Rise of “children’s rights”

Substitution of social for what were previously family responsibilities

The Emergence of The Individual

Sir Henry Maine, “the movement of the progressive societies has hitherto been a movement from
Status to Contract” refers to the declining influence of the family in determining an
individual’s security and standing

What entity should determine what constitutes a family?

Due Process: Do you have a protectable liberty or property interest?

Remember two prongs for substantive due process:

Legitimate state interest

Rationally related to state’s interest

Moore v. City of East Cleveland-U.S. SC struck down a city ordinance prohibiting head of
household from housing more than one line of dependent child. Strict scrutiny used
because privacy rights of family & grandparents raising their g-children was in
traditional definition of family (grandmother living with two grandsons, who were first
cousins) (Non-traditional families as Ps try & align with Moore for a higher level of
scrutiny)

Belle Terre-SC upheld a zoning ordinance that did not affect related individuals (blood,
marriage, consanguinity) applying a lower level of scrutiny than Moore to unrelated
college students living together (Municipalities argue Belle Terre)

Can family include unmarried couples with children?

Hann v. Housing Authority-Y, because unmarried couples can create a positive family situation
for children and so many unmarried couples with children in society that bizarre for
court not to consider them as a family.

Can long-term homosexual couples constitute a family?

Braschi-Y, in NY for purposes of rent control law, NY court looked at exclusivity and longevity
of relationship, protection of individuals from sudden dislocation, couple held
themselves out as a family to society, and interdependence of couple for daily
operations.

What about rights of foster family compared with rights of biological family?

Problem 1-1(b)(p.18)-Substantive due process analysis is required. Does the foster family have a
protectable liberty or property interest when the state agency decides to move their
foster child back with his mother, with whom he has had little to no contact? Court
says yes, but not nearly as much of an interest as the biological parent and the
notification process followed by the state was enough to protect the foster family’s
interests.

Section 2: Constitutional Family Law: “Emanations and Penumbras”

Griswold v. Conn.-Justice Douglas speaks about the zone of privacy rights (created from
penumbras emanating from the 1st, 3rd, 4th, 5th, and 9th Amendments) in a marriage as a
family—not individual—relationship in regards to preventing contraception.

Eisenstadt v. Baird- Same logic in Griswold (about the Constitution protecting a couple’s
privacy rights within a marriage) used to argue for this same privacy right for
individuals.

Doe v. Duling- If the state cannot forbid unmarried people’s decision to bear and begat a child
(Eisenstadt), then consensual sexual activity between unmarried adults is as protected as
if they were married. This decision was vacated because no case or controversy—no
realistic threat of prosecution. If problem-let legislature fix it.

Bowers v. Hardwick-SC refused to expand the issue & in fact narrowed it saying this case
applies to whether there is a fundamental right to engage in homosexual sodomy not
just sodomy period.

Section 3: The Federal Tradition of Non-Involvement—The Tenth Amendment and More

Akenbandt v. Richards-SC said diversity jurisdiction exists because this is a tort case NOT a
case about divorce, alimony, or child custody (in which case they would have upheld
TC & AC’s rulings of no federal diversity jurisdiction because of domestic relations
exception.)

Domestic Relations Exception-no federal diversity jurisdiction in divorce, alimony, or child

custody cases

Abstention-discretionary standard because the court technically has jurisdiction, but there are
prudential reasons for abstaining

Ankenbrandt Doctrine-policy reasons for federal courts staying out of divorce, alimony, & child
custody cases

States have better expertise & federal dockets are already busy.

States have controlled the law in this area for a long time & it has been effective—why should we
step in when it’s already working.

Snob factor from federal judges—Art. III judges—why would we want to deal with divorce &
family law?

State courts have closer access to the administration of family law & source of info than federal
courts
Section 4: The Future—And Inevitability –of Federal Involvement in Family Law

Lengthiest list of new federal laws regard child support

FMLA of 1993

Parental Kidnapping Prevention Act

Martha Fineman: Think of family policy in terms of functions we want the family to perform and
leave behind our obsession with form.

Chapter 2: The Regulation of Marriage

Section 1: A Brief History of Marriage Regulation

Roman law view marriage as essentially contractual

Advent of Christianity profoundly affected both social attitudes toward marriage and marriage
law

England recognized marriage as a sacrament and ecclesiastical courts gained exclusive

jurisdiction over marriage and its incidents

Matrimonial Causes Act of 1857 transferred disputes over marriage and divorce to the civil courts

In the United States marriage and divorce has always been subject to the civil law—with
substantive and formal marriage requirements originating from ecclesiastical law and
practice

Spousal status creates entitlements and obligations:

Inherit property under the laws of intestate succession

Sue for wrongful death

Receive social security benefits & workers’ comp benefits

Obtain insurance coverage

Support rights and obligations

Section 2: Constitutional Limitations on State Marriage Regulation

Zablocki v. Redhail-U.S. SC used strict scrutiny in an equal protection analysis to strike down a
Wis. Law requiring parents to have met their child support obligations and proof that
they would continue to meet this obligation before the state would issue them a
marriage license. P argued equal protection because he was in a class of people (poor)
singled out by the state in limiting their ability to marry. Strict scrutiny required a
“compelling” governmental interest and the means necessary (but no more restrictive)
to further that interest. Court said compelling governmental interest of supporting
children, but statute not well tailored for this purpose.
Problem 2-1 (p. 57)-Prisoner who wanted to marry (& was not allowed to without Warden’s
permission based on a compelling reason to marry) argued Redhail & strict scrutiny
applied. Prison argued rational basis—prisoners not afforded rights of full members of
society, no historical reason to allow prisoners to marry, prison officials are responsible
for prisoner’s living arrangements & should be deferred to on this subject. Court went
with intermediate scrutiny. Court went with intermediate scrutiny in this equal
protection claim—compelling, important, and permissive state’s interest and the means
must be necessary, substantial, and xxxx.

Section 3: Substantive Requirements for Entering Marriage

Void and Voidable Marriages

An attempted marriage that does not comply with state regulations may be void, voidable, or
partially valid.

Void marriage-is non-existent and has never existed

Voidable marriage-is effective until it is formally voided, usually by means of a court order

One at a Time

Reynolds-Congress made a distinction between belief and actions. You are allowed to believe
whatever you want, but state has police power authority consistent to the constitution to
limit your actions. (Mormon challenged a federal law criminalizing bigamy when Utah
was applying for statehood.)

Potter v. Murray City-The state is justified by a compelling interest, consistent with the history
and traditions of this country of promoting monogamy, in upholding and enforcing its
ban on plural marriage.

Questions:

Should a national standard apply to states that have a history and tradition of polygamy?

Why not let states make this choice for themselves—lots of different living arrangements are
currently within the Law?

Is there a real difference between serial monogamy and polygamous marriages?

Of Different Sexes

Baehr v. Lewin-In a challenge, based on Hawaii’s Constitution, to the law banning homosexual
marriages (completely adequate & independent of federal law), the state SC instructed
the AC that for purposes of an EP analysis under the Hawaii Constitution sex is a
“suspect category.” A strict scrutiny standard should be applied thus placing the
burden on the D (state) to overcome the presumption that HRS § 572-1 is
unconstitutional by demonstrating that it furthers compelling state interests and is
narrowly drawn to avoid unnecessary abridgements of constitutional rights.
Baehr v. Miike-the state’s AC held that the state’s interests (child-rearing, procreation, morals &
traditions—law was over-inclusive and under-inclusive) were not sufficient to keep
this law banning homosexual marriages. By bringing this suit in state court you
immunize the judgment of the state court from Federal SC review.

Judge entered stay one day after this decision and constitutional amendment offered by
legislature.

Hawaii’s legislature adopted domestic partnership law & several corporations challenged—battle
continues.

If Hawaii allowed same-sex marriages, would these marriages be recognized in other states?

Mostly no, because violation of the public policy of other states in state statutes. Absent statute,
states acquiesce to federal policy & no recognition.

Note 7 (p. 75) Congress passes U.S.C.A. § 1738C-- No state is required to observe the lawfulness
of a same-sex marriage, if that type of marriage is not recognized as valid in that state.

Vermont Constitution said Vermont laws were to benefit all citizens of Vermont—with no
difference for sex, etc. Vermont Legislature could modify the marriage laws allowing
same sex marriage or come up with some kind of a civil union statute giving same sex
couples benefits of married couples.

Transsexual marriages? Here, states split, in England person’s gender is determined at birth only

In Littleton, Co a wife (genetically male w/ sex change) & husband were married when the
husband died. Wife sued for wrongful death and was denied because court ruled not
genetically female so not wife so no standing to bring wrongful death claim.

In SAT a court clerk gave Jessica & Robin (two females) a marriage license (even though Jessica
was born Mark). Clerk looked at three Gs: genetics, gonads, and genitalia AT
BIRTH.

Unrelated by Blood

Texas Family Code § 6.201 Consanguinity

Why not?

Religion

Genetics

Protection of the Family Unit

Reinforcing Community Norms

Sexual Imposition

Israel v. Allen-CO SC held that it was okay for a girl who was adopted by her stepfather to
marry her stepfather’s biological son (her adoptive brother). Here, family supported
 the marriage so no threat to family harmony, they were teens when parents married,
no blood relation, & CO criminal law does not prohibit sex between adoptive siblings
in law against incest.

Of Sufficient Age

Moe v. Dinkins-NY Court applied rational basis analysis (because children are more regulated
than adults) & concluded that the state’s law requiring parental consent was rationally
related to the State’s legitimate interests (mature-decision making with respect to
marriage and fundamental privacy right of parent to act in the best interests of child)
& does not offend the constitutional rights of minors.

In Proper Health and With Good Genes?

Modern legislation deals with capacity to consent to marriage, not mental or emotional
capability to function in a marriage or with genetic problems that may be passed on to
the children

Section 4: Procedures Relating to Entry Into Marriage

Consent to Marry

Capacity to Contract: Uniform Marriage and Divorce Act § 208

Court shall declare a marriage under the following circumstances:

Party lacked capacity at the time the marriage was solemnized or was induced to enter by force,
duress, or fraud involving the essentials of marriage.

Party lacks the physical capacity to consummate and at the time the marriage was solemnized the
other party did not know of the incapacity.

Party was under the age of 16 and did not have consent of parent, guardian, or judicial approval

Marriage is prohibited.

Larson v. Larson-There is a presumption that a marriage is valid, and to show it is not valid
for lack of capacity the party challenging the validity must show that at the time of
solemnization one of the parties was incapable of understanding the nature of the act and
unable to give consent.

Smith v. INS-In a ruling on an INS statute requiring a nonresident spouse to leave the
country for two years before giving residency status, only if deportation proceedings had
been initiated before the marriage, the SC used rational basis review to rule that Congress had
broad powers to regulate immigration and the statute was rationally related to the reduction of
fraud or sham marriages.
Solemnization and Licensing

Uniform Marriage and Divorce Act § 203

When a marriage application has been completed and signed by both parties and at least one party
has appeared before the clerk and paid the fee the clerk shall issue a license and a
marriage certificate form upon being furnished:

Proof of age and consent if needed.

Proof the marriage is not prohibited.

Certificate of results of medical exam if required by State.

UMDA § 206: Solemnization and Registration

Marriage may be solemnized by judge of a court of record, a public official whose powers
include solemnization of marriages, or in accordance with any mode of solemnization
recognized by any religious denomination, Indian Nation or Tribe, or Native Group.
Marriage Certificate Form shall be completed and forwarded to the clerk.

If a party to marriage is unable to be present, he may authorize in writing a 3p to act as his proxy
and marriage may be solemnized by proxy.

Upon receipt clerk shall register the marriage.

If the person solemnizing the marriage was not legally qualified to do so but one or both of the
parties believed him to be qualified, then the solemnization of the marriage is not
invalidated.

