FAMILY LAW

Prof. Flannery / Spring 2010 / Joshua R. Collums

I. C H A N G IN G C O N C EPTS O F M ARR IA G E A N D F A M ILY

A. Function Versus Form in “Family” Relationships
1. Historically, the states have decided what is the “family.”
a. Until the constitutional cases come through but even then the states mostly have
the prerogative.
b. Domestic Relations Exception (to federal subject matter jurisdiction):
(1) In federal question/diversity cases, there is an exception for domestic
relation cases.
(2) Covers family, marriage, children, domestic disputes, etc. These topics
are excepted from federal subject-matter jurisdiction.
(3) If the courts have to hear testimony about any of these issues then the
exception will apply.
2. City of Ladue v. Horn
a. Zoning ordinance defined family as “one or more persons related by blood,
marriage, or adoption.”
b. To approximate a family relationship, there must exist a commitment to a
permanent relationship and a perceived obligation to support and to care for each
other.
c. Village of Belle Terre
(1) Ordinance upheld when it restricted living arrangement to blood.
(2) Ordinance constituted valid land use legislation reasonably designed to
maintain traditional family values and patterns.
d. Moore v. City of East Cleveland
(1) Ordinance was struck down because it limited blood relationships in
living arrangements. The Court pointed out that the institution of the
family is protected by the Constitution precisely because it is so deeply
rooted in the American tradition and that ours is by no means a tradition
limited to respect for the bonds uniting the members of the nuclear
family.
e. Court uses rational basis test because the facts do not involve a suspect class or a
fundamental interest.
(1) The test of constitutionality is whether the ordinance is reasonable and
not arbitrary and bears a rational relationship to a permissible state
objective.
(2) Maintenance of a traditional family environment constitutes a reasonable
basis for excluding uses that may impair the stability of that environment
and erode the values associated with traditional family life.
(3) Morality is a sufficient basis.
3. Same-Sex Families
a. Braschi Decision
(1) In the context of eviction, a more realistic, and certainly equally valid,
view of a family includes two adult life-time partners whose relationship
is long-term and characterized by an emotional and financial
commitment and interdependence.
(a) Many states recognize family benefits for same-sex couples
i) Domestic Partnerships
ii) Reciprocal Beneficiaries
iii) Civil Unions
(b) Mychal Judge Act
i) extending to same-sex partners the same death benefits
of public safety officers afforded to married couples.
 (c) W ashington state court hld same-sex couples entitled to
equitable distribution of property at death.
i) Court concludes that homosexual relationships are not
meretricious but are “committed intimate
relationships”
4. Opposite Sex Unmarried Families
a. Opposite sex couples are excluded, except in narrow circumstances, of entering
into civil unions, reciprocal beneficiary, or domestic partnerships because of their
ability to enter into marriage.
b. Increasingly, however, courts are recognizing the right of unmarried opposite sex
couples to privately order their economic, parental, and social obligations.
5. Non-Marital Couples, Landlords, and the First Amendment
a. Smith v. Fair Employment and Housing Commission
(1) California’s ban against marital status discrimination did not substantially
burden the landlord’s free exercise and the landlord was required to
comply.
B. Making Your Own Deal: Contractual Arrangements as an Alternative to Marriage
1. The Marvin Trilogy
a. Community Property States
(1) Community Property: all property acquired from spousal labor during the
marriage is property of the marital community in which each spouse has
an undivided one-half interest without regard to equitable principles.
(2) Length of the marriage, etc. does not matter in community property
jurisdictions.
(3) Community Property Jurisdictions
(a) W isconsin, W ashington, Idaho, Louisiana, Texas, California,
Arizona, Nevada, New Mexico (W W ILT CANN)
b. Marvin v. Marvin (I)
(1) A contract between non-marital partners is unenforceable only to the
extent that it explicitly rests upon the immoral and illicit consideration of
meretricious sexual services.
(2) Parties may order their economic affairs as they choose, and no policy
precludes the courts from enforcing such agreements.
(3) In the absence of an express agreement, the courts may look to a variety
of other remedies in order to protect the parties’ lawful expectations.
(a) The courts may inquire into the conduct of the parties to
determine whether that conduct demonstrates an implied
contract or implied agreement of partnership or joint venture,
or some other tacit understanding between the parties.
(b) Footnote 24: She has the same rights to enforce contracts and to
assert her equitable interest in property acquired through her
effort as does any other unmarried person.
(4) Footnote 25: Equitable relief may be available even in the absence of
marriage or contract.
(5) Dissent: The majority goes too far by giving marital and contractual relief
when they are not present (through the footnotes).
c. Marvin v. Marvin (II)
(1) Lee Marvin was ordered to pay Michelle Marvin $104,000 to assist with
her economic rehabilitation.
(2) Traditionally, only spouses were entitled to rehabilitative alimony.
However, the court awarded it here because of Marvin I’s footnotes.
d. Marvin v. Marvin (III)
(1) The award must be supported by some recognized underlying obligation
in law or equity.

-2-
 (2) Court pulls back from the relief discussed in Marvin I’s footnotes.
(3) Rehabilitative Alimony: need + ability to pay (standard). This is not
enough. Need either a marriage or contract.
e. Hewitt v. Hewitt
(1) Illinois court is faced with confronting Marvin.
(2) The issue of whether property rights accrue to unmarried cohabitants
cannot, however, be regarded realistically as merely a problem in the law
of express contracts.
(a) Of substantially greater importance than the rights of the
immediate parties is the impact of such recognition upon our
society and the institution of marriage.
(b) Public policy disfavors private contractual alternatives to
marriage in Illinois.
(3) Court is hung up on the meretricious nature of these relationships and is
not going to change policy because it is becoming more socially
acceptable.
f. W atts v. W atts
(1) Similar to the facts of Marvin except here the parties held themselves out
as married.
(2) Plaintiff tries to broaden the definition of family under the property
division statutes
(a) Legislature was clear that the purpose of the statutes was to
promote adjudication of marital relationships.
(b) Statutes promote marriage
(3) Illinois court in Hewitt relied on the fact that the state had rejected “no-
fault” divorce and that cohabitation was unlawful. However, W isconsin
provided for no-fault divorces and had abolished criminal sanctions for
cohabitation.
(4) Defendant argued that it should be left to the legislature to determine
the rights of unmarried cohabitants. The court responded that courts
have traditionally developed principles of contract and property law
through the case-by-case method of the common law.
(5) Court distinguishes between contracts that are explicitly and inseparably
founded on sexual services and those that are not.
(a) A bargain between two people is not illegal merely because
there is an illicit relationship between the two so long as the
bargain is independent of the illicit relationship and the illicit
relationship does not constitute any part of the consideration
bargained for and is not a condition of the bargain.
(6) A court’s refusal to recognize contract and property rights between
unmarried cohabitants results in one party keeping all or most of the
assets accumulated during the relationship.
g. Consequences of Marvin, Hewitt, and W atts
(1) Domestic partnerships began to appear after these cases. They excluded
blood relatives and thus were designed for same-sex couples (Provision
No. 6).
(a) Atlanta
(b) San Francisco
(2) Catholic Church and United Airlines objected and began to pull out of
contracts they maintained with these cities. Consequently, Provision
No. 6 was taken out and blood relationships within domestic
partnerships were allowed. The Church and UA dropped their
objections.
h. Other Alternatives to Marriage or Contract States Have Taken

-3-
 (1) Term Marriage
(a) Marriage lasts for a certain, agreed upon term.
(b) Originated in Maryland and has thus far been a failure.
(2) Covenant Marriage
(a) Sets the terms of the marital contract as it pertains to grounds
for termination (basically, removing the no-fault provisions).
(b) A way of changing the terms of the contract.
(c) Available in Arkansas.
(3) Gay Marriage
(a) The issue has been not only whether it should be allowed in a
particular jurisdiction but whether a jurisdiction should
recognize same-sex marriages of other jurisdictions.
(b) Defense of Marriage Act issues.
C. Regulating Marriage and Other Intimate Relationships: Some Constitutional Dimensions
1. Sharma v. Sharma
a. Defendant is Hindu. Husband gets a divorce (no-fault divorce was recognized).
Defendant claims that divorce is against her religious beliefs and claims that the
state cannot grant the divorce on no-fault grounds because it violates her religious
beliefs.
b. The court bases its denial of the wife’s claims on two distinct grounds:
(1) The granting of a divorce to the husband does not deny the wife her
religious freedom.
(a) The action of divorce dissolves the civil contract of marriage
between the parties. No attempt is made to dissolve is
ecclesiastically. As a matter of law the civil contract has been
dissolved. The contract has terms by which it can be dissolved
and the husband has met those terms.
(b) Defendant still has her constitutional prerogative to believe that
in the eyes of God, she and her estranged husband are
ecclesiastically wedded as one, and may continue to exercise
that freedom of religion according to her beliefs and
conscience.
(2) To compel the plaintiff husband to remain married because of the wife’s
religious beliefs would be to prefer her beliefs over his. Any such
preference is prohibited by the Establishment Clause of the First
Amendment.
2. Reynolds v. United States
a. Reynolds, a member of the Mormon Church, was charged with polygamy.
b. It is impossible to believe that the constitutional guaranty of religious freedom
was intended to prohibit legislation in respect to this most important feature of
social life.
c. Marriage, while from it very nature, a sacred obligation, is nevertheless, in most
civilized nations, a civil contract, and usually regulated by law. Upon it society
may said to be built, and out of its fruits spring social relations and social
obligations and duties, with which government is necessarily required to deal.
d. Distinction Between Religious Belief/Practice: Laws are made for government of
actions, and while they cannot interfere with mere religious belief and opinions,
they may with practices.
e. Can a man excuse his practices to the contrary [of laws prohibiting polygamy]
because of his religious belief? To permit this would be to make the professed
doctrines of religious belief superior to the law of the land, and in effect to permit
every citizen to become a law unto himself.
f. Sanderson v. Tryon
(1) Supreme Court of Utah held that a parent’s practice of polygamy is,

-4-
 taken alone, not a sufficient reason to make a custody award or to permit
a meaningful review of a custody award on appeal.
3. Buchholz v. Buchholz
a. Respondent claimed that the decree of divorce deprived her of a substantial
property interest in violation of the Fourteenth Amendment’s Due Process
Clause.
b. Marriage is not a property right but a status.
(1) A marriage contract does not create a property right in the marital status.
A marriage is not a property interest but is, in essence, a personal
relationship subject to dissolution on the terms fixed by state law.
(2) California, in 1969, was the first state to introduce no-fault divorce to
replace traditional fault grounds. Today, each state has a non-fault
ground that allows for dissolution of marriage without regard to the fault
of a party.
4. Griswold v. Connecticut
a. Establishes privacy rights to the “marital box.”
b. Connecticut statute prohibited the use of contraceptives for the purpose of
preventing conception.
c. The specific guarantees in the Bill of Right have penumbras, formed by
emanations from those guarantees that help give them life and substance.
d. The present case concerns a relationship lying within the zone of privacy created
by several fundamental constitutional guarantees. And it concerns a law which, in
forbidding the use of contraceptives rather than regulating their manufacture or
sale, seeks to achieve its goals by means having a maximum destructive impact
upon that relationship.
e. W e deal with a right of privacy [marriage] older that the Bill of Rights–older than
our political parties, older than our school system.
f. Privacy right afforded in this case extends only to those in the marital box.
5. Eisentstadt v. Baird
a. Extends the rights of Griswold to individuals.
b. Massachusetts statute classified the distribution of contraceptives in three
categories:
(1) Married persons could obtain contraceptives from doctors or pharmacists
to prevent pregnancy.
(2) Single persons could not obtain contraceptives from anyone to prevent
pregnancy.
(3) Married or single persons could obtain contraceptives from anyone to
prevent the spread of disease.
c. Footnote 7: If we were to conclude that the Massachusetts statute impinges upon
fundamental freedoms under Griswold, the statutory classification would have to
be not merely rationally related to a valid public purpose, but necessary to the
achievement of a compelling state interest. [However], we do not have to address
the statute’s validity under that test because the law fails to satisfy even the more
lenient equal protection standard.
(1) Fundamental Right/Suspect Class
(a) Strict Scrutiny Review
(b) Compelling Governmental Interest/Narrowly Tailored
(2) Everything Else
(a) Rational Basis Review
(b) Legitimate Governmental Interest/Rationally Related
d. Deterrence of Pre-Marital Sex & Prevention of Fornication:
(1) Even on the assumption that the fear of pregnancy operates as a
deterrent to fornication, the Massachusetts statute is thus so riddled with
exceptions that deterrence of premarital sex cannot reasonably be

-5-
 regarded as its aim.
(2) The statute exposed the aider and abetter who simply gave away
contraception to 20 times the 90-day sentence of the offender himself.
The very terms of the statute along with the de minimis effect in
deterring fornication, thus compel the conclusion that such deterrence
cannot reasonably be taken as the purpose of the ban on distribution of
contraceptives to unmarried persons.
e. Regulating the Distribution of Potentially Harmful Articles
(1) If health were the rationale of the statute, it would be both
discriminatory and overbroad.
f. W hatever the rights of the individual to access to contraceptives may be, the
rights must be the same for the unmarried and the married alike.
(1) If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the decision whether
to bear or beget a child.
(2) Providing dissimilar treatment for married and unmarried persons who
are similarly situated violates the Equal Protection Clause.
g. Extends Griswold outside the marital box to individuals.
6. Bowers v. Hardwick
a. Laurence Tribe argued the case for the petitioners and purposefully did not
pursue an Equal Protection Clause claim. Tribe wanted the court to reverse the
petitioner’s convictions on a fundamental right/due process ground.
b. Standards for Recognizing a Fundamental Right
(1) Implicit in the concept of ordered liberty
(2) Deeply rooted in the nation’s history
c. Court holds that homosexual sodomy is not a fundamental right. Married
couples may have a privacy interest to do this but marriage was not available to
same-sex couples at this time.
7. Lawrence v. Texas
a. Bowers dealt specifically with whether there was a fundamental right to
homosexual sodomy.
b. Court recognizes that it didn’t grasp the argument made in Bowers
(1) To say that the issue in Bowers was simply the right to engage in certain
sexual conduct demeans the claim the individual put forward, just as it
would demean a married couple were it to be said marriage is simply
about the right to have sexual intercourse.
(2) The penalties and purposes of the statutes at issue have more far-
reaching consequences, touching upon the most private human conduct,
sexual behavior, and in the most private of places, the home. The
statutes seek to control a personal relationship that, whether or not
entitled to formal recognition in the law, is within the liberty of persons
to choose without being punished as criminals.
(3) By framing the issue this way, the Court is not granting homosexuals
any new, special rights, but merely extending to them the same rights as
everyone else.
c. Court never holds that there’s a fundamental right to homosexual sodomy but
couches it in terms of “sexual intimacy.”
8. Loving v. Virginia
a. Subject of the case was Virginia’s miscegenation statute. The Virginia courts
upheld the constitutionality of the statute citing the State’s legitimate purposes of
preserving the racial integrity of its citizens, preventing the corruption of blood,
preventing the obliteration of racial pride. The court also cited that marriage has
traditionally been subject to state regulation without federal intervention under

-6-
 the Tenth Amendment.
b. Equal Application
(1) The court rejects the argument that the mere “equal application” of a
statute containing racial classifications is enough to remove the
classifications from the Fourteenth Amendment’s proscription of all
invidious racial discrimination.
(a) The Equal Protection Clause demands that racial classifications,
especially suspect in criminal statutes, be subjected to the most
rigid scrutiny, and, if they are ever to be upheld, they must be
shown to be necessary to the accomplishment of some
permissible state objective, independent of the racial
discrimination which it was the object of the Fourteenth
Amendment to eliminate.
(b) There is no legitimate overriding purpose independent of
invidious racial discrimination which justifies this classification.
(2) These statutes also deprive the Lovings of liberty without due process of
law in violation of the Due Process Clause of the Fourteenth
Amendment. The freedom to marry has long been recognized as one of
the vital personal rights essential to the orderly pursuit of happiness by
free men.
9. Zablocki v. Redhail
a. W isconsin statute provided that a certain class of citizens could not marry without
first obtaining a court order granting permission. That class of citizens included
those having minor children not in their custody that they were obligated to
provided support for. The applicant had to provide proof that they were in
compliance with the support obligation and that the children covered by the
obligation were not likely to become charges of the state.
b. Recent decisions have established that the right to marry is part of the
fundamental “right of privacy” implicit in the Fourteenth Amendment’s Due
Process Clause.
c. This does not suggest that every state regulation which relates in any way to the
incidents of or prerequisites for marriage must be subjected to rigorous scrutiny.
To the contrary, reasonable regulations that do not significantly interfere with
decisions to enter into the marital relationship may legitimately be imposed. The
statutory classification at issue here, however, clearly does interfere directly and
substantially with the right to marry.
d. Strict Scrutiny Analysis:
(1) State’s Alleged Compelling Interests:
(a) Furnishes opportunity to counsel applicant as to the necessity of
fulfilling support obligations.
i) Not Narrowly Tailored: Counseling is not mandatory
(b) W elfare of the out-of-custody children.
i) Again, Not Narrowly Tailored: For those unable to pay,
the state simply denies marriage without delivering
any funds into the hands of the children.
ii) State already has other means for compelling payment.
iii) W ith regards to preventing the applicant from taking
on any additional support obligations, the statute does
not prevent the applicant from taking on other
financial obligations. New spouse perhaps would
even better the applicant’s financial position.
iv) Net result is simply more illegitimate children.
10. Singer v. Hara
a. State Equal Rights Amendment (ERA) provided that “equality of rights and

