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FAMILY LAW OUTLINE

Family Law: The study of laws and policy that define our community relations with one another Sources of family Law where does it come from? constitution, state laws, state constitutions, common law, federal legislation , state law, private ordering (contracting btwn two or more people and the state regulation of it !a"or Themes of Family Law # $# %# &# (# To maintain public peace (the states has a ma"or interest in this tension that arises btwn the state and private ordering Family Law is a state run "urisdiction it is run differently in each state ' of constitutional doctrines that have come about to limit the state (many have been found to be unconstitutional and it protects against states overreaching ) lot of family law cases are full of "udges biases and values of what they consider a family

A. What is a family? a# b# c# There is no one definition of family Following are states ordinance that try to regulate what a family is for areas *oned for single family homes Penobs ot A!ea "o#sin$ %. &ity of '!e(e!+ i# group home (for the retarded did not meet the definition of a family under the ordinance ii# term of art ,domestic bond- i#e# the family unit is a domestic relationship based on birth, marriage, or other domestic bond iii# domestic bond does not re.uire blood or marriage but does re.uire more than is found here# /easons why it was not a family or other domestic bond $# staff doesn0t live there (so the figure of authority li1e a parent in a traditional family setting would be missing %# The residents do not control who would come in and who would leave &# average stay was only $ $$2% years (# these two things are inconsistent with the development of a permanent and cohesive relationship 3# 4t would be the staff and not the residents who would be responsible for the coo1ing and cleaning (outside help detracts from the family nature of the home

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"ann %. &ity of Eaton+unmarried couple with % 1ids challenges validity of a local housing authority practices in denying low income housing assistance solely b2c the applicant are unmarried (i#e# a family is defined as two or more person living together a related by blood, marriage, or adoption i# the couple are not married but live together and have & children ii# This definition if ,family- must be re"ected# $# couples with children can often create a positive atmosphere w2out being married %# some states already allow couples who are cohobating to participate in low income housing &# 4t would be unconscionable to e5clude such a large group of people from rental assistance

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)lassbo!o %. *allo!osi+cohabitation of college students considered a family b2c they coo1ed and ate together even though there was no authority figure6 7ourt held it was a functional e.uivalent of a family i# The ordinance in .uestion restricts residency in this area to single house1eeping units that constitute either a traditional family or its functional e.uivalent ii# term of art ,functional e.uivalentiii# this crt 8 '!as hi %. +tahl a gay couple is considered family i# 7ouple lived together for $9 yrs, one dies, and under the state statute a landlord cannot 1ic1 out a member of the deceased0s family# ii# Term of art ,totality of the circumstancesiii# :ay couple considered a family iv# 7ourt ob"ectively e5amined the totality of the relationship $# longevity and e5clusivity of the relationship ($9 yrs of living together and being e5clusive %# they way in which they hold themselves out to society (everyone considererd them spouses, and they attended each other0s family0s functions &# ;motional and financial commitment 8 they shared financial chec1ing accounts and so on (# /eliance upon one another 3# Social lives *illa$e of 'elle Te!!e %. 'o!aas (Supreme 7rt 7ase i# Term of art ,Single house1eeping unit- ii# <rdinance all related people living together as a single house1eeping unit or no more than % unrelated persons living and coo1ing together as a single house1eeping unit shall be deemed a family

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:roup of college students (similar to :lassboro case and none are related The court uses a rationale basis test $# the defs argue several grounds 8 but the crt doesn0t buy it b2c none of these grounds are fundamental rights that are protected by the constitution %# crt finds the ordinance serves an important purpose (e5: these types of homes present problems such as noise, more cars and traffic that this ordinance tries to stop# !a"ority held that they were not family with in the meaning of the state ordinance $# 4t was within the State0s authority to pass an ordinance which wasn0t s to preserve a nice, .uiet living area# =issenting <pinion $# would li1e to use strict scrutiny test which would have struc1 this down %# >urpose of *oning ordinance is to regulate the use of the land and this discriminates against unrelated people a# violation of $st amendment right to associate unrelated have a right to associate &# ?iolation of right of privacy (# ?iolation of ;.ual >rotection+class of unrelated people living together @@ loo1ing bac1 at the :lasboro clase those students would not have been permitted to live together#

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Ma!%in %. Ma!%in 8 i# couple lived together unmarried, and they entered into an oral argument whereby they would combine their efforts and earnings > gave up her career and = would provide for her ii# > now wants to as1 crt to enforce the agreement iii# crt says when cohabitation is founded on the sharing of property basis the non ac.uiring partner has an interest in the property obtained during the cohabitation $# contracts based solely on se5ual consideration are invalid %# where the nonac.uiring partner has a contractual right to property ac.uired during cohabititation , the fact that a se5ual relationship e5isted does not defeat that right#

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Moo!e %. &ity of East &le%elan, 8 Supreme 7ourt 7ase

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the e5tended family this is a huge case and is applied often ---This ase is .no(n fo! the f#n,amental !i$ht to hoose yo#! family---choice in family is e5amined under strict scrutiny this case did not have a ma"ority, instead it was a plurality substantive due process rights being violated State statute made it a crime to live in a home with others who, as a whole, do not fit in the categories prescribed by state law as a family Aoman lived in a house with her son and two grandsons, all blood related 7ourt, in a plurality opinion, applied a $(th )mendment due process analysis $# The right to be a family does not stop at the nuclear boundary (e5tended family can be a good thing %# There is a fundamental right to be a family &# 7ourt applied strict scrutiny (the states see1s to "ustify the ordinance as a means of preventing overcrowding, minimi*ing traffice, etc# but it doesn0t # Substantive =ue >rocess+used when the state2federal government infringes upon a right $# $(th )mendment+applies to states (what we will be dealing with in this course b2c family law is state law %# 3th )mendment+applies to federal government &# 4f found to be a fundamental right, either e5press or implicit, then strict scrutiny is applied# (# 4f the right is not found to be fundamental, then rational basis is applied 3# There is not intermediate test# ;.ual >rotection+used when the state infringes upon a class of people $# Treating people who are similarly situated differently %# $(th )mendment <BLC+you must have state action Deing able to decide who you want to live with in a familial setting is a fundamental right# $# /ight to privacy (see :riswold v# 7onnecticut a# /ealm of rights under family law that the substantive due process clause comes to life e %. Te/as )naly*ed under substantive due process $# Bot under e.ual protection b2c it would be .uestioned whether the prohibition would be valid if drawn differently to prohibit the conduct between same8se5 and opposite8se5 partners#