Carabetta v. Carabetta-While not a universal decision, in CT when a man and

woman have participated in a solemnization ceremony in the Catholic Church and
acted upon the assumption that they are married, the court will consider it a valid
marriage even through they had no marriage license.
Section 5: Exceptions to the Formal Requirements

Common Law Marriage

Historical Purpose: rule of necessity

Modern Purpose: to protect innocent 3ps (illegitimate children)

Problems usually appear at death or when a benefit comes due.

Requires capacity.

If parties stop living together and 2 years pass with no commencement of action to prove CL
marriage, then there is a presumption that the parties had not agreed to be married.

Proving CL Marriage Through The Elements Requires:

Intent to marry on the part of both parties;

Cohabitation; and

“Holding out” to the public that they are H & W (allows 3p’s objective view on whether there
was an agreement to be married)

Note: Burden of proof is on the party asserting the marriage.

Note: Courts carefully scrutinize the evidence and require that the marriage be established by
clear and convincing evidence.

Can also prove through a filing declaration.

Execute and record a sworn Declaration of Informal Marriage as a means of “proving up” a CL
marriage

Declaration is not a requirement for a CL marriage.

Declaration is not a means of marrying as an alternative to a regular ceremonial marriage with

license.

Estate of Keimig-On night divorce was final couple decided to resume living as married.
Subsequently, they split and had relationships with others. Years later woman sued estate as
surviving spouse. Court said no present marriage agreement when woman and man resumed
cohabitation. Looked at parties’ INTENT evidenced by facts.

To deal with problem of CL divorce in CL marriage:

Some states create limitations on the back end of marriage

Some states say no “holding out” if couple does not cohabitate for two years

Rebuttable presumption of no marriage is created

Some states have recognized after long time of no cohabitation? Check with Mayo

Kelderhaus v. Kelderhaus-Although a couple traveled through CL marriage states, the VA

(non-common law marriage state) court refused to recognize the marriage b/c couple
did not fulfill the TX (requires you to live in the state) or OK (no proof of
conversations with anyone “holding out”) requirements for CL marriage. Also,
simple travel through the state was an insufficient nexus between the couple and the
CL state to sanction marriage from this act.

Putative Spouse Doctrine-derives from the civil law, was recognized in the Uniform Marriage
and Divorce Act (UMDA), and has spread to a number of CL states

UMDA § 209-A p. who has cohabited with another to whom he is not legally married in the good
faith belief that he was married to that person is a putative spouse until knowledge of
the fact that he is not legally married terminates his status and prevents acquisition of
further rights. The putative spouse acquires the rights conferred upon a legal spouse. If
there is a legal spouse in addition to the putative spouse the rights of the putative spouse
do not supersede the rights of the legal spouse BUT the court shall apportion among the
claimants as appropriate in the circumstance in the interest of justice.

In Re Estate of Vargas-Man died with two spouses—one putative and the other legal. Court
divided the estate between the two. Texas recognizes the putative spouse doctrine.
Chapter 3: The Legal Significance of Marriage—Rights and Obligations, Lost and Gained

Section 1. Marital Ideals: From Patriarchy to Equality

William Blackstone: “The husband and wife are one, and the husband is that one.”

CL

Wife precluded from owning property as long as H was alive

Wife’s pp and rp became H’s upon marriage with wife retaining a dower interest in all real
property her H owned during the marriage—which prevented him from alienating it
without her concurrence.

Marital Property Acts (1850s)

Restored to the married woman the rights (like owning property) she had had when unmarried

Gave women a separate legal existence from their husbands

Section 2: Ownership and Control of Property During Marriage

Common Law States: Separate property states creating a regime of individual ownership and
management of property acquired during marriage. Who has title? Works well if both
spouse’s earnings are about the same.

Criticism: Unfairness--CL states take no account of the fact that marriage is a form of
partnership to which both spouses contribute and that the contribution of each is equally
important to the family welfare and to society.

Answer to criticism: Every jurisdiction that follows CL approach has developed equitable or
statutory rules to mitigate the harshness of one spouse making all the $ & the other
spouse staying home.

Criticism: Uncertainty—Whose property if one spouse made a down-payment and the other paid
monthly installments? While CL states follow title, at dissolution they throw it all
together & distribute according to equitable or statutory doctrine

Statutory doctrine: Think innocent spouse doctrine. In a CL state without this statute, if the
house was in the drug-dealer’s name then the innocent spouse lost it.

Death: In most CL states the wife’s dower right has been replaced with a spousal “right of
election” or “forced share” that entitles a surviving spouse to a prescribed minimum
fraction of the decedent spouse’s property at death, usually ½ to 1/3. Living spouse can
renounce the will & demand minimum share of deceased spouse’s estate. This applies to
rp and pp.

Problem: Elective share fraction applies to what would be separate assets in a community
property system without regard to duration of the marriage
Community Property: Each spouse holds an equal, undivided interest in all community assets.
Works well where there is a discrepancy between the earning amounts of the two
spouses.

Premarital accumulations remain the property of the individual

Separate property remains the property of the individual. (property acquired by devise, descent,
or gift)

Question: When did that interest arise?

States differ as to exactly what is separate and what is community.

Generally, CP rules tend to protect spouses who have little to no outside earnings during marriage

Death: Remaining spouse has no inheritance entitlement to other’s separate property or to

decedent’s ½ of community property.

Uniform Marital Property Act: Only adopted by one state; Separate property is that acquired
before marriage or during marriage by descent, devise, or gift.

Uniform Probate Code--New reform aim: to infuse the elective share with community property
concepts by expanding the percentage that the surviving spouse is eligible for in
proportion to the length of marriage. See p. 129.

TX: Community property includes lost wages & income from separate property—excludes
personal injury recoveries

AZ: Community property includes personal injury recoveries & excludes income from separate
property

Management of Community Property

Tex. Fam. Code

§ 3.101: Each spouse has the sole management, control, and disposition of his or her separate
property.

§ 3.102: During marriage, each spouse has the sole management, control and disposition of the
community property that he or she would have owned if single, including but not limited
to:

personal earnings;

revenue from separate property;

recoveries for personal injuries; and

the increase and mutations of, and the revenue from, all property subject to his or her sole
management, control, and disposition
 Mixed or combined community property is subject to joint, management, control, and
disposition of the spouses unless the spouses provide otherwise.

Martin v. Martin-In one party to a marriage spending community $, court looks at whether the
expenditure benefited the community or occurred with its express or implied consent?
(H spent $ on mistress)

Andrews v. Andrews-TX case which stated that a court will not order reimbursement for gifts of
community property made during the marriage UNLESS there is a fraud on the
community—other spouse is not held to a trustee standard

Section 3: Spousal Support Obligations During Marriage

General Rule

McGuire v. McGuire-The living standards of a family (with a couple living together as husband
and wife) are a matter of concern to the household, and not for the courts to determine.

Exception to General Rule

Necessaries Doctrine: allows wife and children to purchase essential goods or services on
husband’s credit and makes husband liable; differs from agency because husband was
responsible for regardless of his knowledge or consent

Scope defined by:

Family’s economic status and standard of living

Other spouse’s ability to pay (creates an uncertainty in the doctrine)

Modern-mainly used by hospitals and medical bills; courts tend to construe expansively; some
states have abolished entirely; some states do not apply doctrine after permanent
separation

Sharpe Furniture, Inc. v. Buckstaff-For necessaries doctrine to apply, the creditor must show
the item was a necessary (“reasonably needed”) and the other spouse failed or refused
to provide the item—don’t have to show intent or willful refusal.

Rights of Creditors

CL: A creditor of one spouse MAY NOT attach the property of the other spouse to collect debt,
unless the doctrine of necessaries applies

Community Property: Marriage affects, rules vary state to state

TX §§ 3.201, 3.202—A creditor may attach a debtor spouse’s separate property as well as
property over which the spouse has sole or joint management power.

Tort Judgments in Comm. Property States: Most states permit the tort judgment creditor to
attach at least the tortfeasor’s half of the community. Some states distinguish between
a “separate” and “community” tort.
Private Support Obligations, Public Benefits

Septuagenarian v. Septuagenarian-NY Court measured wife’s need for support by prior

lifestyle and not by statutory guidelines applicable to those on public assistance. Then,
court awarded wife support from husband’s pension rather than the $ going to offset the
cost of his nursing home care. Court ruled that basic social security benefits were more
akin to an annuity and not public assistance.

Section 4. Names

Habitual Use Rule: Married woman may use whatever name she chooses, in different contexts

Kruzel v. Podell-No law requires a woman to take her husband’s name at marriage—a woman’s
name does not automatically change by law after marriage.

BUT in several states marriage may still affect a legal name change in one context or another
CHECK

Problem: Possible fraud on creditors if you keep married name after divorce—keep married
name to increase your credit limit

So, Mayo says you can change it or not if you divorce and ex can get an order against you ever
using it fraudulently

Section 5. Marriage and Tort Law

Tort Actions Between Husband and Wife

CL-Interspousal immunity--husband and wife were one legal person; neither could sue the other
in tort

Disturb the harmony of marital relationship

Endless litigation in courts over trivial disputes

Encourage fraud and collusion when tort covered by insurance

Criminal law provides an adequate remedy

Would reward the D spouse for his own wrong since both parties live together—both share in the
judgment CRAZY

Modern-Married Woman’s Property Acts-allowed wife to bring action against husband for
tortious acts against her property interest

Modern-Majority of states have abolished interspousal immunity

TX: Abolished interspousal immunity for personal and property torts

Intentional infliction of emotional distress only where the conduct has been so outrageous in
character and so extreme in degree, is it a cause of action. It can be part of a divorce
action/up to TC.
Heart Balm Actions-actions for wrongful interference with family relations (criminal conversion
= adultery)

Abolished in TX

Examples of:

Breach of promise to marry

Criminal conversion-allowing a spouse to recover damages against a 3p for adulterous conduct

with P’s spouse

Alienation of affection-allowing a spouse to recover for 3p’s conduct that has caused the P’s
spouse to transfer his/her affections to another, not necessarily to D

Spousal Consortium Claims-a derivative action against a 3p tortfeasor who has intentionally or
negligently injured one’s spouse so as to deprive the P of his/her services, society and
conjugal relations

Historically, CL only H had consortium claim—now Ws too

Most, but not all, states allow

Not available to non-married cohabitants

Damages usually reflect the value of damages awarded to tort victim

Section 6. Medical and Procreative Decision Making

For an incompetent spouse

CL-next of kin (doctor decides who)

Uniform Rights of the Terminally Ill § 7

Grants to family members the right to make decisions about the withdrawal of life support in case
of terminally ill p no longer able to make decisions with no agent or living will

Order: Spouse-adult child-parents

No provision for cohabitants

Rationale-substituted judgment-next of kin will know wishes

Presumption-family relationships assume sufficient knowledge of the:

Preferences

Values

Beliefs
Uniform Rights of the Terminally Ill Act § 7(d)-a decision to grant or withhold consent is not
valid if it conflicts with the expressed intention of the individual

Parent’s interest in child is higher order than states interest, SO states will not protect the children
from parent’s actions regarding the minor child’s well-being.

TX Health and Safety Code Chapter 313: Consent to Medical Treatment (clarifies CL)

.004-Order of priority for decision-making

Patient’s spouse

Adult child who has a waiver and consent of all other qualified adult children to act as sole
decision-maker

Majority of patient’s reasonably available adult children

Patient’s parents

Individual clearly identified to act for the patient by the patient before he/she became
incapacitated

Nearest living relative—me & BZ

Member of the clergy

Disputes resolved by the court with probate jurisdiction

Decision based on knowledge of patient’s wishes

BUT decision-maker cannot consent to

Voluntary inpatient mental health services

Electro-convulsive treatment; or

Appointment of another surrogate decision-maker

.003-Exceptions and application-Chapter does NOT APPLY to

The decision to withhold or withdraw life-sustaining treatment from qualified terminal or

irreversible patients under Ch. 166 (Advance Directives A.)