-7-
 responsibility under the law shall not be denied or abridged on account of sex.”
b. Not asking for a marriage: Appellants are not being denied entry into the marriage
relationship because of their sex; rather, they are being denied entry into the
marriage relationship because of the recognized definition of that relationship as
one which may be entered into only by two persons who are members of the
opposite sex.
(1) In substance, the relationship proposed by the appellants does not
authorize the issuance of a marriage license because what they propose is
not a marriage.
c. The purpose of the ERA is to provide the legal protection, as between men and
women, that apparently is missing from the state and federal Bill of Rights, and it
is in light of that purpose that the language of the ERA must be construed.
d. The ERA does not create any new rights or responsibilities, such as the
conceivable right of persons of the same sex to marry one another; rather, it
merely insures that existing rights and responsibilities, or such rights and
responsibilities as may be created in the future, which previously might have been
wholly or partially denied to one sex or to the other, will be equally available to
members of either sex.
e. Denial of a license to marry to appellants is not a denial based on their status as
males, but is based upon society’s recognitions that marriage is the appropriate
and desirable forum for procreation and rearing of children.
(1) Refusal of the state results from the impossibility of reproduction rather
than from invidious discrimination.
f. Fourteenth Amendment Equal Protection Clause Argument:
(1) Appellants do not present a case of sexual discrimination. Appellants
were not denied a license because of their sex; rather, they were denied
a marriage license because of the nature of marriage itself.
(2) The exclusion of homosexuals from marriage statutes may be upheld
under the traditional “reasonable basis” or “rational relationship” test.
(a) In this state, marriage has been deemed a private relationship of
a man and a woman (husband and wife) which involves
“interests of basic importance in our society.”
II. G ETTIN G M A R RIED
A. Introduction
1. Each state maintains its own rules about who can marry and what must be done to achieve
marital status within its territory.
2. Uniform Marriage and Divorce Act: adopted in substantial part by only a small number of
states but still highly influential in early reforms.
B. Courtship and the Marriage Promise
» Legal Encroachments of Earlier Period During “Courtship”:
(1) bans on sexual intercourse between unmarried adults
(2) attempts at specific enforcement of promises to marry through a mélange of tort, contract and
penal sanctions
(3) definition of the permissible scope of third party intervention to arrange, encourage, or
discourage “pairing” between specific individuals
(4) rules and principles for deciding ownership of property transferred in contemplation of
marriages that did not take place
1. Enforcing a Promise to Marry
a. W ightman v. Coates
(1) W hen two parties, of suitable age to contract, agree to pledge their faith
to each other, and thus withdraw themselves from that intercourse with
society which might probably to a similar connection with another; the
affections being so far interested as to render a subsequent engagement
not probably or desirable; and one of the parties wantonly and
-8-
 capriciously refuses to execute the contract, which is thus commenced,
the injury may be serious, and circumstances may often justify a claim of
pecuniary indemnification.
(2) W e have to protect women from this type of reneging on engagements.
(a) Equal Protection Argument?
i) This case was decided in 1818. The Fourteenth
Amendment had not been adopted by this time.

b. Stanard v. Bolin
(1) Criticisms Leveled at Breach-of-Marriage-Promise
(a) Instrument of oppression and blackmail
(b) Engaged persons should be allowed to correct their mistakes
without fear of publicity and legal compulsion
(c) Subject to great abuse at the hands of gullible and sympathetic
juries
(d) W rong to allow under the guise of contract an action that is
essentially tortious and penal in nature
(e) Measure of damages unjust because damages are allowed for
loss of social and economic position, whereas most persons
marry for reasons of mutual love and affection.
(2) Defendant’s W ealth and Social Position (Can’t Recover)
(a) Although damages for loss of expected financial and social
position more closely resemble the contract theory of recovery
than the other elements of damages for breach of promise to
marry, we do not believe these damages are justified in light of
modern society’s concept of marriage.
i) Marriages should be based on love and not considered
as a property transaction.
ii) Takes the jury’s focus off the plaintiff’s injuries and
places it on the defendant’s wealth.
(3) Mental Anguish, Loss to Reputation, and Injury to Health (Can Recover)
(a) Reasonably foreseeable damages.
(b) Must be objectively quantifiable.
(c) If the jury’s verdict is tainted by passion or prejudice, or is
otherwise excessive, the trial court and the appellate court have
the power to reduce the award or order a new trial.
(4) Free from Compulsion to Choose to End an Engagement
(a) Although the policy should not be to encourage a person to
marry when he or she has begun to have second thoughts about
a prospective mate, it is also the policy of the state to afford an
avenue of redress for injuries suffered due to the actions of
another.
(5) Breach-of-promise-to-marry action should be retained as a quasi-
contract, quasi-tort action for the recovery of foreseeable special and
general damages which are caused by a defendant’s breach of promise to
marry.
(6) Possible Defenses to Action:
(a) fraudulent misrepresentations or concealment, insanity at time
of the engagement, development of serious illnesses or physical
conditions, or that the plaintiff was married at the time of the
engagement.
(7) Compare with Divorce
(a) Can you sue your spouse for pain and suffering? No.
(b) Huge public policy question mark to recognize this before-the-

-9-
 box but no after-the-box remedy.
(8) Heart-Balm Statutes
(a) Half the state that had these statutes have abolished them
(however, see North Carolina case, Nunn).
(9) Alienation of Affections
(a) To prevail, a plaintiff must show
i) Plaintiff’s valid marriage
ii) Defendant’s wrongful conduct with plaintiff’s spouse
iii) An ensuing loss of consortium
iv) A casual connection between defendant’s conduct and
plaintiff’s loss.
(b) Modern trend is to abolish the cause of action. Most state have
abolished the tort either by statute or case law.
c. Seduction
(1) Still exists in some jurisdictions.
(2) Defendant’s conduct must have consisted of such solicitations,
importunities, misrepresentations, knowingly false promises or artifices,
including a false promise to marry for the purpose of seduction, which
lead the plaintiff, a chaste unmarried woman, to deviate from the path of
rectitude.
2. Gifts in Contemplation of Marriage
a. Vigil v. Haber
(1) Courts have used a rationale based upon a contract theory, i.e., the ring
is a symbol of an agreement to marry. If that agreement is not
performed, then the parties should be restored to the status quo.
(a) Exception
i) Majority Rule: Determining possession based upon fault.
If the marriage is not finalized because the donor
breached the marriage agreement, the donor may not
benefit from his breach by regaining the ring given as
an engagement gift.
ii) Modern Trend: The result of basing entitlement to
keep engagement gifts on the fault of another would
encourage every disappointed donee to resist the
return of engagement gifts by blaming the donor for
the breakup of the contemplated marriage. W hen the
condition precedent of marriage fails, an engagement
gift must be returned.
a) This holding has no application to those
situations in which the parties have agreed in
advance to the final disposition of engagement
gifs; those gifts, by agreement, are not
conditioned upon marriage. Likewise, this
holding has no bearing on post-breakup
settlement agreements.
b. Avoid holidays when giving rings–otherwise the argument will be that it was a
Christmas gift, etc.
3. Third Party Intervention
a. Inducing a breach of contract can be tortious under some circumstances, but such
an action has long been considered unavailable with regards to agreements or
promises to marry.
b. Parents, other relatives, and friends should be free to counsel them concerning an
agreement that is so important to society.
c. General accepted rule was that contracts to procure a spouse in return for

-10-
 monetary consideration was unenforceable.
(1) Today, however, there are services to match potential mates through
computer profiles and personal ads in newspapers.
C. Marriage Procedures, Formal and Informal
1. Informal or “Common Law” Marriage
a. Meister v. Moore
(1) Marriage is a civil contract and statutes in many States regulate the mode
of entering into the contract, but they do not confer the right.
(2) No doubt a statute may take away a common law right; but there is
always a presumption that the Legislature has no such intention, unless it
be plainly expressed.
(3) Directory: Formal provisions may be construed as merely directory,
instead of being treated as destructive of a common law right to form the
marriage relation by words of present assent.
(4) Statute Expressly Prohibits: W hatever direction they may give respecting
its formation or solemnization, courts have usually held a marriage good
at common law to be good notwithstanding the statutes, unless they
contain express words of nullity.
b. Crosson v. Crosson
(1) W hile no ceremony or particular words are necessary, there are
common elements which must be present, either explicitly expressed or
implicitly inferred from the circumstances, in order for a common-law
marriage to exist:
(a) Capacity
(b) Present, mutual agreement to permanently enter the marriage
relationship to the exclusion of all other relationships
(c) Public recognition of the relationship as a marriage and public
assumption of marital duties and cohabitation.
(2) No specific words or assent are required; present intention is inferred
from cohabitation and public recognition.
(3) Discussions of Ceremonial Marriage
(a) The intent to participate in a marriage ceremony in the future
does not prove a couple’s nonmarriage.
(b) The mere fact that the parties could not get together on the
time when and the place where they were to have another
ceremonial marriage is not sufficient to overcome the
presumption of the common-law marriage
(4) Dating Others
(a) Once there is a marriage, common-law or ceremonial, it is not
transitory, ephemeral, or conditional. Once married, by
common-law or by ceremony, the spouses are married. There
is no such things as being a “little bit” married; and once
married, one spouse’s liaison amoureuse does not end the marital
status, whether that status was created by common law or by
ceremony, though it may afford the other spouse a ground for
judicially terminating the legal relationship.
(5) Marriage to Another
(a) The operative time is when the agreement is initially entered
into, and once other conditions of public recognition and
cohabitation are met the only ways to terminate a common-law
marriage are by death or divorce. A party cannot legally
terminate the marriage by simply changing his or her mind or
by telling selected individuals.
c. Less than a quarter of the states still permit informal or common-law marriages to

-11-
 be effected within their boundaries.
(1) States either abolished the practice through specific legislation or the
courts construed formal requirements regarding solemnization as
mandatory rather than directory.
(2) The Uniform Marriage and Divorce Act does not take a stand on the
issue but rather provides alternative sections either validating or
invalidating such unions.
(a) § 207(b), however, provides that “[p]arties to a marriage
prohibited under this section who cohabit after removal of the
impediment are lawfully married as of the date of removal of
the impediment.
i) However, some common-law marriage jurisdictions
are reluctant to hold that marriage takes place
automatically between parties who continue
cohabitation after the removal of the impediment.
See Byers v. Mount Vernon Hills, Inc. (pp. 200-01).
(3) Temporary Cohabitation in Jurisdiction Other Than Residence or
Domicile.
(a) Grant v. Superior Court
i) Arizona couple drove to Texas motel where they
consummated their marriage after agreeing to be
husband and wife. There, there told another couple
accompanying them that they were married. The rest
of the time was spent in Mexico. They then returned
to Arizona where they lived together and held
themselves out as husband and wife.
a) Elements of common-law marriage in Texas:
1) Agreement presently to be husband
and wife
2) Living together and cohabitating as
husband and wife
3) Holding each other out to the
public as such
b) Arizona court refused to recognize the
marriage stating:
1) It is not the requirement of
domicile that makes the difference
but rather the connection by the
couple with the state that recognizes
common law marriages. The only
connection these parties had with
the State of Texas was as mere
transients.
(b) Vaughn v Hufnagel
i) Kentucky court stated, with regards to an alleged
common-law marriage entered into in Ohio:
a) This states does not recognize common-law
marriage within the boundary lines of this
state, but may recognize one legalized in
another state. But it takes more than riding
across the Ohio River to make one legal.
d. 11 states and the District of Columbia allow for common law marriage. It is
expressly prohibited in 26 states and 13 have never passed on it.

-12-
2. Golden Rule
a. Marriage is valid where performed, valid everywhere, unless against public policy.
(1) Ex. Common law marriage in Connecticut and the couple moves to
Arkansas. Valid marriage? Against Arkansas’ public policy?
(a) All states recognize common law marriage from states that do
recognize it.
b. Conflicting Marriages
(1) Presumptions
(a) Presumption of legitimacy of existing marriage
i) 1 st marriage wins
(b) Presumption of validity of most recent marriage.
i) 2 nd marriage wins
(2) State will decide which presumption it wishes to use.
(3) If there is no presumption, then the court is free to choose which
presumption is most appropriate based on the case (most equitable).
3. Confidential Marriage
a. Does not superimpose the status of marriage on an informal relationship but
allows the parties who have had longstanding relationships in a jurisdiction
without common law marriage to go through a marriage ceremony without
publicity.
4. Statutorily Required Formalities
a. Carabetta v. Carabetta
(1) The marriage licensing statute stated that noncompliance was subject to
a fine but was silent as to the issue of whether the marriage was valid.
(2) In the absence of express language in the governing statute declaring a
marriage void for failure to observe a statutory requirement, the court
has held that such a marriage, though imperfect, is dissoluble rather than
void.
(3) The legislature’s failure expressly to characterize as void a marriage
properly celebrated without a license means that such a marriage is not
invalid.
b. Licensure
(1) All states have licensing laws but in some a valid marriage nevertheless
may be effected without obtaining a license (interpreting statues as
directory rather than mandatory).
(2) Some states require a specific waiting period before a marriage can be
solemnized within its borders.
(a) Neither domicile nor residence is required before a license can
be obtained or a marriage performed in a particular jurisdiction
and persons wishing to avoid such restrictions (i.e., waiting
periods) may simply go to another state without such a
provision.
c. Ceremony
(1) Each state generally specifies the persons who may perform marriages
and the conditions that are placed upon them.
(2) Cramer v. Commonwealth
(a) Virginia Supreme Court held that “ordained” ministers of the
Universal Life Church, Inc. did not qualify as “ministers”
within the meaning of the Virginia statute.
(3) Statutes in some jurisdictions provide that if the parties believed in good
faith that the person who solemnized their marriage was legally
authorized to do so, then lack of authority shall not be grounds for
annulment. Criminal sanctions, however, may be imposed against the
unauthorized person.

-13-
 5. Proxy Marriage
a. Proxy or “picture” marriages usually involve the situation in which a ceremony
takes place between parties who are in different jurisdictions.
(1) Designate a “stand-in” who appears for the absent party at the ceremony
with the idea that the law there should govern.
b. Such marriages could not be effected in some jurisdictions because of the
requirements that both parties be present for the ceremony.
c. For immigration purposes, 8 U.S.C. § 1101(a)(35) limits the recognition of such
marriages unless the marriage has been consummated.
d. Uniform Marriage and Divorce Act specifically authorizes proxy marriages
D. Annulment and its Effects
1. The Void-Voidable Distinction
a. An annulment action is brought to declare the legal invalidity of a particular union
from its inception. A divorce action seeks to terminate a valid marriage as of a
specific date after it came into legally recognized existence.
b. Void Marriage (Not recognized from any point)
(1) Three Qualifiers for Void Marriage
(a) Incest
(b) Bigamy
(c) Radical Underage
(d) Possibly fraud
(2) Void marriage cannot be ratified. You cannot spark new life into a void
marriage.
(3) Offends some strong public policy of the state.
(4) No action needed: Needs no formal judicial action or declaration to
establish its invalidity
(5) Can be attacked by third persons and the challenge instituted even after
the death of the parties.
(6) Cohabitation between them after the removal of the impediment that
caused their union to be void will not serve to “ratify” the marriage.
(7) Some states now require an action for annulment or declaration of
invalidity to establish the nullity of a void marriage.
c. Voidable Marriage (Marriage existed at one point)
(1) Reflects encroachment on some lesser public policy
(2) Can be ratified by conduct of the parties after the removal of the legal
impediment that made it vulnerable and unless it is judicially annulled in
timely fashion (before ratification, death of a party, or tolling of the
action under the applicable statute of limitation), it is valid from its
inception.
(3) Relation-back doctrine makes a voidable marriage that is annulled void
ab initio.
(4) Annulment
(a) As if it never existed. Voiding a voidable marriage. Void ab
initio: state is saying that there was a marriage but we’re
terminating it from the beginning.
(b) Grounds:
i) Incapability
ii) Prior valid marriage still existing
iii) Unsound mind
iv) Fraud
v) Force
vi) Physical incapacity
d. Separation
(1) Divorce a mensa et thuro: “from bed and board.”

-14-
 e. Divorce
(1) Divorce a vinculo matrimonii
(2) Marriage terminated by divorce.
f. McConkey v. McConkey
(1) Court draws a distinction between void and voidable marriages:
(a) Voidable Marriage: treated as a valid marriage until it is decreed
void. The parties to a voidable marriage are husband and wife
unless and until the marriage is annulled.
(2) It has generally been held that annulment of a voidable second marriage
does not entitle the wife to reinstatement of alimony payments from her
first husband, where there is a statute providing that alimony shall
terminate upon the recipient’s remarriage.
(a) Other jurisdictions have followed this rule even in the absence
of such a statute.
(3) To require the former husband to proceed during this period at his peril
in making financial commitments that could be suddenly disrupted,
through no fault of his, would be to penalize him for events beyond his
control.
g. Shank v. Shank
(1) The term “remarriage” as used in the divorce decree and the Nevada
alimony statute means the solemnization or ceremony of remarriage,
without regard to whether the remarriage is later determined to be void
or voidable.
h. In re Marriage of Cargill and Rollins
(1) W hile an annulment of a marriage does not automatically reinstate a
maintenance obligation from a previous marriage as a matter of law,
such an obligation may be reinstated depending on the facts and the
equities of the situation.
(a) Length of the second marriage
(b) W hether annulment of the second marriage was proper and
should bind the first spouse
(c) W hether maintenance is being paid (or is more than
theoretically payable) from the invalidate marriage
(d) The circumstances of the parties
(e) W hether the payor spouse would suffer substantial prejudice by
reinstating maintenance payments.
2. Putative Marriage
a. In good faith believed that you were married
b. Protects economic interests
c. Can have more than one putative spouse, all of whom have marital rights.
(1) Allocate property based on the amount of time.
d. Uniform Marriage and Divorce Act § 209
(1) Any person who has cohabited with another to whom he is not legally
married in the good faith belief that he was married to that person is a
putative spouse until knowledge of the fact that he is not legally married
terminates his status and prevents acquisition of further rights. A putative
spouse acquires the rights conferred upon a legal spouse, including the
right to maintenance following termination of his status, whether or not
the marriage is prohibited (Section 207) or declared invalid (Section
208). If there is a legal spouse or other putative spouses, rights acquired
by a putative spouse do not supersede the rights of the legal spouse or
those acquired by other putative spouses, but the court shall apportion
property, maintenance, and support rights among the claimants as
appropriate in the circumstances and in the interests of justice.

-15-
E. Determining Legal Eligibility
1. Minimum Age Requirements
a. Moe v. Dinkins
(1) This case deals with minors so the court takes it out of the context of
other constitutional cases dealing with marriage (parens patriae).
(a) “Neither Zablocki nor its predecessors arose in the context of
state regulation of marriages of minors. In that respect, this is a
case of first impression.”
(2) Court examines this case under rational basis standard of review rather
than under strict scrutiny.
(3) Presumption that parents makes the best decisions for their children.
(4) Delay not denial
(a) “Plaintiffs are not irretrievably foreclosed from marrying. The
gravamen of the complaint, in the instant case, is not total
deprivation but only delay.”
2. Kinship
a. Determined by degrees of consanguinity
(1) Requires counting back to the nearest common ancestor in the
ascending line of the parties, then descending to the person whose kind
relationship degree is in question. Each link in the chain, both
ascending and descending, counts as a degree.
b. Most states set the limit at 4 degrees.
c. The question becomes is the marriage void or voidable?
d. Relation by adoption?
(1) Statute must explicitly include.
3. Physical or Mental Incapacity
a. Edmunds v. Edwards
(1) In law, marriage is considered a civil contract, too which the consent of
the parties capable of contracting is essential.
(a) However, marriage is contract like not other. What persons
establish by entering into matrimony, is not a contractual
relation, but a social status; and the only essential features of the
transactions are that the participants are of legal capacity to
assume that status, and freely consent to do so.
(2) Up to the state to decide what level of mental capacity is required to
enter into the contract.
(a) Moron
(b) Imbecile
(c) Idiot
(3) Incapacity Must Be Present at Time of Marriage: A marriage contract will
not be declared void for mental incapacity to enter into it unless there
existed at the time of the marriage such a want of understanding as to
render the party incapable of assenting thereto.
b. Rickards v. Rickards
(1) Statute provided as a ground for annulment, “incurable physical
impotency, or incapacity for copulation, at the suit of either party; if the
party making the application was ignorant of such impotency or
incapacity at the time of the marriage.”
(2) This statutory ground for annulment of marriage is an incurable physical
ability on the part of one spouse to copulate with the other. This being
so, it follows that whether the inability stems from physical or mental
defects, provided in either case that the resulting condition is incurable,
the requirement of the statute is met.
c. Tompkins v. Tompkins

-16-
 (1) Doctrine of Triennial Cohabitation
(a) Rule from the Roman law which had been applied in English
courts.
(b) The essence of the doctrine is, that if the wife be a virgin and
apt after three years’ cohabitation, the husband will be
presumed to be impotent, and the burden will be upon him to
overcome the presumption of proof that he is not at fault.
d. T. v. M.
(1) “Splash” pregnancy/Penetration
e. Kantaras v. Kantaras
(1) W e agree with the Kansas, Ohio, and Texas courts in their
understanding of the common meaning of male and female, as both
those terms are used statutorily, to refer to immutable traits determined
at birth.
f. Present recognition of the validity of the marriage of a transsexual if there is a
proper congruence of anatomy and genitalia remains the distinct minority view.

