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Family Law Notes Marianne E Dutton

I. Answer
II. Legal Explanation
1. Issue
2. Law (Herein Are the Relevant Rules of Law and More Including
Statutory
Interpretation)
3. Application (of Law to Facts)
4. Purpose (, Principle, and/or Policy)
5. Analogy (to at Least Two Cases from the Reading Assignments)
6. Conclusion (A Very Brief Summary of the Essence of the Legal
Argument)
Course Themes
 Tension b/w private ordering and state supervision of family life
 Focus on larger context in which family law matters arise
 Gender issues
 Growing importance on ConLaw in family matters

State Laws  Increasing Uniformity

Uniform laws: Examples


 Uniform Marriage and Divorce Act (UMDA)
o Adopted in WA
 Uniform Child Custody Jurisdiction Act (UCCIA)
 Uniform Child Custody Jurisdiction Enforcement Act (UCCIEA)
 ALI Principles of the Law of Family Dissolution
 Federal Laws: Example
o Parental Kidnapping Prevention Act

Family Law Changes over the years in response to major social shifts
 More divorce
 More same sex parents
 More kids out of wedlock
 More women working
 Contraception/privacy laws
 More cohabitation

Legal effects/reasons for marriage


 Torts

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Family Law Notes Marianne E Dutton

o Can bring tort suit for wrongful death


 Trust and estates
 Survivor benefits
 Insurance
 Hospital visitation
 Spousal support
 Homestead rights

When to use different analysis for fact pattern


 Substantive DP
o If the law burdens all equally in exercise of specific rights
 EP
o If law distinguishes b/w who may and may not exercise a right
 Note: rational basis isn’t used for fundamental rights
o Rational means there is no conceivable way the legislature could
have found a law to fit a certain objective
 Economic legislation is generally upheld under RBR

Standards of Analysis
A. Standards of Analysis
1. Strict Scrutiny
i. Ends – Government Objective Involved
a. Compelling
ii. Means – Relationship Between Ends and How Ends
are Accomplished
a. Necessary
b. Narrowly Tailored
iii. Examples
a. Race
b. Religion
c. Ethnicity
2. Intermediate Scrutiny
i. Ends – Government Objective Involved
a. Important
ii. Means – Relationship Between Ends and How Ends
are Accomplished
a. Substantially Related
iii. Examples
a. Gender

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Family Law Notes Marianne E Dutton

3. Rational Relationship
i. Ends – Government Objective Involved
a. Legitimate or Permissible
ii. Means – Relationship Between Ends and How Ends
are Accomplished
a. Rationally or Conceivably Related
iii. Examples
a. Familial Status
b. Age
c. Disability
d. Sexual Orientation
e. Wealth

I. What is a family?

Baker v State 1999 Vermont pg 10


Same sex marriage or civil unions required by state constitution
Held
 Vermont legislature was ordered to either allow same-sex marriages, or
implement an alternative legal mechanism according similar rights. In
2000, the Legislature complied by instituting civil unions for same-sex
couples.
Issue
 Does denying a marriage license violate state constitution? YES
 Question is whether prohibition of same-sex marriage amounts to
denial of common benefits.

Facts
 Three same-sex couples who applied for and were denied marriage
licenses
 Vermont Constitution’s Common Benefits Clause

Braschi v Stahl Associates Company 1989 pg 15


Defining family for meretricious relationship
Held

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Family Law Notes Marianne E Dutton

 A lifetime partner is a family member in the context of a long-term


relationship characterized by emotional & financial interdependence.
 Factors in assessing the relationship
o The exclusivity & longevity of the relationship
o The level of emotional & financial commitment
o How the parties hold themselves out to society
Problems here
 Serious proof problems deciding if there is a family. Perhaps same sex
legislation would help.
Issue
 Is a meretricious couple allowed any of the rights of a married couple,
like keeping the rent controlled apt after one of them dies? YES
Facts
 Couple lived together in rent controlled apartment, she dies, her name
was on lease, landlord wants to evict b/c he is just a ‘licensee’

Village of Belle Terre v Boraas USSC 1974 pg 28


Groups living together are NOT a family here by ordinance
Held
 Upheld the constitutionality of a residential zoning ordinance that
limited the number of unrelated individuals who may inhabit a
dwelling.
Issue
 Is the ordinance defining a family constitutional? YES
Facts
 An ordinance restricted land use to one-family dwellings excluding
lodging houses, boarding houses, fraternity houses, or multiple-
dwelling houses. The ordinance defined family as:
o One or more persons related by blood, adoption, or marriage,
living and cooking together as a single housekeeping unit,
exclusive of household servants. A number of persons but not
exceeding two (2) living and cooking together as a single
housekeeping unit though not related by blood, adoption, or
marriage shall be deemed to constitute a family.

Penopscott Area Housing Development v City of Brewer


Retarded group home not okay (conflicts with next case)
Held

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Family Law Notes Marianne E Dutton

 Ct. determined that the home wouldn't create a traditional family


setting.
-No perm resident/control when they would come & go.
-No central figure, rotating staff.
-No indiv cooking, staff would do that.
-State Interests: they wanted a low-density area, single families. The
group-home would be in contrast w/this policy/goal.
Should have tried:
 Show a suspect class by showing immutability (eg retardation, race)
 Show a history of political powerlessness, history of oppression, show
the class is discrete
Facts
 Board from city disapproved & rejected an application for a retarded
adult home b/c they wouldn't meet the definition of a family or its
equivalent.

Borough of Glassboro v Vallorosi 1990 pg 34


College Group Home okay b/c 4 yr commitment: predictability
Held
 Ten unrelated college students sharing a home satisfied a zoning
requirement limiting occupancy to families because their occupancy
was characterized by "stability" and "permanency" and could be
described as the "functional equivalent of a family.
Rationale
 The students often ate meals together or in small groups; they cooked
for each other; they shared the household chores, grocery shopping and
yard work; they maintained a common checking account from which
costs of food and other household expenses were paid; they shared a
telephone; and they intended to remain in the house as tenants as long
as they were enrolled at Glassboro State College.
Facts
 Planning to stay there for 4 years (the ordinance was looking for
predictability)
 Stable, permanent authority figure for unrelated groups
 Statement of purpose by the town in the statute was to confine the
students in certain areas

Griswold v CT 1965 USSC


Right to Privacy (first case to recognize as part of the penumbra of rights)

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Family Law Notes Marianne E Dutton

Held
 Supreme Court struck down a law barring the use of contraceptives by
married couples

Lawrence v Texas 2003 pg 243


Struck down sodomy laws
Overruled Bowers v Hardwick
Held
 A Texas law classifying homosexual intercourse as illegal sodomy
violated the privacy and liberty of adults to engage in private intimate
conduct under the 14th amendment

Schneider, The Channeling Function in Family Law pg47

5 Functions of Family Law


 Protect citizens from harms done to them by other citizens
 Facilitative
o Give legal effect to private living arrangements
 Arbitral (resolve disputes)
 Expressive
o Law imparts ideas thru words and symbols, as voice in which
citizens may speak to alter behavior of people
 E.g. equal rights amendment symbolic statement about
relationships b/w men and women; so by passing this law,
or raising the idea of it, makes people more aware and may
affect perceptions
 Channeling
o Creating social institutions, give them incentives, align with
good policy that serves desirable ends
o Not required that people use them but it is there presence should
make them desirable to use
o E.g. what was CA’s channeling function when they created the
no fault divorce act

Schneider Examples (trying to put himself in the position of the legislature)


 Normative Characteristics of Marriage
o Monogamous, heterosexual, permanent, rest on love
o H andd W treat each other fairly eetc

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Family Law Notes Marianne E Dutton

o Should be animated by mutual concern and willing to sacrifice


for each other
o HOW? Setting a framework of rules
 Marriage entry, prohibit polygamy, incest, homo…
 Normative Characteristics of Parenthood
o List on slide
o HOW? Framework of laws molding and promoting parenthood
 Criminalize fornication, cohabitation, adultery etc
 Restrict divorce to get kid raised b both
 Penalize neglect and abuse

How is Channeling Accomplished?


 Recognize and endorse institutions
o Eg regulated entry and exit to institution
 Reward participation in that institution
o Eg marital tax deduction
o Disfavor competing institutions
o Sodomy, prostitution, bigamy, adultery

Ask: Is Schneider right? Do these sort of created institutions benefit society


better than a free form private ordering system

II. DIVORCE pg 357


If all states have no fault divorce, why do we have to learn about fault
grounds?
 In majority of states, no fault are enacted as alternative, not replacement
to fault grounds
 In many states, fault remains factor in awarding spousal support of
dividing marital property
o Guilty party likely to get less marital property than innocent
 Disfavored by ALI, but consideration of economic fault ok
 Family law in transition
o Some fault still serves legitimate role in some aspects of
dissolution
o Others, no fault with add’l safeguards for dept spouses and
children

Historical Perspective: Terminology


 Get from slide

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Family Law Notes Marianne E Dutton

Fault Based Approaches Facts


 Requires guilty and innocent party
 Only innocent party can get a divorce
 If both parties are guilty, they have to remain married
 Gives language legal vocabulary for what were essentially moral
judgments about marital conduct

Fault Based Approaches


1. Cruelty
 28 states recognize
 aka ‘indignities to person’
 Traditionally: successive acts of bad treatment over extended period of
time
o One single act of physical cruelty is not usually enough evidence
for divorce unless uber severe
 Essentially conduct by one spouse that makes continued cohabitation
intolerable

Benscoter v Benscoter 1963 pg 359


Cruelty: fault based
Held
 Just because a spouse is sick is not a ground for divorce; marriage is in
sick and health
 The wife's verbal abuse was sporadic & didn't constitute a course of
conduct.
Is this a good rule?
 It gives Mrs. Benscoter leverage to get a better financial deal from
husband, if he really wants to leave.
 Possibility of reconciliation.
 Some people will obey the law; it may make Mr. Benscoter stay w/the
wife.
Facts
 After 20 years of marriage, the husband files for divorce. The wife
has M.S. The husband claims the wife has verbally abused him for
their not having a female child. Evid. shows that it is likely the
husband is having an affair.

Hughes v Hughes 1976 pg 360

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Family Law Notes Marianne E Dutton

Cruelty
Held
 Wife gets a divorce on ground of cruelty.
 Not as strict as Benscoter
Facts
 Wife wants a divorce on the grounds that:
o Husband threw her out of the house.
o He threatened her.
o He habitually treated her coldly.

2. Adultery
To prove adultery, the circdumstantial evidence must clearly establish:
a. A disposition on the part of the defendant & the paramour to commit
adultery and;
b. An opportunity to commit the offense.

Arnoult v Arnoult 1997 pg 361


Held
 Until marriage is terminated, adultery can still be committed
Facts
 H and W married 30 years, separated, then adultery
 Can still be raised even when parties are living apart b/c they are still
married
 Can prove adultery by circumstantial evidence

3. Desertion
Crosby v Crosby 1983 pg 363
Held
 The law is unconstitutional b/c it violates EP for women, so they didn’t
look at the fault issue here
Facts
 Voluntary separation by one spouse from the other with the intent not
to resume cohabitation without justification or consent from other
spouse
 But; state laws requiring a woman to move wherever the husband
chooses to live violate the gender equality aspect of the EPC

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Family Law Notes Marianne E Dutton

Constructive desertion
 Acts that fall short of physically leaving marital home
o 1992 VA case found constructive desertion
 Ws willful withdrawal of sex w/o just cause; would not
do Hs laundry, cleaning, meals etc

Defenses in Fault Based Divorce (not applicable for no-fault)


 Fault grounds must be proven by the innocent party
 Guilty dspouse will defend and said it was condoned, connived,
recrimination, didn’t complain in timely manner (laches, SOL), or
collusion raised by court

1. Recrimination Defense (Clean Hands Doctrine)


 If both spouses are guilty of marital misconduct, then any fault based
divorce action must be dismissed
 Divorce can only be granted to innocent spouse

Rankin v Rankin 1956 pg 364


Clean Hands Doctrine: Both at fault, no divorce
Held
 The ct. denied them a divorce. Since they are both at fault; no divorce.
Traditional Principle
 Divorce is a privilege, only awarded to the innocent spouse w/clean
hands.
Facts
 The husband alleges the wife tired to run him over. The wife alleged
the husband beat her up.