Health care decision made under a medical power of attorney

Consent to medical treatment of minors

Consent to emergency care

Hospital patient transfers

Patient’s legal guardian who has the authority to make a decision regarding the patient’s medical
treatment

004(d) Electroshock-voluntary mental health treatment

Key—“life-saving treatment”

You cannot sustain life without saving the life.

Affirmative Obligation to Obtain Medical Assistance

Spouses have an affirmative obligation to obtain medical assistance for each other.

A spouse does not have a duty to overrule a reckless decision of the other spouse to refuse
treatment.

Procreative Decision Making

Planned Parenthood of Central Missouri v. Danforth-Court applied strict scrutiny and

(Delegation model) determined that the state did not have the authority to unilaterally
interfere with a woman’s right to choose; therefore the state could not delegate this non-
existent authority to a woman’s husband.

Use delegation model to frame the question and answer.

Planned Parenthood v. Casey-Court struck down a spousal notification provision because, in

abusive situations, the provision would likely prevent a significant number of women
from having an abortion. “Women do not lose their constitutionally protected liberty
when they marry.”

In Casey, the court adopts an “undue burden standard” saying in cases of domestic violence
requiring the pregnant woman to tell her husband she planned to get an abortion would
put an undue burden on her.

Section 7. Marriage and Crime

Crimes By One Spouse Against Another

Marital Rape

Warren v. State-A woman does not give up her right to state protection from violent acts of rape
and aggravated sodomy performed by her husband.

Theories supporting a marital exemption from rape:

Marital K-Implied or presumed consent to sex

Wife is property of the husband—chattel

Unity of person—If H & W are one, he cannot rape himself.

Justifications

Prevent fabricated charges

Prevent revenge and retaliation

Promote reconciliation by the state staying out of it

MPC retains the marital rape exception because

Keeps state out of the relationship

Rape not as bad within a relationship as between strangers (Mayo & I disagree)

Wife can file assault charges

Argument against marital rape exception

Worse within a relationship; still have to live with that person

Rape is not about sex—but about power and force

Here, court held no marital rape exception BUT in some states marital rape is punished less
severely than stranger rape.

Burglary and the Marital Home

Cladd v. State-Where H & W were separated and H broke into W’s apartment, court said that
“since burglary is an invasion of the possessory propery rights of another, where the
premises are in the sole possession of the wife, the H can be guilty of burglary if he
makes a nonconsensual entry into her premises with intent to commit an offense.”

Dissent-compared it to a summer home, concerned because couple not legally separated and
Pandora’s box opened

Note: Compare Cladd with McGuire

Distinctions between B&E to assault and not buying nice things

Distinctions between being separated and living in same house

In McGuire the state treats the case delicately in not wanting to inquire.

The Battered Spouse

Battered Woman’s Syndrome—rejected in many states

Has been used as a defense for a W who had retaliated against an abusive H—primary emotion is
FEAR

Emphasizes woman’s state of mind from being battered repeatedly over time
Theory differs from self defense because the threat is not usually immediate

Could be relevant to a plea of temporary insanity

Policies used in situations where spouse refuses to prosecute

Mandatory arrest rules in some jurisdictions

Women who do not want their batterer arrested may be discouraged from calling the police

Victim who injures her abuser may be subject to arrest as well

May backfire and lead to increased violence

No drop policy for prosecutor’s offices

Diversion to counseling-may be pre or post conviction and may lead to charges being dropped

Arguments against:

Revenge/fabrication?

Reconciliation?

Is it really a deterrent?

Less flexibility and discretion for State

State v. Hodges-Ohio SC said TC erred in not allowing expert testimony of battered woman’s
syndrome and in not instructing the jury to apply the reasonable person with battered
woman’s syndrome (objective/subjective test) instead of just the RP standard (objective
test).

Applying the standard of a RP with battered woman’s syndrome lessens the importance of
whether the harm was immediate or imminent.

Note: “The proper inquiry is not the immediacy of the threat but the immediacy of the response
necessary in defense.” Robinson

For expert testimony to be admissible:

Must be helpful to the jury

Basis of the opinion must be generally accepted within the expert’s particular scientific field

Marriage and The Law of Evidence

Two types of privilege:

Adverse testimony privilege-permits witnesses to refuse to testify against their spouses and, in
some jurisdictions, gives parties the power to prevent their spouses from testifying
 against them—exists only during marriage, but may be asserted for events that
happened prior to the marriage.

Confidential marital privilege-permits individuals to refuse to reveal, or empowers them to

prevent their spouses from revealing, confidential marital communications—survives
termination of the marriage by annulment, divorce, or death but only applies to
communications made during marriage.

Trammel v. United States-SC modified Hawkins privilege (allowing an accused spouse to

exclude all adverse spousal testimony even if evidence of criminal acts or
communications were made in the presence of 3ps) to give the witness spouse alone the
privilege to refuse to testify adversely or not—vesting the privilege in the witness
spouse.

Trammel is the federal rule, but in some states D still is the holder of the privilege.

Exception: In some states, an exception has been made for spouse abuse and competency charges
allowing the state to force a spouse to testify against the other.

Exception: D in a criminal trial cannot be prevented from testifying in his own defense about
confidential marital communications even if his spouse wishes to invoke the privilege.

TX: Civil and criminal law allow for privilege within a marital relationship

Unless the conversation aided in the commission or planning of a crime or fraud

OR interspousal proceeding (spouse v. spouse or spouse v. 3p representing spouse)

Or for mental commitment

Option for the testifying spouse like in Trammel

Chapter 4: Marital Agreements

Section 1. Marriage: Contract or Status?

Maynard v. Hill-Marriage is more than a mere contract; it is the creation of a relationship that
the state has a vital interest in maintaining. Thus there are three parties: husband, wife,
and the state. State has an interest in children, property rights, etc.

Walton v. Walton-Since the state has a substantial public interest in marriage, the marriage K or
transaction is deemed to incorporate and contemplate, not only the existing law but, the
reserve power of the state to amend the law for the public good. Due process was
satisfied with the legislative process and state’s police power (general welfare of the
public) is broad enough to change the law

General Rule-No one has a vested right in the law staying the same—including property
interests and other types of interests.

If the legislature changes the law during marriage, the state has an interest in applying the new
law equally both to conditions that took place before the change and to conditions that
occurred after the change in law.

Section 2. Variability of the Marriage Status by Agreement Before Marriage (Note: Marriage
is a K and a status.)

Validity of Premarital Agreements

Courts concerned with three issues:

Presence or absence of consideration

Fiduciary relationship

Duty to disclose material info

Fair-dealing

Public policy

Traditionally, premarital agreements regarding property rights were enforceable at death of a

party but not if divorce.

Modern-a couple may, with some limits (and no consensus between states on exactly what
limits), determine property rights and support obligations at divorce as well as death.

Think:

Encourage divorce?

Facilitate divorce, making process easier?

Fraud and non-disclosure?

Unconscionable?

Inequality of bargaining power?

Procedural Fairness

Original SOFs requires marriage K to be:

In writing

Signed by the party to be charged

DeLorean v. DeLorean-To be enforceable a premarital K must be entered into freely without

fraud, duress, coercion or overreaching.

Courts look at several factors

Was there full disclosure?

State’s standards differ on disclosure. Was there a duty to inform, and if so to what extent? Was
there a duty on other party to investigate, and if so to what extent?

Duress

Was there an opportunity to review?

Was there opportunity for bargain?

Did party waiving rights receive advice from independent counsel? (helps determine whether it
was signed voluntarily)

Canceling the wedding at last minute would cause embarrassment.

Most courts will rule duress if the agreement is presented on the day of the wedding without time
to confer with genuine legal counsel.

Unconscionable

Different unconscionability tests in states from “ward of the state” to degree of hardship
compared with previous lifestyle.

Some states consider equitable distribution.

Some states allow parties to divide marital assets in any manner they wish as long as a spouse is
not destitute or a public charge.

Some states refuse enforcement only if a premarital K is unconscionable when signed.

Other states (Button v. Button—Wis.) will not enforce unless it is “fair and reasonable” when
signed and “not unconscionable” at the time enforcement is sought.
Overreaching

Sophistication of the parties—disparity in understanding the nature of the transaction.

One party, by artifice or cunning, outwits or cheats the other.

Choice of law provision—

Has to be a reasonable connection between the law of the state chosen and the parties involved

AND the law cannot violate an important policy of the forum jurisdiction.

Substantive Fairness

Should fairness be judged at the time of signing or at the time of divorce? States differ.

Gross v. Gross-Ohio SC enforces property distribution provisions of a premarital K (at time of

K) as long as there was full disclosure, no fraud, duress, unconscionability, or
overreaching. However, court says spousal support should be reviewed at the time of
divorce, keeping in mind conscionability, changed circumstances, and the degree of
hardship caused by the agreement.

Gross considered change in circumstances as a consideration for whether spousal support part of
the agreement was unconscionable.

Gross-fault does not abrogate the agreement.

Uniform Premarital Agreement Act (Adopted by TX)

§ 2--Must be in writing and signed by both. It is enforceable without consideration.

§ 3--May contract with respect to: p. 204 of textbook

The right of a child to support may not be adversely affected by a premarital agreement

§ 4--Becomes effective on marriage

§ 6—(a) Not enforceable if:

(1) Party did not execute voluntarily; or

(2) Agreement was unconscionable when executed

No fair and reasonable disclosure

(ii) No voluntarily or express waiver, in writing, of right to disclosure

(iii) No adequate knowledge of property or financial obligations of the other party

(b) Not enforceable if the modification or elimination of spousal support causes one party to be
eligible for public assistance (but unlike Gross, spousal support is measured at the
 time of agreement so change in circumstances does not matter as long as not eligible
for public assistance)

(c) Court will determine unconscionability as a matter of law.

Note: UPAA did not set forth all grounds available to challenge a premarital K.

“CL defenses” and ordinary K defenses (except lack of consideration which is specifically
barred) are available

Summary

Disclosure: Important

Timing: Important as to fairness

Spousal support waiver: No consensus on enforceability—Voluntary? Indep. Counsel?

Conflicts Aspects of Premarital Agreements

Most states will apply the law of the state chosen by the parties

Parties have some connection with that state; and

Law does not violated impt. Public policy of forum

If the agreement does not specify which state

Old—Situs—apply law of state where K was signed

Modern—apply law of the state where the parties have the most significant contacts
Incorporating Noneconomic Provisions in a Premarital Agreement

Provisions relating to children, including child custody and support, are unenforceable.

Frequency of sex

Abortion—to have one or not

Waiver of right to divorce-(maybe for a very short period of time—longer time not usually
enforced)

Variability of the Marital Status by Agreement During Marriage

Borelli v. Brusseau-CA AC ruled that one spouse has a pre-existing duty to care for the other
and a postnuptial agreement requires consideration, so H agreeing to provide for W in
his will in exchange for W caring for ill H at home (instead of nursing home) was not
enforceable.

Some states have statutes similar to UPAA determining enforceability of postnuptial agreements

Tex. Fam. Code § 4.101 & 4.105.

Curry v. Curry-Ga SC adopts the same standard used to enforce prenuptial Ks in enforcing a
reconciliation agreement

Mayo does NOT like this because already married & consideration was staying married—not
giving up something

Chapter 5: Nonmarital Relationships—Rights and Obligations

Section 1. Disputes Between Cohabitants

Meretricious relationship: a stable, marital-like relationship where both parties cohabit with
knowledge that a lawful marriage between them does not exist

Traditional Rule-Meretricious relationships were considered so immoral and outrageous that

courts refused to enforce even written agreements

Marvin v. Marvin-Court recognized an express or implied contractual cause of action based on

cohabitation in a non-marital relationship. Court applies K law—not family law.

