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Family Law Outline Professor Flannery

Chapter 1 Changing Concepts of Family and Marriage

I. Function v. Form in Family Relationships

Zoning Ordinances What is a family? o one or more persons, related by blood (to a certain # of degrees), marriage or adoption, occupying a dwelling unit as an individual housekeeping organization Purpose health, safety, morals and general welfare of the City But what about a gay person w/partner that has AIDS? How can this ordinance only be based on blood, marriage or adoption? They function as a family? o According to the Court in City of Ladue, it is OK to categorize by blood, marriage and adoption b/c they are legal relationships that have committed to a permanent relationship and have reciprocal obligations to care for each other The case below is the Appellate Review City of Ladue v. Horn P had ordinance that designated certain areas as 1-family residential and defined family as 1 or more persons related by blood, marriage or adoption, occupying a dwelling unit as an individual housekeeping organization D and Jones bought a big house and lived w/their respective children P ordered them to vacate and D refused Trial Court ruled for the P Issue: whether ordinance violated any Fed or St rights Holding: it does NOT violate either Reasoning: standard of review is RB b/c there is no suspect class and the ordinance is rationally related to its stated purpose. o The Court distinguishes a case striking down on ordinance b/c it cut into family relationships (i.e. limited the # of related persons who could live together). D seeks to expand the definition of family to include nontraditional, but the Court relies on Missouri case law providing that

deference should be given to the ordinance unless there is some major governmental interest or statute stating otherwise. The P has used specific language in defining family in a form that resembles the historic definition. Flannerys Notes this was bad reasoning used to kick persons out on the street it is bootstrapping

Rent Control Braschi v. Stahl Associates the NY Ct of Appeals did allow same sex partners to use functional family argument in order to protect against eviction when defining family, we need to look @ the reality of family life BUT the Ct pointed out that the ruling was completely unrelated to zoning ordinances some courts use the dictionary definitions of family there are other reasons for wanting to define family in a specific manner: health insurance taxes probate visitation and custody issues the biggest influence on how states define family is whether the same benefits can be applied equally Braschi led to more liberal policies enacted by several states: Hawaii lots of benefits for same-sex partners Vermont allows for same-sex civil unions the point about these zoning ordinances is that as long as there is a RB for enacting such should we have a universal definition of family? would it make it easier for family law purposes? City of Ladue states that cities and municipalities can regulate how they want K Arrangements as Alternative to Marriage Marvin I P and D made oral promises to each other about sharing earnings equally D ended up telling P to leave and refused to support her P filed suits claiming K or property rights as well as a constructive trust on the property Trial Court ruled for D Issue: whether there was a breach of K

Holding: up to the Trial Court to determine Reasoning: the Court points out that non-marital couples can be treated in 1 of 2 ways >> o 1. married as in a Community Property State (WWILT CANN) Washington/Wisconsin/Idaho/Louisiana/Texas/California/Ariz ona/Nevada/New Mexico o 2. not married as in an Equitable State non-marital partners can make a K and courts will provide equitable relief as long as there is some mutual understanding of sharing equally and terms are not based on immoral or unlawful consideration (i.e. prostitution) the K can be expressed or implied-in-fact (by conduct)

Footnote 24 distinguished City of Ladue by holding that it was not a marriage, but that they were only attempting to provide equitable relief Footnote 25 if parties do not want to get married but expect equitable relief upon dissolution, the court will do so Footnote 26 not answering whether P gets substantive rights upon dissolution if the parties did not have a K So Marvin I deals w/whether people can order their private affairs and how the State will recognize it they will if it provides for equitable relief and as long as it not based on meretricious one (i.e. pay for sex) Marvin II after case was remanded Court finds that either they must be married OR there must be a K o they are not married o there is no express K o so in order to get relief, P would have to prove implied K and the Court does not find that BUT the Court looks at the footnotes that provide for equitable relief and they decided to give P economic rehabilitation of $104,000 to put her back where she was as if the relationship never existed

Marvin III D appealed the order to pay $104,000 Issue: whether D is financially responsible for the economic rehab $ Holding: NO Reasoning: this Court points to the Trial Court findings: o D never agreed to financially support P, nor did they agree to split earnings o P suffered no damage and that she actually benefited from living w/D o there was no fiduciary relationship, nor was D unjustly enriched

SO they rule that in order to get support and rehabilitation, the parties either need to be married OR it must be in a K o here there was no basis for support and the Court ordered the payment rescinded Marvin I provided for equitable relief Marvin II actually did the equity Marvin III equity in reserved for parties who get married OR contract for what the equity would be pulled back the reigns on Marvin I and II cannot give equity to just anyone who wants it Hewitt v. Hewitt P and D were together for 15 years and had 3 kids they were never married and P is now seeking of property accumulated during that period P argues entitlement to equity as if it was a divorce, conduct showed an implied K, and D was unjustly enriched Issue: whether the Court can give legal status to a private arrangement b/t parties that was to be the substitute of marriage Holding: NO, public policy disfavors the private contractual alternatives to marriage in Illinois (i.e. Marvin I) Reasoning: they state that Marvin I is great, but it is great for California, not for Illinois o the Court distinguishes Marvin I by stating that the couple in Illinois want to get married unlike the Marvins, they just never got around to it they function as a family this Court is concerned w/protecting the institution of marriage and accepting P arguments would undermine marriage and allow for parties to K for more than what is already provided for dissolution of a marriage they also note that C/L marriage is banned the Legislature can make the decision about extending rights to nonmarried persons + Illinois is a fault state which makes it hard to get a divorce o the parties are allowed to K freely, but in may NOT be tied into acting as if they were married

So Hewitt states that even w/a K, there can be no equity there is something more that goes along w/marriage (all ties in w/sexual relationships and allowing that only when married) Marvin I ------------------------------------------- Equity, but must be marriage or K Hewitt ---------------------------------------------- Even w/K, no Equity Marvin II ------------------------------------------ Even w/o K, Equity

Marvin III ----------------------------------------- Contractual Equity, but must be a K

Watts v. Watts P and D lived together for 12 years and had 2 kidsthey were never married but conducting themselves in many ways as if they were married after the relationship was over, the P sought share of accumulated property P argues they constituted a family under the statute; it was marriage by estoppel; there was a K; D was unjust enriched; and partition of property Issue: whether P may recover based on any of the claims Holding: YES equitable relief can be provided Reasoning: distinguishes Hewitt on several grounds: o Wisconsin is no-fault state like California and unlike Illinois o if it is purely a K case, it can be decided by courts b/c they deal w/K cases all the time o times are changing and persons might get into relationships b/c it is a good quasi-business decision o if they do not provide equity, persons will not get married b/c those w/the property will have an incentive not to get married

Watts ------------------------------------------------------- Marital Equity, but must be a K So Watts pulls back the reigns some on Marvin II b/c they are requiring a K AND undermines Marvin III b/c it is providing for substantive rights of marital equity provided there is a K The States Interest so this set of cases left us with the question of how the courts will define marriage (i.e. the box) what is the States Interest? and it brings us to Maynard Maynard v. Hill The USSC notes that marriage has always been under control of the Legislature it is a K that brings forth the parties in a marriage, but once a marriage happens, what is created is a social relation that is grounded in law and NOT contract principles once a person is in a marriage, they are in it it is the first step from barbarization to civilization What separates marriage from a general K? once married, then the State has an interest

What about covenant marriages, where the parties can K to what the terms of dissolution will be as opposed to term marriages, when the marriage is over after a period of time with option of renewal? What if X sleeps with Y, Y dumps him, and she then files for alimonyWhat happens? no marriage, so no marital relief were not holding themselves out as married nothing to indicate and express or implied K What if X starts helping Y out some and driving her to schoolWhat happens? no marriage, so no marital relief may be some implied K, but only for a ride to school What if X buys Y a new car, pays for tuition, move in together, combined finances, held themselves out as marriedbut no sexual relationsWhat happens? under Hewitt juris, there is no relief, no matter what under Marvin/Watts juris, there can be relief if there is a finding of a express or implied K What if X and Y decide to start having sexual relations? under Hewitt juris, does not matter under Marvin/Watts juris, does not matter unless there was meretricious sexual conduct What if X gets together with Z (another male)What happens? could not be married unless juris allowed for same-sex unions could not K unless they were in juris that allowed for such What if X and Y get married on a boat from NY on the way to England, but X bumps into ex, who he thought was deadWhat happens? must look at divorce of the old marriage, and what this new marriage would look like (Fisher v. Fisher) o BUT a marriage is valid where performed is valid everywhere, unless contrary to public policy court looks to where the ship was registered (NY) and apply that law BUT the court does not want to do that, so they look to the owner of the ship is domiciled (US) and apply that law o the court is jumping through all kinds of hoops in order to validate this new marriage o Examples of contrary to public policy: incestual polygamy same-sex

the point of Fisher is that we are unsure whether the extent that courts will allow parties to get out of the box in questionable marriages; OR the extent of allowing parties to get into the box in questionable marriages the other we need to consider is whether States must apply Full Faith and Credit w/respect to same-sex marriages from Vermont


Constitutional Issues

Sharma v. Sharma H and W got divorce and W did not agree b/c divorce was not permitted under her religious belief (Hindu) she argued that the State should not recognize the divorce HELD divorce was valid o the Court notes that the compelling State interests of regulating marriage outweighs the individuals right in free exercise of religion the W can still believe that she is married from a religious standpoint, but as a matter of civil law, the marriage is over

Reynolds v. US D married 2 women at the same time and claimed that he was doing so pursuant to his religious beliefs as a Mormon HELD statute banning bigamy/polygamy was valid o the Court states that even if the viewed marriage as something sacred, it is still subject to the law of the State just b/c a person has a legitimate religious belief does not preclude from being subject to the laws regardless of religious beliefs, the State can regulate marriage, subject to Constitutional limitations**

Buchholz v. Buchholz H and W got divorce and W claimed that it deprived her of a substantial property interest HELD marriage is not property interest o marriage is a personal relationship upon dissolution it is subject to State law

all of these cases so far deal with the extent to which the State can regulate marriage now we will go into a series of cases that deal w/the rights the parties get when defining marriage a certain way Griswold v. Connecticut

Planned Parenthood and a doctor advised a married couple on how to use contraceptive devicesstatute prohibited this and they were charged couple argued that they had a privacy interest b/c they were married HELD statute is INVALID o the Court talks about the penumbra of privacy rights that go along w/marriage that do not necessarily fall under any specific Bill of Rights married persons have a protected interest in the marriage in such a way that the State may NOT regulate contraception they can regulate who can enter a marriage, but once in, there are certain privacy protections that may NOT be fiddled with

naturally the ruling of Griswold brings up the question of whether the privacy right applies to single persons Eisenstadt v. Baird professor displayed contraceptive devices in a lecture and actually gave one to a un-married student statute prohibited such HELD statute was INVALID o the Court goes into a EP analysis and finds that the statute is a per se prohibition on contraception and violates the rights of a single person singles must have the same rights to contraception as married persons o since this is a fundamental rights, SS must be used BUT the court notes that SS does not even need to be addressed b/c this statute does NOT even satisfy RB o State argues that statute aids in preventing pre-marital sex BUT this fails b/c it is not narrowly tailored singles will have sex, it just means that more will be pregnant o the Court finds that the statute does NOT apply equally to similar situated persons and therefore violates the EP clause they also point out the major discrepancy in the punishment for those that actually commit a violation (90-days) and aiders/abetters (5-years)

the next logical extension of affording privacy rights is in same-sex situations Bowers v. Hardwick D was prosecuted under Georgia statute prohibiting sodomy even though charges were dropped, D claimed he had a fundamental privacy interest in having sodomy relations in his home and that the statute only applied to consensual male sodomy

Sidebar - all that D had to show was that the statute was unequal and then the State would have to satisfy SS o BUT he wanted to show a fundamental right to engage in homosexual sodomy Held: there is no fundamental right to homosexual sodomy o the only things that are fundamental are those that are rooted in our history and tradition and that does NOT include homosexual sodomy the Court never even addresses the EP issue b/c D never raised it o they also point out that the State does have a RB in this type of regulation Justice Powell (concurrence) suggests that there may have been an 8th violation Justice Stevens (dissent) notes that the statute could have been shot down w/the EP argument

today, at least of the states still have anti-sodomy laws, but they are not enforced and no issue has been raised yet to invalidate them 12 years after Bowers, the Georgia SC ruled the statute unconstitutional intrusion on the right of privacy guaranteed by the Georgia constitution (Powell v. State) 14 years after Bowers, it was overruled by the Court in Lawrence v. Texas, speaking through Justice Stevens the privacy rights that goes along w/penumbras will be extended to this same-sex area o BUT the opinion never states that it is a fundamental right