2. Connivance
 When one souse procures or consents to the other spouse’s commission
of marital fault
o Innocent spouse petitions for fault based divorce
o Party allegedly at fault may defend conduct
 Asserts that he would never have acted without…

Sargent v Sargent 1920 pg 367


Connivance defense

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Family Law Notes Marianne E Dutton

Held
 No divorce. The husband failed to "protect" his wife by firing the
chauffeur.
 A spouse may not participate in a course of conduct leading the other
spouse to commit an act, which is a fault ground for divorce.
Facts
 The husband wants a divorce on the ground that the wife was sleeping
with the chauffeur. The husband left the house several times at night to
facilitate the adultery. Racist overtones thru case
 Court recognized connivance and said if H sees what a
reasonable man would not permit to avoid the danger, then
he implicitly consented, no divorce granted
 Connivance defense successfully raised

3. Condonation Defense
 If you know about the spouses affair and keep living with them you can
say that the adultery was condoned and is no longer an adequate reason
for divorce
 If they do it again, it is revived
 Can be express or implied
 Spouse is essentially on temporary probation

Willan v Willan 1960 pg 368


Held
 No divorce. Accepts the wife's defense of condonation.
 For men; sex is always voluntary.
 Condonation=sex forgives all fault.
Facts
 The wife beat the husband to get him to have sex w/her. The husband
sues for divorce on ground of cruelty.
 The wife's defense: the husband accepted by behavior by sleeping
with me.
 The husband: she made me sleep with her.

4. Collusion Defense
 When both parties collude to bring about a bad act upon which one of
them will bring a petition for divorce

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Family Law Notes Marianne E Dutton

 Court denies b/c no innocent party


 One motivation for no fault divorce

Fuchs v Fuchs 1946 pg 370


Reopened divorce due to collusion
Held
 Due to collusion, the divorce is reopened. This affects financial matters
later.
Facts
 The wife charges the husband w/adultery. The husband counterclaimed
against the wife for adultery. But, the wife dropped her complaint
because the husband agreed to give her child custody.
 A default judgment is entered against the wife & the couple is divorced.
Now; the wife seeks to reopen the divorce due to collusion.

No-Fault Divorce

Hypo for Discussion


 Does no fault divorce commit the spouses (a policy of state neutrality)
undermined the idea that justice is done in divorce cases? Has law let
them down?
o By not allowing fault when one spouse does something awful,
the state is removing channeling function
o Might provide for more amicable divorces

No-fault Divorce articles


 Looking at the Governor’s Commission report and the Kay article,
describe what the original supports of no fault reform intended to
accomplish
o They hoped this would reduce the incidence of divorce
o Pg 378 CA legislation

 Uniform Marriage and Divorce Act pg 370


 UMDA § 302 (pg 379)
o Jxn requires domicile
o Marriage must be irretrievable broken (IB)
 180 days living apart OR
 Serious marital discord adversely affecting attitude of one
or both

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Family Law Notes Marianne E Dutton

o If one party denies IB


 Court looks at all relevant factors, including circumstances
of filing and prospects of reconciliation
 Can make finding of IB or continue for hearing with
counseling recommendation or order conciliation
conferences
 IB finding = no reasonable prospect of
reconciliation

Adjudicating No fault Divorce

In re Marriage of Dennis D. Kenik 1989


Living together can still be separate and apart
Held
 Living separate and apart could occur even when parties still occupied
same residence; court also ruled that case can be bifurcated when wife
becomes pregnant by paramour during pendency of case
Facts
 Parties have to be living separate and apart
 Court construes that provision to mean that the parties lead separate
lives even if they living in the same dwelling
 This is a UMDA case;

Contractual Divorce pg 381


State sanctioned prenuptial contracts; precommittment theory; impervious to
no-fault divorce

(Defonzo excerpt, Massar, Diosdado)


 Covenant marriage adopted in three states
 Agree in advance to reasonable steps to preserve marriage if difficulties
arise
 Restricts your way out
o Mandatory premarital counseling
o Sign covenant
o Legal obligation to take these steps
o Must live apart 2 years for no fault, or

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Family Law Notes Marianne E Dutton

o Fault (adultery, felony, abandonment, abuses)

Massar v Massar 1995 pg 388


Contract upheld
Held
 Agreement to seek no-fault divorce is enforceable
Facts
 W waves any claim against H in any action of divorce except no-fault
based on living apart 2 years (basically they are waiving the fault claim)
o Not executed under duress
o Represented by an atty
o Public policy doesn’t prohibit, provided fair and equitable
 If unconscionable, fraud, overreaching by party in power
may set aside

Diosdado v Diosdado 2002 pg391


VAPP: Contract failed b/c against state no-fault statute
Held
 Court refused to uphold the liquidated damages clause b/c it penalized
adultery; contrary to public policy b/c under CA no-fault divorce
statute, fidelity is wholly irrelevant and inadmissible except in child
custody proceedings
 The no-fault statute is an absolute bar against this kind of contract
Facts
 Five years after marriage, W found out H having affair
 The separated and got back together and signed contract
 Contract: Obligation to Fidelity
 Liquidated damages for breach of fidelity etc
 Whoever cheats has to leave the house and pay 50K in addition to
regular support

 These two cases together show that, yes, you can contract divorce, but you
can’t add law to a no fault state, so this is contrary to CA’s public policy

Tort Claims Cases


NOTE: all states: inter-spousal tort recovery eliminated

Twyman v Twyman 1993 pg 393


IIED can be asserted in divorce proceeding, but can’t recover twice

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Family Law Notes Marianne E Dutton

Held
 Trial court erred in ruling that a wife can collect for negligent infliction
of emotional distress in a divorce proceeding, as the NIED is not
recognized in the state of Texas.
 However, the Court expressly adopts the tort of intentional infliction of
emotional distress and that the tort can be asserted in a divorce
proceeding.
 When the tort action is brought in a divorce proceeding, a spouse cannot
recover both tort damages and a disproportionate division of the
community estate based on the same conduct.
Issue
 Can IIED be grounds for a divorce? YES
Facts
 In her divorce settlement, Sheila Twyman won $15,000 for negligent
infliction of emotional distress.
 Her husband William tried to emotionally coerce his wife into engaging
in sadomasochistic bondage activities with her, even after she told him
she was uncomfortable with such activities because she had been raped
a knifepoint before their marriage.
Whether cause of action (COA) for abuse can be brought in divorce action
 W amends divorce petition to assert claim for IED
o Doesn’t specify whether intentional IED or NIED
o TX supreme court held on same day of issued opinion that no
COA for NIED
o Standard for intentional torts
 Intentional, reckless, extreme and outrageous, ED severe,
 Recognized IIED tort
 Holds
o IIED May be brought by spouse in context of divorce action
o Judge must make sure that prop award influenced by a finding of
fault is not enhanced by recovery in tort for the same misconduct

Policy Discussion re Spousal Emotional Abuse as a Tort pg 403

Religious Restrictions on Divorce


Aflalo v Aflala 1996 pg 408
Can’t compel a religious divorce proceeding
Held

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Family Law Notes Marianne E Dutton

 Wife seeking dissolution of marriage was not entitled to order


compelling husband to grant wife Jewish bill of divorce known as "get,"
as such order would violate husband's right to free exercise of religion.
Facts
 H refuses to provide a ‘Get’ in the orthodox jew religion (a bill of
divorce that H gives W to allow her to marry again)
 He wants to reconcile; he’ll agree if tribunal (Beth Din) tells him to
 Can an order of dissolution be entered which would impact the wife
securing a Jewish divorce
 Court said they can’t order the H to agree to a Jewish divorce b/c it
violates 1A of free exercise clause (410)
o Prohibits gvt reg of religion, but doesn’t prohibit bit religious
conduct
o Law must also have a secular purpose
o Then balance competing state and religious interests
o Here relief violates the threshold test. No balancing necessary
o Ordered to attempt to amicable resolve differences
 Can bargain for consent or refusal to consent to Get or to
W consent or refusal to appear before the Beth Din for
reconciliation

To What Extent Can States Regulate Access to Divorce

Bodie v Connecticut 1971 pg 415


Can’t restrict divorce by ability to pay
Issue
 Whether the state may impose fees and costs as a precondition to
entertaining divorce suits
Held:
 In view of the basic position of the marriage relationship in our society
and the state monopolization of the means for dissolving that
relationship, due process of law prohibits a State from denying, solely
because of inability to pay court fees and costs, access to its courts to
indigents who, in good faith, seek judicial dissolution of their marriage
Level of scrutiny applied (417)
 Under DP 14th, maybe RBR, but maybe higher (look at language in
opinion)
Facts

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Family Law Notes Marianne E Dutton

 CT state provision under challenge


o Parties bringing divorce action pay $60
 45 to clerk, 15 to serve D
Plaintiffs
 Woman who are welfare recipients in CT on behalf of thesmelves and
others similarly situation
 Since state court is their only avenue for divorce, it’s like restricting
access to their only forum
 Using the courts isn’t voluntary; if W wants legal enforcement, must
have the money; she could be broke b/c of H; so state has monopoly
over ability to getting divorce
 The fees interfere with the opportunity to be heard
o Is there a ‘right’ to divorce
 What about driver’s licenses?
 You could say that marriage is essential
 Site to Loving v Virginia, among others

Is State imposing the cost? Could argue no, b/c not every case will entail
costs. State has important interest in regulating the terms on which divorces
are granted. Could argue yes and say only real justice can occur if you have
access to the courts. The practical effect is the same as Boddie, b/c the state
reqs do cause the costs

Sosna v Iowa 1975 pg 418


Durational residency requirements for divorce
In all states; range from 6 weeks to 2 years
Held
 Upheld residency requirements for divorce
 Appears to be RBR (‘IA doesn’t want to be a divorce mill’)
 But if there is a FR to divorce, that’s a problem
Rationale for delay time period
 Delay is not absolute deprivation and may be constitutionally okay
Issue
 Discriminates against persons who have recently exercised the right to
travel
Facts
 Married in MI, Lived in NY, Separated in NY, W moved to IA with
kids, W filed for divorce in IA, Lower court dismissed b.c IA has a 1

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Family Law Notes Marianne E Dutton

year residency requirement, She only lived there a month when she
filed
Is state trying to affect moral climate via residency requirement?
 Are they trying to save their reputation
 Local norms via residency requirement

Character Reform pg 420

Trends and Concerns


 Thought no-fault would increase divorce rate, it didn’t
 No fault results in economic disparities b/w m and w
 F no adjustments make, men would end up in better shape than women
 Argument for fault is that gives women a bargaining chip that enables
them to demand compensation and raise the kids
 No fault lets the guy pursue his career, enjoy haing a wife, and then
leave her
 Fault may not benefit women; if she is guilty she may get notdhing

Difonzo pg 421
Discusses the evolution of divorce

Amato pg 425
Thinks divorces should be harder to get. Require conceling etc

III. PARENTING

BEST INTERESTS OF CHILD STANDARD pg 525

UMDA SECTION 402: BIC pg 436


Court should consider ALL relevant factors, including:
 The wishes of the child’s parent(s) as to his custody
 The wishes of the child as to his custodian
 The interaction and interrelationship of the child with his parents and
any other person who may significantly affect the child’s best interests
 The mental and physical health of all involved

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Family Law Notes Marianne E Dutton

 Conduct unrelated to child not considered (check this)

Chapter 26.26 RCW Uniform parentage act

Custody Definitions
 Sole or Joint
 Physical and Legal
o Physical
 Parent has right to have child live with
 Joint physical: kid spends significant time with
both
o Legal
 Right and obligation to make decisions about child’s
upbringing
 Schools, religion, medical care
 Visitation or Not
o Sole physical custody with visitation
 Child lives mostly with one and visits the other

Applying the BIC Standard: Various Factors

1. Gender Presumption – Tender Years Doctrine (Not good law in most


states)
Gender Presumption in favor of the mother during the child's "tender years"
(usually up to age 4).
a. Historically: The father was presumed to get custody. Why?
Children & women were men's chattels.
b. 20th Cent. View: Custody presumption in favor of the mother.
c. Now: Most states have rejected the tender years doctrine:
•Case: Ex Parte Devine (Alabama 1961)
•Held: Tender years presumption was unconstitutional. (Only 1
of 2 states to hold the presumption unconstit.)
d. Is the doctrine right:
•Yes.
(1) Custody is an area in which stability & predictability are important.
(2) It avoids destructive custody battles.
(3) Mothers are generally the primary caretakers of children.
(4) It protects women from bargaining away $$ to get custody.