Marvin-Express K between nonmarital partners should be enforced EXCEPT to the extent that it
is a K for sexual services.

Marvin-If no express K the court should inquire into parties conduct to determine whether
conduct demonstrates:

Implied K

Agent of partnership/joint venture

Other understanding between parties

QM can apply and P must show:

D received a benefit

Benefit was at P’s expense

Unjust to permit D to retain without compensating P

Note: Usually only allowed where reasonable to expect compensation, and claim is offset by
other support received by the claimant during the relationship.

Severance Doctrine: Meretricious sexual activities (illegal consideration) can be separated from
activities legally recognized as consideration for valid K. (companionship &
homemaking services)

Distinction between agreements that:

Merely “contemplate” a sexual relationship (ok)

Rest on a sexual relationship (not ok)

Marvin has been used for gay relationships too.

Man’s arguments:

Based on illicit sexual relationship

Not just sex-other activities severable

Hurt 1st wife’s comm. property rights

For her to argue

1st wife’s settlement already completed

Prenuptial Ks must be in writing

Agreement not in contemplation of marriage

No cause of action for breach of marriage

Not applicable to facts

Invalid as an agreement to promote divorce CHECK

Man would have to prove whether his marriage was beyond redemption

YES—relationship had no effect on prior marriage

No—Man has the agreement

Enforcement of the agreement discourages marriage

Inequitable to allow income producing partner to avoid marriage and retain all the benefits of
his/her earnings & marriage still impt to society

CL—Couple would be in CL marriage & Family Code would govern the property division.

TX???

Hewitt v. Hewitt-IL Court refused to enforce express oral K (traditional rule) in a long-term
meretricious relationship because to do so would erode the integrity of marriage (why
marry if you can get same property division without) & question of nonmarital
agreements was within the province of the legislature.

Distinction between Marvin and Hewitt:

Hewitt: traditional rule

No standing for property division

Allowing one p to keep all property acquired in his name during the relationship can discourage
marriage

Marvin—What it does

Connell v. Francisco-WA SC ruled that property that would have been community in character
had the parties been married should be distributed between the parties following a
meretricious relationship. (Only in WA)

Factors from Lindsey to determine whether relationship was meretricious:

Continuous cohabitation

Duration

Short-term okay if other significant and substantial factors present

Purpose of relationship

Pooling of resources for joint projects

Intent of the parties

Note: While Connell goes further than any other American decision basing rights on status as a
cohabitant, it confers rights only against the other cohabitant—not public benefits, tax
benefits, inheritance benefits.

Section 2. Cohabitation Per Statute—The Future of the Cohabitation Alternative?

Mayo: Look at whether marriage is a K or a status.

K: Look to expectation and actions of the parties.

Status: Look at society’s vested interest in marriage.

Domestic Partner Statutes

VT Civil Union Statute—gave the relationship all the benefits of marriage without calling it
marriage

BUT federal law is not bound by state law.

Defensive of Marriage Statute: CHECK

Defines the term marriage for federal statutes

Federal statutes only apply to a traditional marriage

Chapter 6: Becoming a Parent: Contraception, Abortion, and Paternity Establishment

Section 3. Paternity

The Presumption of Legitimacy-Blackstone: Common Law

Traditionally: Being born a “bastard” was very bad woo

No inheritance rights

No kin (except lineal)

A child born to a married woman is presumed to be the child of her husband and traditionally
neither spouse could testify to nonaccess by the husband.

Exception to overcome presumption—Nonaccess (H out to sea for 9 months), but (Lord

Mansfield’s Rule) neither spouse could testify to H’s nonaccess, so difficult to rebut
presumption.

Modern: Illegitimacy has little bearing on a child’s rights or his parent’s obligations. But the
determination of paternity will typically (although not invariably) establish a legal father-
child relationship.

A child born to a married woman living with her husband is presumed to be a child of the
marriage

Burden: on the person claiming otherwise

Can be rebutted by:

Lack of access

Unavailability

Physical impossibility

Blood tests

Michael H. v. Gerald D.-SC used DPC to decide that if a child born within a marriage was
presumed to be legitimate, then the putative father has no liberty interest or fundamental
right to a hearing on this issue.

CA law that only H or W could give notice for a blood test.

Policy: To protect the intact family unit and best interests of the child

SC: Legitimate state interest/intermediate scrutiny

Doctrines to stop a presumed father from disclaiming paternity after acknowledging it in a

prior proceeding

Collateral Estoppel (Issue Preclusion)

If you were part of the judgment—only one bite of the apple

Res Judicata (Claim Preclusion)

By entry of the judgment one is precluded from challenging it again

Equitable Estoppel

Party not allowed to take opposite position when he has already benefited from the original
position

Uniform Parentage Act (adopted in nearly half the states)

§ 4(a) A man is presumed to be the natural father of a child if:

(1) Married to the mother when the child is born or child is born 300 days after the marriage is
terminated

(2) Before the child’s birth, the man and mother have attempted to marry (although the attempted
marriage could be declared invalid) and the child is born within 300 days after the
termination of cohabitation (if invalid without a court order) and within 300 days after
the termination of the marriage (if attempted marriage could be declared invalid only
by a court)

(3) After the child’s birth man and mother have attempted to marry and

he has acknowledged paternity, in writing and filed

his name is on the birth certificate or;

he is obligated for child support under a written voluntary promise or by court order

(4) While child is a minor he receives it into his home and holds it out to be his own

Files a written acknowledgment of paternity with the appropriate agency that the mother does not
contest after receiving notification from the agency.

Exception: If another man is presumed to be the father acknowledgment may be effected

only with the presumed father’s written consent or after the presumption has been rebutted.

§ 6 Standing

Existence of paternity-a child, his natural mother, or a man presumed to be his father may
bring an action at any time

Non-existence of paternity-Action must be brought within a reasonable time after knowledge

of relevant facts—no later than 5 years after birth

XXXXXCHECK NOTES

§7
An action to determine the existence of the father and child relationship as to a child who has
no presumed father under § 4 may not be brought later than 3 years after the birth of the
child.

However, if child’s paternity has not been established, then an action can be brought by or on
behalf of the child up to three years after the child reaches the age of majority.
Removing the Stigma of Illegitimacy

Levy v. Louisiana-In a case involving EP, the SC ruled that no distinction should be made
between the rights of marital v. nonmarital children to recover for the wrongful death of
a mother.

Intestate succession—very unsettled; Courts usually uphold state statutes that impose reasonable
prerequisites upon an illegitimate child’s inheritance—States want a just and orderly
disposition of property and hard to prove when dad is dead-opportunity? CHECK
OUTLINE FOR LABINE, LALLI

Social Security—Dependent nonmarital child is entitled to survivor’s benefits if he has been

formally recognized (written acknowledgement, paternity proceeding or court order of
support) prior to the death of the alleged father. If not, other evidence may suffice.

Establishing Paternity

“The attitude that the paternity action is brought primarily for the benefit of the public persists.”

G.E.B. v. S.R.W.-Child was not bound by an agreement (not filed in a court proceeding or
approved by a judge) between the mother and putative father that released the putative
father from assuming paternal responsibility.

Strong public policy:

Child has an opportunity for declaration of paternity and support

State has an interest in father’s supporting their children—keeping them off the welfare roles.

SOL: Child Support Enforcement Amendments of 1984:

Requires each state to permit the paternity establishment at any time prior to a child’s eighteenth
birthday.

Type of action and standard of proof

Civil action by a preponderance of the evidence

Evidence of mother’s sexual activity

UPA § 14—bars e. (of mother’s sexual activity) other than at the time of conception if offered by
the alleged father, BUT any such e. is admissible if offered by mother.

UPA § 12—Evidence relating to paternity may include:

Evidence of sexual intercourse w/ alleged dad

Expert’s opinion of statistical probability

Blood test results

Medical or anthropological evidence

All other evidence relevant

UPA § 9—Mother cannot represent the child’s interest

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)

Imposes on states a range of requirements aimed at early paternity establishment including the
following provisions:

Voluntary acknowledgment of paternity

Early genetic testing

Limitations on rebuttal of a presumption of paternity

Note: Doctrine of equitable estoppel applies

Example: Alleged father cannot falsely represent his paternity for the purposes of avoiding child
support and later claim he is the father for the purpose of sharing in wrongful death
award.

CHECK LARRY AND JUDY TEXAS PATERNITY CASE

Chapter 7: Adoption

Section 1. The Changing Face of Adoption Practice

Common law did not permit adoption.

U.S. adoption laws are statutory.

Two main interests:

Protection of the child’s best interests

Protection of parent’s rights (voluntary or nonvoluntary termination of biological parent’s rights)

Process:

All states allow through specialized adoption agency

Most states permit independent adoptions (check TX)

Some states permit open adoptions. (more & more)

Consent of birth parents:

Standards vary concerning timing

Majority: Not before birth of the child

TX: Consent can be filed after the 1st trimester BUT no hearing may be held until 5 days after the
birth and an order for termination is not effective until after the hearing

Standards vary concerning revocability

Some states: Irrevocable unless procured by fraud, undue influence, or duress

Some states: May be revoked with court approval

TX: Mother may revoke anytime before the adoption is final

Mother’s consent necessary and trend for fathers (unmarried) also

Fathers required if married to mother

Stepparent adoptions:

Many states allow only after noncustodial parent’s rights terminated

Some states allow if noncustodial parent abandons or no support

Section 2. Consent to Adoption

Consent by Birth Mothers

In Re J.M.P.-SC focused on the child’s psychological bonds with the adoptive parents and the
natural mother’s biological relationship in deciding (after two years) to award the child
to adoptive parents (bio mom changed her mind on consent within the time allowed).

Note: In the best interests of the child FITNESS MATTERS

Note: If bio mom not fit—adoption.

Note: If no psychological ties to adoptive parents (yet) and bio mom fit: child returned to bio
mom.

Law’s ordinary delay can be a problem in adoption matters.

The Unmarried Father

Generally, SC has placed importance on the father’s efforts and commitment to parenting the
child

EP (intermediate scrutiny) and DP claims

Stanley-Ill. Statute that presumed every father of a child born out of wedlock to be an unfit
person to have custody was ruled unconstitutional (DP—putative father living with
mother and raising children for 18 years was entitled to a hearing on his fitness & state
could not presume) (EP—no state’s interest in making a gender distinction)

Quillon-Bio father’s DP was not violated in an adoption by the child’s stepfather when the bio
father had not attempted to recognize the child until after the adoption proceeding.

Caban-EP claim of father (who had a relationship with his children) was upheld when SC
reversed the lower court’s authorization for his children to be adopted by their
stepfather.

Lehr v. Robertson et al.-SC used intermediate scrutiny to decide that a putative father’s due
process and equal protection rights were not violated by a NY law that did not require
notice to putative fathers who had never contributed to or visited the child. NY law
requires notice if: father’s name is listed in the putative father registry, father identified
on the birth certificate, or identified by written statement by the mother.
Note: Mere existence of biological ties is not enough for protection under the law.

Adoption of Kelsey S.-SC of CA ruled that a CA statute, allowing a mother to unilaterally

preclude her child’s bio dad from becoming a presumed father and thereby allowing the
state to terminate his parental rights on nothing more than a showing of the child’s best
interests, violated the constitutional guarantees of DP and EP for unwed fathers.

Note: The court may look at the father’s conduct from the point he learns of the pregnancy to
decide if he is grasping the opportunity to build a relationship with the child.

Section 3. Who May Adopt Whom?