Review As Of 5.31.2005 Sharma some rights w/I the box that can be regulated, even if it interferes w/religious beliefs, b/c the State has an interest in the marriage Griswold something special about the box that affords person a privacy rights when it comes to marriage/familial matters; extend from the penumbra of the Bill of Rights Eisenstadt extends the privacy rights of married persons to individual persons Bowers appellant attempted to extend the privacy rights to homosexuals through EP and the 14th Amendment DP; they wanted a fundamental right to homosexual sodomy; Ct disagreed and held that States have the right to regulate family matters and they can find NO fundamental right to homosexual sodomy Lawrence overruled Bowers, BUT never stated that there is a fundamental right; it was overturned b/c the statute was applied unequally now we want to look at the actual right of the box; exactly what is marriage? Loving v. Virginia Ds got married in DC, where it was OK for interracial couples to get married came back to Virginia and were prosecuted of violating anti-miscegenation statute

statutes were aimed @ prohibiting and punishing interracial marriages First Issue whether State has some interest in regulating interracial marriages? o State argues that statute affects whites & blacks equally and the regulation satisfies RB BUT the Ct rejects this argument and finds that SS must be used b/c statute regulates a suspect class regulating by race is repugnant to history Ct finds that State has NO legitimate purpose statute violates EP and 14th DP SO the Ct is stating that persons have a fundamental right to get married AND that even if statute applies equally, it is repugnant b/c it is based on race THIS is different than Bowers/Lawrence b/c the Ct never found a fundamental right to homosexual sodomy they only found that the statute violated EP

Zablocki v. Redhail statute required court order for certain classes to marry (i.e. deadbeat dads) deadbeat dad claimed it was unconstitutional b/c he wanted to get married, even though he did not pay child support b/c there is a fundamental right to marry, the statute is subject to SS State may NOT prohibit a person from getting in the box State argues that their legitimate interests are >> 1) welfare of the kids o BUT how does not allowing a deadbeat dad to get married somehow create $ for the kids Ct states that there are other ways to get $ - garnish wages; civil contempt 2) opportunity to counsel deadbeat dad about financial obligations that need to be satisfied o BUT the Ct finds this was not taking place just b/c they get counseled does not necessarily mean the $ will be recovered Ct also finds the statutes to be UnderInclusive o does not limit new financial commitments that might arise outside of the new marriage and Overinclusive o the new spouse might put the deadbeat dad in a better financial position Summary State may NOT enact regulation that significantly impairs a persons ability to get in the box (i.e. the fundamental right to get married)

Justice Powells Concurrence how do we know when a regulation stops a class from getting married?


the State may have a legitimate interests in regulating those deadbeat dads that can pay

so now we move onto whether or not homosexuals can get married Singer v. Hara 2 gay men wanted to get a marriage license but were denied appellants argue that homosexuality is like race and use Loving to advance their stance appellants claim that persons are born gay and that present all kinds of theories through sociologists, etc Ct discards this, they only attempt to discuss legal issues crux of the case is the analysis of the States ERA (equal rights amendment) Ct looks @ Loving o Ct distinguishes Loving b/c statute here applies equally 2 males cannot get married, just like 2 females cannot get married then the analysis moves to whether State has compelling interest in regulating o BUT the Ct notes that they do not even have to go down that road since they do not meet the statutory definition of marriage, they have no fundamental right (i.e. no fundamental right to same-sex marriage) so the State only needs to satisfy RB the interest to satisfy RB is the protection of procreation does not take much to satisfy RB a same-sex union does not allow for procreation appellants respond that it is like Loving b/c that case changed the definition of marriage (i.e. interracial marriage before Loving was invalid, then after Loving it was valid) o BUT this argument fails b/c the Loving Ct did not change the definition of marriage, they only changed who can get in the box they were never denied the right to get married, it was just the type of race HERE there has never been a definition of marriage allowing same-sex couples to get married this would requiring a total change of the box

Baehr v. Lewin under the same facts, a Hawaiian Ct demanded SS Ct found no compelling interest and State loses State can define marriage to include same-sex couples BUT the Legislature passed 2 bills restricting the right to marriage b/t persons of the opposite sex o SO this case went further than Singer in applying SS basically went further in establishing the right of same-sex person to get married DID allow same-sex couples to K and form a domestic partnership, but will only be treated as a K they were the 1st to do so


Vermont a little further than the domestic partnership in Hawaii and allowed for civil unions that will be treated just like marriages Massachusetts went even further and allowed for same-sex marriages b/c they can regulate the way they want to, subject to constitutional limitations BUT they never said that homosexuality is like race they merely allowed for homosexual couples to get in the box So the State may regulate who gets in the box, but cannot do so w/o a compelling reason (i.e. not race) And they can regulate once inside of the box

Chapter 2 Getting Married

now we will consider what rights are afforded those that are approaching the box do they want to make it easy or hard to get in? easy or hard to get out? historically, it has been pretty laisezz-faire the State stays out of it if the State decides to enact certain requirements necessary to get in the box, they are known as Formalities there will be 4 major parts of this section 1. Enforcing Engagements Can I keep the ring? Can I sue for damages if broken off? 2. Procedures for Marriage What are the formalities? 3. Annulments What is sufficient to annul? 4. Requirements What age? What mental capacity?


Enforcing a Promise to Marry

Wightman v. Coates P wanted recovery for breach of K to marry Ct treats the engagement as a K to marry o And if a party arbitrarily breaks it, it may require damages o Ct is focused on the protection of women (remember this is an 1818 case) So the case stands for C/L right of enforcement of the engagement, and breaking it off may require compensation to the other party


Stanard v. Bolin D promised to take care of P D put her home on the market and sold furniture in reliance on the engagement 1 month before wedding, D called off wedding P suffered medical difficulties and bore some costs for canceling the wedding Issue: whether the C/L right for breach of engagement should be abolished? o P sought damages to compensate for pain, health impairment AND loss of expected financial security Ct notes how the damages allowed under beach of K to marry is more like a tort action (Quasi K, Quasi Tort Action) As to loss of expected financial position > o NO recovery person does not choose a partner based on financial and social gain P should NOT be compensated for expectation she never had cannot consider social status in determining pain of the breakup (i.e. would P be more upset b/c D had more $) As to pain and mental anguish > o CAN recover if it is quantifiable and objective (actual showing of expenses w/bills or other) must be reasonably foreseeable if there is this showing and jury awards an excessive amount, the judge can reduce the amount Dissent points out they are a no-fault divorce State and engagement should be the same way 3 Rules 1) social status NOT considered 2) can recover for pain/suffering as long as it is objectively quantifiable, but judge can reduce if jury award is too excessive 3) can recover for anything else that is reasonably foreseeable States ended up passing statutes allowing for this C/L right of recovery for breach of engagement (Heart-Balm Actions); and some states even allowed for the fathers to recover for their daughters; BUT presently these actions are looked down upon and more than have enacted AntiHeart Balm Statutes to abolish SO some lawyers started filing assault & battery charges; but they only worked temporarily


Engagement Gifts

Vigil v. Haber P and D exchanged rings relationship went sour special hearing commissioner ordered parties to return rings P refused to return the engagement ring


Ct finds that the law of divorce (no-fault) should apply to situation here w/broken engagement o SO it does matter what happened, if it is broken off, the rings must be returned b/c it is looked at as a purely K matter (Majority View) BUT there is an exception that looks at fault through the cleanhands doctrine if party caused the break-up, they should not get the ring back (Minority View) ONLY way to get around this is a showing of an expressed agreement, by both parties, in writing, that the rings would be given back

If ring is given on a holiday, some courts have found this to be a gift does NOT matter who was @ fault; SO do not propose on a holiday now we move to the State setting up formalities in order to get in the box


Marriage Procedures (Formal and Informal)

Informal or C/L Marriage parties do not do any of the formalities, BUT the State will recognize the marriage anyway Meister v. Moore there was no magistrate or minister at the marriage Ct rules that public policy encourages marriage and therefore they will be valid even if certain formalities are not met

State can proscribe formalities in order to get married; State may NOT prohibit the right to get married (there are exceptions same-sex) Boswell elements of C/L marriage: 1. capacity; 2. present, mutual agreement to enter marriage; 3. public recognition as married. Crosson v. Crosson P and D got married in 1982 and divorced in 1993 D started seeing another woman but gets back together w/P D then goes and marries this other woman and P filed for divorce claiming they were married all along she wants the rights that go along w/being a divorced party Ct goes through Boswell elements of C/L Marriage analysis o Capacity = Yes o Present, Mutual Assent = Yes


D asked P to move back in they had sex accepted Ps kids as he did not do before o Public Recognition = Yes P as introduced as husband on several occasions filed joint married tax return SO the Ct finds that the elements are met D attempts to rebut by showing no ceremony o NO dice just b/c they did not get around to ceremony does not mean there was no marriage ONLY way out of a C/L marriage is death or divorce

Case in Texas, where the recognize C/L marriage, required that the elements must be met w/I its borders and the parties must cohabit there cannot just pass through and hope to benefit from the right Statutory Formalities normally include blood test; ceremony; license; exchange of rings others include age; kinship; mental capacity


Annulment and its Effects

Void v. Voidable Distinction traditionally, there were fault grounds required in order to get a divorce the marriage is valid, but there are grounds to make the marriage voidable annulments divorce a mensa et thoro (separated) divorce a vinculo matrimonii (divorced) o voidable marriages can be reinstituted, if the impediment is removed o in order to void a voidable marriage, the State must declare it via statute if one of the formalities is not met o if Ct wants to void it from the beginning, they will void ab initio o if statutes says nothing about voiding a marriage if formalities are not met, then marriage is only voidable there were also concepts that stated there was no or void marriage (incest / bigamy / radical underage) no box to get out of void marriages cannot be ratified (i.e. cannot breathe life into something that never existed) they were never good from the beginning Carabetta v. Carabetta parties had a ceremony but never got a license statute required a license and solemnization Ct noted that they had already validated a marriage where the parties got a license but did NOT solemnize (flip-flop of this case)


Ct looks at the statute and it requires a fine for not getting a license and voiding a marriage if no solemnization o SO the Ct decides that b/c the license statute said nothing about voiding the marriage, the marriage is only voidable IN order to void the marriage, there must be express language in the statute THIS was a legitimate marriage that lacked a formality and is voidable

McConkey v. McConkey W divorced H1 and he had to pay alimony until she died or remarried W married H2 and ended up getting divorced she the wanted to reinstate alimony from H1 if marriage to H2 was void, then it never took place and it never fell under provision stopping alimony o if it was voidable, the marriage was valid and it can be over, but it did fall under the provision Ct here decides to void a voidable marriage, but NOT ab initio (from the beginning) o SO she satisfied the provision halting alimony

What if it was void ab initio? Can the court reinstate the alimony? o Some States = YES, but H1 must be a party to dissolution of marriage # 2 in order to determine his rights (Utah) o they look to statutory provision defining remarriage (Nevada) o or equities of the case, even if he is not required by law to start paying again (Colorado / South Carolina) Putative Spouse What about those spouses that enter a marriage in GF? for purposes of support, alimony, intestate succession; courts protect these persons and will treat them (i.e. give them rights) as a legal spouse o the court will apportion the interest based on how long each spouse was married to decedent BUT, they will also look @ equity too and apportion differently if needed


Determining Legal Eligibility

Minimum Age Restrictions Moe v. Dinkins 2 couples wanted to get married but were underage statute required parental consent for males b/t 16-18 and females b/t 14-18 statute also required court approval for females b/t 14-16 looks like this statute is unconstitutional on its face for violation of EP


o BUT the State can do this if there is a RB for doing so Ct notes that usually SS would be applied, but b/c it is dealing w/kids, only a RB is needed o States interests here are protection of minors from immature decisionmaking AND prevention of unstable marriages couples argue that they are the ones making the mature decision b/c one parent want let them get married b/c of $ and another wants abortion o BUT the Ct says maybe they are right, but that does not matter, there is a presumption that parents have the kids best interests in mind couples then argue that state is preventing them from getting in the box o Ct says no, the statute only is delay, not denial o there is NO permanent deprivation