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Family Law Notes Marianne E Dutton

• No.
(1) The presumption may hurt the best interests of the child.
(2) It reinforces the stereotype of women as child rearers & males as
irresponsible.

2. Fitness for BIC

In re marriage of Carney 1979 pg 525


Disability re BIC standard
Held
 The physical handicap of a parent is not a factor in a best interests
determination. (The ct. needs to look at all the circumstances)
 Disability is only a factor if it is a MENTAL DISABILITY or if it
means the disabled parent will be absent from the home frequently.
 Parents do more than play ball with their kids.
 The disabled person may be able to give more in other areas.
 The kids' increased responsibilities may benefit them.
Facts
 Handicapped father. Mother deserted them. The lower ct. granted
custody to the mother because the dad wouldn't be able to do "physical
things" with his sons. The dad appeals. Judgment rev'd.

3. Weighing Multiple Factors for BIC pg 532

Hollen v Hollen 2001


Marital fault and custody decisions
Held
 Marital fault should not be used as a sanction in custody awards, nor
should differences in religion, personal values and lifestyles be the sole
basis for custody decisions
 Here more factors weigh for the wife Beth
Facts and Court considerations
 Child’s age, health and sex
o Legal presumption for mother (tender years doctrine) 3 year old

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Family Law Notes Marianne E Dutton

 Determination of parent with continuity of care prior to separation


o H rarely visited, no custody, no interest in custodial parent until
allegation of homosexuality
 Who has best parenting skills, willingness and capacity to provide
primary child care
o Mother provided care
 Employment of parent and responsibilities of employment
o Mom was rental agent vs dad cop
 Both parents physically and mentally healthy
 Moral fitness
o Neither went to church regularly
o Homosexual affair, untrustworthy testimony
o W sexual misconduct not per se grounds for denial of custody
 Home, school and community record of child
o None specified
 No child preference specified

4. Race and Ethnicity with BIC pg 538

Palmore v Sidoti 1985 USSC


Race not a factor
Held
 The ct. cannot give effect to private racial biases.
Facts
 Interracial marriage occurs after the divorce of 2 whites.
 Where should the white child of the first marriage be placed? With the
interracial couple or the white couple?
 The lower ct., wanting to insulate the child from "social
stigmatization" gave custody to the white couple. The Sup. Ct.
reverses.

Jones v Jones 1996 pg 540


Ethnicity as a factor (Native American)
Custody must be racially neutral
Held
 Although H was concerned with native things, court followed Palmore
and did not use race in it’s decision to give him custody
Issue
 Did the trial court err when considering race as a factor in the custody?

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Family Law Notes Marianne E Dutton

Facts
 H is Native American boozer who used to beat the wife and ignore the
kids; he got custody, he says kids will be discriminated against if they
leave the family farm; he wants them to stay involved with the tribe etc

Bartlett Excerpt pg 543


 Rethinking Palmore in terms of the possibility of role policing

5. Religion in BIC pg 549

Most states use one of these standards:


* Actual or substantial harm.
The court will restrict a parent's First Amendment or
parenting rights only if that parent's religious practices cause
actual or substantial harm to the child.
* Risk of harm.
The court may restrict a parent's First Amendment or
parenting rights if that parent's religious practices might harm the
child in the future.
* No harm required.
The custodial parent's right to influence the religious
upbringing of her children is considered exclusive. If the
custodial parent objects to the noncustodial parent's religious
activities, that's the end of it: The court will defer to the custodial
parent's wishes.
In short:
 Unless the content of the parent's religious beliefs would threaten the
health & well being of the child (see Kendall), the court will not deny
custody to a parent merely because their religion is strict.

Kendall v Kendall 1997


Physical acts and verbal threats justify religious restrictions
Held
 A father's verbal threats and physical acts toward his children, which
were designed to interfere with their Orthodox Jewish religious
practices, were enough to warrant restrictions on his First Amendment
and parenting rights.

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Family Law Notes Marianne E Dutton

 The court barred the father from sharing his religious beliefs, praying,
or studying the Bible with his children if those activities would cause
the kids to reject their mother or their Jewish identity or cause them
emotional distres
Note
 A court-appointed doctor found that the father's actions -- cutting off
his son's payes (the curls customarily worn by Orthodox Jewish males)
and telling his children that anyone outside the fundamentalist faith was
"damned to go to hell" --caused mental and emotional harm to the
children
Issue
Standard of Review
 The plaintiff was required to demonstrate "in detail" that exposure to
the defendant's religion caused the children "substantial injury, physical
or emotional, and [would] have a like harmful tendency for the future."
We uphold the judge's factual findings unless they are clearly erroneous
; we review her legal conclusions to ensure they are based on correct
legal standards.
Facts
 Dad believes Jesus Christ and that those who do not accept the Boston
Church of Christ faith are "damned to go to hell" where there will be
"weeping and gnashing of teeth."
 The defendant testified that he would like his children to accept Jesus
Christ and that he "will never stop trying to save his children."

Shepp v Shepp 2006 supp. Pg. 51


BIC – religion – illegal conduct
Held
 The illegality of bigamy/polygamy are balanced with father’s right of
free exercise of religion;
 The Sherbert test, which requires a compelling government interest,
does not apply where the challenged State action that is claimed to
inhibit the free exercise of religion is a generally applicable criminal
law
 For these reasons, we conclude that a court may prohibit a parent from
advocating religious beliefs, which, if acted upon, would constitute a
crime. However, pursuant to Yoder, it may do so only where it is
established that advocating the prohibited conduct would jeopardize the
physical or mental health or safety of the child, or have a potential for

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Family Law Notes Marianne E Dutton

significant social burdens. Because such harm was not established in


this case, there was no constitutional basis for the state’s intrusion in
the form of the trial court’s Order placing a prohibition on Father’s
speech. That being the case, the second facet of the strict scrutiny test -
- whether the trial court’s Order was narrowly tailored to achieve a
compelling end --was not implicated
Facts
 Couple became Mormon before marriage
 Excommunicated dad b/c he believes in polygamy
 Girl lived with mom after divorce and mom’s other kids from other
marriages
 Father wants primary custody; he says he won’t put daughter in
polygamist marriage
 Dad said to girl: “that if you didn’t practice polygamy or you didn’t
agree with it, but mostly if you didn’t practice it, that you were going
to hell.”

6. The Child’s Preference and BIC

Most courts will consider the wishes of the child as to his custodians as
described in § 402 of UMDA. However, this broad language is tempered by
the court’s discretion to determine whether the child has sufficient maturity to
express a meaningful preference. Teenagers especially are consulted.

McMillen v McMillen 1992 pg 554


Child preference in custody
Held
 Court considered the child’s preference where the stepfather frightened
and upset the child and the child was left unattended after school
Note
 Child doesn’t have to tell which parent in open court; See UMDA 404
that provides for two alternatives
Facts
 GAL can be used to determine what the child’s preference is as to custody.
 In GA, 11 y/o are allowed to give input, 14 y/o is allowed to choose the
custodial parent as long as they are fit.
 There is a view that, at no age, should a child’s wishes be dispositive.
 Courts typically look at how child arrived at the preference.

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Family Law Notes Marianne E Dutton

 Child is not a party and there is debate as to whether child has a right to a
day in court.
 There is a great deal of concern as to the stress and strain this puts on the
child.
 In this case, court determines that where child’s wishes were sufficient,
they could tip the scales in favor of one parent or another.

7. Reliance on Mental Health Experts and BIC

K.J.B. v C.M.B. 1989 pg 557


Couple agreed to therapist admissible written report
Held
 Enough evidence to support modification decree and to award sole
custody
 Denial of visitation at kids home not supported by evidence
Issue
Standard of review
 Clearly erroneous; whether trial court judgment unsupported by
substantial evidence
Facts
 H appeals from modification decree that terminated his rights of
visitation and custody of the two children
 Parties had to undergo counseling by court order
 Father went separate and then joint counseling
 Parties stipulated that the therapist’s report would be admissible on the
pending motions
 After two sessions doc said contact b/w father and kids would be
dangerous; father was not trying; mom got custody; dad appealed b/c
no substantial evidence to support modification or termination of
visitation

8. Counsel for the Child and BIC

Schult v Schult 1997 pg 560


Court appt GAL vs Court appt atty

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Family Law Notes Marianne E Dutton

Held
 Court would not put down a bright line rule, but instead said case by
case; here it was okay for atty to advocate differently from GAL
 When the court has appted atty and GAL in a dissolution action, the
atty for the child may advocate a position different from GAL as long
as the trail court determines that it is in BIC to permit such dual
conflicting advocacy
 The trial court is best to make this determination b/c they can hear both
sides
Issue
 Can an atty representing a minor child in connection with custody
advocate a position that is contrary to that of the GAL? Does this
conflict with RPC that says atty must advocate position of GAL
Facts
 Child has history of emotional, psychological and developmental
problems
 H moved out; boarder moved, Norman, in and now will marry W
 Court appt child atty; W was a nurse; kid got broken leg while Norman
was babysitting and W at work

Parenting: Alternative Approaches pg 566

1. Tender Years Presumption

Pusey v Pusey 1986 pg 566


Tender Years Doctrine shot down
Instead function related factors
Held
 The doctrine was useful when mothers didn’t work, but not today; it is
not in BIC for court to arbitrarily apply a presumption in favor of the
mother and award custody on that basis
 No abuse of discretion; court had good enough reasons to put older boy
with the father
 Function related factors
o Id of primary caretaker during marriage
o Parent with greater flex to care for child
o Who kid spend most time with

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Family Law Notes Marianne E Dutton

o Stability
Issue
 Utah uses the tender years doctrine as a tie breaker
Facts
 Married 12 yrs; Two sons ages 12 and 9; older wanted to love with dad,
younger felt the same re both
 Social worker said joint custody

2. Primary Caretaker Presumption


Standard: Focus on which parent has done the most for the child;
Used as gender-neutral
a. Factors:
•Preparing & planning of meals
•Bathing, grooming & dressing
•Purchasing, cleaning & care of clothes
•Medical care (nursing & trips to the Dr.)
•Arranging for after-school social interaction between peers
•Arranging baby-sitting. daycare
•Disciplining
•Educating
•Teaching elementary skills, eg. reading, writing

Questions Surrounding Primary Caretaker


 What facts are necessary for presumption to arise?
 Physical care of child
 Is presumption inapplicable when both parents have been primary
caretaker?
 How is presumption rebutted?