State restrictions vary substantially

Uniform Adoption Act (UAA): “any individual to adopt or be adopted by another individual for
the purpose of creating the relationship of parent and child between them.” UAA § 1-102

Many states: one spouse cannot adopt without the consent of the other.

Adoption in the Context of Nontraditional Relationships

In the Matter of Jacob, In the Matter of Dana, G.M.-NY AC broadly interpreted two NY
adoption statutes (one centering on property rights saying that bio parent must terminate
rights to their child for other to adopt—enacted in 1938) to allow long-term unmarried
partners (one hetero and one homo) to adopt the other partner’s bio child.

Mayo thinks the court just did what they wanted to do.

Racial and Ethic Matching in Adoption

A statute that facially prohibited a couple from adopting a child of another race would be
unconstitutional.

Adoption Assistance Act prohibits racial matching in adoption—but Indians are exempt.

Think cultural, ethnical, and racial background of the child and the capacity of the prospective
parents to meet child’s needs.

Section 4. The Effect of Adoption

Michaud v. Wawruck et al.-SC of CT upheld an open adoption agreement allowing the bio
mom to continue visitation with the child because the agreement was negotiated in good
faith and was in the best interests of the child. (relationship established with child)

State laws concerning open adoptions are not uniform.

Open adoptions may make some more willing to put child up for adoption.

Some states recognize a tort for wrongful adoption—agency withholds info regarding child’s
health or psych background.

Most states allow private adoptions, but limit compensation to intermediaries.

An attorney cannot represent both bio mom and adoptive parents.

Section 5. The Baby Market: Gray and Black

In the Matter of the Adoption of a Child by N.P. & F.P.-When a couple used their financial
means to jump to the head of the line & adopt a baby from Chile, the NJ court did not
disapprove the adoption because the parents were fit and it was in the best interest of
the child. However, parents could be prosecuted for violating statute that limited items
adoptive parents could pay for. (not airfare, foreign attorney’s fees, etc.)

Baby selling

Payment of $ can be coercive

Public policy against

Increase in the commodification of the children

Unfair to middle class and poor

Paternalistic desire to protect people (mother) from their own stupidity

Against the best interest of the child to go with most $

BUT

Affordability of raising a child—may be in best int. of child

Discourage abortion (would it really?)

Decrease pumped-up cost of adoption (pumped up by black market)

Chapter 8: Assisted Reproduction

Section 1. Artificial Insemination

Early cases dealt with whether a child conceived by artificial insemination was legitimate.

Now, all states have statutes regulating the status of children born through artificial insemination
to married women.

Statutes often provide unclear guidance when an unmarried woman makes use of artificial
insemination.

Generally, if H consents to W having the procedure (express or implied) he is the child’s legal
father and is estopped from later denial.

Jhordan C. v. Mary K.-CA court held that because bio mom had not followed the statute that
foreclosed the sperm donor from asserting his legal rights as the child’s natural father
by obtaining the sperm from a physician’s office and because, through her conduct, she
had preserved the father’s status as a member of the child’s family sperm donor was
properly declared the child’s natural father.

Think known v. unknown sperm donor

Uniform Status of Children of Assisted Conception Act (USCACA) § 3: the H of a woman who
bears a child through assisted conception is deemed to be the father if he does not
challenge his paternity in court within two years after discovering the child’s birth.

USCACA § 4: A sperm donor is not a parent of a child conceived through assisted conception.

Uniform Putative and Unknown Fathers Act (UPUFA) § 1: “Putative father” excludes sperm
donors who are unknown or who did not anticipate having an interest in the resulting
child.

Some states say if the sperm donor is known he is the natural father.

Section 2. In Vitro Fertilization and Ovum Transplantation

Davis v. Davis-SC ruled that parties had management authority over their embryos so if they
agree follow their choice—if they do not agree look to see if there is a prior agreement
—if NOT:

Balancing Test for all parties with an interest

Mother—donating the embryos

Father—not being a father

State—No interest until after 1st trimester (Casey)

Entity—Special interest somewhere between property and person (But SC gives no deference to
this “special interest”)
Factors

Mother’s other opportunities to have children

Interest in not procreating

Here, father’s interest in not having children outweighed the mother’s interest in donating the
embryos—closer if no donation.

Summary

Preferences

Prior agreement

Relative interests in using or not using the embryos

Court refused to go with models (p. 370) for bright line test.
Section 3. “Surrogate” Motherhood

Most surrogacy arrangements involve artificial insemination of a woman with the sperm of a
prospective “buyer” whose wife is infertile.

A woman is a “gestational mother” when she carries the fetus, but does not provide the gamete.
CHECK

Difference between surrogacy and baby selling: child is buyer’s genetic child

Three Types of Mothers:

Genetic

Gestational

Intentional

Surrogacy Ks-are usually between the bio father (H) and the surrogate mother and are framed as
a service K (K to sell child void as against PP)

For: Freedom to K absent fraud, duress…

Against: Violate PP because baby-selling

Exploits the poor

Adoption law gives surrogate mom the rights of natural mom that cannot be terminated except by
statute.

Matter of Baby M-NJ SC held that a surrogacy K was invalid and unenforceable on both legal
and PP grounds

Legal:

Statute says mother cannot agree to terminate her rights to the child before birth

Public Policy:

Use of $ to acquire child is baby selling

Surrogacy K looks to adoption regardless of suitability

Ignores the child

Guarantees separation of child from its mother

Takes the child from the mother regardless of her wishes and maternal fitness
Johnson v. Calvert-Surrogate K was upheld because the embryo came from the H’s sperm and
W’s ovum. H & W were genetic and intended parents—surrogate was gestational
parent only.

But for the couple’s intention to create a child and the understanding that the gestational mother
would not assert claims to the child, there would be no child.

TX Fam. C. 151.103:

If the mother is gestational only then must be an embryo donation.

Johnson did NOT donate.

In TX no statute covers Johnson situation.

Buzzanca: CHECK see Supp.-Court uses the analogy of artificial insemination, in a case where
the intending parents divorced while the surrogate was carrying their biological child, to
find that since the husband consented he is considered the father.

Chapter 9: Child, Parent, and State: Rights and Obligations

Section 1. Children’s Rights and Legal Status

CL: Father’s rights supercede the child and the mother

Modern law: Courts have recognized some children’s rights but not all disabilities have been
removed.

Reasons Children are Treated Differently Than Adults Under the Constitution:

Vulnerability of children

Inability to make critical decisions in an informed manner

Importance of parental role in child rearing

Emancipation: Removes the minor from parental authority and ends parental obligation

Kingsley v. Kingsley-FL AC ruled that the TC’s error in allowing a boy to file petition in his
own name was harmless because petitions were filed by the foster father, the guardian
ad litem, and the child’s attorney.

Petition (on behalf of child) may be brought by:

Attorney

Any other person

Who has knowledge of the facts alleged; or

Is informed of them and believes them to be true

Section 2. Education

Wisconsin v. Yoder-SC used strict scrutiny and a balancing test between the state and individual
rights to say that an Amish family’s right to prevent their 15 year old child from
attending school was constitutionally protected.

Section 3. Medical Decision Making

General Rule: Parents ultimately decide whether medical care is to be provided and what that
care is to be—NOT ABSOLUTE

State’s Authority: State is permitted to override certain parental decisions concerning medical
care for the child when the child’s welfare & best interests demand it

When medical treatment involves little risk to the child, but a failure to provide the treatment
would substantially endanger the child’s life, the state may step in and court may order
medical treatment over parent’s objection.

Court seems reluctant to tread in mental health issues.

Parham v. J.R.-In parents committing child involuntarily to a mental institution, the child’s
protectable DP rights for admission procedure are limited but his liberty interests
include: to be free from unnecessary bodily restraint and to not be erroneously labeled
bc of improper decision by hospital.

Rule: Presumption is that the parents will act in the best interest of the child—not absolute &
unreviewable.

If confrontation with parents, child may be hurt more.

Involving the child in the commitment procedure may undercut his opportunity to benefit from
future treatment—hurt him to know what all is wrong with him.

Formula for determining how much process is due a minor?

Impact of an erroneous decision? (risk & severity)

State’s interests in following its own procedures

Arbitrary

Relate to state’s interests and values

Cost v. impact of a particular procedure

In Re Green-Jehovah’s Witness case where child will not die but will be paralyzed without
surgery that is not life-threatening. Court balances risk of an incorrect decision v.
severity of the injury and when there is no immediate risk of death and the child will
soon be old enough to make his own medical decisions if the child agrees with the
parent (no medical procedure) then no court order and child can do something later if he
changes his mind at majority. If the child does not agree with his parents then the court
may look to see whether there is a reason to overrule their decision.

Underlying notion: Distinction between belief and conduct.

Maine Medical Center v. Houle- Does this child have a constitutional right to life? Y, born
alive so as much a right to life as anyone else.

Have we satisfied the requirements of the constitution by running it by ethical board of the
hospital, etc. etc. etc. and then all agreed that child should not have the surgery?

Remember constitution applies to protection against one’s pursuit of life, liberty, or health by the
state under the 14th and Congress under the 5th.

Normal rule: with no opportunity to get parental consent, the hospital is entitled to take necessary
measures to keep child alive—other possibility is to listen to parent’s & do what they
need to do.

Remember case where parents had prearranged with doc to not keep baby alive and hospital
overruled and even refused to transfer mom before birth. Private hospital kept the baby
alive. TC: 65M. AC: take nothing judgment. Currently, SC looking at cert.

Child Abuse Prevention Treatment Act (CAPTA)

Followed the Baby Doe case where infant with Down’s was allowed to starve to death after 15
days because parents did not get it a minor surgical procedure.

To receive federal funding the state must show that it has procedures in place to respond to
reports of deprivation or denial or “medically indicated treatment” applies only to infants
up to 12 months.

Now legislative mechanisms impose standards on state offices to make medical decisions for
abused/neglected children in order to make them eligible for federal funds.

Baby Doe Regulation

Treatment is medically indicated unless it is covered by one of three exceptions:

Treatment to keep alive a baby who is permanently unconscious

Treatment to keep alive a baby would be futile—it would die anyway

If with the treatment survival would be nearly futile and the treatment would be inhumane
(inhumane in terms of physical pain)
Section 4. Contraception and Abortion: A Special Case of Medical Decision Making

Jane Doe IV

What level of burden should there be for a minor girl to get a judicial bypass?

Preponderance of the evidence as standard of proof

Parents must be notified unless:

Notification would not be in the minor’s best interest

Notification by minor is likely to lead to abuse

The minor is mature and sufficiently well-informed to make the decision without notifying the
parents.
Notification:

L-lature had to allow for a judicial bypass or the statute would be unconstitutional because unduly
burdensome—Casey.

Two Prongs:

Maturity—case by case based on totality of the circumstances

School (grade completed & grades)

Employment

Extra-curricular activities

Age

Socio-economic factors—challenges the person has faced & overcome

Sufficiently well-informed

Section 5. Child Abuse and Neglect

What Constitutes Neglect?

In Re T.G.-Court says CPS did not stay in close enough contact with the family to determine
whether deficits found on one visit were long-standing-- whether parents were capable.

Whitner v. State of South Carolina-US SC recently ruled that this violates the constitutional
rights of individual mothers. Still possible for a private hospital to conduct blood tests
& turn it over to the police without violating the 14th Amendment.

Where do you draw the line with statutes protecting the unborn child from the mother’s actions?

Legal v. illegal substances

Age distinctions create a legality problem with younger people.

Overinclusive or underinclusive

Reinquist: “Greater power (abortion) includes the lesser power.”

Since you can legislatively wipe it out—you can legislatively regulate it.