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a# )lso, that is how Dowers v# Eardwic1 was decided ii# 7ourt found that it was a fundamental right to choose whatever se5ual partner you choose, so long as it is consensual $# Fustice Gennedy+,right to respect-6 ,freedom f choice- in regard to se5ual partners the ma"ority analy*es the case under due process rather than e.ual protection a# Substantive due process 8 fundamental right the right to se5ual activity in one0s home b# Level of review the crt applies rational basis rather than strict scrutiny %# <07onner ;.ual >rotection the statute was against homose5uals 7onstitution i# $(th amendment $# due process clause it gaurds against states limiting indiv0s fundamental rights (1nown as substantive due process a# >rotects against the state b# ;5: :riswold v# 7onnecticut (first case %# ;.ual >rotection 7lause a# :uards against states from classifying, categori*ing, or grouping a group of person i# ;5: Drown v# Doard of ;d#(first case th ii# 3 amendment $# due process %# no e.ual protection clause &# >rotects against the federal gov0t Substantive =ue >rocess Fundamental /ights i# Eow does the crt decide what are fundamental rights? $# 4t doesn0 t say what the fundamental rights are in the constitution therefore crts must read into the te5t and give life to these rights ii# The fundament /ights $# ;5press /ights Hnder the Dill <f /ights ($8$9 a# These are 1nown as enumerated rights b# These are under the $(th amendment and are applied to states through incorporation c# 4ncorporation the crt decided the bill of rights which applies to federal gov0t also under the $(th for freedom against states %# ;numerated Hne5pressed /ights a# ;5: /ight to privacy (:riswold v# 7onnecticut Le%els of 0#,i ial !e%ie( i. 1 le%els of !e%ie( 2 +t!i t s !#tiny3 inte!me,iate3 an, !ational basis ii# Strict Scrutiny

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7ompelling state interest Becessary to achieve state interest The states has the burden of proving that their statute has a compelling state reason for it and that the classification of the statute is necessary to meet their needs (# !ore times than not the statute will be struc1 down 3# 7lassifications 8 e.ual protection The crt has no choice for the following classes a# /ace i# )ffirmative )ction b# Bational <rigin (ethnicity i# 7ountry of birth c# )lienage (not a H#S# 7iti*en d# @@ strict scrutiny is not used for gender grouping@@ I# Fundamental /ights a# /ight to marry b# /ight to family autonomy c# /ight to raise one0s children d# /ight to se5ual orientation of choice e# /ight to procreation f# /ight to abortion (within limits g# /ight to consensual se5ual activity 4ntermediate Scrutiny also 1nown as ,heightened scrutiny$# whether the challenged statute is Substantially related to to significant or legitimate state purpose %# >resumes statute is unconstitutional6 burden is on the state to prove that it is constitutional &# 7lassifications a# :ender i# There are arguments for applying strict scrutiny $# )nalogous with racial discrimination (e#g#, long history %# 4mmutability (e#g#, you cannot charge it &# =iscrete minority+isolated group that does not have protection through the political process, so they must go through the "udicial, rather than the legislative, branch for protection# b# 4llegitimacy /ational Dasis $# Ahether the challenged statute is rationally related to a legitimate government purpose or reasonable state purpose

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Statute is presumed to be constitutional6 burden is on plaintiff to prove unconstitutional chances of the statute passing are very high 7lassifications a# )ge b# =isability c# Aealth and poverty

Why ,i, )lassbo!o not ha%e to follo( 'elle Te!!e ,e ision? 8 b2c it was the BF constitution they were arguing under not in federal law 8 8 state constitutions can grant more rights than the HS 7onstitution The HS 7onstition is only a minimal ground floor and states can only provide these rights or greater, but not less

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Ma!!ia$e
a# Four players i# !an ii# Aoman iii# State iv# H#S# 7onstitution Some $I,999 benefits go to married couples that others can0t get E%e!y ma!!ia$e has 1 4a!ties i# % adults and the state ii# it is the state that gives the couple the status of marriage % Ginds of /estrictions on procedures for marriage i# regulation of marriage preliminaries ii# regulation of marriage ceremonies & types of permissible state regulations to a formal and valid civil marriage i# license : its recognition of the creation of the institution by the state ii# mutual consent iii# solemni*ation2 religious aspect (e5: you must have someone administer the oath >arental 7onsent i# )ge $J is the permissible age in all but & states where you can marry without parental permission ?oid and voidable i# ?oid: never good it rescinds the contract li1e it never happened $# bigamy already married %# consanguinity blood related &# same se5 there is no such thing in =#7# it doesn0t e5ist

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?oidable not necessarily invalid from the beginning $# mental incapacity, infancy, fraud, disease concealment 5. +tate %. &one a# 7one married an underage female without the parent0s consent and the couple then sepearated without a divorce# 7one then married another woman and was convicted of bigamy b# ) marriage btwn minors is voidable but until the crt says it is invalid it is in e5istence therefore it is not void ab initio c# =ivorce decree ends and otherwise valid marriage v# annulment declares the invalidity of the marriage, but without this crt order the marriage is not void 6e$#lation of ma!!ia$e 4!elimina!ies 2 li enses an, !e7#i!ements i# )ll states re.uire a license for a civil marriage $# license not re.uired for a common law marriage %# gay couples could not do a common law marriage b2c it would be void# Unifo!m Ma!!ia$e an, 8i%o! e A t 9UM8A: ;<=> )!aham %. )!aham 8 the traditional model of marriage i# !r# :raham sued to enforce a contract btwn he and his e5 wife forcing her to pay a certain payment per month to him# ii# 7ontracts between a husband and wife, even if contractually sound, are void b2c it contravenes public policy $# 7hanging he essential incidents of marriage is illegal (the man is supposed to chose the domicile and support his wife here the woman chose the domicile and she supported her husband # otherwise, it would open an endless field of controversy and litigation iii# 7ourt viewed marriage in a very traditional sense $# marriage is not a private agreement, rather it0s a status within society %# under the law, the state creates a status in which the state is virtually interested in especially in maintaining social order #

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=efense of !arriage )ct (=<!) page &K 8 8 8 basically no state is forced to recogni*e a marriage of same8se5 partners that is recogni*ed in another state defines marriage as : a legal union between one man and one woman as husband and wife defines spouse as: refers only to a person of the opposite se5 that is a husband or wife

