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Answer
II. Legal Explanation
1. Issue
2. Law (Herein Are the Relevant Rules of Law and
More Including Statutory
Interpretation)
3. Application (of Law to Facts)
4. Purpose (, Principle, and/or Policy)
5. Analogy (to at Least Two Cases from the Reading
Assignments)
6. Conclusion (A Very Brief Summary of the Essence of
the Legal Argument)
Course Themes
• Tension b/w private ordering and state supervision of family life
• Focus on larger context in which family law matters arise
• Gender issues
• Growing importance on ConLaw in family matters
Family Law Changes over the years in response to major social shifts
• More divorce
• More same sex parents
• More kids out of wedlock
• More women working
• Contraception/privacy laws
• More cohabitation
1
Legal effects/reasons for marriage
• Torts
o Can bring tort suit for wrongful death
• Trust and estates
• Survivor benefits
• Insurance
• Hospital visitation
• Spousal support
• Homestead rights
Standards of Analysis
A. Standards of Analysis
1. Strict Scrutiny
i. Ends – Government Objective Involved
a. Compelling
ii. Means – Relationship Between Ends and How Ends
are Accomplished
a. Necessary
b. Narrowly Tailored
iii. Examples
a. Race
b. Religion
c. Ethnicity
2. Intermediate Scrutiny
i. Ends – Government Objective Involved
a. Important
ii. Means – Relationship Between Ends and How Ends
are Accomplished
a. Substantially Related
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iii. Examples
a. Gender
3. Rational Relationship
i. Ends – Government Objective Involved
a. Legitimate or Permissible
ii. Means – Relationship Between Ends and How Ends
are Accomplished
a. Rationally or Conceivably Related
iii. Examples
a. Familial Status
b. Age
c. Disability
d. Sexual Orientation
e. Wealth
I. What is a family?
3
Held
• A lifetime partner is a family member in the context of a long-term
relationship characterized by emotional & financial interdependence.
• Factors in assessing the relationship
o The exclusivity & longevity of the relationship
o The level of emotional & financial commitment
o How the parties hold themselves out to society
Problems here
• Serious proof problems deciding if there is a family. Perhaps same
sex legislation would help.
Issue
• Is a meretricious couple allowed any of the rights of a married couple,
like keeping the rent controlled apt after one of them dies? YES
Facts
• Couple lived together in rent controlled apartment, she dies, her name
was on lease, landlord wants to evict b/c he is just a ‘licensee’
4
Held
• Ct. determined that the home wouldn't create a traditional family
setting.
-No perm resident/control when they would come & go.
-No central figure, rotating staff.
-No indiv cooking, staff would do that.
-State Interests: they wanted a low-density area, single families. The
group-home would be in contrast w/this policy/goal.
Should have tried:
• Show a suspect class by showing immutability (eg retardation, race)
• Show a history of political powerlessness, history of oppression, show
the class is discrete
Facts
• Board from city disapproved & rejected an application for a retarded
adult home b/c they wouldn't meet the definition of a family or its
equivalent.
5
Right to Privacy (first case to recognize as part of the penumbra of rights)
Held
• Supreme Court struck down a law barring the use of contraceptives by
married couples
6
o H andd W treat each other fairly eetc
o Should be animated by mutual concern and willing to sacrifice
for each other
o HOW? Setting a framework of rules
Marriage entry, prohibit polygamy, incest, homo…
• Normative Characteristics of Parenthood
o List on slide
o HOW? Framework of laws molding and promoting parenthood
Criminalize fornication, cohabitation, adultery etc
Restrict divorce to get kid raised b both
Penalize neglect and abuse
7
Historical Perspective: Terminology
• Get from slide
8
their not having a female child. Evid. shows that it is likely the
husband is having an affair.
2. Adultery
To prove adultery, the circdumstantial evidence must clearly establish:
a. A disposition on the part of the defendant & the paramour to commit
adultery and;
b. An opportunity to commit the offense.
3. Desertion
Crosby v Crosby 1983 pg 363
Held
• The law is unconstitutional b/c it violates EP for women, so they
didn’t look at the fault issue here
Facts
• Voluntary separation by one spouse from the other with the intent not
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to resume cohabitation without justification or consent from other
spouse
• But; state laws requiring a woman to move wherever the husband
chooses to live violate the gender equality aspect of the EPC
Constructive desertion
• Acts that fall short of physically leaving marital home
o 1992 VA case found constructive desertion
• Ws willful withdrawal of sex w/o just cause; would not
do Hs laundry, cleaning, meals etc
2. Connivance
• When one souse procures or consents to the other spouse’s
commission of marital fault
o Innocent spouse petitions for fault based divorce
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o Party allegedly at fault may defend conduct
Asserts that he would never have acted without…
3. Condonation Defense
• If you know about the spouses affair and keep living with them you
can say that the adultery was condoned and is no longer an adequate
reason for divorce
• If they do it again, it is revived
• Can be express or implied
• Spouse is essentially on temporary probation
11
• The husband: she made me sleep with her.
4. Collusion Defense
• When both parties collude to bring about a bad act upon which one of
them will bring a petition for divorce
• Court denies b/c no innocent party
• One motivation for no fault divorce
No-Fault Divorce
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• Uniform Marriage and Divorce Act pg 370
• UMDA § 302 (pg 379)
o Jxn requires domicile
o Marriage must be irretrievable broken (IB)
180 days living apart OR
Serious marital discord adversely affecting attitude of
one or both
o If one party denies IB
Court looks at all relevant factors, including
circumstances of filing and prospects of reconciliation
• Can make finding of IB or continue for hearing
with counseling recommendation or order
conciliation conferences
• IB finding = no reasonable prospect of
reconciliation
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• Agree in advance to reasonable steps to preserve marriage if
difficulties arise
• Restricts your way out
o Mandatory premarital counseling
o Sign covenant
o Legal obligation to take these steps
o Must live apart 2 years for no fault, or
o Fault (adultery, felony, abandonment, abuses)
14
These two cases together show that, yes, you can contract divorce, but
you can’t add law to a no fault state, so this is contrary to CA’s public policy
15
o Judge must make sure that prop award influenced by a finding
of fault is not enhanced by recovery in tort for the same
misconduct
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• Whether the state may impose fees and costs as a precondition to
entertaining divorce suits
Held:
• In view of the basic position of the marriage relationship in our
society and the state monopolization of the means for dissolving that
relationship, due process of law prohibits a State from denying, solely
because of inability to pay court fees and costs, access to its courts to
indigents who, in good faith, seek judicial dissolution of their
marriage
Level of scrutiny applied (417)
• Under DP 14th, maybe RBR, but maybe higher (look at language in
opinion)
Facts
• CT state provision under challenge
o Parties bringing divorce action pay $60
45 to clerk, 15 to serve D
Plaintiffs
• Woman who are welfare recipients in CT on behalf of thesmelves and
others similarly situation
• Since state court is their only avenue for divorce, it’s like restricting
access to their only forum
• Using the courts isn’t voluntary; if W wants legal enforcement, must
have the money; she could be broke b/c of H; so state has monopoly
over ability to getting divorce
• The fees interfere with the opportunity to be heard
o Is there a ‘right’ to divorce
What about driver’s licenses?
You could say that marriage is essential
• Site to Loving v Virginia, among others
Is State imposing the cost? Could argue no, b/c not every case will entail
costs. State has important interest in regulating the terms on which divorces
are granted. Could argue yes and say only real justice can occur if you have
access to the courts. The practical effect is the same as Boddie, b/c the state
reqs do cause the costs
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Held
• Upheld residency requirements for divorce
• Appears to be RBR (‘IA doesn’t want to be a divorce mill’)
• But if there is a FR to divorce, that’s a problem
Rationale for delay time period
• Delay is not absolute deprivation and may be constitutionally okay
Issue
• Discriminates against persons who have recently exercised the right to
travel
Facts
• Married in MI, Lived in NY, Separated in NY, W moved to IA with
kids, W filed for divorce in IA, Lower court dismissed b.c IA has a 1
year residency requirement, She only lived there a month when she
filed
Is state trying to affect moral climate via residency requirement?