III. H U SBAN D A N D W IFE : C H A N G IN G R O LES , R IG H TS A N D D U TIES

A. Support During Marriage
1. McGuire v. McGuire
a. It is an indispensable requirement of a maintenance statute that the wife should be
living separate and apart from her husband without her fault, and that therefore, a
wife living in the same house with her husband, occupying a different room and
eating at a different time, is not entitled to separate maintenance.
b. In order to maintain action such as the one at bar, the parties must be separated
and living apart from each other.
c. As long as the home is maintained and the parties are living as husband and wife
it may be said that the husband is legally supporting his wife and the purpose of
the marriage relation is being carried out.
d. Dissent
(1) It is clear that a husband has the obligation to furnish to his wife the
necessaries of life.
2. “Necessaries” Doctrine
a. Husband was responsible for necessary goods and services furnished to his wife by
third parties.
b. Schilling v. Bedford Co. Mem. Hospital
(1) Court held that Virginia’s codification of the necessaries doctrine
violated the state constitution as well as the Fourteenth Amendment of
the U.S. Constitution because it imposed financial responsibility on
husbands but not wives.
c. Courts in other jurisdictions have simple construed the necessities doctrine in
modern fashion to impose a duty on wives as well as husbands.
d. State v. Clark
(1) The expense of the appeal, while related to an antenuptial act, is not an
antenuptial debt.
(2) Family-expense statutes are generally considered to be at least as broad as
the common-law duty to provide “necessaries” for the family.
(a) Read v. Read (Colorado)
i) Necessaries is incapable of exact definition; its
meaning is variable, depending upon the
circumstances, financial and otherwise, of the parties.
ii) Under the attendant circumstances, the expenses in
presenting her case in this court for review are
“necessaries” for which defendant [husband] is liable.
-17-
 (3) Court is persuaded that legal expenses, including a review of trial court
proceedings, falls within the purview of the family expense statute when
a criminal action is involved and a spouse’s liberty is at stake.
(a) Husband’s assets may be considered in determining whether
wife is an indigent person.
e. Family expense statutes were generally enacted for the benefit of creditors.
B. Testimonial Privilege, Torts and Crimes Between Spouses
1. Testimonial Privilege
a. Trammel v. United States
(1) Funk v. United States
(a) Court abolished the testimonial disqualification in the federal
courts, so as to permit the spouse of a defendant to testify in the
defendant’s behalf. Funk, however, left undisturbed the rule
that either spouse could prevent the other from giving adverse
testimony.
(2) Hawkins v. United States
(a) Left the federal privilege for adverse spousal testimony where it
found it, continuing a rule which bars the testimony of one
spouse against the other unless both consent.
(b) W yatt v. United States
i) Recognized an exception to Hawkins for cases in
which one spouse commits a crime against the other.
ii) It has been expanded since then to include crimes
against the spouse’s property, and crimes against
children of either spouse.
(3) Trammel leaves intact the confidential marital communications privilege.
(4) W itness spouse alone has the privilege to refuse to testify adversely; the
witness may be neither compelled to testify nor foreclosed from
testifying.
(a) Furthers the important public interest in marital harmony
without unduly burdening legitimate law enforcement needs.
b. Spousal privilege may be limited by statute.
(1) Trammel is only applicable in federal courts; states are free to adopt
whatever rule they choose.
2. Sexual Assault or Rape
a. W arren v. State
(1) Theories behind the belief that a husband could not be guilty of raping
his wife:
(a) Lord Hale’s View:
i) “but a husband cannot be guilty of rape committed by
himself upon his lawful wife, for by their mutual
matrimonial consent and contract the wife hath given
up herself in this kind unto her husband which she
cannot retreat.”
(b) W ife as Chattel
i) Medieval theory that since a married woman was
party of her husband’s property, nothing more than a
chattel, rape was nothing more than man making use
of his own property.
(c) Unity in Marriage
i) The very being or legal existence of a woman was
suspended during marriage, or at least was
incorporated and consolidated into that of her
husband. There being only one legal being, the

-18-
 husband, he could not be convicted of raping himself.
(d) Other theories
i) Prevention of fabricated charges; preventing wives
from using rap charges as revenge; preventing state
intervention into marriage so that possible
reconciliation will not be thwarted.
(e) The implied consent theory to spousal rape is without logical
meaning, and obviously conflicts with our Constitutional and
statutory laws and our regard for all citizens of this State.
(f) Both the chattel and unity of identity rationales have been cast
aside. No where in the common law world–[or] in any
modern society–is a woman regarded as chattel or demeaned by
denial of a separate legal identity and the dignity associated
with recognition as a whole human being.
IV. M A TR IM O N IAL B R EA K D O W N : G R O U N D S
A N D J U R ISD IC TIO N FO R D ISSO LU TIO N O F M A R R IA G E
A. The Perspective of History
1. Divorce a mensa et thoro: (divorce from bed and board) mere physical separation of the
parties for cause, a remedy that extinguished none of the economic incidents of marriage
and did not permit either party to remarry.
2. Divorce a vinculo matrimonii: absolute divorce.
B. Grounds and Defenses
1. The Fault Scheme
a. Ex. Utah Code Ann.
(1) Grounds for divorce:
(a) impotency of the respondent at the time of marriage;
(b) adultery committed by the respondent subsequent to marriage;
(c) wilful desertion of the petitioner by the respondent for more
than one year;
(d) wilful neglect of the respondent to provide for the petitioner
the common necessaries of life;
(e) habitual drunkenness of the respondent;
(f) conviction of the respondent for a felony;
(g) cruel treatment of the petitioner by the respondent to the
extent of causing bodily injury or great mental distress to the
petitioner;
(h) irreconcilable differences of the marriage;
(i) incurable insanity; or
(j) when the husband and wife have lived separately under a
decree of separate maintenance of any state for three
consecutive years without cohabitation.
b. Divorce statutes become a hodgepodge of grounds, some better incorporated into
suits for annulment (e.g., 3(a)), and some which include all of the other grounds
(e.g., 3(h)).
c. In Ebbert v. Ebbert, (N.H. 1983), the Supreme Court of New Hampshire
explained that the addition of “irreconcilable differences” as a ground did not
repeal the original thirteen grounds based on fault
(1) “A party who seeks a divorce on a fault ground cannot be denied the
opportunity to litigate on that basis merely because the other party has
advanced irreconcilable difference as grounds for divorce.”
d. Some state statutes that mix both fault and no-fault grounds permit a court to
make a finding of “fault” for alimony purposes without having to rest the divorce
on such a ground.
e. Fault is an important consideration in the distribution of marital assets.
f. Virginia and New York still maintain both divorce a mensa et thoro and divorce a
-19-
 vinculo matrimonii.
(1) Virginia code provides that either party may merge a decree for divorce
from bed and board into a decree for absolute divorce once the requisite
statutory period has elapsed.
g. Brady v. Brady
(1) In Hessen v. Hessen, the court held that a plaintiff seeking a divorce
under the cruel and inhuman treatment subdivision must show serious
misconduct, and not mere incompatibility.
(a) A plaintiff must generally show a course of conduct by the
defendant spouse which is harmful to the physical or mental
health of the plaintiff and makes cohabitation unsafe or
improper.
(b) Determination depends, in part, on the length of the parties’
marriage, because what might be considered substantial
misconduct in the context of a marriage of short duration,
might only be “transient discord” in that of a long-term
marriage.
(2) The existence of a long-term marriage does not, of course, serve as an
absolute bar to the granting of a divorce for cruel and inhuman
treatment, and even in such a marriage “substantial misconduct” might
consist of one violent episode such as a severe beating.
h. “Cruelty”
(1) Many state legislatures stipulated that the ground must be extreme
cruelty, intolerable cruelty, or cruel, barbarous, and inhuman treatment.
(2) Courts have also expressed greatly differing opinion as to what will
constitute “cruelty” under statutes of similar wording.
(a) Physical violence is required by some while mental cruelty is
enough for others.
i. Proving Adultery
(1) Universally included as a ground in fault-based divorce laws.
(2) Presents a problem with the matter of proof:
(a) Evidence which has been “staged” for ultimate presentation to
ostensibly unsuspecting referee or judge.
(b) Circumstantial evidence still may be used to prove adultery,
but it must do more than simply establish a strong suspicion of
guilt.
(3) Arsenaux v. Arsenaux
(a) Physician-patient privilege used to prevent evidence coming
forth of an abortion obtained by the wife. The husband was
sterile.
(4) In re Blanchflower
(a) New Hampshire Supreme Court held that the state statute
providing for divorce based on the ground of adultery
contemplates that adultery excludes all non-coital sex acts.
j. Corroboration
(1) Corroboration by evidence other than testimony of the other parties is
required in order to lessen the potential for collusion..
k. Constructive Desertion
(1) Ricketts v. Ricketts
(a) Husband and wife continued to live in the same house, but the
husband filed for divorce and custody of the couple’s children.
In his petition, the husband alleged that the wife denied him
marital relations and forced him from the marital bedroom,
thus constructively deserting him. The court agreed.

-20-
l. Defenses to Fault Grounds
(1) Classic Defenses
(a) Collusion
i) Really less of a defense for the parties than a means for
the court to deny a divorce to persons who fabricate
evidence because both want a divorce and they have
no grounds.
(b) Condonation
i) One spouse’s forgiveness of the other’s marital
misconduct that amount to a fault divorce ground.
ii) Specific agreement or continue cohabitation after
knowledge of the offense.
iii) Conditional on the condonee thenceforth treating the
condoner with “conjugal kindness”; breaking this
condition can “revive” the original divorce ground.
a) Insidious use of this doctrine allows for
revival through misconduct falling short of a
divorce ground in or cases of insufficient
proof to establish the new violation as a
ground.
(c) Connivance
i) “Corrupt consent” of one party to conduct of the
other amounts to a divorce ground.
(d) Doctrine of Unclean Hands
i) Husband D v. W ife D
a) The court may raise this issue itself.
b) “Clean hands” or the absence of material
fault by the petitioner has been applied in
divorce cases in many states. The doctrine of
unclean hands is actually an equitable defense
and usually not applicable in divorce
proceedings except where, by statute, such
proceedings are specifically designated
equitable in nature
(e) Recrimination
i) A subset of unclean hands, but as an affirmative
defense.
ii) If each party were to establish that the other had
committed a marital offense amounting to a divorce
ground, both would be precluded from obtaining a
divorce.
iii) Given a choice between living separately while
married or remaining together.
iv) In some jurisdictions a ground for divorce a mensa et
thoro would not counterbalance a ground for divorce a
vinculo matrimonii
v) Theories behind recrimination:
a) “clean hands” doctrine
b) parties are “in pari delicto”
c) breach of mutually dependent covenants
d) compensation
e) divorce is a remedy for an innocent spouse
(2) Covenant Marriage
(a) First adopted in Louisiana. Available in Arkansas.

-21-
 (b) Limits the divorce grounds to those associated with fault.
2. Insanity as a Ground
a. Long an enumerated ground for divorce in some jurisdictions
b. Many provisions required that the condition be so extreme, the prognosis so
bleak, or the length of the institutionalization so great, that the ground was of
little practical use.
c. Some jurisdictions which have shifted to almost entirely to a “breakdown”
ground have retained insanity as a separate cause.
3. Breakdown: The New Standard
a. Generally falling within the “breakdown” or “no fault” dissolution grounds:
(1) incompatibility; incompatibility of temperament
(2) separation for a specific time period pursuant to agreement between the
spouses; “voluntary separation
(3) separation for a specific time period under breakdown circumstances
whether or not both the parties desired or agreed to live apart, and
without regard to the circumstances under which the separation
commenced
(a) Usual required separation period is between six months to a
year.
(4) general category that requires no specific period of separation but only
proof of “irretrievable breakdown”, “irreconcilable differences”, or
some similarly phrased condition that ostensibly denoted that the
marriage is dead.
(a) may be cross-breeding between this ground and (3).
(5) provisions allowing for dissolution based on longstanding absence of one
spouse under conditions by which his or her death is presumed.
b. Intent for grounds premised on separation
(1) Sinha v. Sinha
(a) Court held that at least one of the parties must have the intent
to dissolve the marriage prior to the commencement of the
three year period.
i) Must “clearly manifest” to other party. Physical
separation alone is not enough.
ii) Must provide opportunity for reconciliation.
(2) Gleason v. Gleason
(a) Court was willing to apply intent retroactively.
(b) To hold otherwise would foster collusion and fraud and
encourage couples to seek out-of-state divorces.
(3) Arkansas’ separate and apart period is 18 months.
c. Husband W . v. W ife W .
(1) Trial court held that the plaintiff failed to sustain his burden of showing
no reasonable possibility of reconciliation
(a) Appellate court says that this marriage is dead.
C. The Jurisdictional Jumble
1. Qualifying Domestic Divorce Decrees for Full Faith and Credit: The Significance of
Domicile.
a. W illiams v. North Carolina (I)
(1) If notice requirement is met to the other party, then the state must give
full faith and credit.
(a) Divorce/Marriage is a status (divorce is in rem, i.e., it goes with
the thing).
(2) Decided that if due process requirements of notice were satisfied, an ex
parte decree of the state of one spouse’s domicile must be recognized
throughout the nation by force of the Constitution.

-22-
b. W illiams v. North Carolina (II)
(1) W hile the state of a spouse’s domicile has the power to grant a divorce
entitled to full faith and credit, the issue whether either spouse was, in
fact, domiciled in the state of divorce is open for reexamination.
(a) Therefore, state with an interest in the domicile question may
collaterally attack the decree in an ex parte divorce.
(2) “Under our system of law, judicial power to grant a
divorce–jurisdiction, strictly speaking–is founded on domicile.”
(a) Domicile = presence + intent to remain.
i) However, state can require domicile + residency.
c. Alton v. Alton (3rd Cir.)
(1) W hat about a divorce not based upon domicile but the presence of the
two parties?
(2) Case involved a divorce granted to two Connecticut domiciliaries in the
Virgin Islands whose statutes permitted divorce of parties who had been
personally served in the Islands or who had entered a general
appearance.
(3) “[I]f the jurisdiction for divorce continue to be based on domicile, as we
think it does, we believe it to be a lack of due process for one state to
take to itself the readjustment of domestic relations between those
domiciled elsewhere.”
(4) Granville-Smith v. Granville Smith rendered Alton moot when it decided
that the Virgin Islands’ legislature had exceeded its power under the
Islands’ Organic Act by passage of the Divorce Act.
d. Arkansas requires residency of 60 days; divorce not final for 3 months.
e. Restatement (Second) of Conflict of Laws § 72
(1) A state has power to exercise judicial jurisdiction to dissolve the
marriage of spouses, neither of whom is domiciled in the state, if either
spouse has such a relationship to the state as would make it reasonable
for the state to dissolve the marriage.
f. Annulment Jurisdiction
(1) Jurisdiction to annul a marriage is not so widely regarded as requiring a
prerequisite of domicile.
(2) Must raise annulment claim in the jurisdiction where marriage was
decreed or celebrated.
(a) In annulment actions the law of the state where the marriage
was celebrated or contracted usually controls, rather than the
law of the domicile.
g. Sherrer v. Sherrer
(1) It is clear that respondent was afforded his day in court with respect to
every issue involved in the litigation, including the jurisdictional issue of
petitioner’s domicile. Under such circumstances, there is nothing in the
concept of due process which demands that a defendant be afforded a
secondary opportunity to litigate the existence of jurisdictional facts.
(2) Here, unlike the situation presented in W illiams v. North Carolina (II),
the finding of the requisite jurisdictional facts was made in proceedings
in which the defendant appeared and participated.
(3) It is one things to recognize as permissible the judicial reexamination of
findings of jurisdictional fact where such findings have been made by a
court of a sister state which has entered a divorce decree in ex parte
proceedings. It is quite another thing to hold that the vital rights and
interests involved in divorce litigation may be held in suspense pending
the scrutiny by courts of sister States of findings of jurisdictional fact
made by a competent court in proceedings conducted in a manner

-23-
 consistent with the highest requirements of due process and in which the
defendant has participated.
(4) That vital interests are involved in divorce litigation indicates to us that
it is a matter of greater rather than lesser importance that there should be
a place to end such litigation.
h. Notice
(1) States have come up with various procedures for giving notice to an
absent spouse in an ex parte divorce action, including constructive
service through publication.
(2) Superior Court of New Jersey, Appellate Division has held that in the
modern age, an e-mail address is a demonstration of due diligence in an
effort to notify the other spouse of pending divorce action.
i. Johnson v. Muelberger
j. Injunctions
(1) Injunctions were once granted in some states against one spouse’s
obtaining a divorce elsewhere allegedly based on fraudulent assertions
concerning jurisdiction, on the theory that irreparable injury otherwise
might accrue to the spouse who remains at home.
k. Special Appearance
(1) Some states’ procedural rules allow a defendant to appear specially to
contest jurisdiction without participating so as to invoke the rule of
Sherrer.
l. Sosna v. Iowa
(1) W hat those cases (welfare payments, voting, medical care) had in
common was that the durational residency requirements they struck
down were justified on the basis of budgetary or record-keeping
considerations which were held insufficient to outweigh the
constitutional claims of the individuals.
(a) But Iowa’s divorce residency requirement is of a different
stripe. Appellant is not irretrievably foreclosed from obtaining
some part of what she sought as was the case in the welfare,
voting, medical care cases. She would eventually qualify for
the same sort of adjudication which she demanded virtually
upon her arrival in the State.
(b) Delay not denial.
(2) W ith consequences of such moment (property rights, children, etc.),
riding on a divorce decree issued by its courts, Iowa may insist that one
seeking to initiate such a proceeding have the modicum of attachment to
the State required here.
(a) Minimizes the susceptibility of collateral attack.
(b) Iowa may not wish to become a divorce mill.
(3) Because a state’s determination of domicile is susceptible to collateral
attack, the State asked to enter such a decree is entitled to insist that the
putative divorce plaintiff satisfy something more than the bare minimum
of constitutional requirements before a divorce decree may be granted.
2. Comity for Decrees of Foreign States
a. Perrin v. Perrin
(1) Divorce of another country is recognized out of mutual respect.
(a) May recognize as opposed to being required to recognized by
the Full Faith and Credit Clause.
b. Restatement (Second) of Conflict of Laws § 98
(1) Provides that an American jurisdiction may recognize a judgment of a
foreign nation provided that the judgment was rendered after a fair
hearing by a court that has personal jurisdiction over one or both of the