Termination of Parental Rights

In The Interest of M.M.L.-When a Kansas court followed a strict “best interests” of the child
standard (saying that removing the child from her foster family would create
extraordinary or unusual circumstances that would substantially endanger the child’s
welfare) even though the father was not unfit, SC says “best interest” of the child is not
enough to protect the father’s C rights.
In the Matter of the Guardianship of J.C., J.C., and J.M.C., Minors-Absent a finding of
parental unfitness parental rights can be terminated in NJ when it would be harmful for
the child to be taken out of foster care & put back with the parent—need “clear and
convincing” evidence and maybe the child’s relationship with bio parent can be
maintained after termination of parental rights.

See notes p. 490 & 491 for review.

Chapter 11: Divorce and Divorce Substitutes

Section 1. A Brief History of Divorce

How available should divorce be?

How efficient should the process be?

Does the state have a legitimate interest besides division of property and custody issues?

U.S. has the highest rate of divorce in the world.

No fault added in all states as an additional divorce ground

Spouse chooses fault or no-fault

Fault is often quicker to obtain because many no-fault statutes require a waiting period

Spousal support & property may be affected by whether divorce is obtained on fault grounds

In a few states, no-fault is available only if both spouses agree—if not a showing of fault is
required.

When divorce only through fault:

Collusive suits—one p file and other p default or admit

Always have been jurisdictions in U.S. or elsewhere where you could get a no fault divorce—DP
question of whether a state should recognize divorce from another jurisdiction

Fraud on the court—pretending to have committed adultery

Texas

If you have fault-based grounds you are allowed to prove fault & no-fault in the alternative.

TX-60 day waiting period

Separation is one of the no-fault ground that TX provides & requires waiting 3 years

Section 2. Grounds for Divorce

Fault Divorce

Lynch v. Lynch-Court says no divorce because no cruel and unusual punishment (W called H a
“faker”) and no desertion when the party being deserted has no objection.

Lynch shows courts former stance on divorce:

Hope for reconciliation (Mayo says paternalism)

Marriage is serious & can only get out for good reason.

Status quo is prized—lots of complication in public policy issues when people divorce, remarry,
and have more children.

Every effort should be made to keep a marriage together when children are involved.
(paternalism)

Mayo thinks requiring fault-based grounds for divorce would put people in more casual
relationships—keep them from marrying.
Capps v. Capps-VA SC would not give W a divorce because “one hit/beating was not enough
unless it is enough to endanger a life” and would not give H a divorce because W did
not really desert him when she left out of concern for her safety. WOW

Fault Divorce Defenses

Condonation—one spouse’s forgiveness of the other spouse’s adulterous misconduct

Connivance—the prior consent of the spouse to the misconduct of another

Hollis v. Hollis-H used connivance defense—late in the game to sue on the grounds of adultery
when you put me up to it.

Texas

16.008: Condonation-just because the spouse has condoned it does not mean not entitled to
divorce on those grounds

6.001: Insupportability:

6.006: Living apart for 3 years + 60 day waiting period

No-Fault Divorce

No-Fault Grounds

Uniform Marriage & Divorce Act: One or both allege irretrievably broken with a finding
supported by evidence—court must make an inquiry at a hearing.

What Constitutes Irretrievable Breakdown

Hagerty v. Hagerty-Court grants divorce for H (when H is an alcoholic & wife wants him to get
treatment—not a divorce) because if one party says the marriage is irretrievably broken
then it is irretrievably broken

Statute fix for when only one p says irretrievably broken?

Require longer waiting period

Require separation during waiting period

Wife S. v. Husband S.-Court says separation was not mutual and voluntary because wife only
left because of H’s many affairs SO NO DIVORCE—maybe court was saying should
be fault instead of no-fault divorce, here.

Texas does not require mutuality in separation—1p wanting separation is ok.

Section 3. The Current Debate: What Divorce Law Do We Want?

Should we be headed for unilateral no-fault divorce?

Unilateral Divorce On Demand Criticisms:

State is abdicated from any responsibility for determining whether a divorce should be granted—
but paternalism & what are the state’s real interests?

Parties may be tempted to divorce without considering the implications thoroughly

State has an interest in:

Welfare of children

Property issues

Collateral issues
Unilateral no-fault divorce may leave the spouse who does not want the divorce without the chip
(ammunition) for property division etc. that fault-based divorce would have given them.

Section 5. Access to Divorce

Is There A Constitutional Right to Divorce?

Boddie v. Connecticut-Court agrees that since there are no alternative ways to get a divorce
other than through a court proceeding it was a denial of DP not to allow access to the
courts for divorce because a couple couldn’t pay court fees. No rational basis divorce
turning on wealth. It is arguable that Boddie establishes a right to divorce.

Residency Requirements

Sosna v. Iowa-Since W had not met Iowa’s one-year residency requirement and states have an
interest in insulating their divorce decrees from outside collateral attack—okay for Iowa
statute to delay divorce by residency time requirement for divorce. This allocates
judicial work to a state that has a greater interest in the case.

Chapter 12: Jurisdiction Over Family Disputes

Section 1. Jurisdiction Over Divorce

Divorce requires in rem jurisdiction

Property disputes require in personam jurisdiction

The thing is the marriage—the status.

It is located where either spouse is domiciled.

Domicile = residence + intent to make the place your home for an indeterminate period of time.

If state divorce statute has residency requirement, then domicile is easier to prove & divorce more
impervious to collateral attack.

TX § 6.301—general residency requirements of 6 months in the state or at least 90 days in the

county where the divorce is filed

TX § 6.302—If the respondent is domiciled in TX, the petitioner does NOT have to be. So, P can
come from another state & divorce respondent in TX if respondent is domiciled in TX.

Choice of Law (p. 559)

Jurisdiction asked to grant the divorce will follow its own laws—NOT the law of the state where
the marriage was entered into.

Remember if the marriage is valid in the state where it is entered into then it is valid in other
states.

Except void as against that state’s public policy—Mayo has never seen it.
What obligation do sister states have to recognize divorces from other states?

Full faith & credit of Constitution

All the old ideas of jurisdiction, including in personam, quasi in rem, and in rem, are subjected to
the fundamental rule that some combination of minimum contacts and substantial
justice & fair play come from the DP clause of the 14th A to govern the state’s process
for exercising jurisdiction.

U.S. states apply state law & not foreign law to problems of divorce.

Jurisdiction can be established by:

Consent

Domicile (residence + intent to remain an indefinite period of time)

Transient presence plus service of process (if to do so would be fair)

In Rem—attachment jurisdiction if presence of thing in state.

Marriage—in rem—the thing is the status & is with each party to the marriage.

Does the person in the state have sufficient contacts with the state such that it would be fair to
exercise jurisdiction over the person not in the state?

If the person is domiciled in the state for a sufficient period of time the state has in rem
jurisdiction.

Some states say pure residency, even without domicile, is enough.

TX § 6.304—Military: If service men or women have been in the state for at least 6 months & in
a military base for at least 90 days, TX has jurisdiction for divorce.

Once jurisdiction is established, court can exercise it & affect the legal interests of a non-
domiciliary D based on the contacts the P has with the state.

In Re Estate of Steffke—Full faith and credit does not apply to foreign divorces, so States do not
have to recognize a divorce from a foreign country on grounds that they are not obligated
to accept.

Here, Mexico had jurisdiction—couple consented.

Divorce was valid under Mexico law.

Wisconsin was not obligated to recognize the divorce under full faith & credit.

Note: If you hold out in a bigamist marriage (good faith) after the real spouse has died, then after
death the bigamist marriage becomes valid—Mayo knows of no time period
requirements.
Kazin-When 2nd H drove W to Mexico for W to divorce 1st H, 2nd H’s knowledge, participation,
and acceptance of benefits of the subsequent marriage estop 2nd H from denying the
validity of their marriage.

Section 2. Personal Jurisdiction

Williams Case—Absent D who did not appear or contest has a chance to contest jurisdiction
when the divorce decree is presented in the state. The D can argue no jurisdiction in the
other state when decree comes up under full faith & credit. Just because a state has
jurisdiction to grant a divorce—jurisdiction over status does not mean they have
jurisdiction over custody or property issues—personal jurisdiction.

Kulko—SC said not enough for CA jurisdiction over absent father (in NY) that father benefited
by saving collateral expenses by voluntarily allowing child to attend school in CA rather
than providing for kid’s school in NY.

General Rule: Jurisdiction for TX court to divide property outside the state requires a basis for
personal jurisdiction over both parties.

General Rule: Jurisdiction for TX court to divide property inside the state requires jurisdiction
over only one of the parties to the dispute.

Due Process: If property is inside the state, even with an absent D, chances are good that the
circumstances are such that it would be fair to assert jurisdiction over the absent D.

Court always has jurisdiction over petitioner—by filing petition P is consenting

Dawson-Austin v. Austin (handout)—General rule that a state court has jurisdiction over
property located in the state as long as one of the parties to the dispute is domiciled in the
state is conditioned on the thought that something/circumstance connects the absent
respondent with the property in the state. Here, H unilaterally attempts to manufacture a
basis for jurisdiction with no action whatsoever on behalf of W so no jurisdiction.

TX Family Code

Laws state that divorce & property claims are non-divisible BUT

Only non-divisible if court has jurisdiction over BOTH

Long Arm Statute of TX Family Code: To the full extent of the U.S. Constitution

Substantial minimum contacts

Comport with fair play and substantial justice

Section 3. Interstate Modification And Enforcement of Child Support Awards

Problem

Finding the obligor who leaves the state & invoking the procedure that will make your order
enforceable

Frequently two state establishing & modifying orders—question of whose order controls

Now, federal law requires every state to have a statute that governs the enforcement of support
orders (UIFSA) to receive federal financial support.

Chapter 159 of TX Family Code

UIFSA—Deals only with support

UIFSA—Has lots in common with UCCJEA, but

UCCJEA—Deals only with custody

Questions

When does a state acquire jurisdiction?

How does a state lose jurisdiction?

How does another state pick up jurisdiction?

What does it all mean as far as procedures and rights?

Think

Registration of support order

Register order in absent ex-spouse’s state

Enforcement of support order in another state

Court or state agency will enforce

Self-help

Present order to (out of state) ex-spouse’s employer and seek garnishment—no registration
required

Employee ex-spouse can object within the required period and go to court
§ 159.201: Things that subject you to jurisdiction of the state

CHECK

If you cannot exercise long arm jurisdiction from your home state you can:

Travel to ex-spouse’s domiciliary state

Expensive

Hassle

UIFSA—Two state proceeding

Start the proceedings in one state & that state transfers it to ex-spouses domiciliary state

Second state will give requisite notice and the person initiating the suit will not have to be present
in the 2nd state for the proceeding—lawyer can represent.

Second state can issue an order enforceable by that state & 2nd state will have continuing
exclusive jurisdiction.

Department of Revenue v. Fleet—Under the predecessor statute to the UIFSA (URESA), a

court of a State may modify a child support order that is made by a court of another State
if:

Court of the state has jurisdiction AND

Court of the other state no longer has continuing, exclusive jurisdiction because that state no
longer is the child’s state or the residence of any contestant; or

Both parties consent

Section 4. Interstate Child Custody Jurisdiction

Uniform Child Custody Jurisdiction Enforcement Act (formerly UCCJA)--State

§ 152.201 TX Family Code/§ 201 UCCJEA

Initial Child Custody JD—written with order of preference

Child’s home state for six consecutive months

Within six months of initiating proceeding & a parent continues to live in the state

Significant connection with the state

Other than mere physical presence

Substantial evidence available

Other states have declined because court of this state is more appropriate forum
UCCJEA superceded UCCJA—See Supp. p. 71.