ALI Principles v Primary Caretaker (note 1 pg 590-1)


 PCT
o Prior division of parental responsibilities
o Used to determine which parent will be designated custodian
 Right of physical custody superior to that of non custodian
 Right of legal custody equal or greater to that of non
custodian
 ALI
o Doesn’t use terms custodian/non custodian
 Implies winner/loser

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Family Law Notes Marianne E Dutton

Garska v McCoy 1981 pg 569


Presumption for Primary Caretaker, gender neutral
Held
 BIC is no good b/c it’s too unpredictable, too uncertain, No reasonable
basis for negotiations because it is way too unpredictable.
 Court announces the factors list above
Facts
 Trial ct. gives custody to father, but this gets rev'd on theory of mother
being the primary caretaker.
 Mom had her parents adopt kid so he could get UMW insurance
 Adoption was not mom’s intent to abandon
 Dad habeas petition for custody of son
 But no emotional connection to child, no reason to change her custody
 Primary caretaker presumption

3. Joint Custody

a. Joint legal custody: Not necessary for parent to be living with kid, but must
be consulted for kid's major life decisions.
b. Joint physical custody: Kid has to spend a certain amount of time living
with each parent.
c. Joint residential custody.

Considerations in Joint Custody


 Ability to Cooperate
 Spousal Abuse
 Other Conduct

Squires v Squires 1993 pg 574


Ability to cooperate not absolute
Held
 Affirmed the joint custody award, explaining that a cooperative spirit
between parents, although desirable, is not a prerequisite for joint
custody
 In deciding whether to order joint custody in a given case, trial courts
should look beyond the present and assess the likelihood of future
cooperation between the parties. If the parties appear reasonably likely

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Family Law Notes Marianne E Dutton

to cooperate after the divorce, then joint custody may be ordered. To


achieve such cooperation, trial courts may assist the parties through use
of their contempt powers.
Issue
 Is ability to cooperate mandatory for JC? NO
Facts
 The parents did not get along/hostile

4. Past Division of Parental Responsibility

Young v Hector 1999 en banc pg 579


Relies on ALI principles
Held
 Mom gets custody; read the facts; No abuse of discretion; Focusing on
moms economic stability was okay bc it reflected more responsibility
attitude about providing for kids
o Father decided not to seek FT work
Dissent
 Dad was primary caretaker, mom acquiesced in what she criticizes now;
should keep arrangement like it was last 3 years; court used gender
biased (yeah, right…)
Issue
 Who was the primary caretaker or responsible parent? Mom
 Looked at schedule and fitness of mom
o She led brownie troop, couched a soccer team etc
o See slides for more details (4/7/2009)
Facts
 Housekeeper caring for kids, Mom worked, Dad puttered and hunted
treasure
 He had an affair in new Mexico
 No agreement that he would not work; he did look for work, but then
started traveling and visiting sick brother; spent over a year looking for
gold in NM
 Housekeep watched the kids during this time
 Mom was law firm partner
 He started spending time with kids when she said she wanted a divorce

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Family Law Notes Marianne E Dutton

 GAL recommends mom gets custody, dad visitation

5. ALI Principles of the Law of Family Dissolution pg 588

§ 2.08 Allocation of Custodial Responsibility


Unless otherwise reolved by agreement of the parents, the court should
allocate custodial responsibility so that the properotion of custodial time the
child spends with each parent approximates the proportion of time each parent
spent performing caretaking functions for the child prior to the separation, or
before the filing of the action if they didn’t live together…except to the extent
necessary to achieve one or more of the following objectives
 (a) To permit the child to have a relationship with each parent which,
in the case of legal parent of parent by estoppel who has performed a
reasonable share of parenting functions should be not less than a
presumptive amount of the custodial time set by a uniform rule of
statewide application
 (b) to accommodate the firm and reasonable preferences of a child who
has reached a specific age, set by a uniform rule of statewide application
 To keep siblings together when the court finds that doing so is
necessary to their welfare
 To avoid an allocation of custodial responsibility that would be
exteremely impractical or that would interfere substantially with the
child’s need for stability in light of economic, physical, or other
circumstances, incuding the distance b/w parents residences, the cost
and difficulty of transporting the child, schedules, parents ability to
cooperate
 To avoid substantial and almost certain harm to the child

ALI § 209: Allocation of significant decision making responsibility pg 590

ALI Principles re Custody


 If parents agree
o Court should enforce agreement
 Unless not voluntary or
 Would be harmful to the child § 2.01(1)(a)&(b)
 If parents unable to agree
o Court should award custody based on allocation of caretaking
responsibility prior to the separation
 Replicate division of responsibility when family intact

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Family Law Notes Marianne E Dutton

 Deference to arrangement on which parties once


agreed

ALI Principles on prior caretaking


 Rebuttable by specific factors
o Prior parental agreement
o Child’s preference
o Need to keep sibs together
o Harm to the child’s welfare based on emotional attachment to a
parent and the parent’s ability and availability to meet the child’s
needs
o Avoidance of impractical custodial arrangements
o Avoid interfering with the child’s need for stability and the need
to deal with parental relocation § 2.08(1)(a)-(g)

ALI principles PROHIBIT court from considering


 Gender of parent or child 2.12(1)(b)
 Race ethnicity of child, parent, or other member of household
 Religious practices of parent or child except if harmful to the child
 Sexual orientation or extramarital sexual conduct except if it causes
harm to the child
 Relative earning capacities

ALI principles: Allocation of Significant Decision making Responsibility


§ 209 pg 590
 Examples: Education, health care, permission to enlist in military,
drive a car, work, school sports, sign a contract
 Court should enforce agreement, but
 IF no agreement of sig life decisions
o Presumption of allocation of joint decision making to each parent
who has been exercising a reasonable share of parenting
functions in BIC
 Can be overcome (Dom violence, child abuse, not BIC)
o Who decides and how much?
 Allocation of custodial responsibility
 Participation in past decision making
 Wishes of parents
 Ability and cooperation of parents in past decision making

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Family Law Notes Marianne E Dutton

6. Random Selection: Mnooking pg 591 and other whiners too


 Flipping a coin idea b/c of indeterminacy involved in choosing b/w two
fit parents probably same as judicial guesswork
 Child Custody and Judicial Inadequacy; hard to say what’s best for a
kid: inadequate info, predictions, what values to use?

New Terminology by Court


 Old: Visitation and Custody
 New: parenting plan, parenting functions, and residential schedule

PARENTING: MODIFICATION (4/9/2009)


When court makes the original custody determination, it looks at BIC only.
(pg 600 in Wetch). But when court modifies custody, it looks at two things.
See the case.

1. Modification – Change in Circumstances

UMDA § 409 Modification for Change in Circumstances


 Standard for modifying custody arrangement
 DO not modify unless:
o On the basis of the facts
 Arisen since decree or
 Unknown to court at the time
o Change in circumstances of child/custodian AND
o Modification necessary to serve BIC
 Retain Custody Unless
o Custodian agrees to modification
o Child integrated into petitioners family with custodian consent
OR
Environment ‘endangers seriously’ child AND harm likely
 Physical, mental, moral, emotional health
 This section purpose (Comment pg 595)
o Designed to maximize finality and thus assure continuity for the
child
o No earlier than 2 years post decree
 Unless environment may endanger seriously child
 Comment: this is a safety valve, onerous burden

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Family Law Notes Marianne E Dutton

o Regards change as producing some harm to child which must be


weighted against likelihood of harm from staying with custodian
 Comment: ‘any change in the child’s environment may
have an adverse effect, even if the non-custodial parent
would better serve the child’s interest

Hassenstab v Hassenstab 1997 pg 596


Modification – good court rationale here – only past year really matters
Abuse of discretion standard
Source of law is state statute
Ask: Is mother unfit? If so, change in circs affecting BIC;
Held
 No showing of change in circumstances
 Modification of custody not warranted where alleged suicide attempt
had occurred 7 years previously and no showing that alleged alcohol
abuse had adversely affected child
 The Hassenstab court cited Kennedy v. Kennedy, 221 Neb. 724, 380
N.W.2d 300 (1986), also a case involving custody modification, in
which the Supreme Court had made it clear that it is the present
situation that is of primary concern.
o In cases of this nature, it appears to us that in determining . . .
custody of a minor child . . . the evidence of the custodial parents
behavior during the year or so before the hearing . . . is of more
significance than the behavior prior to that time. What we are
interested in is the best interests of the child now and in the
immediate future, and how the custodial parent is behaving now
is therefore of greater significance than past behavior when
attempting to determine the best interests of the child
Issue
Facts
 Husband wanted kids from mother; mother had lesbian affair; mother
tried to commit suicide 7 years before; sough counceling; district court
dismissed H’s application to modify

Wetch v Wetch 1995 pg 599


Modification – changes in circumstances
What can be considered on appeal?
Held

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Family Law Notes Marianne E Dutton

 If the previous custody determination was based upon the parties


stipulation ant by consideration of the evidence and court made
findings, the trial court must consider all relevant evidence, including
pre-divorce conduct and activities
 Trial court has broad discretion in admitting evidence or not; on appeal
will not overturn these decisions on relevancy unless there is abused of
discretion
 Trial court must evaluate all factors affected BIC of child
Issue
 Did the trial court err when it entered custody decree for father and
didn’t consider custody evidence relating to conduct and events before
the 1994 judgment? YES
Facts
 M had custody; F visitation
 Original agreement was agreed to by the parents and the court didn’t
determine the factual underpinning of the custody agreement; same for
the amendment by the parties
 M wanted to move to TN; F didn’t like this; new agreement signed
o Mom got custody and stipulated in agreement to live w/in 60
miles of ND city of Fargo
o She moves anyway; court gives custody to dad now
 Mother here says domestic violence by dad toward her and the girls
 Father says res judicata re issues before divorce and first custody
determination

Rose v Rose Revisted: The Court Changes its Position pg 602


1989 modification and expert testimony
Held
 Significant change warrants change in custody for BIC
Rationale
 The mother is less psychologically stable than the dad.
 It was hard on the kid to continue to be moved back & forth between
mom & dad. (The previous order had granted liberal visitation rights
to Mr. Rose)
 The dad had remarried. Now there's a full-time wife/mother to take
care of Jason.

Issue

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Family Law Notes Marianne E Dutton

Facts
 Court first gives custody to mom; 4 years later changes and gives to dad
 Parents are often convinced that if the other parent gets the kids, they
will suffer irreparable harm.
 3 types of experts in this case
o Suicide experts
o Parenting experts
o Joe Goldstein: an expert on parent-child separation.
(Propounder of the psychological parent theory)
 Says:
 Ex. in Rose, Jason (the kids) had been w/his dad for one
year. This is a long time in a young child's life.