+tate 6e$#lation of Ma!!ia$e ? Who May Ma!!y? 6est!i tions on Ma!!ia$e an, the ty4e of ma!!ia$e@ 1# Lo%in$ %. *i!$inia Supreme 7rt unanimous decision i# this is a case about an interracial couple who get married and challenge a ?) statute that bans interracial marriages ii# This is the first case in which the S#7# held unconstitutional a state restriction on marriage iii# @@The right to marry is a fundamental right@@ The right to marry someone of another race cannot be restricted by the state# iv# the statute in this case is being challenged $# under e.ual protection racial classification the statute is sub"ect to the strictest scrutiny (this statute only bans marriages of blac1s and whites %# substantive due process denied the right to marry (this e5cerpt is of the due process clause v# crt concluded $# there is no overriding purpose here and the statute deprives the Lovings of liberty without due process vi# State restrictions on marriage is unconstitutional $# the $9th amendment 8 gives states the power to regulate marriage but it is not unlimited %# Eowever, they can still regulate up to a point (e#g#, blood tests, obtaining a marriage certificates, etc#

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Aablo .i %. 6e,hail Supreme 7ourt case i# State statute placing an absolute prohibition on people who owe child support6 cannot marry without obtaining a court order# the crt found this statute unconstitutional ii# This case is argued under the e.ual protection clause and since iii# 7ourt held it to be unconstitutional b2c it clearly interfered directly and substantially with the fundamental right to marry and (applied strict scrutiny iv# Legacy $# states can still regulate fundamental rights but to an e5tent # a# the state must have a compelling interest % part test i# legitimate interest (meaning if the regulation is reasonable and does not interfere with the decision to enter into a marital relationship then then crt applies the rational basis test

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4f it does interfere with the right to enter into a marriage then strict scrutiny is applied iii# The ? you must as1 is 4s this an absolute prohibition or a regulation? State can legitimately impose reasonable regulations on marriage so long as they do not significantly interfere with the decisions to enter into marriage $# So long as they maintain a vital interest in the marriage, rational basis will be applied

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Durger 7oncurring feels this should have been loo1ed at as a violation of e.ual protection

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T#!ne! %. +afley Supreme 7rt 7ase i# 7onstitutionality of a !issouri prison regulation which permits inmate to marry only with permission is .uestioned and found unconstitutional ii# The prison can regulate time, place, and circumstances in which the marriage ceremony ta1es place iii# Aas this and absolute prohibition or regulation? $# rationale basis test was used (regulation and it fails, the statute is turned down# iv# 7ourt held that the statute as written does not bear a reasonable relationship to the prison0s penological interests (i#e#, security regulations6 prisoners need to focus on rehabilitation

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Moe %. 8in.ins i# Substantive due process case ii# State re.uired minors to get permission from both parents prior to getting married# Female minors of a certain age also had to obtain "udicial approval iii# 7ourt, applying rational basis, held that minors0 obtaining parental permission was rationally related to the state0s legitimate interest in mature decision ma1ing with respect to marriage iv# Aas not an absolute prohibition v# There is a balancing test between the state, parents, and a minor0s right to marry >rens patriae (4t# i# State acts as a parent when the actual parent no longer can ii# ;5ample+children in foster care

6e$#lation of Ma!!ia$e &e!emonyB 8 8 8 8 p# .# there must be some oath ta1ing =ifferent in all states 7eremony in a civil contract it is not necessary to have the religious aspect @@ ship captains cannot perform the ceremony )ll but three states set the minimum age to marry without parental consent is $J years old /e.uirements for marriage i# !utual consent ii# Ta1ing an oath iii# <ther bureaucratic re.uirements $# waiting period %# blood test &# marriage certificates /e.uirements for marriages in =#7# i# Bo mental disability ii# 7onsent not procured by force or fraud iii# !ust be physically capable of entering into marriage+impotency? iv# 7annot be under the age of consent ($J v# =#7# recogni*es common law marriage )b initio (4t i# ,From the beginningii# 4f a marriage is considered void ab initio, then it is automatically annulled without any formal re.uirements $# e#g#, incest, bigamy, etc#

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6est!i tions on The P!o e,#!es fo! Ma!!yin$ a# 6a44o!t %. CatD two couples argue they were sub"ect to dress guidelines and ring re.uirements at their wedding ceremony# Leste! %. Leste! 8 mr# tried to argue that his marriage was not a valid marriage b2c there was an antenuptial agreement that the marriage was not to be real# 7rt says 8 8 antenuptial agreements which purport to invalidate a marriage are not enforceable# )n agreement that conflicts with the law is not enforceable o =ivorce is the only legal method to terminate a marriage

&OMMON LAW MA66IA)E

7ommon law L case law o 4f a "urisdiction has case law recogni*ing common law marriage then you have common law marriage unless there is a subse.uent statute or case law abolishing it re.uirements o must be of the opposite se5 o there is no time limit (could technically be an encounter o >arties must be eligible to marry as under civil marriage 7ommon law is more li1e a private contract that creates a status you don0t need the state o >arties must have agreed to marry each other They must hold themselves out to be husband and wife o Cou have ot have a legal divorce to dissolve a c#l marriage (there is no common law divorce =7 recogni*es common law marriage defined by case8law can be abolished by a case or a statute ;lements o !utual present consent to be husband and wife o <pen and notorious cohabitation (letting everyone else 1now o Bo impediment to marriage (main one is a prior marriage o 7annot be related o !arriage has been consummated 7ommon Law >roblems o Hsual impediments8bigamy o Fraud o MMMMMMMMMM o =ivision of property

8 In !e )a!$es 8this is a case about the determination of whether a couple is married under common law and therefore entitled to the spouse0s inheritance upon death of one 8 8 this crt found that there was a common law marriage $ based on their conversations it would appear that they contracted to marry, and the fact that people thought they were married, she wore a ring, they too1 out life insurance policies on each other the crt found them to be married under common law