What if couple got married at 16 w/o parental consent? need to look @ the text of the statute itself to see if it expressly provides for a void marriage o if not, it may only be voidable the Moe case is terribly important case and will arise in subsequent situations the key concept is DELAY, NOT DENIAL Kinship Restrictions when a State regulates here, they provide a certain # of degrees when a person is not allowed to marry usually it is prohibited up to 4th degree of kinship formula for figuring out degree > take the parties that want to get married and find a common ancestor then start with one party and move around to the other party every state will also include provisions specifically stating whether relations by adoption or half-blood will be included if it says nothing, then it is not prohibited











(3rd Degree)

(4th Degree)

Physical or Mental Incapacity Restrictions Edmunds v. Edwards H has been in nursing home and wants to marry another resident they actually have a ceremony and go through with it but 2 years later, guardian seeks annulment on grounds that H did not have capacity to get married Ct notes that marriage is a civil K and the parties must have capacity in order to K must be able to assent o H is questioned about what marriage is and he responds with pretty good answers (for life and do not want to be alone anymore) Ct states that provision requires capacity (absolute inability to understand marriage), if person does not have it, then the void the marriage o Ct points out that AMA states degrees of mental retardation mild (moron) moderate (imbecile) severe/profound (idiot) H here fits under mild Ct ends up finding that b/c of the discrepancy in testimony, the will rely on Trial Cts determination the marriage is presumed valid and party seeking annulment must rebut w/sufficient info o guardian did not meet that burden

So the State can proscribe, through statutes, what tests must be met in order to satisfy proper mental capacity in order to enter marriage Mahan v. Mahan W wanted annulment b/c she was too drunk at ceremony H claimed he was so drunk he does not even remember if he got married there was no cohabitation after marriage


Ct granted annulment on grounds that there was sufficient evidence to prove that W was incapable of entering a binding agreement

Singer v. Singer see above under constitutional issues Ct chooses procreation as the standard for determining impotence Rickards v. Rickards W wants annulment b/c H is impotent was determined that Hs impotence was due to psychic reasons apparently H can have sex w/other women, but not his W usually a showing of impotence requires physical problem and incurability to copulate o Ct points out that as for the W is concerned, a mental problem is the same as physical AND as to incurable, the docs testimony was that H could probably be classed as incurably physically impotent

Tompkins v. Tompkins couple never had sex and W remained a virgin Ct chooses penetration as the standard in order to regulate

T. v. M. there was copulation, but no penetration Ct allowed annulment on grounds on the womans impotence after medical testimony

M.T. v. J.T. P was born a male, but was confused about gender from a very young age had a sex change, became female, and ended up marrying D had ceremony, met the formalities, had sex decided to terminate marriage and now P seeks support and maintenance Ct points out that traditional method of determining sex by looking at their biology when they were born o BUT the Ct here decides to look @ psyche of the person AND the biology @ the time of the marriage; and if they are the same, then that gender will apply IF they are different, then they will look to biology in order to determine gender

Review 5.8.05 Ark --requirement for license is not mandatory and marriage will not be voided


--BUT if license given for same-sex marriage will void Restrictions Against Existing Marriage when the Ct has a situation of 2 marriages (i.e. 2 boxes), they must choose b/t 2 presumptions o validation of the original/existing marriage; OR o validation of the subsequent marriage In Re Marriage of Sumners D got divorce from 3rd marriage and decree stated that neither party could get married for 6 months D ended up getting married for 4th time in a different State w/I that 6 month period latest marriage fell apart and claimed that subsequent marriage was void b/c he did not wait the 6 months Ct states that this juris applies presumption that most recent marriage is valid (the 4th marriage) o ONLY way H could rebut presumption would be a showing that he never got a divorce from the 3rd marriage H claims that last time he saw her, she was alive BUT the Ct states that the presumption of valid marriage trumps the presumption of continuing life o PLUS the H is estopped from getting out of the 4th marriage b/c he cannot argue now that it is invalid in order to be unjustly enriched cannot complain now when he could have complained then


Was There a Valid Agreement to Marry?

Wolfe v. Wolfe W lied about death of 1st H in order to get 2nd H to marry her he was a Catholic and religious canons would not have allowed him to marry her unless she was widowed... H seeks annulment based on fraud (material misrepresentation) Ct points out that although the fraud here is enough to void a K it does NOT necessarily void a marriage unless it affects the materiality of the marriage Compare this to the Singha case (where the Ct pointed out that lack of cohabitation was enough to void the marriage) How do we determine materiality? o if fraud would interfere w/ability to function in the marriage will be a subjective decision by the court on a case-by-case basis as to what is material USUALLY will be material if it is a BUT FOR causation Why is it important for the H to show fraud if the state was no fault? o plays into calculations for support


Chapter 3 Husband and Wife: Roles, Rights, and Responsibilities

for a long time, any K b/t spouses would not be enforceable o BUT that has changed now and there is NO common identity women have just as many rights as the men do this is important to know how the change has come about and it began w/McGuire and the support issue

Support During Marriage McGuire v. McGuire 80-year-old P lived on farm w/H and did most of the chores H was any charge of all the finances and would rarely give her $... the house has no bathroom or toilet, no sink, faulty furnace P apparently can only get $ from selling chickens she filed action to get support/maintenance Trial Ct allowed Why doesnt W just divorce or leave? o b/c it is still a fault-based juris and she will lose what she is after BUT she has to leave if she wants to get the support Ct ends up reversing? Why? o b/c if they marriage is functioning, and they want to live a certain lifestyle, it is NOT the courts place to rule on what kind of lifestyle they should have W was not separated from or not living w/H and purpose of marriage is still being carried out, so she cannot get recover but how do we know if the purpose of marriage is not being carried out? o again it is a subjective standard Judge would probably determine if the reasons they got together was no longer happening Dissent this is crazy o creates Doctrine of Necessity H should be responsible for all necessary goods and services to the W furnished by 3rd parties what makes a necessity? food, clothing, medical (all the common things we think of)

State v. Clark Ct held that legal fees could be found under Doctrine of Necessity, provided that a persons liberty interest is at stake (i.e. civil liberties must be in jeopardy) Testimonial Privilege 1933 Funk case abolished marital privilege allowed spouse to testify against the other spouse o BUT can only testify in favor of the other spouse (want to promote the relationship in the box)


HOWEVER, this began to erode State courts and they determined that only confidential marital communications would be protected o COULD testify against spouse if communications were not 1958 Hawkins brought back the ability to claim the privilege court did NOT want to interfere w/the relationship in the box o under this case, it does not matter if the information was privileged or not, the spouse may NOT testify against the other problem here is that anything can be confessed and this is not necessarily a good thing SO it begins to erode again in State courts and along comes Trammel

1980 Trammel v. US Ct finds that if W does not want to testify, State cannot make her testify o BUT if she wants to testify, she can privilege attaches to the spouse, not the relationship Exceptions cannot asset spousal privilege when abuse is at issue or is involved (spousal or child abuse) Crimes Between Spouses Warrant v. State H assaulted his W and claimed marital exception to the sodomy crimes b/c he could not rape/sodomize his W Ct held there is NO implicit marital exemption w/I the rape and sodomy statutes

Crime Involving Spousal Property can spouse be charged with crime when they own the property too? o if intent to break in or to stalk, then can be charged point is that if the marriage is limping along, the State, cops, etc. are NOT going to step in Getting Protection From Spousal Violence Matthews v. Eldridge established a balancing test to apply anytime government is depriving person of liberty 1. what is the governments interests 2. what are the private interests 3. what is risk of erroneous deprivation is procedure fair and reliable? are appropriate safeguards in place?


State Ex. Rel. Williams v. Marsh W petitioned under Child Abuse Act to prevent H from coming into home and wanted a temporary order of custody Procedure for getting ex parte order of protection o 1st file verified petition w/clerk o 2nd Judge can only grant for Good Cause shown (immediate and present danger of abuse to petitioner) o 3rd three types of orders may be issued: restraint from further abuse restraint from entering home temporary custody

In New York, almost of night calls deal w/spousal or child abuse

Chapter 4 Matrimonial Breakdown: Grounds and Jurisdiction for Dissolution


Grounds and Defenses

at this time, most States have a Fault and No-Fault grounds for divorce w/no-fault grounds, a party cannot just walk into court and get a divorce for no reason there are requirements that must be met traditionally, there were 3 things to get divorce under fault grounds: o adultery, cruelty, desertion these are still retained by those states that have fault grounds and they are still used in no-fault states for things like alimony or support

Arkansas (fault and no-fault grounds) (A.C.A. 9-12-301) some of the examples for fault grounds are: o impotency, conviction of felony, habitual drunkenness for 1 year, adultery examples of no-fault grounds are: o separate and apart for 18 months o separate and apart for 36 months and is due to unsound mind (must have 2 docs support the evidence) **so there is NO no-fault divorce w/I 18 months** must wait at least 30 days to get decree o unless grounds are bigamy or separate and apart for 18 months the grounds for divorce must have happened w/I 5 years of filing (laches applies) residency (I thing this should be domicile) is defined as presence in the state w/intent to remain


Fault Scheme 1/3 of the States have eliminated fault grounds and replaced them w/irretrievable breakdown o Georgia, West Virginia, NC, SC if party commits adultery, they are barred from receiving alimony Brady v. Brady H wants a divorce and to sell the home b/c his W refused to have sex Trial Court granted divorce b/c marriage was dead was significant evidence of major fighting Appellate Court reversed b/c there was NO cruel or inhumane treatment Ct agrees w/appellate court state that when they consider cruel and inhumane, they must consider the length of the marriage this couple has been married 26 years might be different if they were on there honeymoon o the longer the marriage, the higher the standard o b/c granting divorce for cruelty would foreclose alimony for the W and place her in financial distress need to protect the wives Ct notes that they have done away w/notion of protecting wives, the principle still applies in that they will consider how much the wife has put into the marriage

What Constitutes Cruelty? for a long time in NY, adultery was the only fault grounds there was a Tennessee case that allowed ground for cruelty based solely on mental anguish from partners extramarital affair o BUT the point is that courts vary on what amounts to cruelty and will probably be addressed on a case-by-case basis Defenses to Divorce Grounds 1. Recrimination a. both parties are at fault 2. Condonation a. other party forgives the fault 3. Connivance a. party was set up or connived against; entrapment 4. Collusion a. parties were in it together b/c they do not meet fault or no-fault grounds all of the defenses are affirmative and therefore the party raising them bears the burden of proof if a defense is NOT raised, the Court can raise the defense of Unclean-Hands sua sponte

Husband D v. Wife D H claims they do drink together but that W is always drunk


Ct begins by going through the defense to divorce o recrimination is n/a b/c is only applies to adultery o connivance is n/a b/c there needs to be bad intent; H did drink w/her, but he was not attempting to set her up o they point out that only a party w/clean-hands can get a divorce AND the H here does NOT have clean-hands; he is drinking w/her Since none of the defenses can apply, the Court refuses to grant the divorce

Recrimination Caveat there are some states that allow the Courts to terminate the marriage anyway if both parties are at fault b/c they believe there is no hope for the marriage Covenant Marriage when the parties K before getting in the marriage and determine the terms or grounds for getting out of it provision will provide that parties will go to counseling when things get bad o BUT they will always keep adultery and cruelty as grounds basically they are eliminating the no-fault grounds for divorce Breakdown Husband W v. Wife W major, major problems b/t parties actually trying to hurt each other W said she was not sure if they could reconcile or not Trial Court says NO divorce b/c she stated there is some possibility of reconciliation HELD this Ct says that under this record (facts), there is NO possibility of reconciliation o BUT the rule remains strong that when stating grounds for divorce, the Court must allow for some time of reconciliation if there is a chance

Sinha v. Sinha H filed for divorce and W did not want to H comes to U.S. to study and W could not come over H continues to write her and professes his love H ends up filing for divorce in Pennsylvania W contests HELD no divorce in order to show separate and apart as grounds for divorce, must show an expressed intent to want to get a divorce, then the clock starts running o attempts at reconciliation that end up failing do NOT toll the time period