• Are they trying to save their reputation
• Local norms via residency requirement
Difonzo pg 421
Discusses the evolution of divorce
Amato pg 425
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Thinks divorces should be harder to get. Require conceling etc
III. PARENTING
Custody Definitions
• Sole or Joint
• Physical and Legal
o Physical
Parent has right to have child live with
• Joint physical: kid spends significant time with
both
o Legal
Right and obligation to make decisions about child’s
upbringing
Schools, religion, medical care
• Visitation or Not
o Sole physical custody with visitation
Child lives mostly with one and visits the other
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(usually up to age 4).
a. Historically: The father was presumed to get custody. Why?
Children & women were men's chattels.
b. 20th Cent. View: Custody presumption in favor of the mother.
c. Now: Most states have rejected the tender years doctrine:
•Case: Ex Parte Devine (Alabama 1961)
•Held: Tender years presumption was unconstitutional. (Only 1
of 2 states to hold the presumption unconstit.)
d. Is the doctrine right:
•Yes.
(1) Custody is an area in which stability & predictability are important.
(2) It avoids destructive custody battles.
(3) Mothers are generally the primary caretakers of children.
(4) It protects women from bargaining away $$ to get custody.
• No.
(1) The presumption may hurt the best interests of the child.
(2) It reinforces the stereotype of women as child rearers & males as
irresponsible.
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custody to the mother because the dad wouldn't be able to do
"physical things" with his sons. The dad appeals. Judgment rev'd.
•
3. Weighing Multiple Factors for BIC pg 532
21
Facts
• Interracial marriage occurs after the divorce of 2 whites.
• Where should the white child of the first marriage be placed? With
the interracial couple or the white couple?
• The lower ct., wanting to insulate the child from "social
stigmatization" gave custody to the white couple. The Sup. Ct.
reverses.
22
The custodial parent's right to influence the religious
upbringing of her children is considered exclusive. If the
custodial parent objects to the noncustodial parent's religious
activities, that's the end of it: The court will defer to the
custodial parent's wishes.
In short:
• Unless the content of the parent's religious beliefs would threaten the
health & well being of the child (see Kendall), the court will not deny
custody to a parent merely because their religion is strict.
23
• The defendant testified that he would like his children to accept Jesus
Christ and that he "will never stop trying to save his children."
Most courts will consider the wishes of the child as to his custodians as
described in § 402 of UMDA. However, this broad language is tempered by
the court’s discretion to determine whether the child has sufficient maturity
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to express a meaningful preference. Teenagers especially are consulted.
25
• Clearly erroneous; whether trial court judgment unsupported by
substantial evidence
Facts
• H appeals from modification decree that terminated his rights of
visitation and custody of the two children
• Parties had to undergo counseling by court order
• Father went separate and then joint counseling
• Parties stipulated that the therapist’s report would be admissible on
the pending motions
• After two sessions doc said contact b/w father and kids would be
dangerous; father was not trying; mom got custody; dad appealed b/c
no substantial evidence to support modification or termination of
visitation
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Parenting: Alternative Approaches pg 566
27
Questions Surrounding Primary Caretaker
• What facts are necessary for presumption to arise?
• Physical care of child
• Is presumption inapplicable when both parents have been primary
caretaker?
• How is presumption rebutted?
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3. Joint Custody
a. Joint legal custody: Not necessary for parent to be living with kid, but
must be consulted for kid's major life decisions.
b. Joint physical custody: Kid has to spend a certain amount of time living
with each parent.
c. Joint residential custody.
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on moms economic stability was okay bc it reflected more
responsibility attitude about providing for kids
o Father decided not to seek FT work
Dissent
• Dad was primary caretaker, mom acquiesced in what
she criticizes now; should keep arrangement like it was
last 3 years; court used gender biased (yeah, right…)
Issue
• Who was the primary caretaker or responsible parent? Mom
• Looked at schedule and fitness of mom
o She led brownie troop, couched a soccer team etc
o See slides for more details (4/7/2009)
Facts
• Housekeeper caring for kids, Mom worked, Dad
puttered and hunted treasure
• He had an affair in new Mexico
• No agreement that he would not work; he did look for
work, but then started traveling and visiting sick
brother; spent over a year looking for gold in NM
• Housekeep watched the kids during this time
• Mom was law firm partner
• He started spending time with kids when she said she
wanted a divorce
• GAL recommends mom gets custody, dad visitation
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parent which, in the case of legal parent of parent by
estoppel who has performed a reasonable share of
parenting functions should be not less than a
presumptive amount of the custodial time set by a
uniform rule of statewide application
• (b) to accommodate the firm and reasonable
preferences of a child who has reached a specific age,
set by a uniform rule of statewide application
• To keep siblings together when the court finds that
doing so is necessary to their welfare
• To avoid an allocation of custodial responsibility that
would be exteremely impractical or that would interfere
substantially with the child’s need for stability in light of
economic, physical, or other circumstances, incuding
the distance b/w parents residences, the cost and
difficulty of transporting the child, schedules, parents
ability to cooperate
• To avoid substantial and almost certain harm to the
child
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• Rebuttable by specific factors
o Prior parental agreement
o Child’s preference
o Need to keep sibs together
o Harm to the child’s welfare based on emotional
attachment to a parent and the parent’s ability
and availability to meet the child’s needs
o Avoidance of impractical custodial arrangements
o Avoid interfering with the child’s need for stability
and the need to deal with parental relocation §
2.08(1)(a)-(g)
32
Wishes of parents
Ability and cooperation of parents in past
decision making
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custodian consent OR
Environment ‘endangers seriously’ child AND harm
likely
Physical, mental, moral, emotional health
• This section purpose (Comment pg 595)
o Designed to maximize finality and thus assure
continuity for the child
o No earlier than 2 years post decree
Unless environment may endanger seriously
child
Comment: this is a safety valve, onerous
burden
o Regards change as producing some harm to child
which must be weighted against likelihood of harm
from staying with custodian
Comment: ‘any change in the child’s
environment may have an adverse effect,
even if the non-custodial parent would better
serve the child’s interest
34
o In cases of this nature, it appears to us that in
determining . . . custody of a minor child . . . the
evidence of the custodial parents behavior during
the year or so before the hearing . . . is of more
significance than the behavior prior to that time.
What we are interested in is the best interests of
the child now and in the immediate future, and
how the custodial parent is behaving now is
therefore of greater significance than past
behavior when attempting to determine the best
interests of the child
Issue
Facts
• Husband wanted kids from mother; mother had lesbian
affair; mother tried to commit suicide 7 years before;
sough counceling; district court dismissed H’s
application to modify
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the court didn’t determine the factual underpinning of
the custody agreement; same for the amendment by
the parties
• M wanted to move to TN; F didn’t like this; new
agreement signed
o Mom got custody and stipulated in agreement to
live w/in 60 miles of ND city of Fargo
o She moves anyway; court gives custody to dad
now
• Mother here says domestic violence by dad toward her
and the girls
• Father says res judicata re issues before divorce and
first custody determination
Issue
Facts
• Court first gives custody to mom; 4 years later changes and gives to
dad
• Parents are often convinced that if the other parent gets the kids, they
will suffer irreparable harm.
• 3 types of experts in this case
o Suicide experts
o Parenting experts
o Joe Goldstein: an expert on parent-child separation.
(Propounder of the psychological parent theory)
36
Says:
Ex. in Rose, Jason (the kids) had been w/his dad for one
year. This is a long time in a young child's life.
2. Modification – Relocation
37
(5) any special needs or talents of the child that require
accommodation and whether
such accommodation or its equivalent is available in the new
location; (6) whether a
visitation and communication schedule can be developed
that will allow the noncustodial
parent to maintain a full and continuous relationship with the
child; (7) the
likelihood that the custodial parent will continue to foster the
child’s relationship
with the non-custodial parent if the move is allowed; (8) the
effect of the move on
extended family relationships here and in the new location;
(9) if the child is of age,
his or her preference; (10) whether the child is entering his
or her senior year in high school at which point he or she should
generally not be moved until graduation
without his or her consent; (11) whether the non-custodial parent has the
ability to
relocate; (12) any other factor bearing on the child’s interest.
Issue
Facts
• Autistic kid, can’t afford to be a single mom in NJ w/o
normal day care; wants to move to where her parents
can help care for him
• no, that would impair relations with dad
• kid’s wellbeing closely tracks that of custodial parent
• to move here: show good faith reason, and that kid will
not be harmed…remand
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parent. There was no motion to change custody.