&hallen$es to the t!a,itional ma!ital stat#s $# %# &# (# $# The &han$in$ 6ole of Women a. 8#nn %. Pale!mo ) woman got married, but wished to 1eep her name rather than her husbands iv# There is no legal re.uirement that a woman must ta1e her husbands name '!a,(ell %. Illinois 2 +#4!eme &o#!t i# Supreme 7ourt upheld state0s denial of a woman to the 4llinois bar b2c of her se5 O!! %. O!! 2 +#4!eme &o#!t i# Supreme 7ourt applied intermediate scrutiny and struc1 down state statute that re.uired only men to pay alimony ii# ?iolates e.ual protection and due process iii# @@ alimony must be gender neutral@@ iv# The state argued that part of the purpose behind the statute was to remedy past discrimination against women $# Supreme 7ourt held that the state could not remedy past discrimination by creating another discriminatory statute %# 4t must be carefully tailored U+ %. *i!$inia Family and !edical Leave )ct of $KK& i# >age $KK iii# impact on the changing role of women recognition of prenuptial agreements same se5 marriage 4mpact of marital status on fatherhood rights

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8 8 a prenup is a contract it is a private ordering a contract traditional marriage o shown in the :raham case said marriage is a status not a contract and the state is vitally interested in it# marriage a status or a contract? o Status then the state controls and defines the terms of the relationship o 7ontract 8 then it is private between the two individuals

o !odern trend: to loo1 at marriage not as a status but more as a contract >re nups o Bot available in all states o 4t is a contract, and if it doesn0t e5ist then the state laws come into play o =oes not re.uire an attorney to enter into it o Bothing stops the parties from destroying it Ahy enter into a >re8nup? o >rotect your assests o @@B< child custody is allowed in a pre8nup@@ it is federally mandated b2c it is against public policy o enter into it for child support o To e5clude property ;5: if you 1now you are going to get an inheritance Ahat is the state0s interest in divorce? o 4t is not clear o Dut perhaps to promote social peace 4f something in the pre8nup promotes divorce o 4t is unconscionable ;5: we will divorce in 3 yrs o <ther times a pre8nup is unconscionable (public policy problems >ersonal services Aaiving spousal support ii# Hniform >remarital )greement )ct ($KJ& or antenuptial $# 7odified in the =#7# 7ode as (I839$ thru (I83$9 a# 7ontract re.uirements must be met i# ;5: must be signed by both parties, must be competent to enter into an agreeement b# 7an be enforceable without consideration i# 4n =#7# consideration was the pending marriage c# 7ontent can0t violate statutes or public policy d# Defore marriage e# !ust define what happens if a marriage ever dissolves f# 7annot include in the agreement i# /ights of children (e#g#, a clause saying that a person does not have to pay child support alimony? ii# >ersonal service contract %# !ust have full disclosure &# !ust be in writing and signed by both parties

E,(a!,son %. E,(a!,sonB 8 8 8 more traditional view more li1ely to find a pre8nup unconscionable re.uirements o must be full disclosure no material misrepresentation or omission o it must not be unconscionable at the time enforcement is sought if it is found unconscionable the crt should modify the agreement to satisfy the necessary standard, but should otherwise give affect to the agreement providing it was not procured by fraud or duress o the agreement may only apply to the disposition of property and maintenance not child support, custody, visitation##etc#

+imeone %. +imeone 8 8 8 more modern view prenups are more enforceable they are no different than any other contract does away with 7#L# unconscionability o if they enter into a contract the crt will not loo1 into the reasonableness of the contract o besides things change what was once favorable may nto be now o parties can only claim lac1 of fairness in the prenups creation not as to the reasonableness of the terms full disclosure is a mustN o 4f an agreement says that full disclosure has been made (a presumption fo full disclosure is made then the party challenging full disclosure has the burden of proof with clear and convincing evidence

@@ absent outright fraud, misrepresentation, or nondisclosure, the spouses should be held to the pre8nup@@@

6oles an, 6i$hts of Fathe! an, "#sban, Le$itima y 8 8 8 legitimacy refers to the status of a child being born with full benefits b2c their parents were married no such thing as an illegitimate child in the =#7# 7ode illegitimacy is under intermediate scrutiny

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there is a presumption that once a parent you will always do what is right for your child @@fundamental right@@the right to parent your child as you see fit and to be a parent@@

7ommon Law presumptions: 8 8 8 irrebutable can0t be disproven rebuttable can be disproven there is a presumption of legitimacy o that a child born is the child of the married woman0s husband absent proof otherwise it can be overturned e5: =B) evidence there is a state interest in promoting legitimacy and minimi*ing illegitimacy !other o =oes not need to prove maternity proof is when the child is born o :enerally only loo1 at men Hnder 7ommon law o $# )n illegitimate child has no legal rights ;5: not entitled to inheritance or support Hntil the $KI90s when the Supreme crt got involved most states still discriminated against illegitimate children o %# 4f the parents were not married when the child was born the child was legally fatherless

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=efinitions 8 8 8 Hniform >arentage )ct is today0s modern act 1 fa to!s $# biology %# legal status (married or not &# )ctual relationship (grasp the opportunity ;.+tanley %. Illinois +#4!eme &o#!t (Still good law +Diology very important ) man and woman lived together for $J years and had three 1ids6 the woman died and the state statute, based on a presumption that unwed fathers0 are presumed to be unfit parents, demanded that 1ids of unwed fathers become the wards of the state iii# Supreme 7ourt overturned the statute based on procedural due process and substantive due process >utative father: o not the presumed father he argues that he is the biological father Batural father o :enetic father

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Statute was a violation of procedural and substantive due process b2c the father had no notice, hearing, or 1nowledge of proof of unfitness upon being declared unfit %# Statute was a violation of e.ual protection b2c all parents are constitutionally entitled to a hearing on their fitness before ta1ing their 1ids away State cannot presume unfitness "ust b2c a father is unwed There is fundamental right to parenting, regardless of whether the parents are married Least important factor is legal status crt said the legal status shouldn0t matter at all

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5.Leh! %. 6obe!tson Supreme 7ourt 8 Diology is not enough i# !ost important factor is the actual relationship ,grasp the opportunity interestii# Barrows Stanley v# 4llinois iii# Supreme 7ourt disagreed with the biological father who claimed he had an absolute right to notice and an opportunity to be heard when the mother0s husband filed for adoption of the child and succeeded $# Aas distinguishable Stanley b2c the biological father was not involved with the child %# !ere e5istence of a biological connection does not e.ual constitutional protection &# Ee did not have any custodial, personal, or financial relationship with the child and did not see1 to establish such a relationship until after the child was two years old# (# Ee must grasp the opportunity and accept some measure of responsibility for the child0s future &# Mi hael ". %. )e!al, 8. Supreme 7ourt i# Diology can be trumped by marital status ii# ,Eusband presumed father- doctrine $# There is a presumption of legitimacy %# Too destabili*ing to the martial institution to brea1 up the e5isting family unit a# ?alid state interest (public policy b# Trumped the biological father0s argument that his parental relationship with child was more important than their marriage iii# Fustice Scalia $# Two8part definition of a ,substantive due process liberty interesta# !ust be fundamental b# !ust be traditionally protected by our society

iv# ,Hnitary Family$# =o not have to be married to be recogni*ed as a family %# )lso includes unmarried parents and their children &# 4n this case, biological father, mother, and child are not a unitary family b2c mother is married to another man