Jurisdictional Jumble


For Marriage none b/c every state can grant valid everywhere unless against public policy exceptions are domestic partnerships, K for marriage, etc. For Divorce ex parte divorces are concerned with: o Full Faith and Credit; or o Comity problem was whether an ex parte decree from one state was entitled to FF and C based on one spouses domicile OR must the person actually be before the court, as with in personam judgments? o resolved by Williams v. NC I A and B went from NC to Nevada and lived for enough time in order to meet the requirement for the latters residence requirementthey got divorces from their spouses back in NC and then got married and returned to NCNC charged and convicted them w/bigamy USSC reversed, holding that if DP requirements of notice

were satisfied, an ex parte divorce decree of the state of one spouses domicile MUST be recognized throughout the nation through Full Faith and Credit
each State has authority to alter the marriage status of the spouse that is domiciled there, even though the other spouse is absent o therefore the juris is based in rem (of the thing) it follows the thing rather than the person

o however, another problem arose in the same case that became known as Williams II the state alleged that b/c they were never validly domiciled in Nevada, the decree does not have to be recognized under FF and Cthey were charged and convicted w/bigamy USSC upheld, holding that the issue of whether either spouse was in fact domiciled in the divorce state is open for reexamination 1) party MUST be domicile in divorce jurisdiction 2) a State w/interest in domicile question MAY collaterally attack the ex parte decree of another state if it chooses o SO this begs the question if a divorce is not granted on the basis of a spouses domicile, does it violate DP? apparently the 3rd Circuit thought so in Alton v. Alton W left her home in Connecticut and moved to Virgin Islands...after 6 months and 1 day, W filed for divorcethe Virgin Islands had passed a Divorce Act allowing for parties to do thisH personally appeared and did not contestCircuit Judge wanted more proof on


domicile and it was never given so he denied the divorceW appealed Court of Appeals held that, in the absence of a showing that W was domiciled in the Virgin Islands, they do not have the juris to grant a divorce, even if H personally appeared o the key concept is that domestic relations are a matter of concern to the state where a person is domiciled BUT it left open the question of whether the Virgin Islands had no power to decree a divorce under these particular circumstances OR that to use a Virgin Islands divorce decree would violate DP? o BUT this Alton issue became moot after the Granville-Smith v. GranvilleSmith USSC found that the Virgin Islands had exceeded its powers by passing Divorce Act SO the constitutional question presented by Alton remained unanswered and we are back to the Williams II principles as the controlling concerns Full Faith and Credit mckonkey v. Sherrer H and W married for 25 years W goes on vacation to Florida and filed for divorce and custody H appears to testify in custody dispute and has counsel Florida grants divorce and remarries the neighbor and returns to Mass H then filed divorce contest in the probate court claiming that W did not have domicile and Mass does not have to honor the divorce Court agrees with the H that Williams II standard does apply o BUT points out that H had the opportunity to contest domicile when he personally appeared in Florida to testify in the custody dispute he was represented by counsel AND they point out that this issue needs to end somewhere

Spalding v. Spalding procedural rules in some states allow persons to personally appear to contest jurisdiction w/o invoking the rule of Williams II Domestic Relations Exception to Federal Diversity Jurisdiction even though the parties have diversity, the Federal Courts will NOT hear cases that are concerned w/domestic relations o BUT they will hear those dealing with Torts or K Ex H has $100,000 support arrearsW claims in Federal Court that he should pay and modify supportCourt would hear case


about making H pay b/c it deals with an actual contractual obligation by the HCourt will not hear issue about support modification Sosna v. Iowa parties were married in Michigan and lived in NY W moved to Iowa and filed for divorce H personally appeared and contested Iowa Court dismissed b/c W did not satisfy the 1-year residency requirement in order to file Iowa defines residency as presence + intent to remain much like domicile (similar to Ark) o States can have various residency requirements in order to have standing to file divorce W argues EP violation residents and nonresidents w/intent to remain should be treated equally o BUT the court responds with Delay, Not Denial group only has to wait for a temporary period of time State only needs a RB, and it is to prevent persons from moving to Iowa just to divorce and then moving out SO the court is saying that even w/domicile, the residency requirement must be met Dissent (Justices Brennan / Marshall) if domicile has already been established, why is there a need for the residency requirement and that is all we need under Williams II

Sosna stands for the proposition that if States want to do more than Williams II domicile, they have the power to do so BUT they cannot go below (so domicile is the floor) Comity divorce will be recognized out of reciprocal recognition Perrin v. Perrin W filed for divorce and custody in Mexico H personally appeared and contested custody Mexican Court entered divorce decree but gave custody to H H and son went to St. Thomas W then filed again for divorce and custody in the Virgin Islands H filed motion to dismiss and was deniedW claimed divorce in Mexico was invalid b/c they were not domiciled there (she is trying to get a 2nd bite at the apple) Court recognizes what she is trying to do and says NO because W and H are not domiciled in the Virgin Islands or Mexico, the Court decides to validate the Mexican divorce (they are Swiss citizens)


the Comity here is that even thought the Court did not have to recognize divorce from either juris, they decide to do so b/c of public policy

Laches and Estoppel Kazin v. Kazin H moved out but W refused to give divorce W then got engaged to D and went to Mexico to get a divorce apparently the D was the instigator behind this and all parties were aware W and D then got married in NJ W then filed for divorce from H # 2 D answered by challenging the validity of the Mexican divorce Court finds that W cannot complain about 1st divorce if she relied on it for the 2nd marriage she is estopped from challenging its validity A party can be estopped by having: o involvement / participation o knowledge o acceptance and acting on it Court does not want to resurrect a dead marriage

Chapter 5 Marital Breakdown: Resolving the Financial Concerns

I. Alimony

Types 1) alimony pending litigation wait to see what happens 2) rehabilitative alimony get the person back on their feet 3) lump sum alimony may be a chart / formula look at each partys income based on need and ability to pay o BUT will consider length of marriage and earning capacity problem is how to calculate what the non-working spouses worth was toward the marriage must look @ tax consequences o deductible to the party giving the alimony but if they pay the taxes, it can be party of the alimony payment (property in lieu of alimony) consider whether either party got rid of assets prior to divorce


if a party wants to modify a lump sum payment, they MUST show a change of circumstances since the order cannot voluntarily reduce income in order to reduce alimony payment payment of a life insurance policy may also be considered part of alimony

4) term alimony paying for a set amount of time up until 1979, only men had to pay alimony now the breadwinner must pay support

Standard for Spousal Support this varies on the juris where the parties are located (community property OR common law) o Community = must divide equally equally does not mean equitable, so courts may impose one of the other types of support o C/L = divide equitably factors that the courts will consider: 1 Need and Ability to Pay 2 Fault o Ark does not statutorily consider fault but there is case law suggesting that it may be considered when it involved lowering their financial position 3 Length of Marriage 4 Lifestyle 5 Earning Capacity 6 Earned Income 7 Tax Consequences Termination alimony stops upon death OR remarriage


Property Distribution

Community Property Approach all property acquired from spousal labor during the marriage is property of the marriage community where each has an undivided interest w/o regard to equitable principles o everything collected during the marriage goes into the pot and cut it in half BUT they is property that is considered separate > property brought to the marriage devises tort awards separate property exchanged for new property


any other expressly agreed upon by the parties

Common Law Approach factor in all the things that you do for alimony and make a determination that is equitable o property / insurance / investments / home value / debts ALSO makes a distinction b/t marital and separate property see the New York Domestic Relations Law (Page 371)


Alimony Cases

Ruggles v. Ruggles H and W are divorcing in a community property State H has a pension plan but has not yet retired it decreases in value the longer he waits to retire Issue = whether the W should get her community interest in the plan upon dissolution of the marriage or when H decides to retire? H wants it valued as pay as it comes in W wants it valued at time of divorce o Court of Appeals rejected Ws position b/c: precedent says we pay as it comes in only delaying and not depriving W of any rights W could use a QDRO BUT, this Court prefers lump sum payment, valued at time of divorce, in order to be done with it o Court also brings up QDRO (Qualified Domestic Relations Order) allows employer to make part of alimony payment b/c ERISA would not normally allow this

Olsen v. Olsen H wanted to modify the divorce decree that required him to pay $200/month child support and $200/month alimony until W remarried b/c he does not make as much $ b/c he retired from practicing medicine HELD H must show change of circumstances that amounts to a permanent, material, and substantial change o H did not meet that burden he admitted that he would go back to practicing medicine if it was necessary therefore the retirement was voluntary and a party cannot voluntarily reduce income in order to reduce alimony obligation

Orr v. Orr USSC ruled that an Alabama statute requiring Hs, but not Ws, to pay alimony was unconstitutional gender discrimination


Pfohl v. Pfohl W is loaded H retired early and was living off of her Trial Court awarded H a lump sum of $30,000 and $5,000/month rehabilitative for 18 months both appeal W argues he should get nothing H claims it is not enough HELD in making alimony determination, courts will consider: o (a) the providers ability to pay; and o (b) the nonproviders needs, considering the standard of living they are accustomed to The court has wide discretion o Here the W clearly has the financial means (worth over $4,000,000) and the H has a need b/c of his mental condition, limited employment opportunities, and high standard of living W argues that Hs assets that he acquired from the marriage ($200,000) preclude him from receiving alimony o BUT the rule is that a spouse is not required to deplete capital assets in order to maintain a prior standard of living W also argues that she should not have to pay his legal fees and that they were excessive o BUT the same consideration as to support are in play here H has demonstrated a need for financial assistance + the law states that lawyers fees should be awarded on the quality of the service, not the quantity

Herndon v. Herndon H is a chiropractor and wants to retire H has arthritic hands and it is painful for him to work he ended up selling his practice Court points out that a person cannot voluntarily reduce income o BUT here it is not voluntary H cannot work anymore this case is distinguished from Olsen, where the doctor voluntarily retired

What could have been done earlier if I represented the H? define a changed circumstance in the alimony agreement buy disability insurance Bell v. Bell


H and W got divorce and H agreed to pay alimony for 15 years unless death, remarriage, or cohabitation w/another party so as to give the outward appearance of marriage W shacked up w/another dude and H argued that this amounted to cohabitation and terminated alimony W argues that this is not what was meant Probate Judge agreed w/H and terminated alimony payments Ct of Appeals reversed, finding that the 3rd provision required that W be supported by the other person this Court reversed the Court of Appeals - affirm the Probate Court ruling o Court notes that the plain language of the agreement does not mention support not the Ws continuing need for it in the absence of a new source they could have very easily put this in


Dividing Property Upon Divorce

there are 3 major claims for malpractice >> o failure to include marital property as such to be distributed o failure to appropriately value property o failure to do taxes as marital taxes

Termination of Marital Property Accrual some states provide that marital property automatically stops accruing when divorce is filed o New York refused to adopt the automatic stoppage and will allow for subsequent accrual of marital property after filing Valuation of Property there are 2 options of liquidation >> o (1) sell everything for FMV and split 50-50; or o (2) actually get the property on day of divorce if it is not liquidated SO it is liquidation or divorce, whichever occurs first In-Kind Distribution done for stocks / bonds / funds either one party keeps it and the other gets paid OR pay the capital gains tax from selling Examples If H and W live together and buy furniture together while they are married, how does the Court divvy it up? o sometimes they may partition and pay out the percentage contributed to each party W tells H to buy lottery ticketH claims he forgot to buy itthey get divorced and then they win


o this is marital property b/c the ticket was acquired during the marriage What Is Marital Property? separate property gifts, bequeaths, devises, etc. Ark there is a presumption that the Courts will distribute equally, but will allow each party to show why they should deviate from the 50-50 factors that are considered: o length of marriage o age and health of parties o occupations o sources of future income o skills / educational background o inheritance if the Court does not divide 50-50, they must expressly provide the reasons for not doing so if the Court does not provide a basis, the parties can appeal on the grounds of non-equitable distribution of MP o Examples (Community Property State) H and W save $ to buy apartment complex split equally b/c it is MP the rent received during the marriage will be MP if they used Hs savings from before the marriage, this is separate property if property was in Hs name before marriage, this is separate BUT the rent coming in from both of these situations is MP Commingling of Funds happens when separate property and MP are put together in a single account there are several methods of dealing w/this problem >> o (a) presumption that everything acquired during marriage is MP party claiming separate property has the burden of proof o (b) must use Tracing Concepts to follow the track of the $; or o (c) use Exhaustion Method to show that all MP was exhausted and separate $ was used Transmutation change the MP to SP or SP to MP best way to do this is to change title during the marriage majority view Court will look at conduct of the parties some States require words to that effect other States require writing signed by the party who is losing the property Bifurcation the doctrine of divisible divorce get the divorce and then divide the property basically it is separating the proceedings Death of Party


ends the dividing of the property MP will be distributed as according to the Will as if the divorce never happened unless decree has been entered