-24-
 parties.
c. A court is not required to give the same deference to a divorce decree of a foreign
country as to the decree from a sister state (full faith and credit). Courts may
refuse to apply the comity doctrine to recognize foreign divorce decrees if such
recognition would violate public policy.
(1) Hyde v. Hyde
(a) State can look to its own public policy in determining whether
to grant comity to another nation’s decree.
3. The Effect of Laches and Estoppel
a. Kazin v. Kazin
(1) The equitable principle of estoppel has been applied broadly and in a
wide variety of matrimonial cases. It has been recognized that “in cases
involving foreign divorce decrees, as in other situations, . . . the
application of the principle of equitable estoppel cannot be subjected to
fixed and settled rules of universal application, but rests largely on the
facts and circumstances of a particular case.
(2) The equitable rule precluding individuals from attacking foreign divorce
decrees has not bee limited to situations of what might be terms “true
estoppel” where one party induces another to rely to his damage upon
certain representations, but has also encompassed situations sometimes
termed “quasi-estoppel” where an individual is not permitted to blow
both hot and cold, taking a position inconsistent with prior conduct, if
this would injure another, regardless of whether that person has actually
relied thereon.
b. Staley v. Staley
(1) Defense of laches requires both the plaintiff’s negligence or lack of
diligence in asserting his rights and prejudice or injury to the defendant.
4. Doctrine of Divisible Divorce
a. Although a court may award an ex parte divorce without jurisdiction over the one
spouse, a court may not resolve the financial incidents of the divorce without
personal jurisdiction over both spouses. Vanderbilt v. Vanderbilt, 354 U.S. 416
(1957).
V. M A R ITA L B R EA K D O W N : R ESO LVIN G TH E F IN A N CIA L C O N C ER N S
A. General
1. Areas of Financial Concern
a. Spousal Support
(1) 4 Types of Alimony
(a) Alimony pendente lite
i) Spouse may obtain temporary spousal support during
the pendency of the divorce proceedings
(b) Rehabilitative Alimony
i) Money paid until spouse is able to get back on their
feet (workforce training, education, etc.).
ii) Usually, the court will place a time limit.
(c) Lump Sum Alimony
i) Might take the form of some property
ii) Ruggles
a) This case deals with lump sum alimony
b) Takes into account all of the factors in
determining spousal support.
c) Have to project into the future for value and
tax consequences.
d) Often use other property to make up for the
inequities
-25-
 1) House, personal property, etc.
2) Payment in lieu of alimony
(d) Term Alimony
i) “X” amount for “X” months and then it terminates
(e) Permanent Alimony
(2) Orr v. Orr
(a) Supreme Court held that Alabama’s awarding of alimony to
wives only violated the Equal Protection Clause of the
Fourteenth Amendment.
(3) Spousal support awards can be based on fault. In a fault-based regime,
only the innocent spouse is awarded spousal support. The guilty spouse
is “punished” for his/her transgressions by denial of awards of spousal
support (and property).
(a) Some jurisdictions specifically prohibit the consideration of
fault in spousal awards.
(b) Arkansas generally does not consider fault for purposes of
alimony.
(4) General Rule for Spousal Support
(a) Need + Ability to Pay
i) Note: Generally, this standard is also used in the
calculation of child support payments, however, in
Arkansas, only the ability to pay is considered.
(b) Other factors:
i) Length of the marriage
ii) Lifestyle
a) Ex. Couple led an extravagant lifestyle,
therefore, they are entitled to that after the
divorce.
iii) Amount and nature of the current and anticipated
income
iv) Earning capacity
a) Cannot voluntarily reduce your income.
b. Distribution of Property
(1) The following rules and principles, except for cases of child support, are
subject to the parties coming to some agreement. In essence, they are
default rules.
(2) Common Law/Equitable Distribution
(a) Means of doing equity between the parties.
(3) Community Property
(a) All property acquired from spousal labor is the property of the marital
community in which each spouse has an undivided ½ interest without
regard to equitable principles.
(b) Just because everything is split 50/50 does not mean that there
cannot be alimony awarded.
i) Support in lieu of distribution
(4) Marital Property
(a) Property being divided
(b) Every state will define what is marital property
i) Typically the property acquired from spousal labor.
This includes debt (the same principles apply to debt
as the do to the division of property).
(c) Anything that accrues from something acquired with spousal
labor, both spouses are entitled.
(d) In Arkansas, you continue to accrue marital property up until

-26-
 the divorce decree is entered.
(5) Separate Property
(a) Property of one spouse not subject to division, i.e., not a
product of spousal labor. However, there are some
qualifications:
i) Bequests, devises, and gifts given during marriage are
separate property
ii) Any tort awards in most jurisdictions are separate
property.
iii) Property exchanged for separate property is separate
property itself.
iv) Anything agreed upon to be separate property.
(b) Marital couples can agree that property is separate property.
However, this can also be determined from the treatment of
the property.
(c) Property Acquired in Contemplation of Marriage
i) Separate property
ii) Most courts will partition the property
(6) Compulsory Financial Disclosure
(a) Mandatory disclosure in required in almost every state
(b) Can’t hide away property
(7) Valuation of Property
(a) Experts testify about the value of assets
(b) W hen to Value Property?
i) Most jurisdictions will choose the earliest of the
following:
a) Value when liquidated
b) Value on the date of divorce
ii) However, again, this is a default rule and the parties
may agree differently.
(8) Distribution in kind
(a) Other property is given for property taken
(9) Transmutation
(a) Gifting separate property to the marriage
(b) Can transmute property the opposite direction as well.
i) Ex. Marital property to separate property.
(c) Doesn’t have to be agreed upon but can be treated like marital
property or separate property.
(10) Commingling
(a) Funds from both parties are put into one account upon
marriage.
i) Tracing: party must prove what funds were used to
purchase certain assets.
(11) Equitable distribution of property ends at death
(a) If death occurs before the divorce is final, the divorce is said to
abate.
(b) If death occurs after divorce but before the final property
division the divorce does not abate and division can continue.
c. Child Support
(1) Standard: Need + Ability to Pay
(a) However, states use different formulas to calculate the need and
ability to pay.
(2) Cannot bargain away your duty to pay child support, i.e., no agreements
(3) If circumstances change, may file to reduce payments or increase

-27-
 payments
(4) Arrearage
(a) Cannot reduce arrearage.
(b) May request that the court increase support nunc pro tunc
i) Increase now as if the court increased in the past.
There must be new evidence to show more income
was made.
(5) Covered more thoroughly later
B. Permanent Alimony and Maintenance
1. Murphy v. Murphy
a. General support may be awarded to provide financial assistance to a spouse with
substantially less income potential than the other spouse so that both spouses can
maintain a reasonable standard of living after the divorce.
(1) Rebuttable presumption that general support will not be awarded when
the marriage is less than ten years of duration.
b. Transitional support may be awarded to provide for a spouse’s transitional needs,
including, but not limited to:
(1) Short-term needs resulting from financial dislocations associate with the
dissolution of the marriage; or
(2) Reentry or advancement in the work force, including, but not limited
to, physical or emotional rehabilitation services, vocational training and
education.
c. Factors to consider when awarding spousal support.
(1) The length of the marriage
(2) The ability of each party to pay
(3) The age of each party
(4) The employment history and employment potential of each party
(5) The income history and income potential of each party
(6) The education and training of each party
(7) The provisions for retirement and health insurance benefits of each party
(8) The tax consequences of the division of marital property, including the
tax consequences of the sale of the marital home, if applicable
(9) The health and disabilities of each party
(10) Th tax consequences of a spousal support award
(11) The contributions of either party as homemaker
(12) The contributions of either party to the education or earning potential
of the other party
(13) Economic misconduct by either party resulting in the diminution of
marital property or income
(14) The standard of living of the parties during marriage
(15) The ability of the party seeking support to become self-supporting
within a reasonable period of time
(16) The effect of the following on a party’s need for spousal support or a
party’s ability to pay spousal support:
(a) Actual or potential income from marital or nonmarital property
awarded or set aside to each party as part of the court’s
distributive order
(b) Child support for the support of a minor child or children of
the marriage
(17) Any other factors the court considers appropriate
d. “Marital property” means all property acquired by either spouse subsequent to
the marriage, except:
(1) Property acquired by gift, bequest, devise, or descent;
(2) Property acquired in exchange for property acquired prior to the

-28-
 marriage or in exchange for property acquired by gift, bequest, devise,
or descent;
(3) Property acquired by a spouse after a legal decree of separation;
(4) Property excluded by valid agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage and the
increase in value of a spouse’s nonmarital property as defined above
(a) “Increase in value” includes”
i) Appreciation resulting from market forces; and
ii) Appreciation resulting from reinvested income and
capital gain unless either or both spouses had a
substantial active role during the marriage in
managing, preserving, or improving the property.
(b) “Increase in value” does not include:
i) Appreciation from the investment of marital funds or
property in the nonmarital property;
ii) Appreciation resulting from marital labor; and
iii) Appreciation resulting from reinvested income and
capital gain if either or both spouses had a substantial
active role during the marriage in managing,
preserving, or improving the property
(6) All property acquired by either spouse subsequent to the marriage and
prior to a decree of legal separation is presumed to be marital property
regardless of whether title is held individually or by the spouses in some
form of coownership such as joint tenancy, tenancy in common, tenancy
by the entirety or community property. The presumption of marital
property is overcome by a showing that the property was acquired by a
method listed above.
e. The court shall set apart to each spouse the spouse’s property and shall divide the
marital property in proportions the court considers just after considering all
relevant factors:
(1) The contribution of each spouse to the acquisition of the marital
property, including the contribution of a spouse as homemaker;
(2) The value of the property set apart to each spouse; and
(3) The economic circumstances of each spouse at the time the division of
property is to become effective, including the desirability of awarding
the family home or the right to live in the home for reasonable periods
to the spouse having custody of the children.
f. A court is not required to divide the property equally, but is required to make the
division fair and just considering all of the circumstances of the parties.
2. The Murphy decision illustrates the direction legislatures and courts have taken during the
last forty years away from permanent alimony. At an earlier time, courts were willing to
order alimony until death, remarriage, or a significant involuntary change of circumstances
made payment unnecessary or impossible.
a. It was also customary for the husbands but not wives to pay alimony, but a
decision by the Supreme Court of the United States held that an Alabama statute
requiring this was unconstitutional. Orr v. Orr (1979).
3. Pfohl v. Pfohl
a. Alimony has been traditionally considered an allowance which a husband is
required to make in order to maintain his wife in the event of separation or
divorce and is based on the common law obligation of a husband to support his
wife.
(1) Standard: In determining the amount of such alimony, the courts have
established two criteria:
(a) the husband’s ability to pay, and

-29-
 (b) the needs of the wife, taking into consideration the standard of
living shared by the parties to the marriage.
(2) Mathematical exactness is neither possible nor desirable. The trial court
of necessity has a wide discretion to apply the established criteria in
fashioning a fair and equitable alimony award in the infinite variety of
cases that come before it.
b. A husband’s entitlement to alimony must stand on the same criteria as that of a
wife. To be entitled to alimony, the husband must show a financial ability by the
wife to pay for such an award coupled with a demonstrated need of the husband
for support, taking into consideration the standard of living shared by the parties
to the marriage.
c. Industrial psychologist: gives opinion as to what it would take to rehabilitate spouse.
Calculates and assesses earning capacity.
4. Payment of attorney’s fees in domestic cases is of considerable importance.
a. Brady v. Brady: court ordered husband to pay wife’s attorney’s fees in light of his
marital misconduct and her financial constraints.
b. Renfrow v. Draper: wife was entitled to attorney’s fees incurred in litigating the
amount of the husband’s debts in a bankruptcy proceeding.
c. Ex Parte James: trial court’s award of $100,000 to the wife’s attorney from the
marital estate upheld.
5. Mediation
a. Michigan Court of Appeals held that the Domestic Relations Arbitration Act
requires a hearing before an arbitrator may settle any matter by arbitration.
b. Miller v. Miller
(1) W hen the arbitrator met with the parties ex parte without holding a
hearing, the couple is not bound by the arbitrator’s award.
c. Mason v. Mason
(1) W . Va. Supreme Court of Appeals held that when one of the parties to a
custody dispute withdrew consent to the mediated plan prior to the
court’s order adopting it, the court lacked the right to adopt a mediated
agreement.
6. Herndon v. Herndon
a. Standard: Significant, material, and permanent change is necessary.
(1) This Court has consistently held that there must be a change in
circumstances to justify a change in alimony and child support payments.
b. Cannot Voluntarily Reduce: A person cannot voluntarily reduce his income in
order to avoid alimony and support payments.
c. Flannery asks, “is this surgery voluntary?”
d. Could have avoided this by agreement or other alternatives.
(1) Pre-nuptial agreement.
(2) Insurance to take care of any monetary need.
7. Bell v. Bell
a. Term alimony
(1) Until death, remarriage, or cohabitation as to give appearance of
marriage.
b. The cohabitation clause in question allowed the termination alimony payments in
the event that the plaintiff lived with a man “so as to give the outward appearance
of marriage.”
c. Court decides that what they agreed to was they no longer needed support. This
was an enforceable reason.
(1) Courts will not enforce these clauses if the clause was to be used to
manipulate the other party’s life. Otherwise, courts will usually enforce
these clauses.
d. Statute might create a presumption that cohabitating with someone shows that

-30-
 the former spouse no longer needs support.
(1) California statute
(2) Georgia statute creates this presumption regardless of the sex of the other
person.
(3) Most states do not consider increased resources from a remarriage in
determining the ability to pay.
8. Because payment of support–as compared to division of marital property–extends court
supervision into the couple’s future, material change in circumstances and specific events
such as cohabitation may justify modification or termination of support.
9. Most jurisdictions doe no consider increased resources from a remarriage in determining
the ability to pay.
10. Traditional events triggering modification or elimination of support:
a. Remarriage
b. Death
c. Others such as retirement or changed financial circumstances
11. Some states authorize courts to order that life insurance policies be maintained for the
benefit of the supported spouse.
12. Often, couples have an agreement delineating modification.
a. Typically, however, courts are left to their own discretion.
b. Some courts, because of statutes or equities involved, provide support for an
indefinite period of time.
C. Dividing Property on Divorce
1. Mansell v. Mansell
a. Former Spouses’ Protection Act
(1) Authorizes state courts to treat “disposable retired or retainer pay” as
community property. 10 U.S.C. §1408(c)(1).
(a) Act covers both community property and equitable distribution
states as does the Mansell decision.
(b) “Disposable retired or retainer pay” is defined as the total
monthly retired or retainer pay to which a military member is
entitled minus certain deductions.
b. Federal government set up a payment mechanism to make payment directly to
former spouses who presents a state-court order granting her a portion of the
military retiree’s disposable retired or retainer pay. There are two limitations:
(1) Must have been married to the military member for a period of at least
10 years of more during which the member performed at least 10 years
of creditable service.
(2) Payments could not exceed 50 percent of disposable retired or retainer
pay.
c. Under the Act’s plain and precise language, state courts have been granted the
authority to treat disposable pay as community property; they have not been
granted the authority to treat total retired pay as community property.
d. The Former Spouses’ Protection Act does not grant state courts the power to
treat, as property divisible upon divorce, military retirement pay that has been
waived to receive veterans disability benefits.
e. Flannery’s Criticisms
(1) This scheme is unfair. It allows one spouse to unilaterally change marital
property into separate property.
(2) There needs to be a way to make up for whatever marital property
becomes separate property.
(a) Leave the federal scheme alone. Flannery suggests dividing
other marital property to offset the inequities of the federal
scheme.
(b) Flannery asserts that there is nothing in federal law that

-31-
 prohibits this offsetting (even though some language in Mansell
suggests this).
2. Some state courts have been willing to compensate the former non-military electing spouse
with divisible assets not associated with the military disability payments. See Surrat v. Surrat
(Ark. App. 2004).
D. Support for Children
1. 2 Methods for Calculating Support
a. Child Support Chart/Guideline
(1) Many jurisdictions utilize this method
b. Formula
2. Family Support Act of 1998
a. Federal law that mandates every state to have some child support
requirements/guidelines in order to receive federal funding.
b. Federal law, however, does not recommend any particular set of guidelines and
states have implemented them based on one of three models
3. The Three Common Formulas
a. Flat Percentage of Income Model (Ark.)
(1) Simplest of all models
(2) % of Payor’s income only
(a) Ark. uses gross income (minority), while most use net income.
(3) Most insensitive of models
(a) Does not take into account the custodial parent’s income.
b. Income Share Model
(1) Percentage of combine parental income which is then pro-rated in
proportion to each parent’s income.
(2) More sensitive to fluctuation (one earns less, they pay less)
(3) More court oversight
(4) Problematic because the child’s needs remain static but the contributions
can fluctuate.
(5) Example 1
(a) Jurisdiction sets the child’s needs at 20%. The Father and
Mother each make $50,000.
i) Total Salary: $100,000
ii) Total Support: $20,000
iii) Father: $10,000
iv) Mother: $10,000
(6) Example 2
(a) Jurisdiction sets the child’s need at 20%. The Father makes
$50,000 while the Mother makes $40,000
i) Total Salary: $90,000
ii) Total Support: $18,000
iii) Father: $10,000
iv) Mother: $8,000
c. Delaware Melson Formula
(1) The DM Formula operates upon two fundamental assumptions:
(a) Parents may keep sufficient income to meet their basic needs
but not more than what is required for their own self-support;
and
(b) Children are entitled to share in any additional income so that
they can benefit from the absent parent’s higher standard of
living.
(2) Example
(a) Father makes $50,000 while the Mother makes $40,000
(b) Basic needs for the child have been determined to be $18,000.