6i$ht to P!i%a y
b# )!is(ol, %. &onne ti #t +#4!eme &!t i# Supreme 7ourt overturned a state statute that made any person who uses or assists in using contraceptives guilty of a crime, as well as people who give contraceptive advice $# First amendment right to associate has a penumbra where privacy is protected from government intrusion %# ?arious bill of rights provisions create *ones of privacy ii# !arried couples have a right of access to contraceptives through the right to privacy iii# 4n this case, the right to privacy is a married peoples right c# Eisensta,t %. 'ai!, 8 Supreme 7ourt i# ;5pands :riswold to include non8married couples in the right to privacy ii# The right to privacy is in the individual, not limited to married couples iii# Se5ual acts of both married and unmarried persons are within a *one of privacy largely immune to state control

8I*O6&E
(# =ivorce (was a privilege under traditional approach a# 4n ;ngland there was a divorceless society until $J3O i# There was no "udicial divorce only the wealthy may be able to get a legislative bill ii# For everyone else they $# could stay married %# get an annulment &# divorce from bed and board but they could not remarry b# Since $KJ3, many states recogni*e ,no fault- divorces c# Some states still have ,fault based- divorces Traditional 8 central principles of marriage 8 :ender based 8 there were clear se5 based divisions

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>atriarchal type of structure for divorce the man was guilty and the woman was innocent !oral framewor1 one must be guilty and one must be $99P innocent Lifelong commitment a partnership 7ould not remarry after divorce

Traditional ;lements of divorce 8 8 8 8 fault based only one party could be at fault o doctrine of clean hands perpetuated gender based divisions roles and responsibilities Financial awards were completely lin1ed to fault $# 7onse.uences of financial award lin1age a# >rovided financial incentives to the no8fault party6 but, if found to be guilty, you would lose the house, 1ids, etc#, and need to pay alimony i# 4t would cause parties to lie ii# 7reated adversarial parties b# ;ncouraged people to see1 divorce for monetary vindication c# :ave no8fault party an economic advantage d# =iscouraged divorce6 made it too costly to get a divorce d# Fault Dased :rounds for =ivorce e# $# 7ruelty i# mental cruelty is included ii# a defense for this is recrimination (h did it too iii# 'ens ote! %. 'ens ote! $# crt said the wife0s conduct was sporadic and did not constitute conduct %# 7ourt would not grant the husband0s re.uest for divorce b2c he did not become dissatisfied with wife until she became ill with !#S# and they had alreaday lived together for $3yrs when you marry 8 you vow to ta1e each other in sic1ness and in health i%. "#$hes %. "#$hes $# Eusband was mentally cruel to the wife a# Ee forced her to leave their home by threat of bodily harm b# The daughter testified on the wife0s behalf this evidence is enough to find the husband at fault for cruelty %# 7ourt granted the divorce

&# cruelty is no longer limited to "ust bodily harm 8 it can be psychological harm as well (# Eusband0s defense a# Forcing her to leave, and her leaving, constitutes constructive abandonment (recrimination defense f# )dultery i# Bot as popular of a defense as it used to be ii# 4t re.uires circumstantial evidence iii. A!no#lt %. A!no#lt $# Aife committed adultery after a physical separation from her husband %# 7ourt granted divorce &# )dultery can be proven by showing facts and circumstances that lead fairly and necessarily to the conclusion that adultery has been committed# a# 7an be done through the testimony of hired investigators coupled with the totality of the evidence g# =esertion2abandonment i# 7onstructive desertion 8 4f proven, it can defeat spouse0s cause of action and serves as an alternative ground for divorce ii# &!osby %. &!osby 7onstructive desertion v# )bandonment $# Aife refused to follow husband to new domicile in violation on a state statute that binds her to live with him and follow him wherever he chooses to lie %# Eusband claimed constructive desertion &# 7ourt found the statute to be unconstitutional in violation of the e.ual protection clause h# some states have other fault based grounds for things such as i# conviction of a felony ii# drug addiction iii# unnatural se5 acts iv# fraud in contracting the marriage Traditional =efenses to =ivorce i# /ecrimination i# 7an be a claim or a defense ii# 7lean hand doctrine iii# =efense ,yeah but you did it too- therefore no divorce b2c both parties are at fault i%. 6an.in %. 6an.in $# husband wants a divorce based on cruel and barbarous treatment and indignities to the person %# test for indignities it must be clear that the > was the in"ured and innocent spouse

&# wife brings in evidence of the husbands faults and actions towards her recrimination (# case id dismissed "ust b2c you can0t get along does not "ustify a divorce "# 7onnivance i# This is usually a defense to adultery ii# =eliberate planning and entrapment iii. +a!$ent %. +a!$ent $# husband see1s divorce from his is wife based on adultery %# husband suspected that the wife and driver were having an affair he never fired the driver, he would leave the two of them alone, he never .uestioned it or said anything &# if he ma1es no effort to avert the danger he must mean for it to ta1e place (# the crt found that it seemed as though he wanted his wife to commit the offense and by his actions he was consenting to it# 1# 7ondonation i# Forgiveness $# two ways of using it a# ,4 forgave his affair, how could he use this against me for divorceb# she forgave his affair, and had se5 with his therefore she can0t bring up his affair in court# ii. Willan %. Willan $# !r# Aillan files for divorce claiming that his wife repeatedly used profanity and assault him# %# he continued to live with her and have se5ual intercourse with her for many year &# rol: condonation of cruelty eliminates it as a viable grounds for divorce a# he continued to live with his wife and had se5 with her his failure to leave the house constituted condonation of his wife0s cruelty l# 7ollusion i# 7onstituting a fraud upon the crt ii# ;5: lets not raise your affair if we ma1e it only one affair on one party we can get a divorce but if we both have an affair then both are at fault and no divorce# iii. F# hs %. F# hs $# !rs# Fuch allowed a default "udgment of divorce to be entered against her so that the couple could be divorced then she changed her mind# %# rol: a party who collusively allows a default "udgment of divorce to be entered against them may set the "udgment aside and litigate the case on the merits