• So you need to make two motions here
• Trial court must consider BIC
Facts
• H appeals order allowing wife to move from Fargo ND to Missiouri
with daughter 9 y.o.
• District court said yes, in BIC
• Parents have joint legal and physical custody
Facts
• WA statute, any person can petition for visitation rights
at any time – grant if in BIOTC
39
4. Modification – Unmarried Parents
a. Fathers
40
give the unmarried, biological father of a child the right to a hearing to
contest his child's adoption.
• No DP violation
o The right to receive notice was completely within the father's
control. He needed only to mail a postcard to the registry. The
father's ignorance of that requirement was not a sufficient
reason for criticizing the law itself.
Dissent
State had actual notice of his existence; biological connection important in
determining nature of liberty interest
Issue
• Were the father’s DP rights violated when he was not contacted when
his natural child was put up for adoption? no
Facts
• A child is born from unmarried parents. The mom marries another
man. The "new father" wants to adopt the child. The biological dad
asserts his parental rights. The Sup Ct. strikes down the dad's claim.
• Father did not enter his name in New York's "putative father registry,"
which would have entitled him to notice of the adoption proceeding
• Although the father had lived with the mother before the birth and
visited her in the hospital when the child was born, he was not on the
birth certificate and paid no support.
41
• Recognition of de facto parentage lies within the court’s general
equity powers to protect welfare of minors, which proceeds from the
premise that disruption of a child’s preexisting relationship with non-
biological parent can be harmful to the child and thus warranting state
intrusion into the privatrew realm of the family. Judge has broad
discretion to consider any factor that bears on the child’s best interests
42
o Status is based on activities that involve interaction with the
child that direct, arrange, etc
43
a third party's claim to joint custody and visitation of her former
domestic partner's biological children, with whom she lived in a
familial setting and in respect of whom she claims to have functioned
as a psychological parent."
• V.C. concerned a lesbian couple where one of them, M.J.B., was
artificially inseminated and gave birth to the subject child
• Both were very involved with birth, lived together, people at hospital
considered both the mother
• Lived together, got married, both called some form of mom, both sets
of grandparents recognized, started adoption procedures
• The split, there was visitation, then the birth mother stopped that and
stopped taking money from the other
44
raised the child together. After the 11 year relationship ended, there
was a dispute over visitation. A superior court ruled that it had no
jurisdiction to hear such a claim as the plaintiff had no legal
relationship with the child. The Supreme Court of Vermont upheld
this ruling.
• Vermont courts have not granted custody or visitation rights to the
non-biological parent of a child. Co-parents in a civil union, however,
are entitled to equal parental rights for children born during the civil
union.
45
meet her burden of proving de facto status; specifically found that Ps
efforts were not equal in quality/quantity and child would not suffer
irreparable harm from the severing of his contact with P
• Also said no standing to bring claims for visitation or support order
Issue
• Can a person who is neither the biological nor adoptive parent of a
minor child may assert custody and support rights as a de facto
parent?
• If and to what extent court should recognize estoppel principles as
creating parental rights where the party claiming such rights is neither
biological nor adoptive parent of child and does not meet the criteria
of a de facto parent
• Did the trial court apply erroneously narrow standards for determining
de facto parent status, that the defendant is estopped by her behavior
during the relationship and her statements during the litigation from
asserting that the plaintiff is not the child’s de facto parent
Facts
• Same sex partners agree to have babies with same sperm donor. One
goes thru the in vitro first and has a baby; the other was going to
adopt, but partner 1 never filed the paperwork, even when nagged
• The other is the working parent for the first year, works and travels a
lot; the one that had the baby feels like she is going it alone
• They split because the other works so much, and both want parental
rights to child they agreed during their relationship to have and co-
parent
• Separated when kid was 18 months
a. UCCJA 1968
• Since 1984, in effect in some form in every state
• 2 bases of jxn
o Home State
o SCSE: significant connection and substantial evidence
• A state with jxn may decline to exercise if it determines
o It is inconvenient forum AND
Is in BIC that another state assume jxn eg another state is
or recently was the child’s home state; if substantial
evidence more readily available in another state etc
46
o Another state more appropriate see section 8
• UCCJA section 8 on jxn
Florida may decline to exercise jxn over an initial
custody proceeding if Jane has been wrongfully taken
from Ohio (in violation of parental rights under Ohio
law)
Florida MUST NOT modify Ohio decree if nmother
taken child unlawfully from joint custodian father
Not adopted by all states
b. Home state jxn UCCJA
• Child has lived with parental figure for at least 6 months before
custody proceeding OR
• Child has moved from his home state within the last 6 months AND
one parent still lives in that state
• It’s possible to have no homestate jxn if moved from home state and
no parent left there
• Example:
o J lives with mom and dad in AL for 7 years, they separate, and
J and mom go to Tennessee. Three months later AL has home
state jxn b/c Jason moved from there w/in last 6 months AND
father still lives there
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arrangements
• Dad could still argue still for Ohio since there is also
evidence of a significant connection there
Sec8 says you can decline to exercise jxn over initial custody proceeding if
child is wrongfully taken from home states (wrongfully defined under state
law) and may not modify the Ohio decree of mother unlawfully took the
child from father
Full faith and credit clause requires states to give nationwide recognition
and enforcement to final judgments of other states
• Custody decrees are not considered final judgments b/c the court
retains jxn to modify in the BIC until they turn 18
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Home state jxn
Second bite at the apple case
Held
• VA judgment stands. Fla doesn’t get jxn. The Mass decree does not
control, the VA judgment that dad gets the kids stands.
• According to the UCCJA, the Fla court must defer to a court in
another state in a custody dispute if, at the time a petition was filed in
Fla, a similar proceeding was pending in a court of another state
exercising jxn in substantial conformity with the UCCJA
• In future proceedings parties may be present for the phone calls b/w
judges of the two states in question, but may not participate in the call
Issue
• Who has jxn? Does the mom have a right to be present for the phone
call b/w the two state courts? NO Was she entitled to a full
evidentiary hearing re jxn? NO
Facts
• Couple married and have kid J. They all live in Mass where they got
a divorce and judge set out that she gets the kid, but father gets them
in summer
• She sends the kids for summer break, but no one knows mom’s
address, she’s pregnant, and living with a guy. So in Virginia where
dad lives now, he gets custody. Mom is in Fla. She gets an atty and
tries Va court to no avail to enforce her Mass jxn. Then she tries in
Fla to get the Mass order enforced. Should have done this first
49
jurisdictional deadlocks among the States in custody cases and a
nationwide problem of interstate parental kidnapping -- suggests that
Congress' principal aim was to extend the requirements of the Full
Faith and Credit Clause to custody determinations, and not to
create an entirely new cause of action.
• The language and placement of the Act reinforce this conclusion, in
that the Act is an addendum to, and is therefore clearly intended to
have the same operative effect as, the federal full faith and credit
statute, the Act's heading is "Full faith and credit given to child
custody determinations," and, unlike statutes that explicitly confer a
right on a specified class of persons, the Act is addressed to States and
to state courts.
• Moreover, in discussing the congressional rejection of a competing
legislative proposal that would have extended the district courts'
diversity jurisdiction to custody decree enforcement actions, the
PKPA's legislative history provides an unusually clear indication that
Congress did not intend the federal courts to play the enforcement
role.
PP
• Distrcit court dismissed for lack of PJ and SMJ; affirmed twice
Issue
• Does the Parental Kidnapping Prevention Act of 1980 provide a cause
of action if two state courts conflict on custody decisions?
Facts
• PKPA says a sister state has to enforce the custody decisions of
another state (so this is when you have homestate jxn in one state and
SCJ)
• Under the Parental Kidnaping Prevention Act of 1980 (PKPA or Act),
States are required to afford full faith and credit to valid child custody
determinations entered by a sister State's courts.