2. Modification – Relocation

Generally no uniform approach to this by courts

Baurers and Lewis 2001 pg 605


Two prong analysis set forth (NJ) standard set here
Review is clearly erroneous standard
See next case for joint custody and relocation
Held
 Remanded. Mother must show good faith reason for moving and that
kid won’t be harmed
 The moving party has the burden of making a prima facie case that
he/she has a “good faith reason for the move and that the child will not
suffer from it”.
 The Court said the initial burden on the moving party will be to produce
evidence that relates to those concerns.
 The critical path to a removal disposition, therefore, is not necessarily
the one that satisfied one parent or even splits the difference between
the parents but the one that will not cause detriment to the child.
 The Supreme Court, however, cautioned that this analysis was not
applicable in those cases in which true co-parenting exists between the
parents who share physical custody, either de facto or de jure, by formal
or informal agreement.
o In those circumstances the Court concluded that a removal
application effectively was a motion for a change in custody to

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Family Law Notes Marianne E Dutton

be governed by a changed circumstances inquiry and ultimately


by a simple best interests analysis.
Factors considered
 the reasons given for the move; (2) the reasons given for the opposition;
(3) the
past history of dealings between move; (4) whether the child will receive
educational, health and leisure opportunities at least equal to what is avoided
here;
(5) any special needs or talents of the child that require accommodation and
whether
such accommodation or its equivalent is available in the new location; (6)
whether a
visitation and communication schedule can be developed that will allow the
noncustodial
parent to maintain a full and continuous relationship with the child; (7) the
likelihood that the custodial parent will continue to foster the child’s
relationship
with the non-custodial parent if the move is allowed; (8) the effect of the move
on
extended family relationships here and in the new location; (9) if the child is
of age,
his or her preference; (10) whether the child is entering his or her senior year
in high school at which point he or she should generally not be moved until
graduation
without his or her consent; (11) whether the non-custodial parent has the
ability to
relocate; (12) any other factor bearing on the child’s interest.
Issue
Facts
 Autistic kid, can’t afford to be a single mom in NJ w/o normal day care;
wants to move to where her parents can help care for him
 no, that would impair relations with dad
 kid’s wellbeing closely tracks that of custodial parent
 to move here: show good faith reason, and that kid will not be
harmed…remand

Maynard v McNett 2006 ND supp pg 63


Modification – relocation – Joint physical and legal custody
Held

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Family Law Notes Marianne E Dutton

 Reversed. District court erred.


 Both parents agreed to joint custody so this must be given deference;
both are considered by court as custodial parents
 A parent with joint legal and physical custody may not be granted
permission to move with the parties’ child, unless the district court first
determines if BIC require a change in primary custody to that parent.
There was no motion to change custody.
 So you need to make two motions here
 Trial court must consider BIC
Facts
 H appeals order allowing wife to move from Fargo ND to Missiouri
with daughter 9 y.o.
 District court said yes, in BIC
 Parents have joint legal and physical custody

Braver, Ellman and Fabricius Study pg 609


 Study compares kids who parents don’t relocate more than an hour
away and those who do; 14 variables measured
 Courts should give greater weight to the child’s separate interests when
deciding relocation cases
 For mothers who moved away, they find little evidence of reduction in
conflict

3. Modification – Grandparents visitation

Troxel v Granville USSC 2000 pg 621


Constitutional right of parents to rear their kids
Held
 Statute unconstitutionally interferes with parental rights to make kid
decisions
 Citing a constitutional right of parents to rear their children, struck
down a Washington state law that allowed any third party to petition
state courts for child visitation rights over parental objections.
Stevens dissent
 Even a fit parent is capable of treating a child like a mere possession
 Apply strong presumption that parent can decide, this statute could be
applied fine

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Family Law Notes Marianne E Dutton

Facts
 WA statute, any person can petition for visitation rights at any time –
grant if in BIOTC

4. Modification – Unmarried Parents

a. Fathers

Stanley v Illinois USSC 1972 pg 638


Unmarried father should be treated same as married for EP if established a
relationship with the kid
Held
 An unwed father who has a developed relationship with his child is
entitled to a hearing on his parental fitness before the state may take
custody of his child.
 The Illinois law violated equal protection because removing children
from an unwed parent who had a relationship with his child did not
further the state's interest any more than removing a child from a
married father would further the state's interest.
 Letting the father petition to adopt the children did not give equal
protection because the law gave the father no priority in the adoption
and wrongly put the burden on him to show that he was the most
suitable of all those who might want custody of the children.
Issue
Facts
 In Stanley, the unwed father lived intermittently with the mother for 18
years. They had three children when the mother died. Illinois law made
children of unwed mothers state charges in that situation.
 A father could petition for custody, adoption, or guardianship.
Divorced, widowed, and separated fathers, however, were not deprived
of their children absent proof of unfitness, which the state had the
burden to show.
 The state's interest was to protect the mental and physical welfare of
children and the community, and to strengthen the child's family ties
whenever possible, removing him from his parents only where the
child's welfare or public safety required it.

Lehr v Robinson USSC 1983 pg 641

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Family Law Notes Marianne E Dutton

Father gets rights only if had relationship with the kid first in a reasonable
amount of time
This is unlike Stanley where parents had lived together after baby born
Held
 Mere biology, without more (like a parent-child relationship) does not
give the unmarried, biological father of a child the right to a hearing to
contest his child's adoption.
 No DP violation
o The right to receive notice was completely within the father's
control. He needed only to mail a postcard to the registry. The
father's ignorance of that requirement was not a sufficient reason
for criticizing the law itself.
Dissent
State had actual notice of his existence; biological connection important in
determining nature of liberty interest
Issue
 Were the father’s DP rights violated when he was not contacted when
his natural child was put up for adoption? no
Facts
 A child is born from unmarried parents. The mom marries another man.
The "new father" wants to adopt the child. The biological dad asserts
his parental rights. The Sup Ct. strikes down the dad's claim.
 Father did not enter his name in New York's "putative father registry,"
which would have entitled him to notice of the adoption proceeding
 Although the father had lived with the mother before the birth and
visited her in the hospital when the child was born, he was not on the
birth certificate and paid no support.

b. Unmarried Couples/Psychological Parent Established/De facto and


Parent by Estoppel

De facto parent: to prevent trauma to the child; BIC


 In limited circumstances a child may, with the legal parent’s assent,
have developed a ‘significant preexisting relationship with an adult
who is not the child’s legal parent ‘that would allow an inference, when
evaluating a child’s best interests, that measurable harm would befall
the child on the disruption of that relationship.

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Family Law Notes Marianne E Dutton

 De facto parent has participated in the child’s life as a member of the


child’s family. They reside with the child, and with the consent and
encouragement of the legal parent, performs a share of caretaking
functions at least as great as the legal parent. Shapes the child’s daily
routing, addresses his developmental needs, disciplines the child, deals
with education and medical care (see ALI)
 Recognition of de facto parentage lies within the court’s general equity
powers to protect welfare of minors, which proceeds from the premise
that disruption of a child’s preexisting relationship with non-biological
parent can be harmful to the child and thus warranting state intrusion
into the privatrew realm of the family. Judge has broad discretion to
consider any factor that bears on the child’s best interests

ALI 2.03(1)(b): Parent by Estoppel


 Tho not a legal parent
o Parent has lived with child since birth, accepted full and
permanent parental responsibilities as part of prior co-parenting
agreement with child’s legal parent(s) to raise child together,
each with full parental rights and responsibilities, when in BIC
 Agreement must be entered into PRIOR to child’s birth;
can be inferred frm circumstances and need not be formal

ALI 2.03(1)(c): De Facto Parent


 Not legal parent or parent by estoppel
o Lived with child at least 2 years
 AND
o For reasons primarily other than financial compensation, with
agreement of a legal parent to form a parent-child relationship
OR complete failure or inability of any legal parent to perform
caretaking functions
 Regularly perform majority of caretaking functions or
 Regularly performed share at least as great as parent with
whom child primarily lived
 Comment:
o Requirements ‘strict, to avoid unnecessary and inappropriate
intrusion into the relationships b/w legal parents and their
children

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Family Law Notes Marianne E Dutton

o Agreement is to forming parent child relationship, but not


necessarily full and permanent responsibilities
 More difficult to prove than parent by estoppel b/c must demonstrate
that performed at least equal share of care-giving functions
 EX. Stepparent who is primary breadwinner but otherwise doesn’t act
as parent does not satisfy requirements of being de facto
o Status is based on activities that involve interaction with the child
that direct, arrange, etc

ALI § 2.18 De facto, estoppel, legal parent responsibility allocation


Court should allocate custodial responsibility to legal parent, parent by
estoppel, or de facto parent under same standards as for legal parents EXCEPT
THAT
 Should not allocate majority of responsibility to de facto parent over
objection of fit legal parent or parent by estoppel
o UNLESS legal parent or estoppel parent has not be performing
reasonable share of parenting functions OR
o Available alternative would harm the child

c. ALI determination of legal parent


 2.03(1)(a) Legal parent under other state law – e.g. biology, adoption,
marital presumption in some states for husband

V.C. v M.J.B. 2000 NJ pg 649


Lesbian couple De facto parentage
When and how a person becomes a psychological parent to a child.
See elements TEST after the case
Note that in VT, next case, different law, different result
Compare to ALI 2.03(a)(b) Parent by Estoppel below
Held
 Affirmed as to no joint custody, but reversed as to visitation
 Relying on the experts' testimony, the majority concluded that V.C.'s
continued contact with the children is in their best interests; therefore,
it reversed the judgment denying V.C.'s petition for visitation and
remanded for proceedings to establish a visitation schedule.
 The case's decision "is applicable to all persons who have willingly, and
with the approval of the legal parent, undertaken the duties of a parent
to a child not related by blood or adoption."
PP

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Family Law Notes Marianne E Dutton

 The trial court ultimately denied the petition for joint legal custody,
however, finding that there were no equitable reasons supporting the
application, V.C. failed to prove that M.J.B. was an unfit parent and
that V.C. lacked standing to make the petition.
Facts
 Certification was granted "to determine what legal standard applies to
a third party's claim to joint custody and visitation of her former
domestic partner's biological children, with whom she lived in a
familial setting and in respect of whom she claims to have functioned
as a psychological parent."
 V.C. concerned a lesbian couple where one of them, M.J.B., was
artificially inseminated and gave birth to the subject child
 Both were very involved with birth, lived together, people at hospital
considered both the mother
 Lived together, got married, both called some form of mom, both sets
of grandparents recognized, started adoption procedures
 The split, there was visitation, then the birth mother stopped that and
stopped taking money from the other

To be a Psychological Parent, one must show:


(1) that the biological or adoptive parent consented to, and fostered, the
petitioner's formation and establishment of a parent-like relationship with the
child; (2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed the obligations of parenthood by taking
significant responsibility for the child's care, education and development,
including contributing towards the child's support, without expectation of
financial compensation [a petitioner's contribution to a child's support need
not be monetary]; and (4) that the petitioner has been in a parental role for a
length of time sufficient to have established with the child a bonded,
dependent relationship parental in nature.

Titchenal v Dexter 1997 VT pg 657


In VT, court will only hear case if there is a legal relationship established
De facto parent not in VT
Held
 No jurisdiction to hear such a claim as the plaintiff had no legal
relationship with the child. If there had been a civil union, then they
would hear it.

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Family Law Notes Marianne E Dutton

 Note that Titchenal thought should couldn’t adopt the child b/c of some
statute
Issue
Facts
 Plaintiff and her former same-sex partner decided to raise a family
together. The former partner (Dexter) legally adopted a child and they
raised the child together. After the 11 year relationship ended, there was
a dispute over visitation. A superior court ruled that it had no
jurisdiction to hear such a claim as the plaintiff had no legal relationship
with the child. The Supreme Court of Vermont upheld this ruling.
 Vermont courts have not granted custody or visitation rights to the non-
biological parent of a child. Co-parents in a civil union, however, are
entitled to equal parental rights for children born during the civil union.