&# the state has an interest in the marital relationship a collusively entered default is an attempt to abrogate the state0s right to regulate divorce m# 4nsanity i. Anonymo#s %. Anonymo#s $# husband wants divorce on the grounds of adultery wife claims she has a mental disorder and this ma1es her not responsible for the adultery (claims she didn0t 1now right from wrong %# rol: insanity as a defense must be proven b the def by a preponderance of the evidence overcoming a presumption of sanity# &# in this case def# didn0t meet the burden# b2c she was able to perceive that the act was wrong# 6e%ol#tion of ,i%o! e 2 Mo,e!n %ie( Bo Fault =ivorce )# Started in 7alifornia in the $KO9s D# & types of modern divorce i# >ure no fault (cali $# only in a few states %# it abolishes all fault grounds ii# Eibreds $# some fault grounds are retained but no fault is a basis iii# Seperation is the grounds (BC and =7 $# there is no fault, but there is a waiting time %# the separation decree evolves into a divorce decree &# =7 $I8K9( I month or $yr separation re.uirements 7# Ahy the changes in =ivorce? i# !ore and more people are becoming divorces ii# 4t has become more socially acceptable iii# Financial awards are no longer lin1ed to fault as they use to be iv# <ne spouse can decide unilaterally w2out the agreement of the other spouse in no fault states v# :ender neutral vi# Bon adversarial process ma1es it as straight forward as possible =# I elements of no fault divorce i# abolition of fault grounds ii# moral framewor1 is eliminates but not completely $# one party0s guilt is eliminated %# no consent is re.uired a# at leats in pure no fault states &# awards are no longer lin1ed ot fault a# only in pur no fault states it is completely unlin1ed b# today fault can be a factor

I. 44#

(# gender neutral 3# non adversarial system don0t want to ma1e it into a trial ;# Traditional v# Bo fault divorce F# Unifo!m Ma!!ia$e an, 8i%o! e A t i# =issolution of marriage 6 legal separation $# crt will enter a decree of dissolution of marriage if a# one party has domiciled there for K9days or stationed there b# the crt finds the marriage is irretrievably bro1en i# the parties lived separate for more than $J9 days ii# there is a serious marital discord affecting the marriage iii# if the crt has "urisdiction it has considered, approved or provided for child custody, alimony, property distribution, or there is a later hearing to do this iv# if a party re.uests a legal separation the crt shall enter a decree for separation unless the other party ob"ects c# 4rretrievable Drea1down i# The crt has a lot of leeway here ii# They ultimately decide whether or not the marriage is irretrievably bro1en or not iii# They may also continue the matter for further hearing ii. "an$e! %. "an$e! $# !rs# Eanger wants a divorce on the grounds of adultery# !r# Eanger tries to defend against the divorce claiming the couple had a separation agreement that allowed each of them to live as if ,sole and unmarried%# rol: parties cannot escape responsibility for adultery by a prior written agreement a# adultery is an offense against the institution of marriage and this cannot be altered by the parties he committed adultery and the crt granted a divorce iii. flo!a %. flo!a $# mr# Flora sues !s# For divorce under the =issolution of !arriage )ct (no fault system # She tried to assert traditional defenses %# rol: in a no fault system traditional defenses are unavailable &# crt said 8no defenses are inapplicable in a no fault systemt i%. Ellam %. Ellam

%. %i. %ii. %iii.

$# mr# ;llam tried to sue for divorce on the basis of separation# Ee slept at his mother0s house, but did everything else at his marital home# They even attended social functions together only thing they didn0t do was have se5# %# crt said dismissed although mr# ;llam considers himself separate he effectively still lived with his wife# Thus, the parties were not living separate and apart# &# separation is a grounds for divorce in a no fault system it shows an irremedial brea1down of the marriage# 6eli$io#s limits on &i%il 8i%o! e Afalo %. Afalo $# Annlments an, +e4a!ation +tate %. &one $#

i5# :# E#!is,i tion fo! ,i%o! e E# 8i%o! e an, f#ll faith an, !e,it i# ) divorce decree in one "urisdiction must be accorded full faith and credit in another "urisdiction 8 8 unless it violates public policy of the state 4# 8omi ile B place where person is and intends to stay at i# <f one or both spouses is sufficient for in !em 0#!is,i tion and a divorce may be granted ii# =omicile is the basis for in rem "urisdiction not >F iii# *en#e 2 appropriate place within the state (ie a county of domicile iv# In !em ,#!ational !esi,en yB at least one party must $# domiciled in the state where you want to get a divorce and %# must be there for a statutory amount of time a# =7 must be domiciled in =7 for minimum of I months v# Pe!sonal 0#!is,i tion 8 is re.uired for property and financial distribution $# e/: you can go to L) and get a divorce easily under in rem "urisdiction, but financial division cannot happen without >F unless both parties consent to it# %# PE can be obtained through appearing, long arm statutes, or consent vi# +osna %. Io(a Supreme 7ourt $# !rs# Sosna moves with 1ids to 4owa, after living there for one month she petitioned the crt for a divorce# The case was dismissed for lac1 of "urisdiction b2c under 4owa law u must be domiciled for one yr first#

%# crt held it was constitutional for 4owa to ma1e such restrictions &# 4owa has right to ensure the person filing has some attachment ot the state, 4owa does not want to meddle in affars that another state might have an interest and 4owa does not want to become a divorce mill for unhappy couples# %ii. 'oa!, of O%e!see!s of the 'a! %. 8ineen $# =ineen is an attorney who rendered legal services to a husband and wife during their divorce# Ee also represented wife in a =H4 case, and used her alcoholism against her in the divorce proceeding# %# crt finds that =ineen violated the Dar /ules in & ways a# )cceptance of ;mployment i# =isclosure of interest (he needed to tell wife the nature of his relationship with the husband ii# 7onflict of interest clear conflict of interest here and he should not have accepted employment (unless he made full disclosure to both parties iii# 4nterest of former client being adversely affected wife was a former client b# 7onduct during employment didn0t protect wife0s confidences or secrets c# Aithdrawal form employment viii# For the most part, "oint representation of a couple during a divorce is not ethically permisable F# 'ilate!al 8i%o! es i# <ne court ii# >" over both parties G# 8i%isible 8i%o! e 2 bif#! ate, ,i%o! e 2 E/ 4a!te ? #nilate!al i# Two courts ii# Beither marital support nor property rights can be divided without >F over both parties iii# 4n this instance the state only has >F over one person iv# Dut the crt only need in rem over one party to issue a divorce v# So divorce is granted, but no distribution of property vi# Ahy do this? $# perhaps the parties agree on a divorce but not on the distribution %# there are shorter waiting periods in other states to get a divorce vii# L# +e!%i e of P!o ess 2 re.uired by statutes i# Botice