Two kinds of jurisdiction

Jurisdiction to grant

Jurisdiction to modify

Parental Kidnapping Prevention Act (PKPA)—Federal & no private right of action

PKPA—Primarily addresses when a state must give full faith & credit to the proceeding of
another state

UCCJEA adopts the PKPA approach to establishing initial jurisdiction giving preference to the
home state

UCCJA did not give a preference

UCCJEA § 202 & TX 155.003 Exclusive Continuing Jurisdiction

No more exclusive continuing jurisdiction if neither the child or the child’s parents, or person
acting as a parent live in the granting state—no more substantial e., no more
substantial connection.

BUT if one of the parents remains in the granting state and the other parent moves w/ child to
another state the granting state has continuing exclusive jurisdiction.

PKPA Emergency Jurisdiction

Does not include neglect

Does include mistreatment or abuse

§ 203: Jurisdiction 2nd State to Modify Determination of 1st State

Either 2nd State is the child’s home state or was the home state of the child within six months
before the commencement of the proceeding AND

Either the 1st State determines that it lost JD under § 202 OR the 2nd State determines that the 1st
state lost JD because none of the parties lives in the 1st State, hence no longer evidence
or substantial connection with 1st State.

Note: Findings that may be made by issuing state are different than findings that may be made by
modifying state.
Initial Custody Determinations Under The UCCJEA and PKPA

In Re Custody of Glazner—UCCJEA establishes priority in the context of a jurisdictional

provision: the home state is THE STATE that has jurisdiction & no other state has it
UNLESS no home state or home state declines. PKPA says no full faith & credit to a
decree that was entered by a state other than the child’s home state.

IMPT see problems p. 611.

Modification of Custody Decrees

Greenlaw v. Smith—Even though child has a new home state, WA is the state to modify custody
agreement because continuing exclusive jurisdiction: the father still lived there, child had
a significant connection, substantial evidence in the state

IMPORTANT

In most states, even if a court exercises “home state” jurisdiction to render an initial decree, it
may retain “substantial connection” continuing jurisdiction, even if the child has
established a new home state.

Texas: Jurisdiction to modify custody is lost when the child establishes a new home state. §
155.003(b)(1).

The Hague Convention

Friedrich v. Friedrich—When Mom argues grave psychological risk to the child the court said
relative merits of the two localities are for the German court to determine.

Purpose of Hague Convention: to deter parents from taking their children out of the country
without court or other parent’s permission by restoring the status quo

To prove wrongful removal under the Hague Convention, P must show:

Was presently exercising lawful custody rights or would have been but for the removal—his acts
did not constitute an abandonment or relinquishment of rights

Court takes an extremely broad view of exercising custody rights:

No jurisdiction of determining the merits & to take a narrow view would suck the courts in to the
merits
Four Affirmative Defenses for the Abducting Parent

Proceeding was commenced more than one year after removal of the child.

Person seeking child’s return consented to or subsequently acquiesced in the removal.

Grave risk that return of the child would expose the child to psych or physical harm.

Return of the child would not be permitted by the fundamental principles of the requested State
relating to the protection of human rights & fundamental freedoms.

NOTE: Standard of proof for first two affirmative defenses is preponderance of the
evidence—second two must be proved by clear and convincing.

Hague convention claim may be heard in either federal or state court.

Consider

Expertise in family law

Expertise/familiarity with the statute

OR negative expertise—depending which side of the case you are on

Docket issues—desire for speed or to avoid speed

Non U.S. resident can bring an action in state court.

Non U.S. resident can bring a federal issue (Hague Convention matter) in federal
court.

Mayo says that familiarity with one system or the other is the most common reason
for lawyers to choose one system over the other.
Chapter 13: Child Custody in Divorce

Section 1. What Rights for Children?

Custody—the right to decide how and where a child will be raised

Legal

Physical

Both—States vary widely in whether joint custody means legal, physical, or both

TFC 153.34: Joint conservatorship in TX is both joint legal and physical

Wide variety in children’s reaction to divorce

Divorce—short-lived crisis or long-term effects?

Miller v. Miller—Good intro to notion of best interests—Children are not competent to sue on
their own behalf. They are non-entities in regards to their legal abilities to retain and
control counsel.

Guardian ad litem: Reports to the court as to the “best interests” of the children with
independent, dispassionate, interest in children.

Ad litem is supposed to take the children’s desires into account (considered, but not dispositive)
BUT court decides for itself

Courts are showing an increasingly willingness to entertain the question of when the children’s
desires should be taken into account.

In Miller, children are asserting that they should have some Constitutional procedural rights in the
right to choose which parent to live with.

Interests protected

Parents and children—financial, custodial, emotional

Matthews v. Eldridge Test for Procedural DP Claims

BALANCE

Private interests affected by the chosen procedure

Risk of erroneous deprivation of those interests by the chosen procedure and the probable value,
if any, of additional or substitute procedural safeguards

Countervailing state interests supporting use of the challenged procedure

TFC 153.008: If the child is 10 or over, the child may choose who will have custody subject
to court approval—almost establishing a presumption that the court should follow the child’s
wishes unless good reason not to exists.
 Section 2. Parent v. Parent—Determining the Best Interests of the Child

Prohibited Factors: Race & Gender

Requires predictions—person oriented (act oriented better?)

Prohibited factors: Race & gender

Ex Parte Devine—GA SC said that custody cannot be based on gender—individual facts of

the case need to be considered instead.

Tender years doctrine v. award custody to the parent who performed the majority of the
caretaking duties for the child before separation.

Palmore v. Sidoti—When a TC took custody away from a fit mother and awarded it to the
child’s equally fit father because the mother was living with a black man, the US SC said the
mother’s EP was violated because race had been improperly employed. TC had expressed
concern about prejudice from the community the child might experience.

Maybe race can be A factor but not THE factor.

Davis v. Davis—NY Case—Biracial marriage where the child was given to the white mom.
Black dad petitions for custody when white mom hooked up with white man—dad claiming
that the child’s identity would be better nurtured by being brought up by biracial parents.
Racial considerations cannot justify the removal of a child when the parent with custody is a
fit parent.

The Role of Religion and Parental “Life-Style”

In Re Marriage of Wang—Illegal, immoral, or bizarre religious activities, notwithstanding

the religious basis for it, can be considered in making a custody determination.

The Role of Domestic Violence

Owan v. Owan—When TC (on notice that domestic violence might exist) accepted social
worker’s non-finding on the subject and granted custody to the father, the SC said the court
should not have delegated their responsibility—should have sought more information.

TFC § 153.003: Court shall consider e. of abuse (physical or sexual) of one parent against
the other parent, a spouse, or a child.

TFC § 153.013: Legislature’s provision for parents possibly lying about child abuse because
child abuse is a factor in custody disputes.

The Role of the Expert

Jones v. Jones—TC gave father custody saying that over the long haul his situation (living
on the family farm) was more stable. Are best interests as a standard unduly predictive?

Good science tends to be broad—does not address individual situations & circumstances.
 The more specific and predictive the testimony is on best interests the less scientific, and
more opinionated, the testimony tends to be.

Section 3. Alternatives to the Best Interests Standard—Solving or Compounding the

Dilemma?

The Primary Caretaker Presumption

Garska v. McCoy—Two states have adopted the primary caretaker presumption. If the child
is not old enough to express a preference and if both parents meet the minimum, objective
standard for being a fit parent then there is a presumption for the primary caretaker.

Joint Custody

Beck v. Beck—Joint custody was awarded even though the parents didn’t want it. Should
we do this—what about giving primary physical custody to one parent with liberal visitation
to the other & joint legal custody?

All states allow an award of joint custody—but not all states favor it.

In most states, the trial judge may not impose joint physical custody on unwilling parents.

Section 4. Access and Visitation Rights of the Nonresidential Parent

Most states--nonresidential parent is entitled to continuing contact and visitation with his or her
child except in unusual circumstances.

Schutz v. Schutz—FA SC held that the mother had an affirmative duty to the children and to the
noncustodial parent to encourage and nurture the relationship between the child and the
noncustodial parent AND any “incidental burden placed on her right of free expression
essential to the furtherance of state’s interests.”

Morgan v. Foretich—When W refused to produce daughter for visit with ex-H (because she was
convinced ex was sexually abusing daughter, even though TC said not enough evidence
to meet the burden—preponderance of the evidence), she was jailed for 16 months for
contempt—civil coercive? W invoked the defense of necessity BUT it didn’t work
because no statutory violation—statutory duty was imposed by a direct order of the court
—she had already had an appropriate inquiry (DP) about the order as it applied to her.

When children refuse to visit?

Court looks at lots of options—contempt of custodial parent or child depending on age is

available as a last resort.

Section 5. Custody Disputes Between a Parent and Nonparent

Some courts are trending toward placing more emphasis on the interests of the child and less on
the rights of the parent.

Painter v. Bannister—Using the “best interests” standard the court decided that g-parents home
was better for the child because:
Grandfather was the child’s psych father

Stability v. artistic existence

Court was guided by the presumption in favor of the natural father, but threw it all away for what
it considered the child’s best interests.

Texas

153.131--Strong presumption for granting custody to the natural parent

153.373—Presumption in favor of the natural parent is overcome when the natural parent
voluntarily relinquishes possession for over a year and custody of the non-parent is in
the child’s best interests.

Section 6. Nonparental Visitation Rights

Beagle v. Beagle—In an intact family, parents have an autonomous right to determine their
child’s visitation with grandparents. This right is protected by the privacy doctrine and a
law allowing anyone to obtain visitation with the child is unconstitutional. States cannot
show a compelling government interest in promoting g-parent’s right to visitation that
would overcome the parent’s interests.

Policy:

Best that state does not get involved in scheduling visitation within a family.
Troxel (in Supp.)—SC says apart from a finding of non-fitness, the natural parent is entitled to
deference under the privacy right in the 14th. In the TC not deferring to this mom at all,
her C-rights were not protected HOWEVER SC did not say that no person who is not a
parent can never obtain visitation rights.

Stepparent Visitation—Many states have statutes which permit stepparent visitation.

Cohabitation—Most states have denied visitation petitions by cohabitants.

Section 7. Modifying a Custody Order

Touchstone—“changed circumstances”

Some states—changed circumstances & a little more

Other states—a little less than changed circumstances

Texas § 156.101 & § 156.102

To modify must show:

Materially and substantially changed circumstances + change in a conservator would produce a

positive improvement for the child

Child gets the choice if the child is 12 years or older—book says 10 years, but it has been
changed to 12 years across the board

When the conservator has voluntarily relinquished custody for 6 months or more.

NOTE: Courts are reluctant to relitigate on changed circumstances within a short period of
time of the previous order.

TX § 156.102—what has to be shown in TX if motion to modify is made within 1 year of the

last order

Levine v. Bacon—While father (primary custody) is C-free to travel and move anywhere he
would like, he may not move the daughter to another state if it would negatively impact the
mom’s relationship with the daughter and her ability to participate in major decisions
concerning the daughter.

Note—States vary greatly in this area from liberal to strict approaches to relocation—all
relevant facts & circumstances, child’s best interests, yes ok to move unless motives for
moving are vindictive, “exceptional circumstances” necessitating the move—state’s have a
compelling interest in the child growing up with the love and support of both parents.

Chapter 15: Spousal Support

Section 1. Intro—What is it? Why is it awarded?

Financial need—lots of issues & reasons

Increase the transaction costs of divorce—make couples take marriage more seriously
Punishment of a wrongdoer spouse

Marriage as a K—spousal support as a remedy for breach

Rehabilitative interest of the nonworking partner/spouse

Reimbursement for investment in marriage (financial & non)

Theory that since you have an obligation to support during marriage, there are reasons to continue
that obligation for a certain period of time—especially where there is evidence of reliance
by the parties.

Factors in Determining the Award of Alimony

Length of award & effect of changed circumstances?

TX p. 795—Narrow statute—strictly construed regarding when alimony is available and for what
period of time.

Problem p. 798—15-4

Section 4. Alimony—Are Current Standards Fair?