• CA gave joint custody, but on Wife wants to move to Lousiana; the
court granted respondent sole custody pending an investigator's report
• She moves with baby and obtained a Louisiana court order enforcing
the California decree and awarding her sole custody, the California
court, having received and reviewed the investigator's report, entered
an order granting sole custody to father
• Father came to Lousiana to trying to get the Lousiana decree
invalidated and the CA decree enforeced
• Without first attempting to enforce the California decree in Louisiana,
50
petitioner filed suit in Federal District Court seeking an order
declaring the Louisiana decree invalid and the California decree valid,
and enjoining the enforcement of the Louisiana decree. The court
dismissed the complaint and the Court of Appeals affirmed on the
ground that petitioner had failed to state a claim upon which relief
could be granted.
IPKCA
• US federal law providing criminal sanctions in support of Hague
Convention (Us v Amer)
ICARA
• International Child Abduction Remedies Act
• US federal law providing procedures for implementation of the Hauge
Convention in the US (Alonzo)
51
UCCJA
• In several states interpreted to apply b/w state and other countries,
provided countries meet minimum standards of DP
UCCJEA
• Depending on state, another country treated as if state
52
asked if the father’s removal of the child was wrongful
Facts
• Father took child from Sweden to US (Utah) without mom’s
permission
• Mom filed a Hague petition seeking the child's return to Sweden and
to determine habitual residence and wrongful removal
• She took the child back to Sweden violating court order and was
found in contempt
• The father then filed a Hague petition in Sweden for return of child to
the United States.
• Mom filed to dismiss her district court petition
• The District Court, denied her motion, and subsequently ordered the
child's return to United States
• The Court of Appeals held that district court abused its discretion in
denying the motion to dismiss solely on the basis of the mother's
contempt of its order not to remove the child, and dismissal of the
petition was warranted.
53
Facts
• Couple met in Israel, married in Seattle; lived in Minnesota; wife
wanted to move to Israel; they moved, lived with family, both had
jobs there, marriage is falling apart; signed a lease; wife went back to
Mn to file for bankruptcy; She comes back a month later and there is
an Israeli court order that she not leave the country ( arestraining
order) and the kids passports were locked up etc
• Mom was having an affair in the states; they tried to reconcile
• They both went to US for the bankruptcy proceeding where they said
under oath that their residence was MN; tax return said this also
• Both went back to Israel
• Kids enrolled in Israeli school, learning hebrew etc
• H filed in Israeli court for divorce but cancelled the proceeding
• Wife took the kids to the states for ‘vacation’ but kept them there and
filed for legal separation and custody in MN
• Robert filed in Israel a "Request for Return of Abducted Children"
with the National Center for Missing and Exploited Children
(NCMEC), pursuant to the Hague Convention.
• Wife moves to Mass with kids to live with her boyfriend
• Father brought suit under International Child Abduction Remedies
Act (ICARA)
6. Enforcement of Custody
54
arrangement)
Held
• Affirmative acts by the mother, Joan, to keep the child away from the
father and against court orders shows actual malice and punitive
damages are allowed (she gave daughter means to get away from the
dad)
• When one party has primary physical custody, there is an action
• Distinguishes b/w legal and physical custody
Issue
• Can Husband sue for tortuous interference with custody when mom
had physical care custody? YES If so, are punitive damages
available? YES (Woods case) need to show willful and wanton
conduct Were the damages excessive? No, three years of not seeing
your child plus atty expenses is worth 25K
Facts
• Tim and Joan are in custody battle over Ashley (now an adult)
• Court award sole custody to Joan and modified to joint later tho
primary physical care to Joan
• Tim appealed; reversed and he got physical care custody in Iowa
• Ashley moved to Arizona with Joan
• Tim got habeas decree and got Ashley back for a month and a half
when she flew back to AZ
• Joan petitioned AZ court for custody and they refused b/c Iowa had
jxn
• Joan filed in IA next and both she and Ashley went there to testify;
court told them to stay in IA and they agreed, but left and went back
to AZ
• Court denied her petition and gave custody to Tim
• Tim filed civil suit for tortuous interference; joan didn’t appear but
her atty went and moved to dismiss for failure to esatlbish prima facie
case (denied)
55
arbiter of the custody dispute. Courts must secure the prompt return
of the children wrongfully removed or retained
• Habitual residence is defined as the place where he or she has been
physically present for an amount of time sufficient for acclimation and
which has a degree of settled purpose from the child’s perspective
(look to the parents intent for choosing the location)
• Exceptions: (to be narrowly interpreted)
o Must establish by CC evidence that
There was a grave risk that girl’s return to Honduras
would expose her to physical or phych harm or otherwise
place her in an intolerable situation
Or that her return would not be permitted by the
fundamental principles of the US relation to protecting
human rights abd fundamental freedoms
o Must be shown by a preponderance of the evidence
This action was not commenced within one year of the
abduction and girl is settled in US
Father was not actually exercising the custody rights at
the time of retention\, or
That girl objects to being returned and has attained an
age and degree of maturity at which it is appropriate to
take account of her views.
Issue
• Was the daughter a habitual resident of Honduras at the time the
mother she was taken by the mom? NO (mom wouldn’t have needed
to take their passports)
Facts
• Hague Convention of the Civil Aspects of International Child
Abduction and the International Child abduction remedies act
(ICARA) – the implementing legislation in US
• F wants return of daughter to Honduras, where she was abducted by
her mom; both were Honduran citizens They had joint parental
authority and court gave the mom guardianship and care
• Mom went to US, supposed to be for 2 years. Kid stayed with mom’s
parents. The next year the dad got guardianship and care in Honduras
• Dad and kid visited mom in NC; mom took their passports; girl
enrolled in school dad worked and got a band account a nod license; a
week before dad and girls visa was up, mom took the girl
• Dad filed petition for return of girl under Hague Convention
56
US v Amer pg 685 Fed. Cir. 1997
International Parental Kidnapping Criminal Act as alt to Hague when not
adopted
Held
• The IPKCA was enacted to close the enforcement gap with those
countries who had not signed the Hague Convention (civil remedy
there)
• The IPKCA criminalizes the removal of a child to another country
with the intent to obstruct parental rights. The statute punishes
individuals for taking a child from the United States to another
country. On its face, the IPKCA specifically provides that "[the
IPKCA] does not detract from the Hague Convention."