ii# Bo fault states no consent needed $# you technically be divorced and not 1now it III. 4?# !# 8ist!ib#tion of P!o4e!ty U4on 8i%o! e 94!o4e!ty3 alimony3 hil, s#44o!t: marital property what is ac.uired by the couple during the marriage other than gifts or inheritances i# traditionally included wages, salary, interest dividends, chec1ing account, savings, stoc1s, property houses, cars ii# today new forms of intangible property pensions, prof# degrees, business goodwill, personal in"ury awards, windfall issueQetc# D# 7ommon law property was presumed to be entirely the husbands 7# Today there are % systems and they are controlled by the state i# ;.uitable distribution evolved from 7#L# $# used by the remainder of states that are not pure no fault %# people maintain separate property during marriage &# property is owned separately (# divorce triggers redistribution some of what was separate becomes marital a# under 7#L# a wife would have no right to husband0s earnings b# today 8 a "udge will apply certain factors to find e.uitable distribution 3# statutes lay out guidelines to help the crt I# ;.uitable distribution process a# 7rt first determines what the marital pot is and what is separate property b# The crt must then divide it by applying the guidelines set out O# crt has broad discretion in applying e.uitable factors b2c it is not e5haustive ii# 7ommunity >roperty newer approach $# used by pure no fault states (cali %# assets are merged during marriage into a unified community (marital pot a# this does not include gifts, inheritances b# includes things bought during the marriage and everything ac.uired during the marriage &# during divorce everything is distributed 39239# even if one party didn0t bring in a penny (# each party is entitled to 39P of the marital pot 3# iii# =ifferences btwn the % approaches $# e.uitable must loo1 at how the property was held during the marriage (community you don0t b2c it doesn0t become marital until triggered by divorce

%# underlying assumption in e.uitable (b2c it comes form 7#L# is that the property is the mans# iv# Ferguson v# Ferguson (homema1er recognition a# Hses e.uitable distribution lays out guidelines that a crt should use in b# Aife was a homema1er and sued for divorce she got the home, alimony, and child custody c# ) person who materially contributes to toward the ac.uisition of property may claim and .uitable interest in such property incident to divorce proceedings 1. +ie$el %. +ei$el a# !r# Siegal filed for divorce, and alleges that his gambling losses should be e.ually distributed bwtn the two# b# 7rt sys the contribution of each party to the ac.uisition or dissipation of the martitl property id to be considered in determining e.uitable property c# The debt belongs to the gambler F. )a#l!a44 %. )a#l!a44 a# =ivorce proceeding and this is an appeal by the husband# Aife had gotten an inheritance and this inheritance was treated as separate property and e5cluded from the marital estate b# 7rt says the trial crt erred separate property must initially be included in the marital estate and then guidelines may be applied and the sources of the property considered G. 6ose %. 6ose a# The parties were only married for $Jth months, they maintained separate chec1ing accounts, they each made payments on their own separate property b# 7rt said in marriages of short duration where there has been no significant commingling of the assets, the crt may treat the property division as an action in the nature of recission, plscing the parties as close as possible to their premarital financial positions I# Postema %. Postema 2 education degrees a# ) spouse0s advanced degree should be ta1e into account in property distribution b# This is the minority view many states have held that educational degrees do not constitute marital property O# Lain$ %. Lain$ pensions

a# a spouses nonvested pension rights are properly characteri*ed as marital property b# the trend has been to consider pensions as marital property whether they have vested or not J# Mansell %. Mansell 2 HS Supreme 7rt# a# Trial crts may not treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive verteran0s disability payments iv# 3 1ey ?s to as1 about distribution in both systems $# Ahere am 4? (community v# e.uitable %# Ahat type of property does the couple have? a# Ahat is the separate property b# Ahat is the marital property &# 4s the interest or assets capable of being classified as property? a# ;5: law degree, e5pected inheritance? (# how much is each piece worth? a# )t the time of distribution e5: real estate doesn0t stay the same 3# Eow should it be divided %. +tan,a!,s fo! a(a!,in$ 4!o4e!ty3 alimony3 an, hil, s#44o!t $# the fault principle a# to punish the spouse that caused the marital brea1 up b# fault is not easily translated into a R figure %# the need principle a# today this is the leading guiding principle b# enough to 1eep the spouse off welfare &# Status principle a# Ahatever lifestyle you en"oy while married you are entitled to continue living li1e that even after the marriage is dissolved i# ;5: you marry a millionare you have to right to continue living li1e a millionaire (# /ehabilitation >rinciple a# The ,needy- spouse should be given "ust enough to the point where further alimony will not be needed 3# The contribution >rinciple a# ;ach spouse contributes to the marriage some in services and some in cash# The partner contributing the services should feel as though they are receiving earned benefit ( ways of computing this i# !ar1et value of services approach

$# ii# The partnership approach iii# The foregone opportunities approach $# what the stay home spouse would have earned iv# The enhanced learning capacity approach =# Doth !arital and Separate Funds i# ;5: the house bought prior to the marriage, and then both parties pay the mortgage but title is only in one name 8 8 Ahat do you do? There are marital and separate funds in this house# ii# % answers depending on the definition of ac.uired property $# Source of Funds /ule: (ma"ority 8property is in part marital and in part separate# a# The house was bought one bric1 at a time and will be dismantlted that way b# !ust loo1 to the source of funds to see where the bric1 lies c# ;5- husband buys a car before marriage L RI,999 I9P d# Ee >ays R(,999 loan with marital funds L R(,999 (9P e# 7ar increases in value to R$3,999 f# Separate then gets I9P of the increase L R&,999 g# !arital pot gets (9P of the appreciation L R%,999 h# Separate L RK,999 i# !arital L RI,999 %# ;.uitable Lein /ule a# Bon titled spouse can get e.uitable lein on the titled spouse for the amount contributed during the marriage b# Transmulation: separate property becomes marital property i# This is not a possessory interest the title is not transfered iii# Ahen Separate >roperty )ppreciates $# passively appreciates %# v# &# )ctively appreciates (transmuted cases a# ;5Shusband owned store before marriage, wife wor1s full time in the husbands store and never gets paid# Then she loans her saving to the hisband to put into the store, and the store business booms and then they get divorced b# 7rt held this property transmutted and becam marital property