-32-
 i) Note, if a parent’s income were below $18,000, then
they would have no child support obligation.
(c) Excess income for the Father is $32,000 while it is $22,000 for
the Mother. This totals $54,000. The Father’s share is 60%
while the Mother’s is 40%.
(d) Using these percentages applied to the basic need, the Father’s
obligation is $10,800 while the Mother’s obligation is $7,200
(e) Standard of Living: excess income remaining after payment.
i) At the court’s discretion, a standard of living payment
may be ordered to allow the child to share in the
parent’s standard of living.
4. The duty to pay child support is absolute
a. Only way to avoid is to terminate parental rights
b. Even if incarcerated, child support is still due.
c. Even if conflicts with your religious beliefs
d. Parties may not bargain away the duty to pay child support
e. May be enforced against someone who is deceased
(1) Paid from the estate.
(2) Rare.
5. Presumptions
a. Presumption is that there is a primary/secondary caretaker or presumption that
there is equal custody.
b. Courts can deviate from these presumptions
(1) States will determine what the threshold deviation is before modifying
an award.
(2) Arkansas defines “material change in circumstances” as being:
(a) 20% or more change in gross income
(b) Difference in $100 month in support
(c) Non custodial parent changes status with insurance.
6. Child Support Ceases:
a. Child graduates from high school or reaches the age of majority
(1) Court can extend in special circumstances, for example, if the child has
special needs.
b. Emancipated minor
c. Death of the child
d. Child marries (this example is not determinative; child support may still be
owed).
7. Enforcing Child Support Orders
a. Arkansas law allows us to take away licenses
(1) Law, driver’s license, business license, etc.
(2) Ark. Code Ann. § 9-14-239
8. Contribution to College Expenses
a. Most states provide that duty ceases at high school graduation.
(1) Arkansas follows
b. Pennsylvania Post-Secondary Education Cost Act
(1) Codified duty for divorced or separated parents to pay for college
education.
(a) Issue? Equal Protection
i) Not divorced or separated meant that there was no
obligation to pay.
ii) Curtis v. Kline
a) Statute unconstitutional.
iii) Other states have rejected this constitutional challenge
holding that children of divorce or separated parents

-33-
 are at a disadvantage and that this creates a rational
basis.
c. Gimlett v. Gimlett
(1) W hether the term “emancipate” means attaining a majority or ceasing to
be a dependent.
(2) Court recognized that support can be granted after majority but that in
view of the facts and examination of the original decree it was obvious
that the judge equated emancipation with reaching the majority age of
18 years.
d. W ith the lowering of the majority age, some court held that their power to
require such contribution ended at the age when most college students entered
their first year. See Riegler v. Riegler, 259 Ark. 203, 532 S.W .2d 734 (1976).
(1) Some states legislatures adopted legislatures specifically dealing with the
issue.
9. The Trust Device
a. In re Paternity of Tukker M.O.
(1) Supreme Court of W isconsin held that the state’s child support standards
did not preclude the family court’s establishment in a paternity
proceeding of both a trust fund to pay for a child’s postminority higher
education expenses and a discretionary fund from which the mother
could withdraw funds without court approval when monthly child
support needs were not met.
10. Duty of Step-Parents
a. Duty to provide if that step parent assumes in loco parentis status. In other words,
if they assume parental duties.
b. Requirements:
(1) Stepparent must have made representation to either the children or the
natural parent that he or she would provide support.
(2) That representation must have been relied on by either the children or
the natural parent
(3) Children will suffer future financial detriment as a result of the
stepparent’s representation or conduct that caused the children to be cut
off from their natural parent’s financial support.
11. M.H.B. v. H.T.B.
a. Psychological parent: the strength and durability of a psychological parent-child
relationship is perhaps the most relevant consideration in defining a child’s best
interests.
(1) Bonded with the child
(2) Assumed in loco parentis status
b. Because of the responsibilities that may flow from familial relationships that are
inherently complicated and subtle, the application of equitable principle call for
great sensitivity, caution, and flexibility.
c. One spouse may be obligated under principles of equitable estoppel to provide
financial support for his or her stepchildren who are the children of the other
spouse.
d. Before a duty of child support could be imposed based on equitable
considerations, it must first be shown that, by a course of conduct, the stepparent
affirmatively encourage the child to rely and depend on the stepparent for
parental nurture and financial support.
(1) Stepfather would be equitably estopped to deny his duty to continue to
provide child support on behalf of his stepchildren, if it could be shown
that the children would suffer financial harm if the stepparent were
permitted to repudiate the parental obligations he had assumed.
(2) Natural father could continue to be legally liable for the support of the

-34-
 children.
e. Notwithstanding the existence of exceptional circumstances and an equitable basis
to impose a child support obligation on a child’s stepparent, that relief remains
mutable; it is subject to changing circumstances as these may affect the child’s best
interests.
(1) Indeed, in appropriate cases a stepparent, or any other person entitled to
represent the best interests of the child, may demonstrate the existence of
changed circumstances justifying the assumption of liability for child
support by the biological parent.
12. Knill v. Knill
a. Maryland court held that a husband was not equitably estopped in a divorce
action from denying support to a child born to his wife during the marriage but
not his natural child.
b. In allowing a defense of estoppel to be raise, the court found that although the
elements of representation and reliance were present, the evidence did not show
any financial detriment incurred as a result of the husband’s course of conduct.
13. Estrangement: Child can estrange parent and court can do away with child support
requirement
a. However, parent must reach out for relationship. The parent cannot also
simultaneously estrange the child.
E. The Scope of Antenuptial Contracting
1. Requirements
a. Procedural fairness at the time the agreement is executed
(1) Timing – you can’t execute the agreement as you’re walking down the
aisle.
(2) Full and fair disclosure
(a) Assets, liabilities, financial statements
(b) Fair, reasonable, voluntary and with knowledge
(3) Representation
(a) Nothing prohibits one from representing both parties, but it’s
careless.
(b) Must show:
i) That the party had the opportunity to seek counsel.
Advise them to get independent counsel.
b. Substantive fairness at the time the agreement is executed
(1) Fair and reasonable
(2) Cannot grossly favor one spouse
(3) Some jurisdictions will look at unconscionability, which is a higher
standard.
(4) If the agreement is substantively unfair at the time of execution then a
presumption arises that there was non-disclosure.
c. Substantive fairness at the time the agreement is enforced
(1) Unconscionability standard
(a) Great disparity between lifestyle during marriage and the
lifestyle if the agreement is enforced.
(b) Cannot make the former spouse destitute and a ward of the
state.
2. W hat Goes Into an Agreement?
a. Property
b. Support
c. Can’t bargain child support
d. Can decide on choice of law provisions.
3. Arkansas has adopted the Uniform Prenuptial Agreement Act (UPAA)

-35-
4. Matter of Estate of Benker
a. It is now generally recognized that antenuptial agreements which relate to the
parties’ rights upon the death of one of the parties are favored by public policy.
b. Marriage alone is sufficient consideration for the antenuptial agreement, and it
need not be recited in the agreement.
c. Such agreement, while recognized as valid instruments, are of a special nature
because of the fact that they originate between parties contemplating marriage.
This relationship is one of extreme mutual confidence and, thus, presents a
unique situation unlike the ordinary commercial contract situation where the
parties deal at arm’s length.
d. In order for an antenuptial agreement to be valid, it must be fair, equitable, and
reasonable in view of the surrounding facts and circumstances. It must be entered
into voluntarily by both parties, with each understanding his or her rights and the
extent of the waiver of such rights.
e. Antenuptial agreements give rise to a special duty of disclosure not required in
ordinary contract relationship so that the parties will be fully informed before
entering into such agreements.
(1) The burden of proof is on the party seeking to invalidate the agreement
on the basis of fraud.
(2) Even if the burden of proof is on the party seeking to invalidate the
antenuptial agreement on the basis of disclosure, there will be instances
where there is sufficient evidence to raise rebuttable presumption of
non-disclosure. Many jurisdictions apply such a presumption when the
antenuptial agreement provides a disproportionately small allowance for
the wife.
f. The court does not adopt a presumption based on a small allowance for the wife
but instead holds that the presumption is properly invoked when:
(1) The agreement provides for a complete waiver of all rights of
inheritance and rights of election by the widow and does not make any
provision for her upon her husband’s death.
(2) The husband’s estate is very ample in comparison to the wife’s
(3) The decedent was show to be rather secretive about his financial affairs,
lived very modestly, and gave no outward appearance of his wealth.
(4) Agreement makes no reference whatsoever, in general terms or specific,
to whether the parties had been fully informed of the property interests
held by each other
(5) The widow was not represented by independent counsel
(6) The attorney who drafted the subject agreement testified in a deposition
as to his normal procedure in such a matter and stated that he normally
would discuss the assets of the parties, but that he did not press the full
disclosure matter
(7) The scrivener testified that he was not concerned with what the widow
would get.
5. Statute of Frauds
a. The Statute of Frauds must be considered if an attempt is made to enforce an oral
agreement
b. T. v. T.
(1) Defendant promised plaintiff that he would care for child as if it were his
own if the plaintiff gave up her plans to move to another state. Several
years later, the couple divorced and the plaintiff sought support for the
child. The trial court held that the unwritten promise was
unenforceable. The Supreme Court of Virginia reversed.
(2) The object of the statute of frauds is to prevent frauds and perjuries, and
not to perpetrate them, so that the statute is not enforced when to do so

-36-
 would cause a fraud and a wrong to be perpetrated.
6. Osborne v. Osborne
a. In many jurisdictions it has been held that an antenuptial contract made in
contemplation of divorce is void as against public policy. The reasons most
frequently given for invalidating such contracts are:
(1) They are not compatible with and denigrate the status of marriage
(2) They tend to facilitate divorce by providing inducements to end the
marriage, and
(3) A contract waiving or minimizing alimony may turn a spouse into a
ward of the State.
b. Posner v. Posner
(1) Florida Supreme Court departed from the traditional approach and held
that antenuptial agreements settling alimony and property rights upon
divorce are not void ab initio as contrary to public policy.
(2) Antenuptial contracts settling alimony and property rights upon divorce
are no more likely to encourage divorce than antenuptial contracts in
contemplation of death.
c. The Massachusetts court chooses to follow the lead of Posner cites reasons for
doing so:
(1) State legislature had abolished the doctrine of recrimination and
recognized irretrievable breakdown as a ground for divorce.
d. The court hoods that an antenuptial contract settling the alimony or property
rights of the parties upon divorce are not per se against public policy and may be
specifically enforced. The court expressed no opinion on the validity of
antenuptial contracts that purport to limit the duty of each spouse to support the
other during marriage.
e. Legal Limitations Upon Antenuptial Agreements
(1) Subject to fair disclosure rules
(2) Agreement must be fair and reasonable
(3) May be modified by the court in certain situations, for example, where
it is determined that one spouse will become a public charge, or where a
provision affecting the right of custody of a minor child is not in the best
interest of the child.
(4) Some agreements may so unreasonably encourage divorce as to be
unenforceable on grounds of public policy
7. Rosenberg v. Lipnick
a. Fair and reasonable provision as measured at the time of its execution for the
party contesting the agreement;
b. The contesting party was fully informed of the other party’s worth prior to the
agreement’s execution, or had, or should have had, independent knowledge of
the other party’s worth; and
c. A waiver by the contesting party is set forth.
d. Reasonableness of any monetary provision in an antenuptial contract cannot
ultimately be judged in isolation. Rather, reference may appropriately be made
to such factors as the parties’ respective worth, the parties’ respective ages, the
parties’ respective intelligence, and business acumen, and prior family ties or
commitments.
8. Incorporation and Merger
a. Incorporation – validity of the contract. Court states that the agreement is valid by
incorporating the agreement.
(1) Can’t contest the agreement’s validity.
(2) If the agreement has only been incorporated, the court can’t modify and
enforce the agreement because it has not been merged. You have to go
to another court and raise a civil claim in order to enforce the contract.

-37-
 If merged, the divorce court who incorporated can then modify and
enforce.
(a) As a practical matter, the court will treat the document as
merged. Therefore, you need a non-merger clause to make the
court not-merge (overcome the presumption).
b. Merger – enables the court to enforce and modify the agreement. The agreement
is merged into the divorce decree.
F. Special Problems of Enforcement
1. Prima Facie Case for Contempt
a. An order was in place
b. The party knew of the order and its terms
c. The order was violated
2. Contempt – Civil or Criminal
a. Civil
(1) Put in jail until the fine is paid or some act is performed.
(2) Pay fine and purge the contempt.
b. Criminal
(1) Remedy being sought is to go to jail for set number of days.
(2) Not conditional.
(3) Fine can’t be purged by some condition being satisfied.
3. Hicks v. Feiock
a. Issue: whether the contempt proceeding was a criminal proceeding or a civil
proceeding, i.e., whether the relief imposed upon respondent was criminal or
civil in nature.
b. The labels affixed either to the proceeding or to the relief imposed under state
law are not controlling and will not be allowed to defeat the applicable
protections of federal constitutional law.
(1) Instead the critical features are the substance of the proceeding and the
character of the relief that the proceeding will afford.
(2) If it is for civil contempt the punishment is remedial, and for the benefit
of the complainant. But if it is for criminal contempt the sentence is
punitive, to vindicate the authority of the court.
(a) The character of the relief imposed is thus ascertainable by
applying a few straightforward rules:
i) If the relief provided is a sentence of imprisonment, it
is remedial if the defendant stands committed unless
and until he performs the affirmative act required by
the court’s order and is punitive until he performs the
affirmative act required by the court’s order.
ii) If the relief provided is a fine, it is remedial when it is
paid to the complainant, and punitive when it is paid
to the court, though a fine that would be payable to
the court is also remedial when the defendant can
avoid paying a fine simply by performing the
affirmative act required by the court’s order.
(b) Fundamental proposition that criminal penalties may not be
imposed on someone who has not been afforded the
protections that the Constitution requires of such criminal
proceedings, including the requirement that the offense be
proved beyond a reasonable doubt.
c. On remand, the Court of Appeal held that the proceedings against the father
were criminal in nature but that the statute did not create a mandatory
presumption of ability to pay but rather made ability to pay an affirmative defense
in a contempt proceeding.

-38-
 4. Federal legislation requires that one state enforce the support orders of another state so
long as the support order is consistent with due process of law.
5. Uniform Interstate Family Support Act (UIFSA)
a. Congress, in 1996, passed legislation requiring states to adopt the UIFSA.
VI. P A R EN T A N D C H ILD : L EG A L A N D B IO LO G IC A L R ELA TIO N SH IP
A. Establishing Legal Parentage
1. Uniform Parentage Act Presumptions
a. Presumed to be the parent if:
(1) Born during the marriage or within 300 days of termination of the
marriage.
(2) Parents attempt to marry before birth and marriage could be declared
invalid by the court and the child is born during attempted marriage or
within 300 days.
(a) If the marriage is void you just need cohabitation.
(3) Parents attempt to marry after birth if:
(a) Father acknowledges paternity
(b) Consents to acknowledgment
(c) Agrees to support the child.
(4) Child is minor and child is taken into the home. The child is raised and
supported as own child.
(5) Father acknowledges in writing with department of vital statistics, the
mother is notified and does not object, and any other presumed father
consents or his presumption is rebutted.
2. W itso v. Overby
a. The right to bring a proceeding to establish paternity is totally a creature of the
Minnesota Parentage Act (“MPA”). The MPA provides the exclusive bases for
standing to bring an action to determine paternity. W hether and when a person
may bring a paternity action depends on which presumptions of paternity, if any,
apply.
b. The issue here is whether W itso, a putative father who is not a presumed father
can bring an action require the mother and the putative child to submit to blood
or genetic testing to establish whether he is a presumed father when the child
already has a presumed father.
(1) Putative: someone who doesn’t have the benefit of a presumption.
Putative father does not need the benefit of a presumption in this
jurisdiction.
c. W e conclude that a party alleging he is a child’s father has standing to bring a
paternity action to compel blood or genetic testing even though he does not at
the time the action is commenced possess blood or genetic tests that establish he is
the child’s presumed father.
d. Our conclusion does not open the door to unfettered challenges to the sanctity of
marriages, family unity and parent-child relationships. By vesting in the courts
the safeguard of a judicial determination that a putative father has asserted by
affidavit sufficient grounds to determine that sexual conduct occurred between him
and the child’s mother that could reasonably have resulted in the child’s
conception, additional protection is provided against frivolous claims of paternity
and a balance is achieved between the interests in the preservation and protection
of familial relationships and the interests of the putative father to determine his
paternity.
e. Even though W itso may establish a presumption of biological fatherhood,
whether he should be granted custodial or visitation rights with respect to the
child is for an independent determination later to be made by the district.
3. Cleo A. E. v. Rickie Gene E.
a. W e determine initially that the parties to a domestic proceeding cannot by
-39-
 stipulation agree to bastardize children born during their marriage. Our
conclusion is not founded on the traditional arguments against bastardization:
(1) the social stigma imposed on the child and the financial burden imposed
on the state.
(a) These two historical bases for opposing bastardization have
been significantly vitiated given the modernization of society
and legislation drafted to address the problems of bastardization.
(2) Rather, we are once again guided by the cardinal principle that “the best
interests of the child is the polar star by which decisions must be made
which affect children.” Furthermore, a child has a right to an
establishment of paternity and a child support obligation, and a right to
independent representation on matters affecting his or her substantial
rights and interests.
b. The guidelines the court identified in Michael K.T., regarding the admission of
blood test evidence on the issue of paternity, should similarly be utilized when
making a ruling which has as its effect the bastardization of a minor child:
(1) The length of time following when the putative father first was placed
on notice that he might be the biological father before he acted to
contest paternity.
(2) The length of time during which the individual desiring to challenge
paternity assumed the role of father to the child
(3) The facts surrounding the putative father’s discovery of nonpaternity
(4) The nature of the father/child relationship
(5) The age of the child
(6) The harm which may result to the child if paternity were successfully
disproved.
(7) The extent to which the passage of time reduced the chances of
establishing paternity and a child support obligation in favor of the child.
(8) All other factors which may affect the equities involved in the potential
disruption of the parent/child relationship or the chances of undeniable
harm to the child.
c. This case demonstrates vividly the need for a court-appointed attorney to represent the
interests of a child whose paternity is at issue.
4. Many jurisdictions have modified substantially the rule that the presumption of legitimacy
virtually precludes testimony by the mother or her husband that would cause the child to
be deemed illegitimate.
5. Rivera v. Minnich
a. The preponderance of the evidence standard that the Pennsylvania Legislature has
prescribed for paternity cases is the standard that is applied most frequently in
litigation between private parties in every State. More specifically, it is the same
standard that is applied in paternity litigation in the majority of American
jurisdictions that regard such proceedings as civil in nature.
b. Appellant’s principal argument is that the standard of proof required by our
holding in Santosky to terminate the parent-child relationship is also
constitutionally required to create it. This view of Santosky rests on the tacit
assumption of an equivalence between the State’s imposition of the legal
obligations accompanying a biological relationship between parent and child and
the State’s termination of a fully existing parent-child relationship. W e are unable
to accept this presumption.
c. Legitimate and significant distinctions between termination and paternity
proceedings:
(1) The ultimate results of a judgment in the two proceedings.
(a) Resolving the question whether there is a casual connection
between an alleged physical act of a putative father and the