Marriage duration

Child care contribution

Difference in earnings or in earnings potential

For Alimony

Olsen v. Olsen—Reasons FOR alimony

Avoid destitution

Financial help to make it possible for other p. to develop work skills

Imbalance in economic opportunities available to men & women

Olsen court thinks things have changed and alimony exists because it has always existed.

Posner—Economic rationale

Alimony is to give the wife severance or unemployment as compensation for her housekeeping &
childrearing work.

Landes—Alimony is for women to better care for themselves so they can do better in the
remarriage market.

Against alimony

Uncertainty with respect to the award duration or amount

Contemplating marriage one undervalues the risk of divorce—SURPRISE!

Ellman—Only financial rationally sharing behavior should count.

Rutherford—Expectancy (not reliance or restitution) should be the measure of alimony & when
couples marry they expect to share income.

Think: Social engineering (most desirable roles for men & women) with thoughts regarding
alimony.

Equipping women to go into the market by supporting them while they learn to support
themselves?

Compensating & rewarding women for their household talents so they can feel good about
themselves & more quickly find another man?

Perpetuating a cycle of dependency?

Irrational to award alimony in modern day life?

Helping the family situation should count—childrearing, etc.

If these things do NOT count then woman have less choices because they need to make a career
outside marriage & pay for duties not valued by alimony awarded—childrearing &
housekeeping.

Chapter 16: Child Support

Section 1. History

Parents’ duties to children: Maintenance, protection, and education

Family as one unit & moral obligation of natural law.

Section 2. Support in the Intact Family

Roe v. Doe—In an intact family the father’s support obligation to his 20 year old college student
child was subject to his right to impose reasonable restrictions & rules. Father didn’t
have to pay if she refused to follow reasonable rules. When she abandoned the home, she
forfeited her right to support.

Intact families have discretion as to whether to pay for child’s college or not.

Many states: To be an emancipated minor the child must be employable & that age is 16. States
have a strong interest in parents supporting children under 16 to keep them out of jail,
out of the hospitals, and off welfare roles.

Necessaries doctrine applies to children as well as to spouses.

BUT extending credit to minors is a relatively rare thing.

Courts have discretionary powers to go after families for reimbursement for family members on
welfare roles BUT trend is to not seek reimbursement, promoting greater chance for
family unity.

Section 3. Support in the Separated Family: Who Pays?

Typically agreements will be reviewed by the court.

Less discretion for separated families than for intact families.

Elaborate enforcement system in place because, with absence, the relationship often suffers
making the parent reluctant to pay.

Biological Parents

Straub v. B.M.T.—Parent cannot contract away child’s support rights. Since couple did not go
through artificial insemination procedures mandated by statute, the bio father was
responsible as the child’s father & sex as consideration for K agreement makes
agreement void.

Stepparents and Other Residential Adults

Wiese v. Wiese—Mayo: Since stepdad allowed his name to be put on the child’s birth certificate
& filed a declaration in court stating that he was the child’s father, there is some
argument that he should be estopped from denying that he is the father. Court said the
burden is on the mom to establish that the stepdad’s actions precluded the child from
seeking support from the bio father before the stepdad could be ordered to support the
child. Remember child was NOT a party & did not sign off that stepdad was his father.

Adult Children

Cannon v. Juras—Court holds the adult child responsible for reimbursing the state for his
indigent mother’s care, requiring a clear showing of an affirmative action to show mom
had abandoned him in childhood relinquishing him from responsibility for her care.

Majority of states—have relative responsibility laws requiring adult children to provide for their
indigent parent’s medical needs.

Section 4. Support in the Separated Family

From Discretion to Bright-Line Rules

UMDA § 309—total discretion

U.S. Federal approach—rules with some discretion

TX & some states--% of obligor, varies whether net or gross & what is counted

Majority of states—income shares

Some states—Melson formula, each parent gets a minimum self-support allowance & the court
backs out the basic needs of the child
Question: If, because of business or lifestyle decisions, the obligor has an income that is
drastically above or below, how much can those discretionary decisions be reviewed
and taken into account?

Defining Income

William R.T. v. Bonnie R.T.—Father starting a new business wants to deduct his operating
expenses and reduce his cash flow. Child support would be based on reflection of lower
income. Court said fundamentally unfair to deny him that depreciation now & if he can
grow his business & increase his income capacity within a reasonable time, the child
benefits through a modification of an award. Conversely, if he can’t put enough back in
the business to make it successful, he might not be able to pay as much support.

Applying the Guidelines: Recurring Special Cases

Rich Obligor

McGinley v. Herman—Question is apart from or beyond the minimum needs of the child, to
what extent do children have a right to share in the parent’s lifestyle? Fundamental
fairness issues have to be struggled with here. CA’s general principle is that children
share in the lifestyle of their parents. In TEXAS, $6K of monthly income is the
maximum amount to which the table can be applied. For income above 6K, the child’s
extraordinary expenses & proven need may be considered to determine how much to give
to the child.

Poor Support Obligor

No consensus

% income model applies at all income levels without variation

Melson—provides a self-support reserve

Income shares—provides a self-support reserve

Some states—statutes have an absolute minimum for child support—varies from $20-$50.

Irrebuttable presumption

Mayo thinks absolute minimum is invalid under the Supremacy Clause.

Some states—discretionary

Some states—when parent is below the poverty level, guidelines will presume an award of $50 &
appropriateness of the award can be rebutted downward.

Texas--% of income with no minimum stated, but amount totally calculated by % of obligor’s
income
Joint & Split Custody

Bast v. Rossoff—Having a large reduction in child support because the non-custodial parent
receives a few extra days of custody does NOT make a lot of sense because a few extra
days does not cut the custodial parents’ expenses by much.

Cliff rules—reduce the amount of the decree by some amount according to non-custodial parent’s
extra visitation days.

Visitation

Hours spent

Days spent

Overnights spent

Duration of Child Support

Termination Due to the Child’s Age

Traditionally age of majority was 21—many states have changed to 18.

Age of majority does not necessarily define the duration of the support obligation

Texas—As long as the child is full-time enrolled in secondary education she gets child support
up to and including age 19?

Texas § 154.013—Arrearages are not subject to obligee’s creditors or are not subject to the
obligee’s estate. Instead, they are treated as if they had already been paid avoiding the
hardship of making the arrearages subject to creditor’s claims.

Texas § 154.016—Obligation of child support ceases when obligor dies

Neudecker v. Neudecker—Most states have upheld statutes allowing courts to order a divorced
parent to pay for their child’s college expenses against constitutional challenges. Statute
is not so vague that it fails to put the parent on notice as to what their obligations might
be subject to divorce. Parents in intact families have more discretion on what to pay for
and what not to pay for. Rational relationship between state’s interests & the statute
because paying for college is an optional undertaking within the discretion of married
parents, BUT subject to compulsory payment by inclusion in a child support order in the
event of dissolution. Often relationship between non-custodial parent & child becomes
more distant making parent less inclined to pay.

Most states have concluded that a divorce court may constitutionally permit a court to order a
separated parent to support his child during college, with or without a statute giving the
court authorization.

Minority of states courts will not order a non-custodial parent to support his child during college
because they believe the classification is invalid.

Classification: young adults classified according to the marital status of their parents,
establishing for one group an action to obtain a benefit enforceable by court order that
is not available to the other group.

Courts will uphold a prior agreement between parents for one of them to pay child’s college
expenses.

Taxation

Section 1. Overview

Ongoing Marriage

Marriage penalty—combined incomes of married people, generally speaking, will hit a higher
marginal tax rate than it would if they were not married

Standard deduction—for a married couple is less than double that of a single person.

Lots of reform

Moving toward a standard deduction that is double that of a single person.

At Divorce

Alimony

Income to recipient increasing taxable income

Deduction to the obligor reducing taxable income

Alimony is worth less to the recipient and is cheaper for the obligor to pay than child support.

Child Support

Not a taxable event

Recipient gets full value of $

Obligor pays after-tax dollars.

Tax rules specify what is alimony & what is child support.

IRS can re-qualify the payments if they are not characterized correctly.

Spread created allows room for negotiation & cost of that negotiation is felt by the federal
government.

Chapter 20: Modification and Enforcement of Support Awards

Section 1. Modification: General Themes

Changed circumstances

Couple of states build a modification due to changed circumstances into the initial order.

Most states the person seeking to modify must go to court.

On what grounds can a modification by sought?

Needs of the child

Standard of living of the family

Ability of the obligor to pay or not pay

Controversy exists as to whether, if child’s needs are being met, an increase in the obligor’s
income should result in an increase in the child’s support.

Should child share in the obligor’s increase in standard of living?

How often should modification be allowed?

Stability

Flexibility
Section 2. Modification Based on a Shift in Income

The Obligor’s Income

Marriage of Meegan—Because good faith was present, children were older, and wife was able
to provide for herself financially, court allowed H to decrease his alimony payments to
zero. (Much closer question if W was unable to provide for herself.)

Harvey v. Robinson—Court refused to decrease H’s support obligation because decrease in

earnings was H’s voluntary decision and current hardship on children by reducing
alimony payments would not be offset by higher payments when H finished medical
degree. In situations where the children are very young and the parent’s decrease in child
support now will result in an increase in support later—the court will usually allow the
decrease.

DuBois v. DuBois—When H moved so 2nd W could live closer to her children & could find no
job that paid as much as his previous one had, the court said the move was involuntary
and he was not underemployed allowing him to reduce his support obligation to his 1st
family.

The Recipient’s Income

Carter v. Carter—In deciding whether to reduce alimony because W found a job enabling her to
provide more of her own support, courts consider the partnership theory of marriage,
equitable factor (W’s age & prospects for employment), and public policy rationale of not
discouraging individuals from seeking employment by taking away all support if they
find work. In this case, TC granted a reduction from $350 to $100, but when W retires
she may be able to get her alimony increased.

Section 3. Modification Based on New Relationships

Cohabitation by the Alimony Recipient

Taake v. Taake—When W cohabitated SC affirmed TC’s ruling of no ability to collect

arrearages or present support because she has a changed level of need that affects the
rational for the original award—CHANGED CIRCUMSTANCES. But, W can petition
for future support if her circumstances change once again.

Note: Remarriage automatically terminates the recipient’s right to receive alimony.

Strong Dissent: Cohabitation partnership was based on necessity & W was not to be blamed for
what she had to do to live since W was not receiving support from H.

Most states—Cohabitation creates a rebuttable presumption that circumstances have changed &
less need for support.

A Stepparent

In Re Marriage of Nimmo—Income shares states requires aggregation of income of both

parties…TC completely misses this. SC said “gifts” count if they are regularly received.
No consensus among the states whether stepparent or new spouse’s income will count toward a
recalculation of child support.

Subsequent Children

Miller v. Tashie—Revision in child support can be based in a change in financial status and in
income. SC says additional children are to be considered in whether someone can get a
decrease in support obligation.

Traditional Rule: Additional children are not considered in a motion for decrease of obligation.

Trend: Courts consider additional children in deciding whether to grant a decrease in child
support.

Section 4. Enforcement of Support Obligations

Incarceration & Contempt

Can be criminal—punitive & determinate—vindicates the authority of the court.

Criminal contempt requires DP.

Can be civil—coercive & conditional—benefits the complainant.

If you can avoid paying the fine by doing something (even though the fine is owed to the court),
then the fine is civil.

Defense—no ability to pay.

Only ones who go to jail on this are the ones who have the means to pay.

18 USC § 228—Federal Criminal Sanction for Non-Support

Effect is if you have failed to pay, you can be punished up to $5K fine or imprisonment not more
than 6 months.

Hicks on Behalf of Feiock v. Feiock—CA court presumes that an obligor is able to pay. Obligor
has the burden to show that he cannot pay. A determinate sentence with a purge clause is
civil in nature.