Hardy v. Hardy H and W had 2 kids that are now over 18 at the time of divorce, H owed $32,000 and W owed $2,800 Trial Court that each is responsible for their respective debts w/the exception of real estate mortgages and car payments HELD the statute creates a rebuttable presumption that debts incurred by either spouse during the marriage must be considered a marital debt and therefore apportioned equitably o SO the same rules of fairness and equity that apply to division of marital property also apply to the division of marital debts

Debts Overcome Assets then the Court can apportion some fault to a party consider whose idea it was to take on the debt who consumed the debt Professional Licenses / Degrees As Marital Property Mahoney v. Mahoney while the parties were married, the H got an MBA from the Wharton School while the W contributed financially to the household the W also got a Masters in Microbiology, but after they had separated H filed for divorce and W countered Trial Court granted both on grounds of continuous separation no claims for alimony were made the only issue was that W wanted reimbursement of of the $24,000 that she contributed when H was in school + of his $6,500 tuition costTrial Court award reimbursement of $5,000 to W Appellate Division reversed HELD professional license/degree is NOT marital property it is a personal achievement value is not readily determinable future income potential is speculative o but the Court allows for reimbursement to the W b/c of her financial contribution in order for H to obtain the degree (Reimbursement Alimony)

OBrien v. OBrien same fact pattern as Mahoney where the H obtained a MD W supported him and when he became licensed, he filed for divorce HELD professional license/degree MAY be considered marital property to the extent that it is obtained during the marriage


o the W acquires a property interest in the license the Court actually puts a value on that interest w/the aid of financial experts Goodwill Ark will consider this as an intangible asset and subject to division


Child Support

continues for as long as the kids are minors in order to modify, change of circumstances must be shown if a party does not pay, they cannot reduce the arrearages there is no SOL does not matter how old the kid gets-for there to be no SOL, a judgment has to be filed; varies whether judgment is automatic with a child support order part of payment may also be the requirement of life insurance policy tax benefits are already worked in therefore it is NOT taxable (see Carter case below)

Family Support Act of 1988 every State must have guidelines in place to figure child support in order to receive federal funds most states have charts set w/incomes of both parties and designate a certain amount this amount is a rebuttable presumption a party can challenge, but have burden of rebutting w/sufficient evidence as to why it should not be that amount Methods of Calculating Child Support (1) Flat Percentage Model o set % of payors income (2) Income Share Model o take % of combined parental income (gross income) then apportion amount b/t them o more sensitive to fluctuation o more oversight required by the Court both earn $50,000 ($100,000) and child support is 20% ($20,000), then each will be responsible for $10,000 F earns $50,000 and M earns $40,000 ($90,000) and child support is 20% ($18,000), then Fs obligation is still $10,000 and Ms obligation is $8,000 (3) Delaware Melson Formula o allocate all income from basic needs to extraordinary needs (primary support allowance) o if parents income is below primary support allowance = no obligation


o if parents income is above primary support allowance = the overage is excess and goes toward basic needs o if both parents incomes are above PSA = allocate by respective incomes o each still having excess income pays further toward a standard of living payment o Court has discretion is this payment to allow child to share in parents standard F earns $50,000 and M earns $40,000 (total earned income is $90,000) basic needs for the child are $18,000 F excess income is $32,000 and M excess income is $18,000 total excess income is $54,000 (Fs is 60% and Ms is 40%) F obligation to basic needs is $10,800 and M obligation to basic needs is $7,200 F standard of living is $21,200 and F standard of living is $14,800 Continuation of Support the duty is absolute even if incarcerated, arrears can be accumulated if F is paying M but is spending more time w/the kids, then F should not have to pay as much Courts will look @ flat $ Rand v. Rand Maryland followed C/L rule that F was primarily liable for child support but they passed equal rights amendment HELD the parental obligation for child support is NOT primarily an obligation of the F but is one shared by both parents o gets rid of the C/L rule as a vestige of the past

Nash v. Mulle child was born from extramarital affair F was ordered to pay $200/month M wanted to increase amount b/c of Fs drastic increase in income HELD

Duty of Divorcees to Provide College Expenses original C/L stated that separated parents had to pay for college tuition; the child must meet certain criteria >> o parent must have continuing relationship w/child if child wants nothing to do w/parent, the parent has a duty to try and facilitate the relationship if child still resists, then parent does not have to pay


o unless the child is estranging themselves b/c of abuse o child must keep good grades this was the case in many States until the Pennsylvania case of Blue v. Blue the court held that college payments can stop @ age 18 unless it was expressly stated in the property settlement o if response to the turmoil after the Blue decision, the legislature drafted a statute requiring parents to pay if they could afford it but the statute was attacked b/c it stated that divorced parents must pay while those that stay together do not have to (EP violation) some courts ruled it to be Unconstitutional b/c of the inequality o and others allow it b/c it satisfies RB (kids from divorced couple may not have the opportunity to go to college like kids from married couples) Ark does not require parents to pay, but it can be expressed in the settlement

Duty of Stepparent to Provide if holding self out as the parent of the kid, a person acquired in loco parentis status o only owe a duty of support as long as the status remains so after a divorce, the duty ends however there are some situations where a stepparent still has a duty to support even after divorce (see M.H.B. case) if person is divorced and still holds self out as parent, they are estopped from denying obligation to support MHB v. HTB KB was born to a married couple from an extramarital affair by the M the married F treated KB as his own even though he knew that he was not the natural father F and M were getting divorce and he now claims that he does not want to support KB Court finds ample evidence that F held himself out as the parent attempted to get custody even when he knew he was not the father o they also bring up the notion of the strong emotional ties the bonding b/t the F and the kid F is estopped from denying his obligation NOTE even though the natural F is out of the picture, he is still legally liable

Knill v. Knill


stepparent could possibly get around the estoppel block by showing that the child will not suffer any financial detriment if they do not pay (i.e. kid is financially supported by natural parents) if kid estranges themselves from the parent, then the parent has a duty to attempt to facilitate the relationship o if kid still resists, then parent does not have to pay unless the kid is resisting b/c of abuse


Pre-Nuptial Agreements

persons that want these: o wealthy persons o person entering subsequent marriages anything can be included (assets, pensions, financial liability, investments, etc.) enforced according to normal K terms + must be in writing b/c of SOF there are some exceptions though: o oral agreement (see Virginia case on 529) o SOL is tolled by the marriage only time specific terms will invalidate the agreement are when they facilitate divorce o H guaranteed that he would provide support to W # 1 if she would grant a divorceH stated that W # 2 would payH stopped paying and W # 1 files claim seeking the $...W # 2 argues that the agreement was void b/c it promoted divorce Court held the agreement valid b/c the first marriage was already dead, implementing estoppel reconciliation was never an option for the H and W # 1 (Glickman v. Collins) public policy favors having prenuptial agreements most courts will validate them they are a lucrative part of a family lawyers practice Ark 9-11-401 adopted the Uniform Act of Prenups

Requirements of Valid Prenup (1) procedural fairness @ time the agreement is executed full and fair disclosure of all assets and all liabilities if agreement was substantively unfair, there is a rebuttable presumption of nondisclosure if party is challenging, they have burden of proving unfairness (2) substantive fairness @ time the agreement is executed if it was substantively unfair here, there is a rebuttable presumption that there was nondisclosure


fair and reasonable cannot grossly favor one party over the other sliding scale

(3) substantive fairness @ time the agreement is enforced unconsciousable some great disparity b/t lifestyles during marriage and lifestyles if they enforce the agreement

Agreement Inclusions generally anything o BUT cannot bargain away obligation for child support Flannerys recommendations >> (1) statement that each person is free from duress o even if agreement is signed a couple of hours before the wedding, it was OK b/c it was fair and reasonable and W had time to read (Osborne v. Osborne) (2) statement of full and fair disclosure (assets and liability statements) o describe sufficiently to put a reasonably intelligent person on notice to verify (3) statement that each had opportunity to seek independent counsel o not required, but is highly suggested o just b/c parties are using only 1 lawyer, there is not a presumption of invalidity the challenger has burden of showing overreaching of unfairness by the lawyer (Levine v. Levine) (4) statement that all rules w/I this particular jurisdiction are being followed o certain form is filed properly notarized

VII. Post-Nuptial Agreements

as an attorney, I am most concerned about modification and enforcement whether I can do either depends on whether the K is incorporated or merged into the divorce decree o must expressly provide for such in the K incorporation = regards validity of the K only party cannot later claim it is invalid merger = adopt terms of agreement and put in divorce decree so that the divorce court has jurisdiction to modify and enforce w/o this modification and enforcement would have to be done in normal civil court o ***if K only states incorporated there is presumption that it is merged in order to just include incorporated, there must be a non-merger clause


Carter v. Carter H and W had 3 kids W took custody and H had to pay $ in lieu of alimony for support H agreed to payment in lieu of alimony of $300/month in 1971, payment in lieu of alimony of $900/month in 1972, and payment of $600/month thereafter until death/remarriage of W or emancipation of all kids W had health problems and H took custody of the 2 unemancipated kids H then petitioned for permanent custody and termination of monthly payments H got temporary custody and court found $ agreement to be ambiguous and held that the parties intended of the monthly payments to W to survive the transfer of custody W appeals and argues that under the $ agreement, the $600 payments to her were not subject to reduction by the court

HELD trial court erred in fixing Ws share @ o after the oldest kid became emancipated, each of the 3 remaining Bs were
entitled to 1/3 of the payments o agreement should be applied to the family unit when H took legal custody of the 2 unemancipated kids o so W should get 1/3 of the $600 payments ($200)

Hicks on Behalf of Feiock v. Feiock court ordered F to make payments to M and kids he did not follow and court ordered again for F to pay $150/month and determined arrearages F made two payments and quit he was served order to show case why he should not be held in contempt M made out prima facie case of contempt and F claimed he could not pay court sentenced F, put him on probation that required him to make payments of $150/month Requirements of Contempt > o (a) court order to have a party take some action o (b) find that party has ability to pay o (c) party refuses to pay Civil Contempt = coercive; remedial (to get the party to take action) o paying $ to a particular party conditional o if party pays before time is up, it is purged Criminal Contempt = punitive (to punish the party for action/inaction taken) o paying $ to a court not conditional Major Difference in a criminal contempt case there is a higher standard of proof (BRD) Court remands here for a determination on whether the contempt order was criminal or civil then they can apply the proper standard of proof


VIII. Uniform Interstate Family Support Act (1986)

used to most effectively enforce support orders See Appendix 1

Chapter 6 Parent and Child: Legal and Biological Relationship

I. Illegitimacy
cases here deal w/situations where kids are suing parents b/c of the stigma of being born outside the family unit most cases deal w/estate or probate issues (i.e. inheritance) there were certain things that illegitimate kids could not do: take name; get inheritance; custody rights BAR EXAM note that any question dealing w/illegitimacy where there is a statute that discriminates will be unconstitutional o In order for the statute to be constitutional, there needs to be a RB And the only RB that some courts find is where there is some issue of proof causing it to be sufficient enough to discriminate

Zepeda v. Zepeda P is the illegitimate son of D he is seeking damages for deprivation of right to be legitimate child, have a normal home, have a legal father, inherit from his father, inherit from paternal ancestors, and being stigmatized as a bastard P presented tort and K theories the court does not address the K theory the Issue is whether the fathers act is a legal wrong, a tortuous act? court notes that P is not suing for mental distress or defamation; the P is suing for deprivation of a normal home o BUT illegitimate kids may NOT have rights that are superior to that of legitimate kids meaning that legitimate kids cannot sue their parents for lack of affection, broken marriage, failure to provide happy home even though there has been significant liberalization of illegitimacy, there are overriding considerations to preclude creating a tort action for wrongful life o the dispositive issue is that it would encourage a whole new class of litigation that could be adverse to the judicial system

as we see from this case, statutes have been passed to give illegitimates specific enumerated rights (i.e. last name, intestacy) Levy v. Louisiana


5 illegitimate kids are suing the Dr. and insurance company to recover for the wrongful death of their M statute only allowed legitimate children to recover HELD even though this discrimination is firmly rooted in history, it is invidious to discriminate against kids when their legitimacy is irrelevant to the harm that was done to the M