Issue
• Did the use of the IPKCA detract from the Hague convention
purpose? (NO, Egypt isn’t a signatory so the IPKCA and so this
remedy is not available to the wife) detract means to limit the
effectiveness of other countries' participation in the Hague
Convention with the United States
• H’s defense was not one of the three available in the Hague
convention (he said she was bad mother)
• Supervised release provision is okay here b/c it is tailored to the
situation at hand (abduction of the kids)
• H removed kids to Egypt and got custody there; W got custody in NY;
He took the kids w/o her knowing; violation of the IPKCA; Hague
convention created civil remedy for the return of abducted children
whereby the left behind parent can request the state where the child is
retained to located etc
Facts
• International Parent Kidnapping Crime Act IPKCA bars parent from
removing child from US or retaining a while outside the US for the
purpose to obstruct the other parent’s right in cusody
• Ahmed Amer abducted his two children to Egypt and was given
custody in an Egyptian court
• His wife was previously given custody in a U.S. court, and also filed a
complaint with FBI
• Upon Ahmed’s return to the United States, he was arrested on charges
of international parental kidnapping in violation of IPKCA
57
• When Ahmed began his supervised release term, he was unwilling to
return his
• children to the United States
• H wants to use affirmative defense that the children would have been
exposed to psychological harm and that the Hague convention allows
him allows him to argue that it is against the children’s rights to deny
them an Islamic upbringing
58
• Court ordered the kids custody to the county and ordered them all into
therapy
• County doesn’t want the kids; Guardian Mueller spends time with
father and the trial court decides that Diane is the more diffucult
parent and defiant and that Mark the husband should get the kids
Parent by Estoppel
• Co-parenting agreements prior to birth
o Lived with child since birth
o Full and permanent parental responsibilities
o When in BIC you will be named parent by estoppel
• Co-parenting after birth
De Facto Parent
• If you don’t qualify as legal parent or by estoppel, you can try this
• Requires
o You live together at least 2 years for reasons other than
financial compensation AND
59
o Have to have the agreement of the parent to form parent/child
relationship, OR
o If there is failure or inability of any legal parent to perform
caretaking functions
Regularly perform majority of caretaking functions
PROPERTY DIVISION
UMDA pg 697
Section 307 Disposition of Property:
Alternative A and alternative B
• Alt A
o Hotchpot approach to marital property
Equitably apportion
• Property and assets
o Belonging to either or both,
however and whenever acquired
o Whether title is in one name or
both
60
Applies e.g. MT, CT, IN
Factors for Equitable apportionment (broad
discretion to judge)
• Duration of marriage
• Prior marriage
• Antenuptial agreement
• Age, health, station, occupation
• Amount and source of income
• Vocational skills
• Liabilities
• Needs
• Custodial provisions
• In addition/in lieu of maintenance
• Future acquainting of assets and
income
• Alt A and B
o Both alternatives
Property divided w/o regard to marital
misconduct
61
• Increase in value over course of marriage = difference b/w
o Market value when acquired or beginning of marriage
o Mkt value when sold or end of marriage
o Marital ppty is the portion of the increase
o Comment b pg 699
• Value of marital labor ALI
o Values capital input per ordinary rates of return
• Quantum meruit approach
o Values marital labor input by prevailing compensation
rates, all remaining gain to capital
62
SP and MP classification by court (Equitable distribution factors case)
Held
• First you have to classify the assets as MP or SP, then the MP must be
divided, not necessarily equally, but equitably
• Court applied the Marital Sources of Funds Approach
o A spouse contributing SP is entitled to an interest in the ppty in
the ration of SP investment to total of P and nonMP investment
in the property; the remaining property is characterized as
marital property and it’s value is subject to equitable
distribution; basically, you get back the same proportion and
fair return on the investment
Issue
• At trial W was given almost all money from house and half the stock
sale proceeds, conceded by court to be SP
Facts
• Proceeds from sale of home (marital) and stock in the company where
H worked; house in wife’s name, bought by her shortly b/f marriage;
marital funds reduced the mortgage; stock purchased during marriage
b/c of stock options H had before marriage; stock was paid for with
some SP money and some MP money
63
Issue
• Did trial court err when they classified the H’s trust as MP and
awarded wife 400/month from the trusts as spousal support? Did the
court err in awarding spousal support?YES
Facts
• H appeals from judgment award to W for spousal support from H’s
interest in 2 family trusts created by H’s father and grandmother
• Married 24 yrs; one girl; both are attys; H and his sisters were
beneficiary of two trusts created b/f the marriage; upon death the trust
goes to their living children (daughter would get 1/3)
• Trust #2 by H’s dad to him and sisters
• H and W agreed they wouldn’t rely on trusts for income; but not long
after he started getting the money they used it to live on; he was ill
couldn’t work FT anymore;
• H and W used a trust asset to finance the construction on new home;
H said they should retire; W didn’t want to; some of trust used to pay
for girl’s college; he convinced wife to quit her job and retire; sold
home; they separated; W got in debt
64
• W got the divorce, custody, support, the marital home, half of H’s
pension, etrc etc
65
Valuation of Advanced Degree
Methods:
• Awarding % share of present value of future earnings due to degree
OR
• Restitution
• First, calculate sacrifices, efforts, and contributions of non-student
spouse toward attainment of degree
• Second, determine what means of compensation would be most
appropriate in light of:
o Marriage duration (longer marriage you get less b/c you already
benefited from the degree)
o Financial support while in school
In Postema wife 80% of financial support
Overall division of MP
Other
• W financed her own career, H responsible for
actual cost of education
66
marriage? YES
PP
• In trial court, held for PL. PL and DF are in the middle of trial, and
awaiting a decision on PL’s celebrity status as property, so the trial
court can render a decision on the economic portion of the
proceedings. Reversed in this court, and remanded back to trial court
to continue proceedings and move on to equitable distribution.
Facts
• Parties getting divorced after 17 years. Joint custody of both children,
at dispute is the split of assets. PL became famous during their
marriage. DF claims he was PL’s voice coach for 10 years of the
marriage, and sacrificed himself for the marriage, in addition to other
duties which he believes made him a contributory factor in her
development into an international celebrity
• PL seeking dissolution of marriage, and a declaratory judgment
sought her status as celebrity before the equitable division of the
couple’s assets.
• Additionally, PL’s earnings increased 275 fold from the time of their
marriage.
67
Siegel v Siegel NJ 1990 pg 721
Dissipation of marital assets by gambling
Held
• Gambling losses are excluded from the matrimonial ‘pot’
Facts
• NJ statue says dissipation in value of MP considered in equitable
distribution
• Here, debt belongs to gambler
Vocabulary
• Vested
68
o When Ee discharge doesn’t forfeit benefits
• Non-vested
o Contingent on continued employment
• Mature
o When Ee on retirement has unconditional right to receive
payment
• Non-matured
69
spouse during marriage but accruing after dissolution of marriage,
MP? yes
Facts
• H sells life insurance and gets commissions on polices he and agents
under him sell
• If policies renew, he gets income from net profits, subject to certain
conditions (renewal income)
• This is vested even if dead or disabled b/c it goes to heirs or assigns
• Anticipated renewal commissions on insurance policies sold by the
husband during the marriage were included as marital property
because the husband was entitled to receive the income under a
contractual agreement with the insurance company which also
provided for the husband's heirs to receive the renewal commissions
in the event of his death and allowed the husband to assign the
commissions under certain circumstances
70
Alimony – Maintenance – Spousal Support
• Legal financial arrangement b/w separated or divorced couples
• Contract with child support
o Financial support by non-custodial parent
o Different tax consequences
71
o Presumption of entitlement can be rebutted by evidence that claimant
didn’t provide disproportionate share of the child care
o HOW TO CALCULATE
o Say 10 year marriage, W didn’t work last 7 b/c of kid
o Ask what is her expected income after divorce
o What is the difference b/w hers and his income
o What is the child care durational factor
Not specified in ALI; leaves states to determine. Here
assume 0.02
o Calculate
Multiply child care durational factor by years W had
primary child care responsibility
Multiply this by the difference in income
• (.02)(7) = 0.14
• (0.14)(2000) = $280/mnth
• For how long? ALI doesn’t say. State sets this.
72
period (ALI 5.04) note ALI sys ‘spousal compensatory payments)
Alimony: Cases
73
o Did trial court abuse discretion by terminating lifetime support even
tho supported spouse was permanently disabled? NO. Wife not
entitled to lifetime support after a 70-month marriage.
PP
o Trial court considered length and nature of marriage, duration of
support, and ruled hubby no longer needed to pay.
Facts
o Couple married 70 months; spousal support terminated at 58 months
by court order; she is permanently disabled from accident 2 years after
separation; the infection from dental work; couldn’t bartend anymore;
needed rehab; head doctor said h=she had brain damage.
o Short marriage, no kids, disability happened after split
Issue
o Standard of living is higher than reasonable needs here. What to do?
Facts
o Married 20 years; H has to pay 2K/ month. He says wife’s reasonable
needs are met; He says gives W income higher than her reasonable
nedds
74
o Duration relates to:
o (1) Financial need arising from the marriage
o (a)Courts believe that the longer a person is married, the more
plausible it is that her financial disparity is attributable to the
marriage.
o (b) Also more plausible that spouse has benefited from homemaking
labors that gave rise to financial disparity
o (i) See Clapp, which discusses the right of both parties, after a long
marriage, to maintain the marital standard of living
o (ii) And Wilson, where court denied support to wife who was disabled
in an accident. Because marriage only lasted two years and disparity
not attributable to marriage, no support even though husband able to
pay.
o (c) The older one gets, the more they rely on the marital commitment
because life course becomes harder to change, and the prospects of
finding a new spouse decline
75
ability to pay or the needs of the minor children
o So a fat change in salary is enough to modify
Issue
o Does an increase in ability to pay of the non-custodial parent’s ability
to pay possibly constitute a material change in circumstances
sufficient to justify an increase in support? YES
PP
o Trial court said that increase in income, alone, was insufficient basis
to modify a court order for support
Facts
o 20 year marriage; was paying 625/wk combined; his income almost
tripled up to 255K per year
76
Appellate review of a factual finding, therefore, is limited
both as a practical matter and as a matter of the
fundamental difference between the role of the trial court
and an appellate court.’’