ALI Parent by Estoppel 2.03


ALI principles make clear that it’s not the 3rd party’s reliance on the words or
deeds of the legal parent but the best interests of the child that is the paramount
consideration in the parent by estoppel analysis. Unlike a de facto parent, a
parent by estoppel is afforded all of the privileges of a legal parent, so it is a
most dramatic intrusion into the rights of fit parents to care for their child as
they see fit. This is perhaps why the ALI contemplate that parent by estoppel
status is most appropriate where adoption is not legally available or possible.

A.H. v M.P. Mass 2006 supp pg 74


Parent by Estoppel
Distinguishes b/w general parenting functions (financial support, home
maintenance) and caretaking functions (day to day care)
Held pg 81 supp
 Trial court did not err in not considering parent by estoppel b/c they
could have adopted; not enough evidence to show de facto parent
 In this jxn the parties were free to adopt, and as such court declines to
adopt the parent by estoppel theory; a co-parent agreement is the
foundation of a parent by estoppel claim; private agreement alone does
not suffice to create parental rights in one who is not the child’s
biological or adoptive parent
Law applied
 ALI 2.03(1) which defines parent to include de facto parents and
parents by estoppel see pg 78 in supp for more

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Family Law Notes Marianne E Dutton

PP
 Trial court awarded sole legal and physical custody to birth mother;
visitation was up to the birth other; judge said that P had failed to meet
her burden of proving de facto status; specifically found that Ps efforts
were not equal in quality/quantity and child would not suffer irreparable
harm from the severing of his contact with P
 Also said no standing to bring claims for visitation or support order
Issue
 Can a person who is neither the biological nor adoptive parent of a
minor child may assert custody and support rights as a de facto parent?
 If and to what extent court should recognize estoppel principles as
creating parental rights where the party claiming such rights is neither
biological nor adoptive parent of child and does not meet the criteria of
a de facto parent
 Did the trial court apply erroneously narrow standards for determining
de facto parent status, that the defendant is estopped by her behavior
during the relationship and her statements during the litigation from
asserting that the plaintiff is not the child’s de facto parent
Facts
 Same sex partners agree to have babies with same sperm donor. One
goes thru the in vitro first and has a baby; the other was going to adopt,
but partner 1 never filed the paperwork, even when nagged
 The other is the working parent for the first year, works and travels a
lot; the one that had the baby feels like she is going it alone
 They split because the other works so much, and both want parental
rights to child they agreed during their relationship to have and co-
parent
 Separated when kid was 18 months

5. Modification: Jurisdiction Issues pg 663-95 and supp 82-88

a. UCCJA 1968
 Since 1984, in effect in some form in every state
 2 bases of jxn
o Home State
o SCSE: significant connection and substantial evidence
 A state with jxn may decline to exercise if it determines
o It is inconvenient forum AND

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Family Law Notes Marianne E Dutton

 Is in BIC that another state assume jxn eg another state is


or recently was the child’s home state; if substantial
evidence more readily available in another state etc
o Another state more appropriate see section 8
 UCCJA section 8 on jxn
 Florida may decline to exercise jxn over an initial custody
proceeding if Jane has been wrongfully taken from Ohio
(in violation of parental rights under Ohio law)
 Florida MUST NOT modify Ohio decree if nmother taken
child unlawfully from joint custodian father
 Not adopted by all states
b. Home state jxn UCCJA
 Child has lived with parental figure for at least 6 months before custody
proceeding OR
 Child has moved from his home state within the last 6 months AND
one parent still lives in that state
 It’s possible to have no homestate jxn if moved from home state and no
parent left there
 Example:
o J lives with mom and dad in AL for 7 years, they separate, and J
and mom go to Tennessee. Three months later AL has home
state jxn b/c Jason moved from there w/in last 6 months AND
father still lives there

c. Significant Connection Jxn UCCJA


 Child and parent have significant connection with a state AND there is
substantial evidence in that state with respect to the appropriate care for
the child (present and future)
 Example
o J lives with parents in Ohio for 5 years . They split, J and mom
go to Wisconsin for four months, then Indiana for three, then
FLA for three. They stay in FAL and enroll in school and J takes
dance classes. Dad is still in Ohio.
o No state court gets jxn b/c she has been out of Ohio for more than
6 months and she hasn’t been anywhere else that long
o Next ask if there is a significant connection to Fla
 Is J’s school and mom’s job permanent? That would help

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Family Law Notes Marianne E Dutton

 Is there enough evidence of their life in Fla that a court


could evaluate the education and care-giving
arrangements
 Dad could still argue still for Ohio since there is also
evidence of a significant connection there

UCCJEA Uniform Child Custody Jxn and Enforcement Act of 1997


 Has the two jxn bases above, homestate beats significant connection
 Adopted by all states
 Provides that a court with home state jxn has priority over a court with
jxn based only on significant connections and substantial evidence
 Basically, in practice if a judge starts a proceeding and then learns
another state did the same, they talk to each other and decide the more
appropriate forum.
 If they can’t decide, priority filing wins
 May decline jxn too
 Don’t want to relitigate in other jxns and have forum shopping etc

Sec8 says you can decline to exercise jxn over initial custody proceeding if
child is wrongfully taken from home states (wrongfully defined under state
law) and may not modify the Ohio decree of mother unlawfully took the child
from father

Parent Kidnapping Protection Act PKPA


 States need to give FFC to custody decrees of other states, so this is the
gap filler; this holds for modification determinations too, unless jxn
has changed
 Differening interpretations
o Preempts state law; home state court has priority
o Doesn’t dictate basis on which court may assume jxn, but only
those which another court must give that court’s diecision FFC

Full faith and credit clause requires states to give nationwide recognition and
enforcement to final judgments of other states
 Custody decrees are not considered final judgments b/c the court retains
jxn to modify in the BIC until they turn 18

1. Interstate custody disputes

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Family Law Notes Marianne E Dutton

Chaddick v Monopoli 1998


Home state jxn
Second bite at the apple case
Held
 VA judgment stands. Fla doesn’t get jxn. The Mass decree does not
control, the VA judgment that dad gets the kids stands.
 According to the UCCJA, the Fla court must defer to a court in another
state in a custody dispute if, at the time a petition was filed in Fla, a
similar proceeding was pending in a court of another state exercising
jxn in substantial conformity with the UCCJA
 In future proceedings parties may be present for the phone calls b/w
judges of the two states in question, but may not participate in the call
Issue
 Who has jxn? Does the mom have a right to be present for the phone
call b/w the two state courts? NO Was she entitled to a full evidentiary
hearing re jxn? NO
Facts
 Couple married and have kid J. They all live in Mass where they got a
divorce and judge set out that she gets the kid, but father gets them in
summer
 She sends the kids for summer break, but no one knows mom’s address,
she’s pregnant, and living with a guy. So in Virginia where dad lives
now, he gets custody. Mom is in Fla. She gets an atty and tries Va
court to no avail to enforce her Mass jxn. Then she tries in Fla to get
the Mass order enforced. Should have done this first

Thompson v Thompson 1988


Parental kidnapping act was to extend the full faith and credit clause and not
to create an entirely new cause of action; can’t use as grounds in custody
dispute; goal is to avoid jxn competition and conflict b/w courts
Held
 The PKPA does not provide an implied cause of action in federal court
to determine which of two conflicting state custody decisions is valid.
 If SCSE state exercises jxn despite home state jnx in another state,
parent may not sue to set aside SCSE state custody decision on ground
that it violates the PKPA
 Parent’s recourse is to seek to enforce the terms of the homesstate
decrees in the SCSE state

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Family Law Notes Marianne E Dutton

 The context in which the PKPA was enacted -- the existence of


jurisdictional deadlocks among the States in custody cases and a
nationwide problem of interstate parental kidnapping -- suggests that
Congress' principal aim was to extend the requirements of the Full
Faith and Credit Clause to custody determinations, and not to create
an entirely new cause of action.
 The language and placement of the Act reinforce this conclusion, in that
the Act is an addendum to, and is therefore clearly intended to have the
same operative effect as, the federal full faith and credit statute, the
Act's heading is "Full faith and credit given to child custody
determinations," and, unlike statutes that explicitly confer a right on a
specified class of persons, the Act is addressed to States and to state
courts.
 Moreover, in discussing the congressional rejection of a competing
legislative proposal that would have extended the district courts'
diversity jurisdiction to custody decree enforcement actions, the
PKPA's legislative history provides an unusually clear indication that
Congress did not intend the federal courts to play the enforcement role.
PP
 Distrcit court dismissed for lack of PJ and SMJ; affirmed twice
Issue
 Does the Parental Kidnapping Prevention Act of 1980 provide a cause
of action if two state courts conflict on custody decisions?
Facts
 PKPA says a sister state has to enforce the custody decisions of another
state (so this is when you have homestate jxn in one state and SCJ)
 Under the Parental Kidnaping Prevention Act of 1980 (PKPA or Act),
States are required to afford full faith and credit to valid child custody
determinations entered by a sister State's courts.
 CA gave joint custody, but on Wife wants to move to Lousiana; the
court granted respondent sole custody pending an investigator's report
 She moves with baby and obtained a Louisiana court order enforcing
the California decree and awarding her sole custody, the California
court, having received and reviewed the investigator's report, entered
an order granting sole custody to father
 Father came to Lousiana to trying to get the Lousiana decree invalidated
and the CA decree enforeced
 Without first attempting to enforce the California decree in Louisiana,
petitioner filed suit in Federal District Court seeking an order declaring

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Family Law Notes Marianne E Dutton

the Louisiana decree invalid and the California decree valid, and
enjoining the enforcement of the Louisiana decree. The court dismissed
the complaint and the Court of Appeals affirmed on the ground that
petitioner had failed to state a claim upon which relief could be granted.

UCCJEA 1997 Uniform Child Custody Jxn and Enforcement Act


 Model statute to replace the UCCJA
o Follows PKPA in giving priority to home state court when tow
courts have jxn on home state and SCSE bases in custody
determinations
 Key difference b/w this and UCCJA is that this follows PKPA in giving
priority to home state court when two courts have jxn on home state
and SCSE in custody dispute
 Like the PKA, modification can only be brought in sate that made initial
custody determination so long as child or parent involved in that dispute
remains in that state
Different from UCCJA

2. International Custody Disputes


Hague Convention
 Multilateral treaty signed by at least 50 countries
 Applies to kids under 16
 Enumerated defenses:
Lawful custodian not execising custody when removeal or retention
occurred
o Grave risk that return would epose child to harm or intolerable
sitiation’
o Child objects when mature

IPKCA
 US federal law providing criminal sanctions in support of Hague
Convention (Us v Amer)
ICARA
 International Child Abduction Remedies Act
 US federal law providing procedures for implementation of the Hauge
Convention in the US (Alonzo)
UCCJA

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Family Law Notes Marianne E Dutton

 In several states interpreted to apply b/w state and other countries,


provided countries meet minimum standards of DP
UCCJEA
 Depending on state, another country treated as if state

Hague Convention of the Civil Aspects of International Child Abduction


see pg 676
 Applies to kids under 16
 Must return child to habitual residence
Standard of review
 The court articulated that the standard of review for habitual residence
determinations under the Hague Convention raise mixed questions of
fact and law and therefore should be reviewed de novo.
Hague Convention is a civil remedy adopted to effect the return of children
brought to other countries. ; Hague convention created civil remedy for the
return of abducted children whereby the left behind parent can request the
state where the child is retained to located etc
The dual purposes of the Hague Convention are "to secure the prompt return
of children wrongfully removed to or retained in any Contracting State; and
[] to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in other Contracting States."
Hague Convention, Art. 1.