Glona v. American Guarantee decided alongside Levy Court ruled that Louisianas wrongful death statute, allowing only legitimate kids to recover, was unconstitutional o both of these cases focus on parent being BIOLOGICAL Justice Harlan (dissented in both Levy and Glona) State has the right to define family how they please they may require formalities, acknowledgement of children by the parents o SO the dissent focuses on parent being LEGAL this led to several cases concerning the Legal v. Biological debate Labine v. Vincent UPHELD statute disqualifying an illegitimate child from sharing in intestate succession o illegitimacy was not a suspect class only need a RB Weber v. Aetna Insurance REJECTED statute excluding illegitimate children from claiming under workers compensation on behalf of a deceased father o violated EP and DP Matthews v. Lucas UPHELD provision of SSA that required special proof of dependency by illegitimate children to recover benefits on behalf of fathers death o deferential treatment satisfied RB this back-and-forth led to the Gomez decision >> Gomez v. Perez F filed petition for support from H on behalf of her illegitimate kid Trial Court found that D was the biological F, but that he was not legally liable b/c of the illegitimacy Appellate Court affirmed HELD just have procedural DP (hearing) in order to determine paternity

Stanley v. Illinois M and F lived together but were not married M died and statute required that kids of unwed Fs became wards of state when M dies (basically presumes that F is unfit) F appealed arguing that there was never a showing that he was unfit he claims that b/c this showing must be made w/married F and unwed M, it would be an EP violation to not apply the same standard to him


SC agreed that no showing was made, but found it irrelevant and found that the kid could be separated just by showing that the parties were not married b/c the statute is treating unequally, it must satisfy RB State argues that if F wants custody he can adopt o but the court finds this unfair he would then have to compete w/others that might want to adopt Court notes this presumption cannot justify the lack of DP the F gets to have his hearing (procedural DP) HELD must have procedural DP (family) in order to remove kids from parents

Flannerys Problems with Stanley even though procedural DP is represented by the hearing, there is a serious lack of substantive DP bootstrapping the F is by definition not a parent, but the court treats him as one in order to ascertain whether he deserves a hearing


Establishing Legal Parentage

most jurisdictions (including Ark) has adopted the Uniform Parentage Act it establishes guidelines on who to treat as the M and F of a given child

Uniform Parentage Act 204 Presumption of Paternity man is presumed to be the F of a child if: o he and M were married when child was born; o he and M were married and child was born w/I 300 days of death, annulment, divorce; o before birth, he and M were married and it is declared invalid, and child is born during the invalid marriage OR w/I 300 days after death, annulment, divorce; or o after birth, he and M were married, and he voluntarily asserts paternity and: assertion is filed w/state agency agrees to be named as the F on childs birth certificate promised in a record to support the child as his own 106 Presumption of Maternity woman that gives birth is presumed to be the M o (issues can arise in the surrogacy context) Witso v. Overby H and W are married and had a child putative F comes along and claims he is the biological F H claims he is the F under the Uniform Parental Act


Issue = should a putative F have standing to come into court to prove that he is the biological F? HELD yes, the putative F has standing to prove paternity o but the dissent points out that this bastardizes the child; what if the alleged putative F is not involved? is a deadbeat? or is a rapist? well the court points out that a sufficient affidavit is required showing valid proof and the trial court has wide discretion is assessing whether it meets the statutory requirements + do we want Hs having more rights than the natural F?

Michael H W has affair w/neighbor he has blood test to prove that he 97% the natural F W ends up living H and moves in w/neighbor and lets him be a father W ends up w/a 4th party all parties sign agreement stating that neighbor was biological F month later the W moves back in w/H and has 2 more kids HELD the Acts presumption that H is the father, while child is born when they are married, is irrebuttable b/c they do not want to disturb the family unit

so the question arises whether or not we want to make this presumption rebuttable or irrebuttable should we allow for genetic testing to prove/disprove paternity? o Iowa statute does not allow testing to disprove paternity b/c it is not in the best interests of the child o Indiana statute allows for anyone to step in and prove/disprove paternity 1) has to be a rebuttable presumption 2) have to meet statutory standing requirements 3) jurisdictional split as to whether to allow blood tests Cleo A.E. v. Rickie Gene E. M and F were married and had 2 kids they were divorced and F agreed to pay $250/month child support apparently he skipped town and did not pay and was found in Florida at a hearing, F claimed that he was not the father of one of the kids and requested blood test awaiting briefs on this issue, the court ordered F to pay $62/week for arrearages sometime later an amended final divorce order was filed with an attachment stipulating that F was not the natural father the Child Advocate Office filed appeal to have this final divorce order set aside HELD for the benefit of the child, they will not allow interruption


they remand in order to determine the best interests of the child and point out factors that a court should consider before admitting blood test as evidence: o (a) length of time from when F was put on notice that he might be the F and when he actually contested paternity o (b) length of time that he assumed the role of F o (c) facts surrounding the putative Fs discovery of nonpaternity o (d) nature of the F/child relationship o (e) age of child o (f) potential harm to child if paternity was successfully disproved o (h) extent to which passage of time reduced chances of establishing paternity and support obligation in favor of the child o (i) all other factors that may affect equities involved

Rivera v. Minnich M filed complaint seeking support from the putative F, who denied paternity statute required that the burden of proof was P of E the putative F argues that it should be C and C (the standard used in parental termination proceedings) HELD due process was satisfied by P of E standard in paternity proceedings o differs from termination proceedings where C and C standard is used Why? (a) the contestants in a paternity are individuals whereas the contestants in a termination are individual and the State (b) risk of erroneous depriving the child of some rights is greater at termination (c) other major risks involved when talking about the termination of parental rights (d) natural parents do not have a double jeopardy defense against the State in termination the State can always keep trying if circumstances of the family change (so the higher standard protects the parents from repeated attempts) (e) no rights of the putative F are being revoked at paternity When the state is a party, the risk of erroneous deprivation is much greater; when two parties are fighting, it is two private interest, and the government interest is less Justice Brennan (dissent) it is all the same, just at different ends of the spectrum the imposition at a paternity is the beginning/end of a life-long relationship the decision implicates significant property and liberty interests of the D

Clark v. Jeter M filed complaint for support on behalf of her child against the putative F the court ordered blood tests and they showed 99.3% probability that he was the biological F


he moved to dismiss b/c the complaint was filed after the 6-year SOL statute required suit to establish paternity must be brought w/I 6 years of childs birth Trial Ct upheld the SOL while awaiting appeal, the Legislature enacted a new 18-year SOL but the Ct ruled that it did not apply retroactively the court addresses the EP claim by applying Intermediate Scrutiny (the means must be substantially related) (std is intermediate scrutiny when dealing with illegitimacy-the states interest is protecting the child) o HELD Pennsylvanias 6-year SOL is not substantially related to the States interests of preventing litigation of stale or fraudulent claims a mother might not realize the loss of income until later in the childs life expenses of the child tend to increase as the child matures


Assisted Conception

Artificial Insemination R.S. v. R.S. H and W consulted a medical specialist about insemination the H only orally consented the doc was unaware that he was required to obtain written consent and did not do so in other cases for 8 years a child was conceived after numerous attempts they are divorcing and the H is now arguing that in order for him to be considered the natural parent, the statute required that he had to give written consent the court notes a New York case (Gursky) where the court found that a child born under artificial insemination was not a legitimate issue of the H o nevertheless they held the H liable for support under an Implied Contract theory and he was Estopped from denying his obligation once he had consented to the procedure HELD when H consents to artificial insemination it is presumed to continue through pregnancy unless he established withdrawal of consent by C and C evidence he has Impliedly Agreed to support the child he is Estopped from denying his obligation

most State statutes provide that there is a presumption that the natural F is the H who consents to the procedure Frozen Embryos Davis Standard when it comes to frozen embryos, they are not persons and are not property


first look to intent of the parties if ambiguous balance the competing interests o when balancing, favor destruction of embryos unless there is no alternative means of parenthood if no alternative means consider why the person wants the embryos

J.B v. M.B. C.C. this case is just an application of the Davis standard only difference is that the court states that any K providing for this type of procedure is unenforceable if it does not have an escape clause for one of the parties Flannerys Question should we have presumptions for embryos as we have in place for insemination?

Surrogacy Contracts Rule if Legislature is going to allow for Surrogacy Contracts, these 3 things must be present in the K: o (a) must not be for $ o (b) must be voluntary o (c) must provide for right to revoke the K and assert parental rights

Matter of Baby M H hired WH Party to carry and deliver baby she would be artificially inseminated using Hs sperm contract stated that after birth she would do what was necessary to terminate maternal rights and the W would adopt after birth, WH reluctantly gave up the baby she then threatened to kill herself if she could not get the baby back H gave baby back temporarily but WH then refused to return H filed complaint but WH hauled ass to Florida H ended up finding the baby and the police physically removed the baby from WHs parents home... H then filed action to have surrogacy K enforced Guardian Ad Litem recommended that H/W get primary custody and WH should not get visitation until baby reaches maturity Trial Court held the contract valid and held: (1) WH parental rights should be terminated; (2) sole custody should go to H; (3) W should be able to adopt baby Supreme Court held the contract invalid b/c: (1) direct conflict w/existing statutes;


(2) conflicts w/public policies of the State Under Uniform Parentage Act: father is presumed to be H (baby born during marriage) mother is presumed to be WH (woman that had the baby) not following normal parentage guidelines not following normal custody rules these type of contracts are different than adoption contracts arguably, WH and her husband would have to pay support, even while the baby is being raised by H/W state that Legislature can create laws to provide for, but they must satisfy the requirements (see above) it is important to note that the court is not stating that Surrogacy Contracts are invalid per se only that this particular one did not have the necessary requirements (see above) today almost the States do not allow for Surrogacy Contracts per se o New York first to do so Ark allows for it (A.C.A. 9-10-201)

Chapter 7 Raising Children: Competing Interests

I. Assuring Education
Wisconsin v. Yoder statute required that parents had to send kids to school until they were 16 family was Amish and it was against their practice for kids to go after 8th grade they were convicted and fined family argues that the statute infringes on their Free Exercise of religion b/c this is a fundamental right, the statute must satisfy SS (narrowly tailored; compelling interests) the States interests are not compelling here and do not satisfy SS In order for a religion to be considered legitimate by the courts when looking at a religious objection to a State policy: o (1) sincerely believe in the religion o (2) belief must be at the heart of the religion (internally related) o (3) deprived conduct must be detrimental to their religion o (4) must be alternative mode to accomplish the States goal o (5) State must show adverse effect by granting exception to the rule


Board of Education v. Cooperman the State has adopted policy guidelines in regard to admission of kids w/HIV in schools the Board did not want 2 kids w/HIV to be admitted to a particular school it went through the process set up by the guidelines and it was determined that the kids could not be excluded this case stems from the Arline case, which states that a kid cannot be excluded under the Rehabilitation Act b/c this issue focuses on the procedural aspects of justice, the court goes to a Matthews v. Eldridge balancing test: o (a) private interests o (b) States interests o (c) risk of erroneous deprivation in evaluating whether there was proper DP (quick and speedy hearing) in order to avoid erroneous deprivation, there must be: o (1) adequate notice o (2) change to know opposing evidence and argument and present evidence and argument in response o (3) chance to confront and cross-examine adverse witnesses o (4) impartial deciding officer