Facts
o CT statute provides that cohabitation may result in suspension,
reduction, or termination of alimony if “living arrangements cause
such a change of circumstances as to alter the financial needs of that
party
77
ownership of property acquired during the relationship.
* A contract between nonmarital partners is unenforceable only
to the extent that it explicitly rests upon the immoral and illicit
consideration of meretrocious sexual services.
* A standard which inquires whether an agreement is
"involved" in or "contemplates" a nonmarital relationship is vague and
unworkable, in that virtually all agreements between nonmartial
partners can be said to be "involved" in some sense in the fact of their
mutual sexual relationship, or to "contemplate" the existence of that
relationship.
* Awarding the plaintiff some of the property to which Marvin's first wife
would be entitled is not counter to public policy, because Betty Marvin
could have asserted her community property rights but did not.
• Adults who voluntarily live together and engage in
sexual relations are nonetheless as competent as
any other persons to contract respecting their
earnings and property rights.
Issue
o Was the live gf entitled to half of whatever he got during relationship?
NO
PP
o Marvin was ordered to pay $104,000 to Triola for "rehabilitation
purposes" but denied her community property claim for one-half of
the $3.6 million, which Marvin had earned during their six years of
cohabitation
Facts
o Marvin was sued by long-time girlfriend Michelle Triola (who called
herself Michelle Marvin at the time). Though the couple never
married, she sought financial compensation similar to that available to
spouses under California's alimony and community property laws.
o After all, she had lived with the rambunctious, hard-drinking actor for
six years and had even legally changed her name to Marvin. At first
she accepted the $833 per month he sent to support her while she tried
to resume her singing and acting career. When the promised checks
stopped, she decided to sue him.
o He agreed to support her for life. She gave up entertainment career to
be homemaker
78
Enforceability of Palimony Arguments
o An express contract would create incentives for clear expression of
parties’ intent
o Probably can’t modify for change in circ b/c jxn of court isn’t based
on dissolution principles but contract theory
o Court simply is charged with enforcing according to intent at time of
contract
o Tho, consider unsonscionablity to address destitution due to
enforcement
o Is it VAPP? No
o Implied theory of contract? Expectations? Court says look at
economic integration and if they hold themselves out as couple
o Living together would probably say sharing assets etc and give
her equitable distribution
79
Norton v Hoyt RI 2003 pg 776
Promissory estoppel for an adulterous relationship (he promised to support
her)
Held
o See issues for response to elements. Doctrine of estoppel has no
application to contract that is void b.c it violates an express mandate
of the law or public policy. Public policy in favor of marriage
militates against recognizing support claims arising from adulterous
relationships.
Issue
o Are these elements of Promissory Estoppel in RI met?
o Was there a clear and unambiguous promise?
No. He said he take care of her for life, but that can
mean a lot of things, not just money.
o Reasonable and justifiable reliance on the promise
Her reliance on the promise was unreasonable; she knew
he was married and that he spent time with wife and kids;
she knew he was a liar and an adulteror; reliance on an
unclear and ambiguous promise was imprutent
o Detriment to promisee caused by the reliance on the promise
She says she left gainful employment as school teacher
and gave up marrying someone else at a younger age
Whatever reliance she had is insufficent
Facts
o 23 year relationship; adulterious; D said he would leave his wife and
marry gf and support her forever
o Gail/P met Hoyt. He said he was divorced. Not. He kept lying and
leading her on. Lavish lifestyle. He totally supprted her. He left. She
was uber upset.
CHILD SUPPORT
Federal Gvt
1. 1984 Aid to Families with Dependent Children program
o Shapes state policy by conditions imposed by the programs through
conditions of receiving AFDC assistance to establish numerical
guidelines on which to rely in determining child support obligation
o These are rebuttable presumptions of the appropriate amount
o Judges may deviate only upon a written finding that applying them
80
would be inequitable
2. Child Support and Establishment of Paternity Act 1974
o Recipients of public assistance
o Must cooperate I establish and enforcing support orders and
locating potential obligors
o Objectives
o Reduce public expenditures on welfare
o Help families get support and get off public assistance
o Simulate state action for paternity for nonmarital kids
3. Child Support Enforcement amendments
o States have to make advisory guildelines or they lose federal funding
for AFDC
o Trying to enhance uniformity in child support and gtive judges basis
to determine support
4. Family Support Act 1988
o Required state guidelines to apply to all cases
o Rebuttable presumption
o Any deviation supported must be by findings that applying guidelines
would be inequitable
5. Three Models for Guidelines
o 1. Income shares
o 33 states including WA pg 783
o Prorates support based on each parents % income
o Theory
Kid should get same proportion of parents income as if
they were still together
o Method to Calculate
Add income CP and NCP
Determine % available for support
Add expenditures for med or child care
Prorate total amount b/w parents based on each % share
of total
o 2. Percentage of Income
o 14 states and DC pg 784
o Percentagle of NCP income only
Vary by number kids
• Example 20% for one kid, 50% for >6
• Illinios guidelines on pg 790-1 nt 2
81
o 3. Delaware Melson Formula (slides on 4/21)
o 3 states pg 784
o Generally
Calculate parents’ Basic needs b/f formula applied
Then kids basic needs including child care and meds
Portion of remaining to additional child support
ALI Approach
o Based on data that indicate how much more income a family necds
after divorce to sustain its s predivorced standard of living
o Bureau of labor statistics
Eg. Parents with 1 child need 114% of predivorce
income for same SOL
CP needs 70% and NCP needs 44%
CP chould get 70%/114%, or 61%of the income
NCP should get 44%/114% or 39% of the income
o Focuses more directly on post divorce needs than assuming same % of
income should be spent on kids before and after
82
o M with higher salary ordered to pay for 1 kid, so this cancels
out
The Story Here
o Heather and Jody marrie,d split had, JC of their son Christian
o Heather married Stephen, split, and Heather got physical custody of
Michael
o Heather got her degree and then married Brent moved from Madison
to SD; they let Jody have Christen for the summer, Stephen got
Michael for summer. They did fine apart.
o The two fathers each filed for custody; Doc recommending that
primary custody of Christian be awarded to Jody and that Heather get
Micheal b/c Stephen was a worse parent
o The trial court found that Heather, as primary caretaker, provided
appropriate education, recreation, care, parental love, affection and
guidance.
83
Held
o No statute or case law holding parents to a duty to college support in
the absence of an agreement; courts will enforce contracts to provide
such support
o Authority for a court enforcing child support where the parties have
agreed to share the cost of college (an action to enforce the agreement
as a contract)
Issue
o In Arizona does father still pay child support as long as she is in
college? NO Does she need to be living at home also?
Facts
o F (findley) and M (Solomon) submit joint petition for
o In AZ Termination of support at 18 or until child graduates from high
school, but not past 19
84
Child Support Schemes vary by state
o Income Shares
o Presumption that amount calc under guidelines is appropriate
obligation
o Statute permits deviation if
o Just finds child support under guidelines would be inequitable,
considering specific factors
85
o In this case, subsequent family children were step-children.
o The duty to support stepchildren is considered in the guidelines
calculation in only four states: Michigan, New Hampshire, South
Dakota, and Vermont. Mich.
86
voluntary decision to leave work and become FT student? (substantial
continuing change of circumstances) constitutes a sufficient change in
circumstances to warrant a downward mod of support obligation?
See factors considered on pg 806 balancing things like how long the
schooling is, how young the kids are so that they may benefit from the
parent’s increased earning after the school etc.
PP
o Trial court denied modification b/c appellant failed to prove a
substantial and continuing change of circumstances according to the
AZ statute; specifically he voluntarily left his job for his own
ambition and failed to consider the needs of his kids; on appeal
reversed; that court find the decision to persue a law degree
reasonable;
87
ant not work from her support obligations to the child that her ex-
husband has custody of?
PP
o Appealing an order that suspending wife’s obligation to support 9 yr
old daughter; dad has permanent custody, start support proceedings;;
since she was 8 months pregnant at that time, support order given 6
week hiatus; she decides to be stay at home mom; trial court said she
had a right to be a stay at home mother
88
EP violation against unmarried parents that they can’t use that
section?