Ohlander v. Larson 1997 Fed. Cir. Pg 672


Hague Convention
Child’s habitual residence controls which jxn gets priority
If habitual residence is in question, how to determine?
Held
 Swedish court gets priority; mother was trying to dismiss her own
petition in the Utah court; Swedish court said Sweden was homestate
 District court erred in refusing to grant the mom’s motion to dismiss
her Hague proceeding for the reason that she was in contempt for taking
the child; this provides incentives for parents to flee with their kids in
hopes of getting a better judgment elsewhere
 District court considered if Mom’s removal of child from Utah was
wrongful; once her Hague petition was filed, they only should have
asked if the father’s removal of the child was wrongful

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Family Law Notes Marianne E Dutton

Facts
 Father took child from Sweden to US (Utah) without mom’s permission
 Mom filed a Hague petition seeking the child's return to Sweden and to
determine habitual residence and wrongful removal
 She took the child back to Sweden violating court order and was found
in contempt
 The father then filed a Hague petition in Sweden for return of child to
the United States.
 Mom filed to dismiss her district court petition
 The District Court, denied her motion, and subsequently ordered the
child's return to United States
 The Court of Appeals held that district court abused its discretion in
denying the motion to dismiss solely on the basis of the mother's
contempt of its order not to remove the child, and dismissal of the
petition was warranted.

Silverman v Silverman 2003 pg 677


Habitual residence/international/Hague affirmative defenses
Held
 the "habitual residence" of children changed from Minnesota to Israel
and the mother failed to show that Israel was "zone of war."
 Settled intent/purpose found in favor of Isreal from children’s
persepctive
Standard of review
 The court articulated that the standard of review for habitual residence
determinations under the Hague Convention raise mixed questions of
fact and law and therefore should be reviewed de novo.
Issue
PP
 Federal district court ruled in favor of Julie on Robert's Hague
Convention claim, finding that Minnesota was the "habitual residence"
of the children and, alternatively, that even if Israel was their habitual
residence, that there was a grave risk in returning the children to Israel
under the Article 13(b) exception to the Convention. Robert appealed.
 Reversed on appeal
District court gave custody to mother; reversed on appeal
Facts
 Couple met in Israel, married in Seattle; lived in Minnesota; wife
wanted to move to Israel; they moved, lived with family, both had jobs

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Family Law Notes Marianne E Dutton

there, marriage is falling apart; signed a lease; wife went back to Mn


to file for bankruptcy; She comes back a month later and there is an
Israeli court order that she not leave the country ( arestraining order)
and the kids passports were locked up etc
 Mom was having an affair in the states; they tried to reconcile
 They both went to US for the bankruptcy proceeding where they said
under oath that their residence was MN; tax return said this also
 Both went back to Israel
 Kids enrolled in Israeli school, learning hebrew etc
 H filed in Israeli court for divorce but cancelled the proceeding
 Wife took the kids to the states for ‘vacation’ but kept them there and
filed for legal separation and custody in MN
 Robert filed in Israel a "Request for Return of Abducted Children" with
the National Center for Missing and Exploited Children (NCMEC),
pursuant to the Hague Convention.
 Wife moves to Mass with kids to live with her boyfriend
 Father brought suit under International Child Abduction Remedies Act
(ICARA)

6. Enforcement of Custody

Sanctions for interference by one parent with another parent’s lawful custodial
rights include
 Damages in tort (Wolf)
o For custody, not visitation
 Change in custody (Henrickson)
 Criminal conviction (Amer)
o See also state statutes eg LA, AZ, CA
 Sanctions for failure to pay child support
o Can’t link to visitation (Farmer)

Wolf v Wolf 2005 Iowa pg 682


Tortuous intentional interference damages (interference with legal custody
arrangement)
Held

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Family Law Notes Marianne E Dutton

 Affirmative acts by the mother, Joan, to keep the child away from the
father and against court orders shows actual malice and punitive
damages are allowed (she gave daughter means to get away from the
dad)
 When one party has primary physical custody, there is an action
 Distinguishes b/w legal and physical custody
Issue
 Can Husband sue for tortuous interference with custody when mom had
physical care custody? YES If so, are punitive damages available?
YES (Woods case) need to show willful and wanton conduct Were the
damages excessive? No, three years of not seeing your child plus atty
expenses is worth 25K
Facts
 Tim and Joan are in custody battle over Ashley (now an adult)
 Court award sole custody to Joan and modified to joint later tho primary
physical care to Joan
 Tim appealed; reversed and he got physical care custody in Iowa
 Ashley moved to Arizona with Joan
 Tim got habeas decree and got Ashley back for a month and a half when
she flew back to AZ
 Joan petitioned AZ court for custody and they refused b/c Iowa had jxn
 Joan filed in IA next and both she and Ashley went there to testify;
court told them to stay in IA and they agreed, but left and went back to
AZ
 Court denied her petition and gave custody to Tim
 Tim filed civil suit for tortuous interference; joan didn’t appear but her
atty went and moved to dismiss for failure to esatlbish prima facie case
(denied)

Alonzo v Claudino 2007 NC pg 82 supp


Hague convention standards /habitual residence defined
Held
 The girl goes back to Honduras\. Father stayed and worked in us b/c
mother took the passports.
 Under Hague, the merits of any underlying custody case are not at issue.
The country of the child’s habitual residence is the property arbiter of
the custody dispute. Courts must secure the prompt return of the
children wrongfully removed or retained

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Family Law Notes Marianne E Dutton

 Habitual residence is defined as the place where he or she has been


physically present for an amount of time sufficient for acclimation and
which has a degree of settled purpose from the child’s perspective (look
to the parents intent for choosing the location)
 Exceptions: (to be narrowly interpreted)
o Must establish by CC evidence that
 There was a grave risk that girl’s return to Honduras would
expose her to physical or phych harm or otherwise place
her in an intolerable situation
 Or that her return would not be permitted by the
fundamental principles of the US relation to protecting
human rights abd fundamental freedoms
o Must be shown by a preponderance of the evidence
 This action was not commenced within one year of the
abduction and girl is settled in US
 Father was not actually exercising the custody rights at the
time of retention\, or
 That girl objects to being returned and has attained an age
and degree of maturity at which it is appropriate to take
account of her views.
Issue
 Was the daughter a habitual resident of Honduras at the time the mother
she was taken by the mom? NO (mom wouldn’t have needed to take
their passports)
Facts
 Hague Convention of the Civil Aspects of International Child
Abduction and the International Child abduction remedies act (ICARA)
– the implementing legislation in US
 F wants return of daughter to Honduras, where she was abducted by her
mom; both were Honduran citizens They had joint parental authority
and court gave the mom guardianship and care
 Mom went to US, supposed to be for 2 years. Kid stayed with mom’s
parents. The next year the dad got guardianship and care in Honduras
 Dad and kid visited mom in NC; mom took their passports; girl enrolled
in school dad worked and got a band account a nod license; a week
before dad and girls visa was up, mom took the girl
 Dad filed petition for return of girl under Hague Convention

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Family Law Notes Marianne E Dutton

US v Amer pg 685 Fed. Cir. 1997


International Parental Kidnapping Criminal Act as alt to Hague when not
adopted
Held
 The IPKCA was enacted to close the enforcement gap with those
countries who had not signed the Hague Convention (civil remedy
there)
 The IPKCA criminalizes the removal of a child to another country with
the intent to obstruct parental rights. The statute punishes individuals
for taking a child from the United States to another country. On its face,
the IPKCA specifically provides that "[the IPKCA] does not detract
from the Hague Convention."
Issue
 Did the use of the IPKCA detract from the Hague convention purpose?
(NO, Egypt isn’t a signatory so the IPKCA and so this remedy is not
available to the wife) detract means to limit the effectiveness of other
countries' participation in the Hague Convention with the United States
 H’s defense was not one of the three available in the Hague convention
(he said she was bad mother)
 Supervised release provision is okay here b/c it is tailored to the
situation at hand (abduction of the kids)
 H removed kids to Egypt and got custody there; W got custody in NY;
He took the kids w/o her knowing; violation of the IPKCA; Hague
convention created civil remedy for the return of abducted children
whereby the left behind parent can request the state where the child is
retained to located etc
Facts
 International Parent Kidnapping Crime Act IPKCA bars parent from
removing child from US or retaining a while outside the US for the
purpose to obstruct the other parent’s right in cusody
 Ahmed Amer abducted his two children to Egypt and was given
custody in an Egyptian court
 His wife was previously given custody in a U.S. court, and also filed a
complaint with FBI
 Upon Ahmed’s return to the United States, he was arrested on charges
of international parental kidnapping in violation of IPKCA
 When Ahmed began his supervised release term, he was unwilling to
return his
 children to the United States

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Family Law Notes Marianne E Dutton

 H wants to use affirmative defense that the children would have been
exposed to psychological harm and that the Hague convention allows
him allows him to argue that it is against the children’s rights to deny
them an Islamic upbringing

Hendrickson v Hendrickson ND 2000 pg 690


Frustration of visitation/alienation syndrome/modification of custody
Held
 Frustration of visitation does not alone compel a change in custody,
other remedies must be exhausted first, and, although the legislature
says you have to wait two years for a trail court to change it’s custody
determination unless there is a finding that a change is necessary for the
child’s best interests, as in this case, where the mother was poisoning
the children against the father
 Two factors considered when modification changing custody:
o Has there been a significant change in circumstances since the
original divorce decree and custody award? (This is a question
of fact and the burden of proving is on the party asserting the
change).
 Standard is clearly erroneous, so if no evidence or if the
view of the law was wrong, an error has been made
o If so, do those changed circumstances compel or require a change
in custody in the best interests of the child?
Issue
 Should the court change custody from the mom who is extorting the
dad for visitation? YES
Facts
 H and W life in Jamestown. Wife lived there with their 4 kids.
Husband lived and worked in a different down, but lived with wife and
kids on weekends and holidays etc.
 Divorced after 15 years
 Trial and appellate courts found that the kids had a become attached to
their lives in Jamestown and were closer to mom b/c of the living
arrangements over the years
 Wife wasn’t letting H visit kids and wanted $20K; police were required
for visitation;
 Court ordered the kids custody to the county and ordered them all into
therapy

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Family Law Notes Marianne E Dutton

 County doesn’t want the kids; Guardian Mueller spends time with
father and the trial court decides that Diane is the more diffucult parent
and defiant and that Mark the husband should get the kids

Farmer v Farmer 2000 pg 693


Can’t tie visitation to child support
Held
 Visitation and child support are separate issues that are not to be
commingled
 Trial court abused discretion by tying the two together and making one
depend on the other
Issue
 Can the court tie the visitation and a suspended sentence, to the paying
of child support? NO
PP
 Trial court impermissibly conditioned visition rights upon payment of
child support
Facts
 Divorced couple has 13 year old; mom has custody; dad wants to
modify visitation and isn’t paying child support;

Legal parent defined under state law ALI § 2.03


 Biology adoption marital presumption for H

Parent by Estoppel
 Co-parenting agreements prior to birth
o Lived with child since birth
o Full and permanent parental responsibilities
o When in BIC you will be named parent by estoppel
 Co-parenting after birth

De Facto Parent
 If you don’t qualify as legal parent or by estoppel, you can try this
 Requires
o You live together at least 2 years for reasons other than financial
compensation AND
o Have to have the agreement of the parent to form parent/child
relationship, OR

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Family Law Notes Marianne E Dutton

o If there is failure or inability of any legal parent to perform


caretaking functions
 Regularly perform majority of caretaking functions

PROPERTY DIVISION

1. Equitable distribution pg 697

Financial Settlements at Divorce


 Property
o Systems for division of marital assets
o UMDA and ALI approaches
o Cases
 Alimony
o Spousal support
o Maintenance
 Child Support