II. Dependency and Neglect (certain exam material)

The Process when a child abuse case is reported and the child needs to be removed from a dangerous situation, the lawyer needs to call Judge and get a Restraining Order o standard is imminent risk to the child if parents agree to Voluntary Placement Agreement, they will agree that they need to be alone for a while to get back their feet, the State will take temporary custody and must be an Adjudicative Hearing w/I 30 days if parents do not agree to VPA or State cannot get a RO but there is a need to change the current situation, then the State can file an Urgent Petition in order to get an Adjudicative Hearing w/I 30 days once a RO is issued, there must be a Detention Hearing within 72 hours in order to explain to the Judge what happened and why the State wants to take custody parents can come and argue (normally the parents were arrested) o assign counsel o deal with any standing issues that persons may have concerning child o set up Adjudicative Hearing of the child dependent (without proper parental control) within 10 days o temporary custody to the State


the Adjudicative Hearing will set up plans on how the parents can keep their kids and get their kids back the plans are for individuals (ISP) and for the family (FSP) and will be tailored in order to achieve a statutory goal: o Reunification o Long-Term Placement o Adoption if child is ruled to be w/o Proper Parental Care & Control, then they are adjudicated dependent and the State gets temporary custody once the plans are in place there will be a Disposition Hearing for the child focus on what is in the best interests of the child if there is adjudication at the hearing and disposition of what to do with the child is determined, there will be a Review Hearing in order to assess if the requirements of the plan are being met o agent from DHS will report State must show reasonable efforts to facilitate the ISP and FSP next will be a Goal Change Hearing the court will determine what the best goal is for the child: o Reunification (this is the ultimate goal and is provided statutorily in most states) o Long-Term Placement o Adoption if this is selected, then proceed to termination hearing if it is clear that the parents are not going to follow the plans to meet the goal, the final stage is a Termination Hearing to end parental rights o child must be permanently without Proper Parental Care & Control o find family to adopt o suspend visitation by parents o terminate parental rights

the burden of proof on all of the standard is Clear and Convincing evidence
In Re Gault there needs to be more procedures in place in those concerned with children Ark if 10 or older and commit crime that would result in misdemeanor or felony of an adult, then child meets juvenile delinquent standard there is an entire separate process dealing w/Juvenile Delinquents it is more criminal like where as Dependency is more civil like



there is a need to change the current situation

Restraining Order

Voluntary Placement Agreement VPA

Urgent Petition
go straight to Adjudicatory Hearing

Detention Hearing w/I 72 hours must be imminent risk to child

go straight to Adjudicatory Hearing

Adjudicatory Hearing child must be w/o Proper Parental Care and Control (PPCC)

set up Family Service Plan (FSP) and/or Individual Service Plan (ISP)

Disposition Hearing look to what is in the best interests of the child (ct will hear ISP and FSP)

Review Hearing agent from DHS will report on status are parents following the plan?

Goal Change Hearing reunification long-term plan adoption


Termination Hearing child must be w/o PPCC find family to adopt suspend visitation terminate parental rights

Cases L.A.M. v. State child had a major problem with running away several petitions were filed and several court orders were passed down placing her in foster homes, but she still ran away she was finally ordered to be institutionalized Issue: should child be placed in juvenile delinquent program b/c of her contempt of court violation? HELD Yes b/c of the States Interests in putting the child in the best place must consider all of the rights involved (parental; state), but lean heavier toward the best interests of the child Matter of Andrew R F put child into residential treatment center alleged that child went in voluntarily child ran away and refuses to return Issue: child claims deprivation of liberty by being kept in facility against his will HELD there is a DP violation there was a VPA and there was no adjudicatory hearing; he was held in foster agency for 7 months w/o DP Punishment of Children the courts will look at 3 things when determining whether the punishment was excessive o (1) moderation o (2) reasonableness o (3) appropriateness they will also look at: age misconduct type of discipline condition degree of harm

III. Responding to Child Abuse

Baltimore Social Services v. Bouknight child had been in the process but was reunified w/M court wanted to review the services that were in place and M failed to produce the child M claimed 5th Amendment right against self-incrimination if refusing to reveal the location of her child M was found to be civilly contempt and could purge herself by revealing the location she ended up spending 7 years in jail


Issue: whether a M may invoke the 5th to resist an order of the Juvenile Court to produce the child HELD no M may not use the 5th to get around the court order o but eventually the state let her out of the jail b/c they realized that M was not going to reveal the location

Reporting Statutes every state has these to define who may report child abuse will either be requirements for who must or may report o could be anyone o or certain individuals (doctors, lawyers, teachers) almost every state has exceptions (privileged relationships) o priest/penitent o AT/C but there are also caveats to the exceptions o do away with privileges immunities and require reporting (Ark does) if a person is required to report and they did not, they can be liable (although it is rare) DeShaney v. Winnebago County Social Services child was beaten into a coma and ended up being permanently damaged DSS was aware of potential abuse for some time and did nothing to remove child from the home child and his mother filed 1983 action claiming DP violation b/c DSS did not take appropriate action to protect him from his F abuse Issue: does the State have a constitutional affirmative duty to protect children from parental abuse HELD no duty to protects kids from abusive parties can only assert 1983 claim for government action; not 3rd party action o would be different if the child was in the dependency system already then the state would have a duty

IV. Case of Ryan Stallings (Munchausen)

Munchausens Syndrome typically a person hurts themselves, or makes something up, in order to go and get medical tests and procedures By Proxy means the parent is giving false info to the medical community on behalf of someone else (usually the kid) most popular is a female doing it on the child various types of forms include: o suffocating until unconscious o inject blood into stool o force to inject salt, oil


o remove food from feeding tube all of the actors involved have the same characteristics in each case that is why it is called a syndrome there are common traits: o mom = 20-25, medical background, abused as a child, overzealous about getting tests and procedures o child = usually infants, end up perpetrating when they become adults o dad = not involved in family, not supportive problem is that the medical and legal communities treat MSP differently o medical treats it as a parental illness o legal look at the child as a victim b/c there are problems in the way MSP is treated, many hospitals will videotape Ms performing the acts in the hospital Flannerys problems with the studies >> o coercive o hard to tell what is happening on the tape o triggers 4th Amendment violations he thinks this does not need to be done in order to protect the child if there is a PC to tape the parent in the hospital, this is the same standard to get a Restraining Order and temporarily remove the child and place in States custody o apply a Res Ipsa Loquiter standard if there is no other explanation, then it must be the parents New York is the only State to apply it so far if a requisite # of factors have been met, then Res Ipsa is applied Flannery we do not need to abuse the child in order to prevent abuse some courts have held that child improvement when taken away from the mom is the next best evidence to having the videotape of the actual abuse

V. Medical Decision Making (on behalf of children)

courts will interfere against the wishes of the parents in order to protect the child (extreme is Hermanson) shifted to a quality of life standard look at the childs quality of life and not just imminent death then to a subjective standard look at the input of the child w/the States interests

Hermanson v. State child had juvenile diabetes


parents were Christian Scientists and did not believe in conventional medical treatment parents were well educated, upper-middle class, no legal problems child ended up dying under their care State has 2 statute at play here > o (1) criminal statute for failing to provide medical care for child o (2) child-abuse statute but (2) had an exception to violation as long as parents were practicing religious tenets there was no evidence of child abuse, so the parents were charged and convicted under (1) Issue: given that there was a conflict b/t civil and criminal statute, how does the court know when parents have gone too far under the religious exception (i.e. when is it negligent?) HELD statute failed to provide adequate notice of point when religious beliefs have gone to far and they would lose statutory protection and became culpably liable o standard person of reasonable intelligence becomes is notified of when culpable behavior comes into play

the Hermanson Court relied on Walker, which provided that the State must use the least restrictive means to accomplish goal when infringing on parents rights to practice religious tenets the Walker found that a criminal statute forbidding any negligence was the least restrictive but this leaves open the question of whether, a civil statute allowing for a religious exception or a criminal statute forbidding negligence, would be the least restrictive on the religious practice? o depends on the consequences would parents rather go to jail or lose the kids?

What about a situation where the child is not in present danger? can the State step in and say as long as you continue to do this, we are going to act now and remove the child? o Majority Rule not remove child for potential future abuse Exception when a parent murders another parent that is automatic loss of parental rights after Hermanson, we have a clear shift into the childs quality of life Newmark v. Williams child had cancer


State wanted child to get chemo, Christian Scientists parents did not 40% chance that chemo would add 3 years to childs life w/o chemo she would live 6-8 months HELD court will consider how long the child will live, the pain they will suffer, what type of life they will live when determining whether to allow for the medical treatment

In Re Sampson child had disease that created abnormal growth on face he had not been to school in years dangerous and lengthy operation might alleviate the condition Jehovahs Witness parents did not want him to have blood transfusion HELD allow for operation b/c the court determined that it would improve the childs quality of life

then the complete inverse of Sampson is found in Green >> In Re Green child had severe scoliosis surgery would help to correct it Jehovahs Witness parents again objected to the blood transfusion HELD court remanded to hear from the child as to whether or not he wanted the corrective surgery o (kid ended up turning it down)

so after Green, there is shift to having input from the child but this begs the question of whether or not the child can actually convey what is in their best interests? In Re Doe child suffered from degenerative neurological order and was on a respirator and going into dying state M wanted DNR, D did not want DNR ethics committee of hospital agreed w/mom lower court enjoined hospital from enforcing DNR HELD parents can choose or refuse DNR order o BUT the decision is not absolute if both parents are available, they have to agree if only 1 is available, then only 1 is needed default presumption is that both parents consent to DNR order, so it only takes 1 to revoke


Chapter 8 Child Custody

I. Parent v. Parent
historically the presumption under the Tender Years Doctrine was that a young child should be with the M o this has been done away with

Sole Custody w/Visitation Garska v. McCoy F got girlfriends daughter pregnant M argues the Tender Years Doctrine Issue should there be sole custody w/visitation? Rule presumption of the primary caretaker will NOT just give kids to the M will give custody to person who primarily cares for the kid whoever demonstrates this will get custody other parent can defeat presumption of primary caretaker by showing abuse, etc. in establishing which natural or adoptive parent is the primary caretaker, the court must determine which has taken primary responsibility for performance of nurturing duties and will consider the following: o preparing/planning of meals o bathing, grooming, dressing o purchasing, cleaning, care of clothing o medical care (nursing and trips to doctors) o arranging after school activities (to friends homes, boy scouts, girl scouts, etc.) o arranging alternative care (babysitting, day care, etc.) o putting child to bed / attending to child in middle of night / waking child in the morning o disciplining, teaching general matters, toilet training o educating (religious, cultural, social, etc.) o teaching elementary skills (reading, writing, arithmetic) o inter alia (court considers totality of circumstances and not just 1 factor) once presumption is shown that parent is primary caretaker, they then have to show Fitness to be a parent once this is shown, it is ultimately impossible to overcome the presumption things that can show Unfitness are: o physical abuse o neglect o sexual misconduct around kids


Homosexuality in order to overcome presumption of primary caretaker on grounds of Homosexuality, it must be shown that it effects the child in a negative manner Solomon Syndrome parents will give in at different areas to keep their kids Parent Becomes Handicapped In Re Marriage of Carney F was awarded custody and then became handicapped M then wanted custody Trial Court ruled for M ruling that a handicap was enough to change custody Appellate Court reversed Issue is a handicap a basis for shifting custody of child to other parent? Rule NO handicap is not sufficient as prima facie evidence of overcoming and existing award of custody o in order to change custody award, there must be a substantial change in circumstances from when custody was awarded so no substantial change = no standing substantial change = ad hoc case by case basis

Parent With HIV is this prima facie evidence for change of custody? o NO it is same standard as with homosexuality can change custody if you satisfy burden of showing that HIV status has negative effect on the kids Interracial Parents Palmore v. Sidoti F and M get a divorce M remarries a black man F wants custody back Issue can a M be divested of her kid b/c of her remarriage to a person of different race? Rule in order to change, there must be a showing of substantial change in circumstances o this is satisfied by showing a negative effect on the kids if no showing = no change in custody o the only exception is Indian Children we allow for discrimination here because it is related to their culture


Joint Legal and/or Physical Custody some States have presumption that joint custody is in the best interests of the child adjust the % by considering primary caretaker factors o to modify this arrangement, the parent must show substantial change of circumstances so under Joint Custody, presume 50/50 and move to 70/30 or 80/20 when primary caretaker has substantial change in circumstances States will have 1 of 3 types of presumptions: o 1. Presumption of Joint Custody o 2. No Presumption o 3. Preference of Joint Custody (not necessarily 50/50) types of Joint Custody >> o Primary o Secondary Joint Legal Custody sharing the legal decision making on behalf of child o F and M have equal rights primary = F (he makes the decisions under this method; can consider M authority, but F trumps) secondary = M Joint Physical Custody share actual custody of the child o primary = 50/50 o secondary = 80/20 (just visits) factors to encourage Joint Custody >> o parents get along o parents must facilitate relationship b/t child and other parent (court will most likely give primary custody to party that is facilitating)

Bird Nesting:expensive remarriage power struggles

In Re Marriage of Weidner F and M permanently separated and b/t that time and when the final decree was ordered, the M was the primary caregiver F did see the kids about the time, but M was the one who cooked, cleaned, got them to school and activities, etc trial court awarded M sole custody and allowed F visitation Issue whether trial court properly placed kids in custody of M rather than providing for joint custody?


in Iowa there is NO presumption that joint custody is in the childs best interests, but it is preferred over other custodial arrangements Rule in ruling on a JC petition by one party, the court should consider the following: o whether each parent would be a suitable custodian; o whether psychological/emotional needs of child will suffer due to lack of active contact; o whether parents can communicate w/each other; o whether both parents have actively cared for child before/since separation; o whether each parent can support the other parents relationship w/child; o whether custody arrangement is in accord w/childs wishes; o whether one or both parties agree or are opposed to JC; o geographic proximity of parents; HELD one parents unreasonable resistance to JC is a factor which can be weighed by the court in favor of awarding sole custody to the other parent

II. Parent v. 3rd Party

what does the court do when parent is fighting w/a 3rd party for custody o Ex foster parent v. natural parent Old Presumption only needed to show that natural parent was fit and they would get custody then 3rd party would have no standing New Presumption look to the psychological parent (see Bennett below)

Bennett v. Jeffreys M gives birth and gives child to 3rd party M then wants baby back Trial Court finds that 3rd party is primary caretaker and gives them custody Appellate Court reverses and gives custody to M Supreme Court reversed and gives custody back to 3rd party there is a rebuttable presumption that child should be with the natural parent o here the M is not unfit, but to remove the child from the 3rd party would be damaging the 3rd party is the Psychological Parent the child thinks of and treats them as a parent in order to overcome the presumption of natural parent the 3rd party must show: o Unfitness; and o Court can do whatever is in best interests of the child so Fitness + Best Interests Court picked this case up again in Bennett v. Marrow


o The court found that the child had done poorly for the 15 months that she had been with natural mother and even dropped a lot on the I.Q. score. o The trial judge remanded the child back to foster parents because the childs best interest had been clearly demonstrated.