PP
o Mother appeals courts denial to modify the dads support obligation to
include college subsidy; reversed on second appeal;
Facts
o Mother had the kid and got support from father;
89
PP
o NY court found that even tho NV ordered divorce decree and it was
valid, it still could order support payments; upheld on NY appeal;
Facts
o Married 4 years; sep in CA; W moved to NUY; H filed suit for
divorce in NV; divorce decree granted; W didn’t get notice of process
in NV and didn’t appear before the court
o The next year she files for divorce in NY and wants alimony; NY ct
didn’t pave personal jxm over him, but sequestered his property w/in
the state; he argued the FFC and since NV didn’t order support blah
blah
90
o Restraining order (Dissolution)
Who is eligible?
o 16 or older, under that need parent or guardian
o See slide for legal definitions of sexual conduct, sexual penetration,
basis for petition
WA on Marital Rape
• Doesn’t recognize this except for 1st degree rape (rape involving
kidnapping, threat of deadly force, serious physical injury)
• Does allow exemption for 3rd degree rape (where victim does not
consent)
91
• Battered Women’s syndrome is considered as a part of the
reasonableness determination in a self-defense plea
• Reasonable person standard, not reasonable battered woman
• Court distinguishes perfect and imperfect defense
o Complete/perfect defense escapes all charges including 2nd
degree murder
Actual and reasonable belief that killing necessary;
objectively reasonable
o Imperfect defense
Releases D from 2nd degree murder
Actual belief that killing was necessary
• Fails the reasonable test (objectively unreasonable)
o Fear must be of imminent danger to life or great bodily
injury, but not future harms
Issue
• Is battered women’s syndrome to be considered in a self-defense plea
to determine if the killer reasonably believed she was in danger?
YES, partly
• Since H was asleep, can there still be imminent danger for the self-
defense plea b/c he was a wife beater?
• Jury must determine what would appear to be necessary to a
reasonable person in a similar situation and with similar knowledge
Facts
• H beat W a lot. W killed H with his gun; was convicted of
manslaughter, 3 years, enhancement b/c of firearm, another 5 years
• H was asleep
92
o Mandatory Arrest MA
o Preferred over mediation; mediation would assume equal
culpability
o ProMA
Arrest makes offender aware of seriousness
Life or health of victim more important that attempting to
preserve a marriage
A cop can’t effect a reconciliation; only the parties can
do this
o ConMA
Insensitive to nuances of domestic setting
Mediate
Arrest could screw up relationship
93
Held
o Order of abuse prevention order vacated b/c insufficient evidence in
the record to support the necessary substantial dating relationship
required by statute
o One time offenders, like if your neighbor molests you kids,
there is a gap in remedies; relegated to anti harassment orders
o Sexual assault protection order enacted to fill the gap
o Four facts considered when deciding if there existed a substantial
dating relationship (as required in the statutory language)
o Length of time of the relationship
o The type of relationship
o The frequency of interaction b/w the parties and
o If the relationship has been terminated by either person, the
length of time elapsed since the termination of the relationship
o The Legislature intended to address violence stemming from
relationships, which may not be considered traditional family or
household associations. And, the courts are instructed to give
broad meaning to the term ‘substantial dating relationship to
assure that the protective purpose of the statute is realized
o The Legislature did NOT intend the statute to apply to
acquaintance or stranger violence
Issue
• Did P fail to meet her burden of establishing the existence of
substantive dating or engagement relationship, since this is a domestic
relations statute?
• Were boys DP rights violated b/c he couldn’t call witnesses on his
behalf or challenge evidence from P?
PP
o Abuse Protection Order issued against the boy at trial
Facts
• 17 yo boy 15 yr old girl; accused of sexually assaulting her; abuse PO
against boy; he was arrested; suspended from high school
94
order
Rationale
o Civil protection statutes that address family members ust be equally to
all concepts of family as they exist in the reality of our diverse family
relationships
Issue
o Whether the paternal grandparent of a child whose parents were not
married is related by blood to the child’s mother, and thus, has a right
to invoke protection from domestic abuse under the statute. YES
Facts
o Unmarried parents; mom is a crackhead; fathers mom has the kid;
mother shows up high and wants the kid and winds up beating up
grandma
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she owes a bucket of child support?
PP
o Trial court said it was not unconstitutional. Affirmed on appeal.
Fact
o Eudence Eunique denied passport b/c she hadn’t paid child support
payments in a while (20K); she wants injunctive relief; although she
won’t pay child support, she wants to travel internationally for
business and pleasure
o There is a statute that directs the state to notify the secretary of HHS,
and they did, and there is a law that then directs the secretary shall
refuse to issue a passport to the person in question
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Facts
o Dad with 9 kids, 4 moms, refuses to pay child support; this is a
FELONY here
o Statute says the court may set aside the sentence and impose any
conditions on the probation; wants to protect the kids from future
wrongdoing; broad discretion granted
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Child support recovery act (CRSA)
Held
o Affirmed criminal conviction but reversed the civil order of wage
garnishment;
o Child support payments to a person in another state are the
functional equivalent to interstate contracts b/ the obligations
are ‘things’ in interstate commerce; it is appropriate for
congress to enact legislation that will prevent their non-
fulfillment
Issue
o Is the CRSA an unconstitutional exercise of Congress’ authority under
the commerce clause, where a GA imposed support obligation is owed
by MI resident to a child in Mass? NO
o Does CRSA violate the 10th amendment protection of federalism since
domestic orders are left to the states? NO
Commerce Clause
o Can be regulated under CC
o Activities that involve use of the channels of interstate
commerce
o Activities that implicate the instrumentalities of interstate
commerce including persons or things in the commerce and
o Activities that have a substantial relation to, or substantial
affect, interstate commerce
o Shubert: Commerce exists where there is a continuous and
indivisible stream of intercourse among the states including the
transmission of money and communications
PP
o Father supposed to be incarcerated for not paying 75K; but he
accepted a job in Michigan and the order was from Georgia ; MI got
the jxn and authorized garnishment; he quit his job and paid only
500/month; MI court said he has to pay 300/wk. He didn’t.
o Then the US charged him with violating the CSRA; guilty of not
paying when he could have, 5 years probation and a work release
agreement which put him in the custody of the jail 12 hours a day
o The court also started a civil proceeding; court agreed to attach his
wages and disburse the proceeds
Facts
o Child Support Recovery Act (CSRA) is to help fill that gap that
occurs when parents flee a state to avoid child support; cumbersome
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for state courts to try and extradite etc
o W gets custody of the kid; doc had to pay 5K a month in child support
o Dad wants to modify this now, but he hasn’t been paying the full
amount, according to the mom
o Court found he owed like 75K in back support;
Loving v Virginia pg 59
Miscegenation statute/EP
Marriage is fundamental freedom (still don’t say right)
Held
• Statutes violate EP of the 14th amendment; strict scrutiny for invidious
discrimination; fundamental right; no legitimate overriding purpose
• Also deprive the Lovings of liberty w/o DP 14th amendment
Issue
• Is there an EP violation in the miscegenation statute? Is there
invidious discrimination? YES. Is there a liberty DP violation? YES
PP
• District court denied motion to vacate the sentences; affirmed on
appeal;
Facts
• VA statute made it illegal to marry between races and set punishment
• Mixed couple living in VA went to DC to be married and returned to
VA
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• Were sentenced each to 1year, suspended 25 years, and told to move
out of state
• State said no EP issue b/c both blacks and whites got the same
punishment
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could not marry until they proved that they were keeping up with the
child support payments
• Criminal penalties if you marry w/o permission
In the Notes pg 74
• Four factors of reasonableness in Langone v Coughlin
o The statute not reasonably related to the stated goal
o No alt means for the person to be married
o With deference to prison, court found that accommodating the
inmates right to marry would not jeopardize the security
o No ready alternative to the fundamental right to marry
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• The liberty must be both fundamental and traditionally protected in
our society; implicit in the concept of ordered liberty; rooted in our
history and tradition
• Here, the liberty in question is that of a paternal father, when the
mother is married and living with her husband; to provide protection
for the adulterous natural father is to deny protection to the marital
father; the claim that a state must recognize multiple fatherhood has
no support in the history of the traditions of this country
Brennan dissent
• Marriage is not decisive in answering the question whether the
constitutional protects the parental relationship in this case
• This result squashes the liberty that consists of the ‘freedom not to
conform; Brennan says the liberty protected is fatherhood, not just one
type of fatherhood (which would be in the marriage); tradition
protects fatherhood in all respects
• Tradition is not the end all; today we can conclusively determine
parenthood and there is no need for statutes that make illegitimate
children legitimate
Issue
• Is the CA law that provides that the issue of a wife who lives with her
fertile husband is presumed a marital child, constitutional? YES
because the relationship b/w Michael, the natural father, and the
daughter, is not one protected in our nation’s history
• Can challenge the law with blood tests w/in two years of birth, but
only H and W can do this, not the adulterous third person
Facts
• Carole, model, married Gerald, Oil guy, moved to CA; both would go
out of the country on business
• Carole has affair with neighbor, Michael H.