-40-
 subsequent birth of the plaintiff’s child sufficient to impose
financial liability on the father will not trammel any pre-
existing rights; the putative father has no legitimate right and
certainly no liberty interest in avoiding financing obligations to
his natural child that are validly imposed by state law.
(b) In contrast, in a termination proceeding the State is seeking to
destroy permanently all legal recognition of the parental
relationship.
(2) The parties’ relationship to each other in the two proceedings.
(a) Contestants in a termination proceeding are the State and an
individual. Because the State has superior resources, and
because an adverse ruling in a criminal, civil commitment, or
termination proceeding has especially severe consequences for
the individuals affected, it is appropriate for society to impose
upon itself a disproportionate share of the risk of error in such
proceedings.
(b) In a paternity suit, the principal adversaries are the mother and
the putative father, each of whom has an extremely important,
but nevertheless relatively equal, interest in the outcome.
(3) Important difference in the finality of judgment
(a) Natural parents have no “double jeopardy” defense against the
State’s repeated efforts to terminate parental rights.
(b) In contrast, a paternity suit terminates with the entry of a final
judgment that bard repeated litigation of the same issue under
normal principles of civil litigation.
6. Clark v. Jeter
a. Under Pennsylvania law, an illegitimate child must prove paternity before seeking
support from his or her father, and a suit to establish paternity must be brought
within six years of an illegitimate child’s birth. By contract, a legitimate child
may seek support from his or her parents at any time.
(1) Challenged under Equal Protection and Due Process Clauses of the
Fourteenth Amendment.
b. Between the extremes of rational basis review and strict scrutiny lies a level of
intermediate scrutiny, which generally has been applied to discriminatory
classifications based on sex or illegitimacy.
(1) To withstand intermediate scrutiny, a statutory classification must be
substantially related to an important governmental objective.
c. This Court has developed a particular framework for evaluating equal protection
challenges to statutes of limitations that apply to suits to establish paternity, and
thereby limit the ability of illegitimate children to obtain support.
(1) First, the period for obtaining support . . . must be sufficiently long in
duration to present a reasonable opportunity for those with an interest in
such children to assert claims of their behalf. Second, any time
limitation placed on that opportunity must be substantially related to the
State’s interest in avoiding the litigation of stale or fraudulent claims.
Mills v. Habluetzel.
(2) In light of this authority, we conclude that Pennsylvania’s 6-year statute
of limitations violates the Equal Protection Clause. Even six years does
not necessarily provide a reasonable opportunity to assert a claim on
behalf of an illegitimate child.
B. Special Issues of the New and Old Technologies
1. Rights of a Sperm Donor
a. McIntyre v. Crouch
(1) Court of Appeals of Oregon upheld the provision that in the absence of

-41-
 agreement, a sperm donor has no parental rights as to the child that
respondent, an unmarried woman, conceived by artificial insemination
with petitioner’s semen.
2. Fixing “Parentage” for Custody of Children of Same Sex Relationships
3. In Vitro Fertilization
a. J.B. v. M.B. and C.C.
(1) Assuming that it would be possible to enter into a valid, unambiguous
agreement at that time irrevocably deciding the disposition of
preembryos in circumstances such as we have here, a formal,
unambiguous memorialization of the parties’ intentions would be
required to confirm their joint determination.
(2) In Davis v. Davis, the Tennessee Supreme Court held that the scales
“ordinarily would tip in favor of the right not to procreate if the
opposing party could become a parent through other reasonable means.”
(3) W e believe that the better rule, and the one we adopt, is to enforce
agreements entered into at the time in vitro fertilization is begun, subject
to the right of either party to change his or her mind about disposition
up to the point of use or destruction of any stored embryos.
(4) Finally, if there is disagreement as to disposition because one party has
reconsidered his or her earlier decision, the interests of both parties must
be evaluated.
b. Davis v. Davis
(1) Dispute should be resolved, first, by looking to the preferences of the
progenitors.
(2) If their wishes cannot be ascertained, or if there is dispute, then their
prior agreement concerning disposition should be carried out.
(3) If no prior agreement exists, then the relative interests of the parties in
using or not using the preembryos must be weighed.
(4) Ordinarily, the party wishing to avoid procreation should prevail,
assuming that the other party has a reasonably possibility of achieving
parenthood by means other than use of the preembryos in question. If
no other reasonable alternatives exist, then the argument in favor of
using the preembryos to achieve pregnancy should be considered.
(5) However, if the party seeking control of the preembryo intends merely
to donate them to another couple, the objecting party obviously has the
greater interest and should prevail.
4. Contracts to Bear a Child
a. Generally
(1) Rules for Surrogacy Contracts
(a) Cannot be for money
(b) Must be voluntary
(c) Must provide for the right to revoke the surrogacy contract and
assert parental rights.
b. Matter of Baby M
(1) W e find no offense to our present laws where a woman voluntarily and
without payment agrees to act as a “surrogate” mother, provided that
she is not subject to a binding agreement to surrender her child.
(2) The surrogacy contract is invalid
(a) One of the surrogacy contract’s basic purposes, to achieve the
adoption of a child through private placement, though
permitted in New Jersey “is very much disfavored.”
(b) It use of money for this purpose–and we have no doubt
whatsoever that the money being paid to obtain an adoption
and not, as the Sterns argue, for the personal services of Mary

-42-
 Beth Whitehead–is illegal and perhaps criminal.
(c) In addition to the inducement of money, there is the coercion
of contract: the natural mother’s irrevocable agreement, prior
to birth, even prior to conception, to surrender the child to the
adoptive couple.
(d) Conflict with Statutory Provisions
i) The surrogacy contract conflicts with: (1) laws
prohibiting the use of money in connection with
adoptions; (2) laws requiring proof of parental
unfitness or abandonment before termination of
parental rights is ordered or an adoption is granted;
and (3) laws that make surrender of custody and
consent to adoption revocable in private placement
adoptions.
(e) Public Policy Considerations
i) The contract’s basic premise, that the natural parents
can decide in advance of birth which one is to have
custody of the child, bears no relationship to the
settled law that the child’s best interests shall
determine custody.
ii) This is the sale of a child, or, at the very least, the sale
of a mother’s right to her child, the only mitigating
factor being that one of the purchasers is the father.
Almost every evil that prompted the prohibition of
the payment of money in connection with adoption
exists here.
iii) The mother’s consent to surrender her child in
adoption is revocable, even after surrender of the
child, unless it be to an approved agency, where by
regulation there are protection against ill-advised
surrender. In surrogacy, consent occurs so early that
no amount of advice would satisfy the potential
mother’s need, yet the consent is irrevocable.
c. Johnson v. Calvert
(1) W e conclude that although the Act recognizes both genetic
consanguinity and giving birth as means of establish a mother and child
relationship, when the two means do not coincide in one woman, she
who intended to procreate the child–that is, she who intended to bring
about the birth of a child that she intended to raise as her own–is the
natural mother under California law.
(2) Surrogacy
(a) Gestational surrogacy differs in crucial respects from adoption
and so is not subject to the adoption statutes. The parties
voluntarily agreed to participate in in vitro fertlization and
related medical procedures before the child was conceived; at
the time when Anna entered into the contract, therefore, she
was not vulnerable to financial inducements to part with her
own expected offspring. Anna was not the genetic mother of
the child. The payments to Anna under the contract were
meant to compensate her for her services in gestating the fetus
and undergoing labor, rather than for giving up “parental”
rights to the child. Payments were due both during the
pregnancy and after the child’s birth.

-43-
VII. R A ISIN G C H ILD R EN : C O M PETIN G I N TER ESTS O F P A REN T , C H ILD A N D S TATE
A. The Interest in Assuring an Education
1. W isconsin v. Yoder
a. A State’s interest in universal education, however highly we rank it, is not totally
free from a balancing process when it impinges on fundamental rights and
interests, such as those specifically protected by the Free Exercise Clause of the
First Amendment, and the traditional interests of parents with respect to the
religious upbringing of their children so long as they, in the words of Pierce v.
Society of Sisters, “prepare them for additional obligations.”
b. The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion.
c. The record in this case abundantly supports the claim that the traditional way of
life of the Amish is not merely a matter of personal preference, but one of deep
religious conviction, shared by an organized group, and intimately related to daily
living.
d. Preparing Citizens to Participate in Society
(1) It is one thing to say that compulsory education for a year or two
beyond the eighth grade may be necessary when its goal is the
preparation of the child for life in modern society as the majority live,
but it is quite another if the goal of education be viewed as the
preparation of the child for life in the separated agrarian community that
is the keystone of the Amish faith.
(2) W hatever their idiosyncrasies as seen by the majority, this record
strongly shows that the Amish community has been a highly successful
social unit without our society, even if apart from the conventional
“mainstream.” Its members are productive and very law-abiding
members of society; they reject welfare in any of its usual modern forms.
2. Smith v. Ricci
a. School board enacted a regulation requiring local schools too develop and
implement a family life education program, which emphasized instruction on
human sexuality. The regulation included an “excusal” clause.
b. Free Exercise
(1) The simple fact that parents can remove their children from any
objectionable part of the program is dispositive. If the program violates
a person’s beliefs, that person is not required to participate. Where there
is no compulsion to participate in this program, there can be no
infringement upon appellants’ rights freely to exercise their religion.
(2) The constitution does not guarantee that the exercise of religion will be
without difficulty
(3) Accepting the argument that public schools may not offer curricula that
offend the religious or moral views of a particular group would be
tantamount to enshrining that group’s views as state policy, thereby
violating the Establishment Clause.
c. Establishment Clause
(1) Lemon v. Kurtzman Tripartite Test
(a) Challenged regulation must have a secular purpose.
(b) Primary effect must neither advance nor inhibit religion
(c) Must not create excessive government entanglement with
religion
(2) There is absolutely nothing in the regulation or in the curriculum
guidelines that gives even the slightest indication that the program favors
a “secular” view of its subject matter over a “religious” one. The
program is, as it must be, neither antagonistic toward religion nor
-44-
 supportive of non-religion. The mention of religion in the classroom is
not forbidden.
3. Board of Education of Plainfield v. Cooperman
a. State announced guidelines for admitting to school children with AIDS, ARC, or
HTLV-III antibody. Pursuant to these guideline, children with these diseases
were required to be admitted to regular school attendance, unless the following
exceptional conditions were evident:
(1) Student is not toilet-trained or is incontinent, or otherwise unable to
control drooling.
(2) Student is unusually physically aggressive with a documented history of
biting or harming others.
b. A Medical Advisory Panel (MAP) was also established to review local school
board decision to exclude a child.
(1) Empowered to consider written statements of reasons as well as other
written documentation submitted by the local district and/or such
personal testimony as may be necessary.
(2) The MAP Panel was to render a written recommendation to the
Commissioner of Education as the whether the district had met its
burden of proof to deny admission of the child.
c. The United States Supreme Court has described the Due Process Clause as
guaranteeing “that deprivation of life, liberty, or property by adjudication be
preceded by notice and opportunity for hearing appropriate to the nature of the
case.”
d. Matthews v. Eldridge Balancing Test
(1) The private interest that will be affected by the official action
(2) The risk of erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards
(3) The Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.
e. The interests at stake:
(1) Pupil’s interest in receiving an education and having that education be
in a classroom setting
(2) The government interest that children receive an education and having
that education be in a classroom setting
(3) The government’s interest in protecting its citizens from dangerous
diseases.
f. Both the interest in education and the interest in public health underscore the
importance of having accurate proceedings, and speedy hearings to the extent that
such is compatible with accuracy. The government also has an interest in
relatively informal hearings to reduce the fiscal and administrative burdens of the
proceedings.
g. In evaluating how well the procedures in question serve the interests mentioned,
we use as a guidepost the four elements necessary to a fair trial:
(1) Adequate notice
(2) Chance to know the opposing evidence and argument and to present
evidence and argument in response
(3) A chance to confront and to cross-examine adverse witnesses
(4) An impartial deciding officer
B. Children Beyond Parental Control
1. L.A.M. v. State
a. CINS: adjudicated dependent
b. Proceeding against children alleged to be in need of supervision are in substance

-45-
 and effect custody disputes where the contestants are parent and child, and the
parent appeals to the court to vindicate and enforce his custody rights in the child
against that child. Viewed in this light, the statutes creating the status “child in
need of supervision” provide a judicial remedy and discourage resort to self-help
and the attendant risk of violence.
c. Before L.A.M. can sustain her case that the child in need of supervision
procedure, including the invocation of the court’s contempt power to enforce
orders made pursuant to it, is an unconstitutional invasion of her liberty and
privacy, she must first establish that her mother has no legally enforceable right to
her custody and the State thus has no right to enforce such an order.
d. The test set out by the court is whether the means chosen by the State are closely
and substantially related to an important governmental interest.
(1) Clearly they are here.
e. State can act in ways with children that it cannot with adults.
(1) State has an interest in protecting the child.
2. Matter of Andrew R.
a. Parent signed a VPA.
b. The Social Service Law provides for judicial approval of a voluntary placement
instrument in any instance where the child is likely to remain in foster care for in
excess of thirty consecutive days. The statute requires that the review proceeding
be filed as soon as practicable, but in no event later than thirty days following
removal of the child from the home.
c. W hat is critically important, however, is that while SSL mandates the filing of a
petition within thirty days of the removal from home, there is no statutory time
limitation within which the court proceeding must take place.
d. Unconstitutional to place child in at Hawthorne for seven months without the
review of a neutral factfinder.
3. Disciplining a Child
a. Corporal punishment is allowed.
b. Appropriateness?
(1) Standard: Punishment must be moderate, reasonable, and appropriate. It
must be responsive to the wrong/nature of the offense.
(2) Factors for the court to consider:
(a) Age, condition, misconduct, nature of the punishment, degree
of harm.
C. Neglect (Endangerment) and Dependency
1. Three W ays Children Come into System
a. Restraining Order
(1) Child is placed into temporary custody of the city/state
(2) Detention Hearing within 72 hours
(a) Imminent Risk Standard
(3) Parents have counsel appointed
(4) Parents can agree to defer adjudication
(5) Adjudicatory Hearing within 10 days to present case
b. Voluntary Placement Agreement (VPA)
(1) Parents agree to place children into temporary custody
(2) No need for a detention hearing
(3) Adjudicatory Hearing within 30 days
(a) Counsel is assigned here
c. Urgent Petition
(1) Come before the court to petition things for the child. Not so urgent as
to require restraining order or to remove the child from the home.
(2) Adjudicatory Hearing within 30 days.
2. Adjudicatory Hearing

-46-
 a. Present Evidence
b. Two Outcomes:
(1) Indicated: determined to be true.
(2) Unfounded
c. Adjudicate dependent
(1) Full custody of the state
d. Standard: Child must be without proper parental care or control
e. Burden: Clear and convincing
3. Disposition Hearing
a. Determine where the child will go.
b. Plan is put forth for parents to regain custody of the child.
(1) Individual Plan
(2) Family Plan
c. The goal must be reunification
d. Standard: Best interests of the child
e. Burden: Clear and convincing
4. Review Hearing
a. Scheduled within 6 months and every 6 months thereafter.
b. W hat has the parent accomplished towards the plan
c. Record kept.
5. Goals
a. 3 Possible Goals
(1) Reunification (must be the first and primary goal)
(2) Long-term Care
(3) Adoption
(a) Jurisdiction specific time limits (6 months to 2 years)
b. Goal Change Hearing
(1) Can’t unilaterally change goal. Must have a hearing.
(2) Burden & Standard
(a) Clear and Convincing
(b) Show that the State has made reasonable efforts to reunify
(3) Suspend visitation and place into the adoption stream
6. Termination of Parental Rights Hearing
a. Standard
(1) Child is permanently without proper care or control.
7. In re M.L.
a. A dependent child is defined in pertinent party at 42 Pa.C.S. § 6302 as:
(1) A child who:
(a) is without proper parental care or control, subsistence,
education as required by law, or other care or control necessary
for his physical, mental or emotional health, or morals;
(b) has been placed for care or adoption in violation of law
(c) has been abandoned by his parents, guardian, or other
custodian
(d) is without parent, guardian, or legal custodian.
b. A child whose noncustodial parent is ready, willing and able to provide such care
does not meet this definition.
c. The plain language of the of the statutory definition of a dependent child compels
the conclusion that a child is not dependent if the child has a parent who is
willing and able to provide proper care to the child.
d. W hen a court adjudges a child dependent, the court then possesses the authority
to place the child in the custody of a relative or a public or private agency.
W here a noncustodial parent is available and willing to provide care to the child,
such power in the hands of the court is an unwarranted intrusion into the family.