III. Parent v. State

Foster Placement Foster Homes private residences, group homes, and institutions wherein any child in the care, custody, or guardianship of DSS, may be placed for temporary or long-term care, and shall include any private residence maintained by persons w/whom any such child is placed for adoption Smith v. Organization of Foster Families individual foster parents and organizations of foster parents filed a civil rights class action pursuant to 1983 for declaratory and injunctive relief against NY State and City officials they argued that the procedures removing foster kids from foster homes violated DP and EP District Court appointed independent counsel for the foster kids that court held the procedures defective and found that a hearing must take place before any foster kid is transferred Issue what process is due to foster families when foster kids are taken from their homes? the current NY law regarding removal of foster kids is as follows: o (1) DSS has discretion to remove kids, but must provide written notice 10 days before (2) if parents object then they can request a conference w/DSS where they can appear w/counsel and will be advised of reasons for removal (3) DSS must schedule the conference w/I 10 days of receiving the request o (4) conference official must render a decision w/I 5 days and send notice to DSS and the parents (removal is stayed pending outcome of the conference) (5) if child is subsequently removed, the parents can appeal to DSS for a fair hearing, which ruling is subject to judicial review (removal is NOT stayed pending the hearing and judicial review) the State argues that their foster care system is only a temporary placement intended to lead to reunification of kids w/natural parents or to legal adoption


o BUT the parents argue that this is not what happens that the kids actually stay in the homes for a long time and develop deep emotional ties w/their foster parents

the Court must look to a Matthews v. Eldridge balancing test >> 1. private interests o parents argue they have a liberty interests in privacy of the family unit BUT the foster family is different than the natural family even though there can be emotional ties, a foster family was originated by State law and K o + the natural parent of a VPA has an absolute right to the return of their child (this shows a stronger constitutional right) 2. States interests o provide a temporary family environment for the kids while attempted reunification or if that cannot happen, then legal adoption foster parents contracted to a temporary arrangement they have NO standing to contest + kids have been removed for becoming too attached to the foster parents (footnote 40) 3. risk of erroneous deprivation o are the current procedures adequate to provide DP? YES notice provided / opportunity to be heard / opportunity to cross / neutral fact finder the process here was adequate o notice o cross-examination and witnesses o independent decision maker o hearing adoptive parents agreed this was only a temporary thing the natural parents have a presumption to custody over a 3rd party

IV. Visitation
Grandparents Visitation almost every State has a Grandparent Visitation Act (A.C.A. 9-13-103) o grandparents have standing and some presumption for visitation over other 3rd parties and w/respect to divorcing parents court only needs a RB for treating divorced grandparents and non-divorced grandparents differently (b/c grandparents are NOT a suspect class) in order to restrict a right to visitation (grandparent or other parent as secondary custodian), the standard is a Grave Threat to the kids


Relocation court can interfere w/custody arrangements if one parent is going to be relocated must consider the effects on the kids o BUT the relocation may NOT be vindictive or whimsical in order to get back at the other party so they wont get custody court will look at the integrity of the move and any alternatives to the move On-Line Visitation Ex M wants to move to Alaska and has custody arrangement where she can see kids 3 times/week o M has good reasons for moving, but not the best reasons New Jersey court changed the custody order b/c of a substantial change in circumstances and found that F could have visitation online Schutz v. Schutz custody was originally granted to F modified arrangement gave M sole custody and F got visitation rights and was ordered to pay child support M then moved from Florida to Georgia w/o notified F M gave F the address, but he found an empty house when he came to visit F then found out that M had moved back to Florida when F finally got to visit kids he found that they hated him b/c of his failure to support and visit them both M and F then filed motion concerning custody, visitation, and support Trial Court found that the kids hate was a product of brainwashing by the M the court ordered her to create in the minds of the kids a loving feeling toward their F and convince the kids to love their F M appeals arguing that under the 1st Amendment, she has right to speak freely about the F HELD the custodial parent has an affirmative duty to encourage and nurture the relationship b/t the kids and the noncustodial parent duty can be achieved by encouraging kids to interact w/noncustodial parent and taking GF measures to ensure that the kids visit and have ongoing contact w/the noncustodial parent the court balances the Ms interest in free expression v. the governments interest in assuring the well-being of the kids the governments interests here is substantial and the restriction placed on Ms expression is essential to the furtherance of this interests

V. Uniform Child Custody Jurisdiction and Enforcement Act (1997)

See Appendix B (Hague Convention; USC; ICAR Act; PKP Act)


Chapter 9 Termination of Parental Rights

I. Severing Parental Rights Involuntarily
Santosky v. Kramer commissioner of DHS filed petition to remove daughter from parents based on neglect 10 months later he removed the son and placed him in foster home on the same day the son was removed, M gave birth to another son, who was immediately removed and transferred to a foster home commissioner then filed to terminate parental rights under NY law, the State may terminate parental rights upon finding that child is permanently neglected only required Prep of E parents challenged the constitutionality of the P of E standard Family Court rejected and ruled that permanent termination was in best interests of the kids NY Supreme Court affirmed and found standard to be constitutional NY Ct of Appeals dismissed parents appeal Footnote 5 after DHS removed the 3 kids, the parents ended up having 2 more kids and the State has taken NO action to remove them Court points out that this is a case strictly about Parents Rights v. States Interests they then find that the Eldridge balancing test is appropriate >> 1. Private Interest Affected o it is heavy it is the right to raise their kids o the kids lose right of support/maintenance, right to inherit, etc. forever upon termination o just b/c parents were bad does not mean they lose their liberty interests 2. Risk of Erroneous Deprivation o there are several things that contribute to risk of error in the factfinding proceeding: imprecise substantive standards subjective values of the Judge court has wide discretion to disregard probative value that favors the parents potential for cultural or class bias no limit on states $ to build a case parents have NO double jeopardy defense against repeated attempts by the State 3. Government Interests Involved o parens patriae interests in promoting welfare of the kids BUT this only arises after the parents have been found to be unfit and the State shows they made reasonable efforts to prevent termination (i.e. attempted reunification)


AND the interest in finding a permanent home arises only after it is clear that the parents cannot or will not provide a normal home o fiscal/administrative interest in reducing costs and burden of proceedings BUT imposing a higher standard would not impose substantial financial burdens HELD b/c the Private Interests affected is large, there is a high risk of Erroneous Deprivation, and the Government Interests is slight, DP requires that a showing of C and C evidence of permanent neglect must be shown before terminating parental rights

Standards After Santosky (must be shown by C and C evidence by the State) Abuse imminent risk Adjudication without PPCC (proper parental control and care) Disposition kids best interests Termination permanently unfit + state made reasonable efforts for reunification the next 2 cases were addressed together in a single opinion >>> Matter of Gregory B F is in jail serving 10 to 20 years kids were placed in foster care pursuant to VPA by M foster home petitioned to terminate parental rights of both biological parents b/c of permanent neglect and free the kids for adoption at the hearing, the home showed that they had made efforts to connects the kids w/their F but the original plan by F was to have the kids live w/his mother until he got out of jail but a review hearing found that the grandmother was not capable of raising the kids b/c of her physical and emotional state F did not appeal but wanted the kids to remain in foster care until he got out Family Court determined the kids permanently neglected, noting that imprisonment must be considered as a factor they terminated parental rights and turned kids over to DSS for adoption Appellate Division affirmed Matter of Delores B F in jail serving 2 concurrent sentences of 25 to life kids went into foster care and foster parents want to adopt they showed they made efforts to bring kids to prison to see F only plan by F was to have kids remain in foster care until he got out Family Court dismissed petition against daughter, finding that F did all he could to maintain contact and statute prevented termination based solely on incarceration Court found permanent neglect as to son and terminated Fs rights


Appellate Division reversed the dismissal of daughters petition on remand, the Family Court found permanent neglect as to daughter and terminated Fs rights Rule State must show before the Family Court that: o (a) parents failed to maintain contact with or plan for future of child; and o (b) they made diligent efforts to encourage and strengthen the parental relationship in order for parents to satisfy (a), they must take steps to provide adequate/stable home, under existing financial circumstances, w/I reasonable period of time GF is not enough o HERE the Fs plans were to have the kids remain in foster until they got out BUT this does not satisfy the permanency element of the planning for the future requirement in order for State to satisfy (b), there must provide counseling, making arrangements for visitation, provide assistance to prevent discharge, and advise parent on the kids progress o HERE the agencies have shown that they met this requirement

In Re Jeffrey E J suffered from sickness and was hospitalized on multiple occasions parents were unable to follow the strict medical regiment required for J J became sick again and was hospitalized J was temporarily removed and placed in foster care at hearing, the District Court found that J was in jeopardy if he was returned to his parents so the Court awarded custody to DSS at the foster home, J was able to get better medically b/c foster mom stuck to the plan DSS pursued 3 reunification plans but parents did not comply and DSS sought termination of parental rights District Court ordered termination found by C and C evidence that parents were unwilling or unable to protect child from jeopardy Rule finding of jeopardy can be based on parents inability to meet a childs special needs that can be developmental or medical o NO need for present medical emergency does NOT have to be imminent or certain to occur

II. Adoption
Private (Independent) Placements made by parents either directly to prospective adopters or through a non-licensed intermediary (i.e. doctor, lawyer, relative, friend)


Agency Placements made by a licensed private adoptive agency or an official State bureau the child is usually relinquished by the parents to the agency the agency can get the child through judicial proceedings as well Open Adoption foster family allows natural parents to visit and spend time w/child o does NOT mean that they can enforce parental rights, just that they will facilitate a meaningful relationship Racial Matching may be a presumption that a kid be adopted by parent of same race, BUT a State may not prohibit a parent of a different race from adopting Family Members State may presume or prefer that adoption be done by family members when opposed to 3rd parties Same-Sex Couples Florida, New Hampshire, Massachusetts last states to prevent homosexual couples from adopting Religious Matching just as w/race, State can prefer to have kid adopted by someone w/same religious beliefs, but may not prohibit Step-Parents most every State (except Pennsylvania), adoption by step-parents require agreement of natural parent or parental rights must be terminated Keeping Identity of Natural Parents Concealed the identity of the biological parents is kept secret, but there are a few exceptions: o some States allow for identity of biological parents to be revealed when it is a medical necessity (i.e. bone marrow) o some States will facilitate when one biological parent is seeking to find the other biological parent through a national registry (Kentucky was the first) Adult Adoptions can be done for legal rights (i.e. inheritance, taxes, insurance) biological parent does NOT have to agree the kid is now and adult and can waive the rights to have a relationship w/their natural parents