• Has a baby, Victoria. Says it’s Gerald and holds that out to the world,
but then tells Michael it might be his; DNA tests confirmed
• Gerald moves to NY for business; Carole stays in CA
• Carole visits Michael in St. Tomas, they hold the kid out as his
• She goes bac to CA where she lives with Scott in the spring
• In summer she goes to Gerald in NY, vacation in Europe, and return
to Scott in CA
• Michael files action in CQ court to establish paternity and visition
rights
• Guardian ad litem for kid; Mother/daughter want to have filial
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relationship with all rights with both guys
• Carole signed paper saying M was father, but told atty not to file it
• Carole moves back with Gerald and has two more kids
• Guardian ad litem sought visitation rights for M
• M challenges CA statute that says the marital dad is the father
a. Incest
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affinity b/w her daughter and ex was valid at that point
Issue
• Is the marriage of Back to his divorced wife’s daughter incestuous and
void? The wife is dead now, so still? Is the second wife a widow or
not?
Facts
• Back Married Dirke, a widow, who lived with her daughter
• They divorced and he married the daughter and had 4 kids
b. Age
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• Monogamy is a fundamental value and woven into the fabric of our
society and it the bedrock of our society
• Reynolds is the controlling case where polygamy criminal conviction
upheld by the USSC
Issue
• Is polygamy an unconstitutional infringement on free exercise clause
of the 1A
Facts
• Wanted to take a second wife
• Utah has bigamy statute
• Utah constitution required by enabling act to join the union to make
polygamy illegal
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Defense of Marriage Act DOMA
No state, territory or possession of the US or tribes shall be required to
give effect to any public act etc respecting a relationship b/w persons of
the same sex that is treated as marriage under the laws of other state or
right or claim arising from such relationship
Affects how states respond to this issue
This came up in context of Wilson case (same sex) who sued Ashcroft and
FLa court clerk and claimed FL was required to recognize their marriage;
DOMA, they said, unconstitutional
Fla statute similar b/c it says they won’t recognize marriages of this kind
from other states
Federal act
States not required to recognize same sex marriage from another state; and
they define what marriage and spouse mean in a legislative or executive
branch action.
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o can bring suit for wrongful death
o bring action for loss of consortium
o right to workers comp survivor benefits
Evidence
o Right to claim evidentiary privilege of marital communication
Property
o Homestead rights & protections (protection of home from creditors)
o Depending on state, presumption of joint ownership of property and
concomitant right of survivorship
Other rights
o Hospital visitation & others rights incident to medical treatment of
family members
Separation and Divorce
o Right to receive & obligation to provide
o Spousal support
o Maintenance
o Property
Other Statutory Rights: Insurance
o Right to spousal benefits that are guaranteed by state statute to public
employees, including health, life, disability & accident insurance
o Right to be covered as spouse under group life insurance policies
issued to employee
o Opportunity to be covered as insured spouse under individual health
insurance policy
See Slide for Core Questions on same sex marriage
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common human dignity protected by the 14A to US Const
precludes govt intrusion into the deeply personal realms of
consensual adult expressions of intimacy and one's choice of an
intimate partner.
o Reaffirmed central role that decisions whether to marry or have
children bear in shaping one’s identity
o Mass constitution is more protective of personal liberty and equality
o NOTE this does not prevent anyone from refusing to perform a
same sex cereomony
Issue
o Whether, consistent with the Mass constitution, Commonwealth may
deny the protections, benefits and obligations conferred by civil
marriage to two individuals of the same sex who wish to marry? NO
PP
Facts
o 14 individuals, 5 counties, wanted to marry same‐sex partner
o publicly affirm commitment & secure legal protections & benefits of
married couples & kids
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Wilson v Ake US Dist. Ct. Fla 2005 pg 121
DOMA
FR are those rights that are ‘implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were sacrificed; the DP
clause protects FRs rooted in deeply in nations history and tradition
slides go thru challenges to this re EP etc and compelling interests etc and
CA prop 8 law and their constitution
Held
o Holding in Lawrence held marriage to be a FR, but no court has
recongnize that this right includes the right to marry a person of gthe
same sex; gay is not a suspect class; no strict scrutiny
o Courts would be deciding a FR, which is the role of the legislature
o RBR here: Encouraging child raising in homes w/ married
o mother and father is legit state interests,
o rationally related
o Adopting the Ps view re FFC would mean that any given state can
make national policy;
Issue
o Are the DOMA and Fla statutes that won’t recognize the valid Mass
marriage unconstitutional b/c they violate the FFC, DP and EP of 14th,
the PI of the and Commerce Clause of USC
PP
Facts
o Lesbian couple married in Mass
Why would FFC clause not be violated by DOMA? Court dismisses citing
Baker. See slide. Gay not suspect class. Same sex marriage not guaranteed
by 14th b/c not rooted in our history and tradition, so not a fundamental right.
This is different from Goodrich.
Nat’l Pride at Work Inc v. Gov of Mich. Mich Sup Ct 2008 [ Supp 30]
Taking even benefits away from same sex couples after amending
constitution to forbid gay marriage
Held
o Providing benefits would violate the state constitution; the language
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in the amendment provided that ‘To secure the benefits marriage..for
society…between a man and a woman
Issue
o Whether an amendment to the Michigan state constitution prohibiting
recognition of same-sex marriages or any "union" that is "similar" to
marriage also prohibits public employers in the state from conferring
benefits on the same-sex partners of their employees. YES
Which branch should make these decisions. In Canada they had leg and
judiciary working together. They determined that it’s okay for legislativei
branch to ast in this area and it is consistent with their equivelant of the bill
of rights
International slides
Prenuptial Agreements
Status vs Contract
• Status relationships are controlled by law
• Contract relationships controlled by agreement
• Arguably employment is moving towards a status relationship
o More limits on freedom to contract
E.g. anti-discrimination laws
• Arguably marriage moving toward contract
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• What is permissible and what is not to put into these
• Have to start by asking whether there is a contract or a status
relationship
• How far is a court going to intervene in interpreting a contract?
• In most states marriage constitutes a legal status based on contract
(slide now)
Edwardson
• In certain states they undergo ‘special scrutiny’
• They look closer than a normal contract
• There was a binding 75 year old precident not to recognize these
agreements
• Court decided to go ahead and enforce
• The terms may not be unconscionable AT THE TIME
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ENFORCEMENT IS SOUGHT, as opposed to upon execution
• The validity of most contracts doesn’t usually depend on full
disclosure unless you can characterize as fraud; is this requirement
sufficient for a would be spouse who is dying to get married?
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Uniform PMA Act pg 215 re spousal support
o Allows parties to contract re spousal support
o SPLIT IN AUTHORITY
o Some states don’t allow PMA to control
o Some allow if agreement meets certain conditions or
circumstances
Separation Agreements
o Agreement of the parties at the time of divorcing
o These are allowed by UMDA 306(a)
o Property division, alimony, child support, custody, visitation
o Rationale in comment
o Promote amicable divorce
o Must follow basic principles of contract law to be enforceable
o Courts more strictly scrutinize child-related issues under parens
patriae
o Court will also enter a divorce decree
o Enforceability and modifications subject of litigation
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UMDA 306(b)
o Standard of court review for property division and maintenance?
o Unconscionability
o SA terms binding on the court for property division maintenance
o Unless court finds unconscionable
When unconscionable?
• May look to time of enforcement (Comment)
• Court may look to economic circumstances of
parties resulting from SA
• May look to other relevant evidence, including
knowledge when made
Standard for determining unconscionability
• Used in the commercial context
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