-47-
D. Responding to Child Abuse
1. People v. Jennings
a. Felony child abuse was defined as “knowingly, intentionally, or negligently, and
without justifiable excuse, causing or permitting a child to be abandoned,
tortured, cruelly confined, or cruelly punished.”
b. A penal statute is unconstitutionally vague if it forbids or requires the doing of an
act in terms so vague that men of common intelligence must necessarily guess as
to its meaning and differ as to its application.
c. At common law the parent of a minor child or one standing in loco parentis was
privileged in using a reasonable amount of force upon a child for purposes of
safeguarding or promoting the child’s welfare.
(1) As a general proposition, so long as the chastisement was moderate and
reasonable in light of the child’s age and condition, the misconduct
being punished, the kind of punishment inflicted, the degree of harm
done to the child and other relevant circumstances, the parent or
custodian would incur neither civil nor criminal liability, even though
identical behavior against a stranger would be grounds for an action in
tort or prosecution for assault and battery or a similar offense.
(2) Since the contours of the common law privilege have been subject for
centuries to definition and refinement through careful and constant
judicial decision making, terms like ‘cruel’ or ‘inhumane’ and ‘malicious’
have acquired a relatively accepted connotation in the law.
2. In re Dorothy V.
a. In a criminal proceeding the parent is entitled to a parental control justification
and the state must disprove this by a standard beyond a reasonable doubt.
b. In a civil proceeding involving removal of the child from the home, the
justification defense does not apply and the state need only show that the child
would or may be subject to more serious harm if returned to the parent.
3. Baltimore City Dept of Social Services v. Bouknight
a. The Fifth Amendment’s protection may be implicated because the act of
complying with the government’s demand testifies to the existence, possession, or
authenticity of the things produced. But a person may not claim the
Amendment’s protections based upon the incrimination that may result from the
contents or nature of the things demanded.
b. The Court has on several occasions recognized that the Fifth Amendment
privilege may not be invoked to resist compliance with a regulatory regime
constructed to effect the State’s public purposes unrelated to the enforcement of
its criminal laws.
4. Child Abuse Reporting Statutes
a. Some statutes require anyone who suspects child abuse to report while other
statutes specify a particular class of persons.
b. Still other statutes include a permissive reporting provision, stating that any
person not included under the mandatory provision may report suspected abuse.
c. Some persons are exempted from reporting because of state confidential
communication privileges normally granted to attorney-client, doctor-patient,
priest-penitent.
(1) Some states have abrogated the privilege. See Ga. Code Ann. § 19-7-5.
(2) Arkansas law states that no privilege or contract shall prevent reporting.
d. Those who are mandated to report and do not do so can be found criminally
liable and also civilly liable for failure to report under negligence or a malpractice
cause of action.
(1) Immunity offered for reporting in good faith.
5. In re Michael C.
a. The determination as to whether or not on-camera examination is appropriate

-48-
 must be left to the trial judge, who is in the unique position to evaluate the
various demeanor of the potential witnesses.
b. No confrontation right resting on the parties to a civil proceeding. Child neglect
proceedings are not criminal in nature.
c. Usually up to the judge’s discretion – no real standard.
6. Maryland v. Craig
a. Criminal proceeding (closed circuit television used).
b. Criminal prosecution of child sexual abuse and the concomitant constitutional
guarantee of the Sixth Amendment.
c. The State’s interest in the well-being of child abuse victims may be sufficiently
important, in some cases, to outweigh a defendants’s right to face his or her
accusers in court.
d. The protections offered by the Sixth Amendment, however beneficent in their
operation and valuable to the accused, must occasionally give way to
considerations of public policy and the necessity of the case.
e. The constitutionally protected interest in confrontation may in fact disserve the
Confrontation Clause’s truth-seeking goal by causing significant emotional
distress in the child and inhibiting the child’s testimony.
7. Child Victims’ and W itnesses’ Rights Act 18 U.S.C. § 3509
a. Allows for child’s testimony to be given beyond the sight of the defendant if any
of the following occur:
(1) The child is unable to testify because of fear
(2) The child is likely to suffer emotional trauma from testifying
(3) The child suffers from a mental or other infirmity
(4) Conduct of the defendant or defense counsel cause the child to be
unable to testify
8. DeShaney v. W innebago County DSS
a. Nothing in the language of the Due Process Clause itself requires the State to
protect the life, liberty, and property of its citizens against invasion by private
actors.
b. The Clause is phrased as a limitation on the State’s power to act, not as a
guarantee of certain minimal levels of safety and security. It forbids the State itself
to deprive individuals of life, liberty, or property without “due process of law,”
but its language cannot fairly be extended to impose an affirmative obligation on
the State to ensure that those interests do not come to harm through other means.
c. Its purpose was to protect the people from the State, not to ensure that the State
protected them from each other. The Framers were content to leave the extent
of governmental obligation in the latter area to the democratic political processes.
d. Consistent with these principles, our cases have recognized that the Due Process
Clauses generally confer no affirmative right to governmental aid, even where
such aid may be necessary to secure life, liberty, or property interests of which the
government itself may not deprive the individual.
e. It is true that in certain limited circumstances the Constitution imposes upon the
State affirmative duties of care and protection with respect to particular
individuals. But these cases afford petitioners no held. Taken together, they
stand only for the proposition that when the State takes a person into its custody
and holds him there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his safety and general well-
being.
(1) The affirmative duty to protect arises not from the State’s knowledge of
the individual’s predicament or from its expressions of intent to help
him, but from the limitation which it has imposed on his freedom to act
on his own behalf.
f. A State may, through its courts and legislatures, impose such affirmative duties of

-49-
 care and protection upon its agents as it wishes. But not all common-law duties
owed by government actors were constitutionalized by the Fourteenth
Amendment.
E. Medical Decision Making For and By Children
1. Hermanson v. State
a. State v. McKnown
(1) “The state would have us conclude that the choice of spiritual treatment,
which has been put on legal footing equal to that of orthodox medical
care by the child neglect statute, can result in a manslaughter indictment,
simply because of its outcome. That is unacceptably arbitrary, and a
violation of due process.”
b. By authorizing conduct in one type of situation, but declaring that same conduct
criminal under another statute, the State trapped the Hermansons, who had no
fair warning that the State would consider their conduct criminal.
c. To say that the statutes in question establish a line of demarcation at which a
person of common intelligence would know his or her conduct is or is not
criminal ignores the fact that, not only did the judges of both the circuit court
and the district court of appeal have difficulty understanding the interrelationship
of the statutes in question, but, as indicated by their questions, the jurors also had
problems understanding what was required.
d. If the legislature desires to provide for religious accommodation while protecting
the children of the state, the legislature must clearly indicate when a parent’s
conduct becomes criminal. W hatever choices are made, both the policy and the
letter of the law should be clear and clearly stated, so that those who believe in
healing by prayer rather than medical treatment are aware of the potential
liabilities they may incur.
2. W alker v. Superior Court
a. To survive a First Amendment challenge, the State’s policy must represent “the
least restrictive alternative available to the State.”
3. Newmark v. W illiams
a. W e recognize the possibility that the spiritual treatment exemptions may violate
the ban against the establishment of an official state religion guaranteed under
both the Federal and the Delaware Constitutions. Clearly in both reality and
practical effect, the language providing an exemption only to those individuals
practicing “in accordance” with the “practices of a recognized church or religious
denomination by a duly accredited practitioner thereof” is intended for the
principle benefit of Christian Scientists. Our concern is that it possible forces us
to impermissibly determine the validity of an individual’s own religious beliefs.
b. Approaches
(1) Some courts resolve the question on an ad hoc basis, without a formal
test, concluding that a child is neglected if the parents refuse to
administer chemotherapy in a life threatening situation.
(2) California Court of Appeals employed the bests interests test to
determine if a child was neglected when his parents refused to permit
treatment of his cancer with “mild” chemotherapy following more
intense treatment.
(a) W eighed the gravity of the child’s illness, the treating
physician’s medical evaluation of the court of care, the riskiness
of the treatment and the child’s “express preferences” to
ultimately judge whether his parents’ decision to withhold
chemotherapy served his “best interests.”
(3) The Supreme Judicial Court of Massachusetts utilized a tripartite
balancing test which weighed the interests of the parents, their child and
the State to determine whether a child was neglected when his parents

-50-
 refused to treat his leukemia with non-invasive chemotherapy.
c. W hile we do not recognize the primacy of any one of the tests employed in other
jurisdictions, we find that the trial court erred in not explicitly considering the
competing interests at stake.
(1) The Family Court failed to consider the special importance and primacy
of the familial relationship, including the autonomy of parental decision
making authority over minor children.
(2) The trial court also did not consider the gravity of Colin’s illness in
conjunction with the invasiveness of the proposed chemotherapy and
the considerable likelihood of failure.
(3) These factors, when applied to the facts of this case, strongly militate
against governmental intrusion.
d. Any balancing test must begin with the parental interest
(1) The primacy of the familial unit is a bedrock principle of law
(2) The essential element of preserving the integrity of the family is
maintaining the autonomy of the parent-child relationship.
(3) Parental authority to make to make fundamental decisions for minor
children is also a recognized common law principle.
e. Parental autonomy over minor children is not an absolute right
(1) State can intervene in the parent-child relationship where the health and
safety of the child and the public at large are in jeopardy. Accordingly,
the State, under the doctrine of parens patriae, has a special duty to
protect its youngest and most helpless citizens.
(a) The parens patriae doctrine is a derivation of the common law
giving the State the right to act on behalf of minor children in
certain property and marital disputes. More recently, courts
have accepted the doctrine of parens patriae to justify State
intervention in cases of parental religious objections to medical
treatment of minor children’s life threatening conditions.
(b) The basic principle underlying the doctrine is the State’s
interest in preserving human life.
f. All children indisputably have the right to enjoy a full and healthy life.
(1) Other jurisdictions have respected and upheld a minor’s decision
regarding his own medical care only when the child presented clear and
convincing evidence that he was mature enough to exercise an adult’s
judgment and understood the consequences of his decision.
g. There are two basic inquiries when a dispute involves chemotherapy treatment
over parents’ religious objections.
(1) The court must first consider the effectiveness of the treatment and
determine the child’s chances of survival with and without medical care.
(2) The court must then consider the nature of the treatments and their
effect on the child.
h. Federal and state courts have unhesitatingly authorized medical treatment over a
parent’s religious objection when the treatment is relatively innocuous in
comparison to the dangers of withholding medical care. Court are reluctant to
authorize medical care over parental objection when the child is not suffering a
life threatening or potential life threatening illness.
i. The linchpin in all cases discussing the “best interests of a child,” when a parent
refuses to authorize medical care, is an evaluation of the risk of the procedure
compared to its potential success.
(1) In re Quinlan
(a) The State’s interest contra weakens and the individual’s right to
privacy grows as the degree of bodily invasion increases and the
prognosis dims. Ultimately there comes a point at which the

-51-
 individual’s rights overcome the State interest.
4. The “life threatening” exception developed largely through cases involving parental
opposition to blood transfusions. Despite religious basis for such objections, courts asserted
their authority and willingness to intervene to protect the life of a child.
a. Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson
(1) New Jersey Supreme Court held that blood transfusions might be
administered to a pregnant mother against her wishes for the purpose of
saving the life of the unborn child.
b. Douglas County v. Anaya
(1) Nebraska Supreme Court upheld a state law requiring blood tests for
newborns, holding that such a law does not violate a parent’s right of
free exercise when the parent opposes the test on religious grounds.
5. In re Green
a. Court faced with a situation of a parent who will not consent to a dangerous
operation on her minor son requiring blood transfusions solely because of her
religious beliefs.
b. Quoting Prince v. Massachusetts
(1) Acting to guard the general interest in youth’s well being the state as
parens patriae may restrict the parent’s control by requiring school
attendance, regulating or prohibiting the child’s labor, and in many
other ways. Its authority is not nullified merely because the parent
grounds his claim to control the child’s course of conduct on religion or
conscience.
(2) The state has a wide range of power for limiting parental freedom and
authority in things affecting the child’s welfare; and that this includes, to
some extent, matters of conscience and religious conviction.
c. W ithout appearing callous, Ricky’s unfortunate condition, like polygamy,
vaccination, child labor, and the like, does not pose a substantial threat to society;
in this fashion, the earlier cases are distinguishable.
d. Turning to the situation where an adult refuses to consent to blood transfusions
necessary to save the life of his infant son or daughter, other jurisdictions have
uniformly held that the state can order such blood transfusions over the parents’
religious objections.
(1) Does the State have an interest of sufficient magnitude to warrant the
abridgement of a parent’s right to freely practice his or her religion
when those beliefs preclude medical treatment of a son or daughter
whose life is not in immediate danger?
(a) In re Sampson
i) Observed that religious objection to blood transfusion
do not present a bar at least where the transfusion is
necessary to the success of the required surgery.
(b) This court disagrees. The court is of the opinion that as
between a parent and the state, the state does not have an
interest of sufficient magnitude outweighing a parent’s religious
beliefs when the child’s life is not immediately imperiled by his
physical condition.
(2) Unlike Yoder or Sampson, the court’s inquiry does not end at this point
since the court believes that wishes of the sixteen-year old boy should be
ascertained; the ultimate question, in the court’ view, is whether a
parent’s religious beliefs are paramount to the possibly adverse decision
of the child.
(a) W hile the record gives no indication of Ricky’s thinking, it is
the child rather than the parent in this appeal who is directly
involved which thereby distinguishes Yoder’s decision not to

-52-
 discuss the beliefs of the parents vis-a-vis the children.
e. Dissent
(1) The statute only speaks in terms of “heath” not life or death. If there is
a substantial threat to health, the I believe the courts can and should
intervene to protect Ricky.
(2) I do not believe that sending the case back to allow Ricky to be heard is
an adequate solution. We are herein dealing with a young boy who has
been crippled most of his life, consequently, he has been under the
direct control and guidance of his parents for that time. To now
presume that he could make an independent decision as to what is best
for his welfare and health is not reasonable.
6. In re Doe
a. De-escalation is the discontinuation of medical measures, such as a ventilator. A
DNR order means that extreme lifesaving procedures such as countershock, chest
compression and administration of medication to support heart rate and blood
pressure will not be instituted in the event of cardiac or respiratory failure.
b. One parent may consent. If there is no second parent, if the other parent is not
present, or if the other parent simply prefers not to participate in the decision, the
consent of one parent to a DNR order is legally sufficient under the statute.
c. Statutory presumption that every patient is presumed to consent to resuscitation.
(1) The statutory presumption governs only consent to emergency cardio-
pulmonary resuscitation. No statutory or other presumption governs the
issue of consent to other, non-emergency medical procedures.
VIII. V YIN G FO R C U STO D Y
A. Parent v. Parent
1. Custody
a. Legal Custody
(1) Can make decisions on behalf of the child.
b. Physical Custody
(1) Right to be with the child and interact
c. Can be joint or sole custody. If not joint custody:
(1) Primary custody –usually physical custody
(2) Secondary custody – visitation rights
d. Standard Set-Up
(1) One parent has the child for the week (251 nights).
(2) The other parent gets the child every other weekend and one night
during the week (114 nights).
2. Johnson v. Johnson
a. Although the age of the children in a custody dispute is one factor which may be
considered by the trial court in its determination of the best interests of the child,
it is only one factor, to be weighed with many others.
b. Under the “best interests” test, the court is free to consider a number of factors
including the moral fitness of the two parties; the home environment offered by
the parties; the emotional ties to the parties by the child; the emotional ties to the
child by the parties; the age, sex or health of the child; the desirability of
continuing an existing child-third party relationship; and the preference of the
child.
c. Certainly the trial court’s use of the tender years presumption is inconsistent with
the delicate weighing and balancing process as a method of determining the
child’s best interests.
(1) Tender years doctrine (Emanuel’s, 199)
(a) Provides that the natural mother of a young child is entitled to
custody unless the mother is found to be unfit
(b) Courts treated the tender years presumption as:
-53-
 i) a rule requiring maternal custody if all other factors
are equal
ii) a rule placing the burden of persuasion on the father
to show that paternal custody is in the best interest of
the child
iii) a rule affecting the burden of proof that requires the
father to prove maternal unfitness.
(c) “Tender years” generally was defined to include preschool
children. Some courts, however, included children from ages
five to ten. A few courts even included older children.
(2) Other jurisdictions have also held the tender years doctrine to be
inconsistent with a “best interests” statute.
(a) State ex rel. W atts v. W atts, the New York Court of Appeals
reversed a custody decision which was based on the tender
years presumption. The state domestic relations statute
afforded no prima facie right to custody to either party, the
controlling consideration being the best interest of the child.
(b) Based on “outdated social stereotypes.”
d. Primary caretaker
(1) W hich parent cares for them, disciplines them, tends to their everyday
needs?
(2) Presumption for them to get primary custody
(3) Present evidence to the court that your client performs these functions
for the child.
e. Best Interests of the Child
(1) Moral fitness of the parties
(2) Emotional ties to the parties by the child
(3) Emotional ties to the child by the parties
(4) Age
(5) Sex
(6) Health of the child
(7) Desirability of continuing an existing child-third party relationship
(8) Preference of the child
f. Cannot use Linda’s continued membership in the Jehovah’s W itnesses as a basis
for directing the trial court to award the children to Rudy. To do so would be
violative of her right to freedom of religion under the First Amendment to the
United State Constitution.
3. In re Marriage of Short
a. Religious beliefs and practices of the parent may be a relevant factor, along with
other circumstances, which bears upon the child’s best interests and general
welfare. Among the diverse religious faiths are philosophies and practices which
might reasonably imperil the physical or mental health of a child.
4. Once a custody order is in place, to modify it you must show a significant change in the
circumstances (still keeping in mind the “best interests of the child).
5. In re Marriage of Carney (Handicapped Father)
a. Since it was amended in 1972, the code no longer requires or permits the trial
courts to favor the mother in determining proper custody of a child “of tender
years.” The Civil Code now declares that custody should be awarded “to either
parent according to the best interests of the child.”
(1) Regardless of the age of the minor, therefore, fathers now have equal
custody rights with mothers; the sole concern, as it should be, is “the
best interests of the child.”
b. It is settled that to justify ordering a change in custody there must generally be a
persuasive showing of changed circumstances affecting the child.