c# !arital really can0t become separate property but separate assets could become marital property ?# iv# 4ntangibles !odifications in agreements after divorce )# Cou must go bac1 to the original crt that gave the award that crt retains "urisdiction D# !odifications to agreements are made when there are substantial and material changes )L4!<BC )# 4s very fact specific it is case by case D# >aid form future earnings to a spouse 7# )limony has diminished in importance 8 reasons i# Bow called spousal support, maintenance ii# >urposes for it have changed $# rehabilitation to get bac1 on your fett %# need, 8 no one should wal1 away as a ward of the state &# status use to be a purpose e5: she had to be 1ept in the way she was during the marriage =# alimony is only granted after distribution of property if needed ;# modern view of alimony i# loo1s down on it b2c it 1eep a tie btwn the two people and the whole point of divorce is to cut the ties ii# alimony lasts until death or payee remarries iii# F# & 1inds of alimony i# >endente Lite: (this is a transitional period # 4t lasts until the final divorce decree ii# /ehabilitative: more common, temporary after divorce iii# >ermanent )limony: $# the nedy spouse is not e5pected to be able ot support themselves a# sic1, elderly, etc# %# permanent alimony terminates on death of either party or remarriage of the payee :# @@ there is no lump sum alimony@@ 8 rather it is a month to month payment E# 7hild support is not alimony i# )limony for wife2husband ii# 7hild support for child 4# Factors to consider for alimony (=7 7ode $I8K$& i# =uration of marriage ii# )ge and health of the parties $# e5: is the needy spouse educated and middle age, or uneducated and elderly iii# contributions to the family

?4#

iv# needs of child v# interest of society in preventing payee from becoming a ward of the state public policy concern F# cohabitation and remarriage i# remarriage $# alimony terminates on the remarriage of the payee ii# cohabitation $# some states will stop alimony %# crt will as1 if there has been a substantial or material change in circumstances iii# invalid marriage loo1 at fairness $# generally, alimony can0t be renewed even if you are a victim of fraud (they thought they were getting married G# modifications for an alimony i# when there has been a substantial or material change in the payor0s ability to pay or the payee0s need $# change in income is not always a factor %# crt may loo1 into whether or not it is voluntary a# e5: laid off v# .uitting your "ob# ii# Furisdiction $# the crt that gave the original order retains "urisdiction you must go bac1 there for a modification iii# !ills v# !ills iv# :raham v# :raham v# =0)scanio v# =0)scanio vi# )insworth )insworth vii# =avis v# =avis viii# ?44# ?444# 4T# 7E4L= 7HST<=C )# :eneral >rinciples i# Doth parents are responsible for the children ii# >arents leave enough to live on iii# 7hild should share in lifestyle of non8custodial parent if status is higher# iv# :uidelines should be gender neutral v# ;ach child has the right to e.ual amount of child support vi# Should not promote voluntary impoverishment vii# Should encourage both parents to remain active in child0s life# D# >resumptions i# There is still a presumption that the mother be awarded custody if the child is of ,tender years- (Oyrs#old ii# The trend is toward "oint legal and physical custody, the court will then approve a ,parenting planiii# ) child who has reached $( may elect to live with either parent#

$# That election may only be overcome by a showing of ,present unfitness7# Dest 4nterest Standard i# 4n divorce proceedings, the ,best interest- of a child is a proper and feasible criterion for ma1ing a decision as to which of the two parents will be accorded custody of the child# ii# The Hniform !arriage and =ivorce )ct provides that the court must determine child custody in accordance with the ,best interest- of the child# iii# 7ourt must consider the following relevant factors, including: $# The wishes of the child0s parents %# The wishes of the child &# The interaction and interrelationship of the child with his parents, siblings, and other persons who may significantly affect the child0s best interest# (# The child0s ad"ustment to his2her home, school and community# 3# The mental and physical health of all individuals involved# I# 1eeping 1ids together iv# The court must NOT consider conduct of a proposed custodian that does not affect the relationship with the child# Be5us Test# v# 4ssues which may also be considered include the relative financial condition of the parents, and which parent has been the primary careta1er during the marriage# =# ?isitation i# <rdinarily, child support and visitation are independent matters for divorce courts# Ahere the custody of a minor child is awarded to one parent by a divorce decree, in the absence of e5traordinary circumstances the decree should e5pressly provide visitation rights to the non8custodial parent, and where a divorce decree does not refer e5pressly to the issue of visitation rights, the decree may be reversed on appeal or modified on a proper application# 4f a divorce decree awards the custody of a child to a parent of a stranger to the action but is silent on visitation rights, the parent who does not have custody is not deprived of the right of access to his or her children# 4n the absence of an e5press prohibition in the decree, visitation rights ensue from the fact of parenthood# ii# Step >arents $# Furisdictions are divided on the issues of whether stepparents have a right to visitation# %# 7ustodial parents generally have veto power over visitation between the children and non8parental third parties, although some "urisdictions apply a common law right of visitation to persons who have stood in loco parentis for a period of time# iii# :randparents

$# :randparents and other relatives may have a legal right of visitation, but some "urisdictions do not bestow a legal right upon grandparents to custody or visitation# %# 4n either event, visitation rights may be awarded to, or in favor of, the grandparents, if such visitation is in the child0s best interest# &# Eowever, visitation rights may be denied or held to be impermissible for the grandparents of minor children when it is in the best interest of the child, or where the custodial parent may not be able to petition for a visitation order under a statute that protects only grandparents whose children are non8custodial parents# iv# Same Se5 $# ?isitation privileges are not to be used to penali*e or reward parents for their conduct, and visitation rights must be determined by the needs of the child6 a parents homose5uality therefore, does not necessarily create a bar to reasonable rights of visitation# %# Eowever if the court determines that the homose5ual parent0s activities are not in the best interest of the child, the court may limit that parent0s visitation rights# v# !odification of child custody $# !odern /ule+ a# Significant change in circumstance b# Dest interest of the child