-54-
(1) That change must be substantial: a child will not be removed from the
prior custody of one parent and given to the other “unless the material
facts and circumstances occurring are subsequently of a kind to render it
essential or expedient for the welfare of the child that there be a
change.”
(a) Reasons for the rule are clear: “It is well established that the
courts are reluctant to order a change of custody and will not
do so except for imperative reasons; that it is desirable that
there be an end of litigation and undesirable to change the
child’s established mode of living.”
(2) Although a request of for a change of custody is also addressed in the
first instance to the sound discretion of the trial judge, he must exercise
that discretion in light of the important policy considerations just
mentioned. For this reason, appellate courts have been less reluctant to
find an abuse of discretion when custody is changed than when it is
originally awarded, and reversals of such orders have not been
uncommon.
(3) The burden of showing a sufficient change in circumstances is on the
party seeking the change in custody.
(4) W hile it is clear the judge herein did not have the totally closed mind
exhibited in Richardson, it is equally plain that his judgment was affected
by serious misconceptions as to the importance of the involvement of
parents in the purely physical aspects of their children’s lives.
(a) W e do not mean, of course, that the health or physical
condition of the parents may not be taken into account in
determining whose custody would best serve the child’s
interests. In relation to the issues at stake, however, this factor
is ordinarily of minor importance; and whenever it is raised
whether in awarding custody originally or changing it later is it
essential that the court weigh the matter with an informed and
open mind.
(b) In particular, is a person has a physical handicap it is
impermissible for the court simply to rely on that condition as
prima facie evidence of the person’s unfitness as a parent or of
probable detriment to the child; rather, in all cases the court
must view the handicapped person as an individual and the
family as a whole.
i) Court should inquire into:
a) Person’s actual and physical capabilities
b) Learn how he or she has adapted to the
disability and manages its problems
c) Consider how the other members of the
household have adjusted thereto
d) Take into account the special contributions
the person may make to the family despite or
even because of the handicap
ii) W eighing these all other relevant factors together, the
court should then carefully determine whether the
parent’s condition will in fact have a substantial and
last adverse effect on the best interests of the child.
(c) A physical handicap that affects a parent’s ability to participate
with his children in purely physical activities is not a changed
circumstance of sufficient relevance and materiality to render it
either “essential or expedient” for their welfare that they be

-55-
 taken from his custody.
6. Newton v. Riley
a. Court of Appeals of Kentucky asked whether the cohabitation of a custodial
parent with an HIV-infected stepparent is, taken alone, sufficient grounds for
modifying custody in favor of the non-custodial parent.
b. The court relied on federal and state case law upholding the right of HIV-
infected children to attend school and the fact that medical testimony that HIV is
not transmitted through sharing of household functions in refusing to
modification custody.
7. Pace v. Pace
a. W yoming Supreme Court rejected a trial judge’s custody award of the boys to
the father and the girls to the mother.
b. Gender is an appropriate consideration, but it cannot be the sole consideration.
8. Palmore v. Sidoti
a. Don’t accept that individual private bias is a per se negative effect on the child but
it can remain a factor. Reality is that there may be consequences for the child.
b. A core purpose of the Fourth Amendment was to do away with all
governmentally-imposed discrimination based on race. Classifying persons
according to their race is more likely to reflect racial prejudice than legitimate
public concerns; the race, not the person, dictates the category. Such
classifications are subject to the most exacting scrutiny; to pass constitutional
muster, they must be justified by a compelling governmental interest and must be
“necessary to the accomplishment” of its legitimate purpose.
(1) The goal of granting custody based on the best interests of the child is
indisputably a substantial governmental interest for purposes of the Equal
Protection Clause.
(a) There is a risk that a child living with a step-parent of a
different race may be subject to a variety of pressures and
stresses not present if the child were living with parents of the
same racial or ethnic origin.
i) The question, however, is whether the reality of
private biases and the possible injury they might inflict
are permissible considerations for removal of an infant
child from the custody of its natural mother. W e have
little difficulty concluding that they are not. The
Constitution cannot control such prejudices but
neither can it tolerate them. Private biases may be
outside the reach of the law, but the law cannot,
directly or indirectly, give them effect.
9. In re Marriage of W eidner
a. Iowa Code § 598.41(2) provides:
(1) On application of either parent, the court shall consider granting joint
custody in cases where the parents do not agree to joint custody. If the
court does not grant joint custody under this subsection, the court shall
state in its decision the reasons for denying joint custody. Before ruling
upon the joint custody petition in these cases, the court may require the
parties to participate in custody mediation counseling to determine
whether joint custody is in the best interest of the child. The court may
require the child’s participation in the mediation counseling as the court
determines the child’s participation is advisable.
b. Iowa Code § 598.41(3) provides:
(1) In considering what custody arrangement under either subsection (1) or
(2) is in the best interests of the minor child, the court shall consider the
following factors:

-56-
 (a) W hether each parent would be a suitable custodian for the
child.
(b) W hether the psychological and emotional needs and
development of the child will suffer due to lack of active
contact with an attention from both parties.
(c) W hether the parents can communicate with each other
regarding the child’s needs.
(d) W hether both parents have actively cared for the child since
the separation.
(e) W hether the parent can support the other parent’s relationship
with the child.
(f) W hether the custody arrangement is in accord with the child’s
wishes or whether the child has strong opposition, taking into
consideration the child’s age and maturity.
(g) W hether one or both the parents agree or are opposed to joint
custody.
(h) The geographic proximity of the parents.
c. Iowa Code § 598.41(4) provides:
(1) Joint legal custody does not require joint physical care. When the court
determines such action would be in the child’s best interests, physical
care may be given to one joint custodial parent and not to the other.
However, physical care given to one parent does not affect the other
parent’s rights and responsibilities as a legal custodia of the child.
d. None of the eight factors which judges in the balance are conditions precedent to
a joint custody determination. The trial court should consider and express itself
in writing on those factors among the eight listed which are pertinent in disputed
cases, but there is no magic number of the factors which, when satisfied, will
mandate a decision for or against custody.
(1) The quality of the total family custodial setting rather than a given
quantity of the listed factors should be determinative on the issue of joint
custody.
e. No parent and no attorney representing a party should be concerned that a
request for joint custody is a sign of weakness, a suggestion to the court that if
joint custody is not decreed the party opposing joint custody may have an edge in
obtaining sole custody.
(1) Conversely, a court may properly consider that a parent’s unreasonable
or obdurate resistance to joint custody is a factor which can weigh in
favor of awarding sole custody to the other parent.
10. Joint Custody (Emanuel’s 206)
a. Custody involves the twin concepts of legal custody and physical custody.
(1) Legal custody confers responsibility for major decision making such
upbringing, health, welfare, and education.
(2) Physical custody confers responsibility for day-to-day decisions regarding
physical care.
b. Joint custody allows both parents to share legal responsibility for major
childrearing decisions regarding upbringing, health, welfare, and education.
c. Joint physical custody may take many different forms (i.e., maternal residence,
paternal residence or dual residence.)
d. Three Types of Presumptions for Joint Custody
(1) Presume joint custody; burden can be overcome.
(2) No presumption of joint custody
(3) Express preference for joint custody
B. Parent Versus Third Party
1. Painter v. Bannister

-57-
 a. The primary consideration is the best interest of the child and if the return of
custody to the father is likely to have a seriously disrupting effect upon the child’s
development, this fact must prevail.
b. There is the presumption of parental preference, which though weakened in the
past several years, exists by statute.
2. Troxel v. Granville
a. The Supreme Court reaffirmed the due process presumptive right of a parent to
the custody and visitation decisions affecting his or her child.
b. There are instances when a parent may be denied custody of his or her child.
(1) Adams v. Tessener
(a) Court may properly rebut constitutionally protected interest
and award the child’s custody to the grandparents under a best
interest test.
(2) Clark v. W ade
(a) It seems clear that before the best interest of the child may be
the focus, there must first be a determination that the child will
suffer physical or emotional harm if the child is returned to the
parent.
3. Bennett v. Jeffreys
a. The issue is whether the natural mother, who has not surrendered, abandoned, or
persistently neglected her child, may, nevertheless, be deprived of the custody of
her child because of a prolonged separation from the child for most of its life.
b. The parent has a “right” to rear its child, and the child has a “right” to be reared
by its parent. However, there are exceptions created by extraordinary
circumstances, illustratively, surrender, abandonment, persisting neglect, unfitness,
and unfortunate or involuntary disruption of custody over an extended period of
time.
c. Extraordinary Circumstances: In the extraordinary circumstance, when there is a
conflict, the best interest of the child has always been regarded as superior to the
right of parental custody.
(1) Normally would have to show unfitness.
d. But neither decisional rule nor statute can displace a fit parent because someone
else could do a “better job” of raising the child in the view of the court (or the
Legislature), so long as the parent or parents have not forfeited their “rights” by
surrender, abandonment, unfitness, persisting neglect, or other extraordinary
circumstance.
(1) These “rights” are not so much “rights”, but responsibilities which
reflect the view, noted earlier, that, except when disqualified or
displaced by extraordinary circumstances, parents are generally best
qualified to care for their own children and therefore entitled to do so.
e. Extraordinary circumstance alone do not justify depriving a parent of the custody
of a child. Instead, once extraordinary circumstances are found, the court must
then make the disposition that is in the best interest of the child.
(1) In ascertaining the child’s best interest, the court is guided by principles
which reflect “considered social judgments in this society respecting the
family and parenthood.” These principles do not, however, dictate that
the child’s custody be routinely awarded to the natural parent.
f. The child may so long be in custody of the nonparent that, even though there has
been no abandonment or persisting neglect by the parent, the psychological
trauma of removal is grave enough to threaten the destruction of the child.
g. The resolution of cases must not provide incentives for those likely to take the
law into their own hands. Thus, those who obtain custody of children
unlawfully, particularly by kidnaping, violence, or flight from the jurisdiction of
the courts, must be deterred.

-58-
 4. Bennett v. Marrow
a. Psychological parent-child relationship had developed between respondent and the
child and the court noted that such bond “appears as strong today as when this
case was first heard.”
C. Parent Versus State
1. Foster Placement
a. Smith v. Organization of Foster Families for Equality & Reform
(1) Foster parents challenged statute which allowed the state Department of
Social Services to remove children from foster homes, contending it
constituted a denial of due process.
(2) Foster parents are not the same as parents
(a) Foster care is temporary
(b) Foster parents agree to that temporary nature. They sign a
contract.
(c) Not the same legal status of natural parents.
i) Parents still retain some legal rights of the child; rights
are limited. Parents only lose their legal rights
permanently when we terminate parental rights.
(3) Matthews v. Eldridge Balancing Test
(a) Private
i) Foster Parents
ii) Natural Parents
iii) Child’s Interest
(b) State
i) Burden–costs
(c) Risk of Erroneous Deprivation
i) Service plans are in place
ii) Procedural safeguards are in place.
a) Notice to foster parents; conference with
decision in five days; full administrative
hearing; judicial review
b. Procedures involved adequately protected the public and private interests and did
not present an unsatisfactory potential for error.
D. The Visitation Dilemma
1. Schutz v. Schutz
a. A custodial parent has an affirmative obligation to encourage and nurture the
relationship between the child and the noncustodial parent. This duty is owed
both to the noncustodial parent and the child.
b. This obligation may be met b encouraging the child to interact with the
noncustodial parent, taking good faith measures to ensure that the child visit and
otherwise have frequent and continuing contact with the noncustodial parent and
refraining from doing anything likely to undermine the relationship naturally
fostered by such interaction.
c. Consistent with this obligation, we read the challenged portion of the order at
issue to require nothing more of the mother than a good faith effort to take those
measures necessary to restore and promote the frequent and continuing positive
interaction (e.g., visitation, phone calls, letters) between the children and their
father and to refrain from doing or saying likely to defeat that end. There is no
requirement that petitioner express opinions that she does not hold, a practice
disallowed by the first amendment . . .
(1) An order may be sustained against a first amendment challenge if “it
furthers an important or substantial government interest . . . and if the
incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest.” United States v.

-59-
 O’Brien.
(a) Accordingly, we must balance the mother’s right of free
expression against the state’s parens patriae interest in assuring
the well-being of the parties’ minor children. However, as
with all matters involving custody of minor children, the
interests of the father and of the children, which here happen to
parallel those of the state, must also factor into the equation.
2. Custody Interrupted
a. Statutory provisions providing that time gets to be made up. Ex. Michigan
statute (pp. 1117).
b. Hold the other party in contempt:
(1) There was an order
(2) They had knowledge of the order
(3) Violated the order
c. Parent is entitled to make up time. The time is to be of the same type and
duration. Parents usually have a time limit in which to make up the time. The
deprived parent chooses the time.
3. Burke v. Burke
a. Court ordered the mother to install a point-to-point video telecommunications
device on her home computer so that a couple’s two children may communicate
with their father when in her physical custody. The father was ordered to pay for
the device and installation.
4. Lawrence v. Delkamp
a. Courts have protected a person’s right to make threatening speech against the
other parent so long as there is no history of domestic violence and the other
parent was at no time in fear of immediate or soon-to-be-inflicted harm.
5. Matter of Cabalquinto
a. Homosexuality in and of itself is not a bar to custody or to reasonable rights of
visitation. It is also consistent with our view that custody and visitation privileges
are not to be used to penalize or reward parents for their conduct.
b. Visitation rights must be determined with reference to the needs of the child
rather than the sexual preferences of the parent. The best interests of the child
remain paramount.
c. The court can’t use homosexuality in and of itself but it can use the lifestyle (the
collective effect) to show a negative effect on the child.
6. S.E.G. v. R.A.G.
a. Missouri Court of Appeals restricted a lesbian mother’s visitation rights so as to
prevent “extreme exposure of the situation to the minor children.”
b. The court wrote, “W e are not forbidding W ife from being a homosexual, from
having a lesbian relationship, or from attending gay activist or over homosexual
outings. W e are restricting her from exposing these elements of her ‘alternative
life style’ to her minor children.”
7. In the Matter of Guardianship of Astonn H.
a. “Only if a sexual lifestyle, homosexual or heterosexual, was shown to be
detrimental to the child’s well being would it be considered.”
8. Sherman v. Sherman
a. Court of Appeals of Tennessee refused to restrict the visitation rights of a father to
see his two adolescent daughters simply because he lived with his homosexual and
HIV-infected brother.
9. North v. North
a. Court of Special Appeals of Maryland held that a father’s overnight visitation
rights could not be denied because of fear the husband would display or discuss
his homosexual lifestyle with his children.
10. Bottoms v. Bottoms

-60-
 a. For custody, the Virginia Supreme Court held living daily under conditions
stemming from the active lesbianism practiced in the home by the mother living
with her female lover may impose a burden upon the child by reason of the
“social condemnation” attached to such an arrangement that will inevitably afflict
the child’s relationship with its “peers and the community at large.”
b. The court rejected the traditional parental presumption of custody and awarded
custody of the girl to her grandmother.
c. Subsequently, in a contest involving visitation, the Virginia Court of Appeals held
that a parent’s homosexuality does not per se render him or her an unfit parent.
The appeals court held that the trial judge had misconstrued the case law by
requiring that the visitation disposition consider only the mother’s homosexuality.
11. Alison D. v. Virginia M.
a. Pursuant to Domestic Relations Law § 70 “either parent may apply to the
supreme court for a writ of habeas corpus to have such minor child brought
before such court; and [the court] may award the natural guardianship, charge and
custody of such child to either parent as the case may require.”
b. Traditionally, in this State it is the child’s mother and father who, assuming
fitness, have the right to the care and custody of their child, even in situations
where the nonparent has exercised some control over the child with the parents’
consent.
c. It has long been recognized that, as between a parent and a third person, parental
custody of a child may not be displaced absent grievous cause or necessity. To
allow the courts to award visitation–a limited form of custody–to a third person
would necessarily impair the parents’ right to custody and control.
12. Troxel v. Granville
a. The State’s recognition of an independent third-party interest in a child can place
a substantial burden on the traditional parent-child relationship.
b. The liberty interest at issue in this case–the interest of parents in the care, custody,
and control of their children–is perhaps the oldest of the fundamental liberty
interests recognized by this Court.
c. It cannot now be doubted that the Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children.
d. Section 26.20.160(3), as applied to Granville and her family in this case,
unconstitutionally infringes on that fundamental parental right. The W ashington
nonparent visitation statute is breathtakingly broad.
(1) § 26.10.160(3) states, “any person may petition the court for visitation
rights at any time,” and the court may grant such visitation rights
whenever “visitation may serve the best interest of the child.”
(2) Language effectively permits any third party seeking visitation to subject
any decision by a parent concerning visitation of the parent’s children to
state court review.
(3) The statutory section contains no requirement that a court accord the
parent’s decision any presumption of validity of any weight whatsoever.
In practical effect, in the State of W ashington a court can disregard and
overturn any decision by a fit custodial parent concerning visitation
whenever a third party affected by the decision files a visitation petition,
based solely on the judge’s determination of the child’s best interests.
e. No unfitness shown – The Troxels did not allege, and no court has found, that
Granville was an unfit parent. That aspect of the case is important, for there is a
presumption that fit parents act in the best interests of their children.
Accordingly, so long as a parent adequately cares for his or her children (i.e., is
fit), there will normally be no reason for the State to inject itself into the private
realm of the family to further question the ability of that parent to make the best

-61-
 decisions concerning the rearing of that parent’s children.
f. Because we rest our decision on the sweeping breadth of § 26.10.160(3) and the
application of that broad, unlimited power in this case, we do not consider the
primary constitutional question passed on by the Washington Supreme
Court–whether the Due Process Clause requires all nonparental visitation statutes
to include a showing of harm or potential harm to the child as a condition
precedent to granting visitation. W e do not, and need not, define today the
precise scope of the parental due process right in the visitation context.
g. Because must state-court adjudication in this context occurs on a case-by-case
basis, we would be hesitation to hold that specific nonparental visitation statutes
violate the Due Process Clause as a per se matter.
13. Standard for Restricting Visitation
a. Grave threat to the child
b. Child’s preference is not enough
14. Relocation
a. Effect on the parent may be a factor, however:
(1) Cannot be whimsical or vindictive
(2) Must be in good faith
(3) Must show integrity of the move
(4) Alternatives
15. Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)
a. Governs questions between jurisdictions in which custody is an issue.
(1) W hich court is best suited.
(a) Primarily the home state of the child will have jurisdiction.
i) W herever the child resides for the last 6 months
ii) First court must give over jurisdiction
b. Goal is to point to whatever jurisdiction is best suited to deal with the issue.
16. Uniform Child Support Enforcement Act (UCSEA)
a. Like the UCCJEA, but deals with child support.
IX. P A R EN TA L R IG H TS T ER M IN A TIO N A N D A D O PTIO N
A. Severing Parental Rights Involuntarily
1. Constitutional Dimensions
a. Santosky v. Kramer
(1) Before a State may sever completely and irrevocably the rights of parents
in their natural child, due process requires that the State support its
allegations by at least clear and convincing evidence.
(2) The fundamental liberty interest of natural parents in the care, custody,
and management of their children does not evaporate simply because
they have not been model parents or have lost temporary custody of
their child to the State. Even when blood relationships are strained,
parents retain a vital interest in preventing the irretrievable destruction
of their family life. If anything, persons faced with force dissolution of
their parental rights have a more critical need for procedural protections
than do those resisting state intervention into ongoing family affairs.
W hen the State moves to destroy weakened familial bonds, it must
provide the parents with fundamentally fair procedures.
(3) In Lassiter, the Court and three dissenters agreed that the nature of the
process due in parental rights termination proceedings turns on a
balancing of the “three distinct factors” specified in Matthews v. Eldridge:
(a) the private interests affected by the proceeding
i) In parental rights termination proceedings, the private
interest affected is commanding
(b) the risk of error created by the State’s chosen procedure
i) The risk of error from using a preponderance of the
-62-
 evidence standard is substantial
a) Unfitness is a subjective standard
b) Cultural bias involved
c) Unbalance resources
d) No double jeopardy protections
e) Termination isn’t always in best interests of
the child
f) Termination is final. You “can’t unring that
bell.”
(c) the countervailing governmental interest supporting use of the
challenged procedure.
i) Countervailing governmental interest favoring that
standard is comparatively slight
(4) Since the litigants and the factfinder must know at the outset of a given
proceeding how the risk of error will be calculated, the standard of proof
necessarily must be calibrated in advance. Retrospective case-by-case
review cannot preserve fundamental fairness when a class of proceedings
is governed by a constitutionally defective evidentiary standard.
(5) Evaluation of the three Eldridge factors compels the conclusion that use
of a “fair preponderance of the evidence” standard in such proceedings is
inconsistent with due process.
b. Matter of Gregory B.
(1) Father is incarcerated and make a “good faith” effort to make
connection with the kids.
(2) Court says that “good faith” won’t win the day. In child’s best interests
to place the child somewhere else.
(3) Court recognizes adoption as an alternative here.
B. Adoption
1. In re Jeffrey E.
a. Child has complicated medical needs. Parents not adept at providing the medical
care.
b. State wants to terminate parental rights. The Court agrees.
(1) Unfitness? No.
2. Adoption comes ideally when parental rights are terminated.
a. Unless by agreement or court order, parents are done.
(1) Cannot get your rights back.
3. Preferences Courts Consider:
a. Homosexuality
b. Religious preferences
(1) Okay. Can’t restrict by prefer.
c. Native American children

-63-