Dividing Marital Assets on Divorce


 3 systems
o SP or Title theory
o Equitable Distribution
 Adopted by 41 states
o CP

UMDA pg 697
Section 307 Disposition of Property:
Alternative A and alternative B
 Alt A
o Hotchpot approach to marital property
 Equitably apportion
 Property and assets
o Belonging to either or both, however
and whenever acquired
o Whether title is in one name or both
 Applies e.g. MT, CT, IN
 Factors for Equitable apportionment (broad
discretion to judge)
 Duration of marriage

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Family Law Notes Marianne E Dutton

 Prior marriage
 Antenuptial agreement
 Age, health, station, occupation
 Amount and source of income
 Vocational skills
 Liabilities
 Needs
 Custodial provisions
 In addition/in lieu of maintenance
 Future acquainting of assets and income
 Alt A and B
o Both alternatives
 Property divided w/o regard to marital misconduct

ALI § 4.03 - Marital and SP pg 698


 In CP and C/L jxns
 Marital Property
o Acquired during marriage, except gifts from 3rd parties and
inheritances
o During relationship bw spouses prior to marriage if a
domestic partner relationship
 SP
o Before marriage
o During marriage
 Gifts, inheritances
 Comment A: widespread view that marriage alone should not affect
the ownership interest that each souse has over property possessed
prior to the marriage or received after the marriage by gift or
inheritance

ALI § 4.05 Enhancement of SP by Marital Labor


 Increase in value of SP may be treated as marital property
 Increase in value over course of marriage = difference b/w
o Market value when acquired or beginning of marriage
o Mkt value when sold or end of marriage
o Marital ppty is the portion of the increase
o Comment b pg 699
 Value of marital labor ALI
o Values capital input per ordinary rates of return

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Family Law Notes Marianne E Dutton

 Quantum meruit approach


o Values marital labor input by prevailing compensation rates,
all remaining gain to capital

2. Distinguishing Marital Property (MP) from SP pg 700

As a result, when dividing appreciated separate property, the court must divide
the appreciation into two classes. Appreciation caused by marital
contributions, known generally as active appreciation, is marital property.
Appreciation caused by inflation, market forces, or the efforts of third parties,
known generally as passive appreciation, remains separate property.

Innerbichler v Innerbichler MD 2000


Marital property increase in value of non-marital property
(If using this case, go to pg 703 for factors used in Md court)
Held
 Affirmed an equal division of marital property; the increase in value of
the husband’s business during the marriage, of a business that he
founded just prior to the marriage was marital property valued at $4M;
$2.5 goes to wife
Issue
Facts
 MD law said SP is: acquired b/f marriage etc etc
 Considered statutory factor

 Appreciation caused by dynamic husband who served as CEO and


clearly controlled company was entirely active, even though he owned
only 51% of the company, and 49% owner also worked ther
 Husband was a gambler and pissed thru some of their assets

Thomas v Thomas GA 1989 pg 706


SP and MP classification by court (Equitable distribution factors case)
Held
 First you have to classify the assets as MP or SP, then the MP must be
divided, not necessarily equally, but equitably
 Court applied the Marital Sources of Funds Approach

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Family Law Notes Marianne E Dutton

o A spouse contributing SP is entitled to an interest in the ppty in


the ration of SP investment to total of P and nonMP investment
in the property; the remaining property is characterized as marital
property and it’s value is subject to equitable distribution;
basically, you get back the same proportion and fair return on the
investment
Issue
 At trial W was given almost all money from house and half the stock
sale proceeds, conceded by court to be SP
Facts
 Proceeds from sale of home (marital) and stock in the company where
H worked; house in wife’s name, bought by her shortly b/f marriage;
marital funds reduced the mortgage; stock purchased during marriage
b/c of stock options H had before marriage; stock was paid for with
some SP money and some MP money

In re Marriage of Brown 2008 OR pg 89 supp


SP and MP classification by court; just and proper approach; presumptions
Held
 Property (trust) can’t be awarded as spousal support; a trust asset is a
property asset and is to be treated as divisible asset; it is ‘just and
proper’ to divide the interest in both trusts b/w H and W
o H got W to leave good job; and although they didn’t use the
money in the early part of the marriage, it is how they financed
their retirement
o When property is characterized as MP, there is a rebuttalbe
presumption that that both spouses have contributed equally to
the acquisition of property during the marriage, so where this
applies, it is presumed to be ‘just and proper’ to divide the
property equally
 De novo review, reversed spousal support, modify property division
  when parties have been married a long time, the court is more
concerned with equitable distribution; want to leave them ‘on as equal
a basis as possible’
Issue
 Did trial court err when they classified the H’s trust as MP and awarded
wife 400/month from the trusts as spousal support? Did the court err in
awarding spousal support?YES
Facts

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Family Law Notes Marianne E Dutton

 H appeals from judgment award to W for spousal support from H’s


interest in 2 family trusts created by H’s father and grandmother
 Married 24 yrs; one girl; both are attys; H and his sisters were
beneficiary of two trusts created b/f the marriage; upon death the trust
goes to their living children (daughter would get 1/3)
 Trust #2 by H’s dad to him and sisters
 H and W agreed they wouldn’t rely on trusts for income; but not long
after he started getting the money they used it to live on; he was ill
couldn’t work FT anymore;
 H and W used a trust asset to finance the construction on new home; H
said they should retire; W didn’t want to; some of trust used to pay for
girl’s college; he convinced wife to quit her job and retire; sold home;
they separated; W got in debt

3. Dividing Property Equally

Ferguson v Ferguson MI 1994 pf 709


Factors in equitable distribution
Held
 Court enunciated eight factors to be considered by trial courts in
equitably dividing the marital estate
 Court did have authority to order J to transfer title of W; remanded and
subjected to equitable division using enunciated factors
 Equitable division allows court to look beyond formal state of title and
divest one party of title to achieve an equitable distribution
Issue
 Did the trial court err in awarding half the interest in the house and
land? no
Facts
 W was awarded divorce on ground of adultery with custody and support
for the child; remanded for court to consider the factors
 Factors listed on pg 711
 Long marriage, adult daughter; 14 year old son Bubba; W was
homemaker and beautician; bubba wants to live with dad;
 W got the divorce, custody, support, the marital home, half of H’s
pension, etrc etc

Comparing the next two cases:


 Postema is right to reimbursement

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Family Law Notes Marianne E Dutton

 Elkus is right to return on investment


 See arguments on slide from 4/20/09 slides pg 6

Postema v Postema MI 1991 pg 713


Law degree as an asset (most states use reimbursement alimony; this is
minority case)
Characterization of claim for compensation involving advanced degree
 Court asks
o Is it a marital asset subject to property division or instead
o Is it a factor in awarding alimony
o Here they say marital asset b/c property is one thing,
alimony is for a need for support which would terminate
on remarriage while property entitlement would not
Held
 Court used Restitution approach (contributions towards the cost of
earning the degree b/c spouse should get the contribution towards
attainment of that degree
 Fairness requires that souse who didn’t earn advanced degree should be
compensated when the advanced degree is the end product of a
concerted family efforts
o Concerted family effort includes tangibles like supporting the
spouse, and intangibles like emotional and psych burdens, life
style change, less time to pursue personal interest, education,
career
 Presumable court will ask if a RP in these circ would have expected
some form of compensation
Issue
 Did trial court err when they considered the law degree as MP?
Facts
 Married 3 years; at marriage H was accountant with plants to go to law
school; W was LPN and going to school for RN; During marriage, H
gets law degree; financed thru loans;
 W gets an RN job; both making good money now

Valuation of Advanced Degree


Methods:
 Awarding % share of present value of future earnings due to degree OR
 Restitution

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Family Law Notes Marianne E Dutton

 First, calculate sacrifices, efforts, and contributions of non-student


spouse toward attainment of degree
 Second, determine what means of compensation would be most
appropriate in light of:
o Marriage duration (longer marriage you get less b/c you already
benefited from the degree)
o Financial support while in school
 In Postema wife 80% of financial support
 Overall division of MP
 Other
 W financed her own career, H responsible for actual
cost of education

Elkus v Elkus NY 1991 pg 719


Celebrity status as property asset (see next case too)
Held
 Yes. To the extent DF's contributions and efforts led to an increase in
the value of PL's career, this appreciation was a product of the marital
relationship, and, therefore, marital property subject to equitable
division.
 The property here is the appreciation in value of her career; to the extent
that spouse efforts led to enhancement in earning power is product of
marital partnership
Rationale
 Medical licenses have been held to enhance the earning capacity of their
holders, so as to enable the other spouse who made a direct or indirect
contribution to their acquisition, to share the value as part of an
equitable distribution. Really, anything in which the other partner has
something to do with in terms of contributing to the other’s success
deserves a share
Issue
 Under NY property law, is the celebrity status and the wealth, which
comes from this status a divisible item on an economic basis in divorce
proceedings, when the celebrity status came during the marriage? YES
PP
 In trial court, held for PL. PL and DF are in the middle of trial, and
awaiting a decision on PL’s celebrity status as property, so the trial
court can render a decision on the economic portion of the proceedings.

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Family Law Notes Marianne E Dutton

Reversed in this court, and remanded back to trial court to continue


proceedings and move on to equitable distribution.
Facts
 Parties getting divorced after 17 years. Joint custody of both children,
at dispute is the split of assets. PL became famous during their
marriage. DF claims he was PL’s voice coach for 10 years of the
marriage, and sacrificed himself for the marriage, in addition to other
duties which he believes made him a contributory factor in her
development into an international celebrity
 PL seeking dissolution of marriage, and a declaratory judgment sought
her status as celebrity before the equitable division of the couple’s
assets.
 Additionally, PL’s earnings increased 275 fold from the time of their
marriage.

O’Brien v O’Brien pg 721 embedded


Profession/career can be marital property
Held
 An interest in a profession or professional career potential is MP which
may be represented by direct or indirect contributions of the non-title-
holding spouse, including money and non-money contributions made
by caring for home and family

4. Financial Misconduct and Dissipation

 Actions/inactions by spouse the diminish property available for


distribution
 What conduct is dissipation varies
 Remedies
o Most states include as factors for equitable distribution pg 723
o Include value of dissipated assets in marital estate; charging
amount dissipated against MP share
o Disproportionate division

Siegel v Siegel NJ 1990 pg 721


Dissipation of marital assets by gambling
Held
 Gambling losses are excluded from the matrimonial ‘pot’

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Family Law Notes Marianne E Dutton

Facts
 NJ statue says dissipation in value of MP considered in equitable
distribution
 Here, debt belongs to gambler

Gershman v Gershman CT 2008 pg 96 supp


When is it dissipation or not?
Held
 Dissipation in the marital dissolution context requires financial
misconduct involving marital assets, such as intentional waste or a
selfish financial impropriety, coupled with a purpose unrelated to the
marriage. Poor investment decisions, by themselves, do not constitute
dissipation.

5. Pensions and Other Deferred Income


 Pensions/retirement benefits and home are typically most sig. assets
avil. For distribution
 Key issue: are the distributable as marital property?
 Included are:
o Defined contribution plan
 Separate account for Ee where periodic contributions are
made
 Interest accrues
o Defined benefits plan
 Fixed monthly or annual amt to ee on retirement and rest
of life
 Er doesn’t maintain sep account
 State retirement system

Vocabulary
 Vested
o When Ee discharge doesn’t forfeit benefits
 Non-vested
o Contingent on continued employment
 Mature
o When Ee on retirement has unconditional right to receive
payment

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Family Law Notes Marianne E Dutton

 Non-matured

Valuing and Dividing Pensions:


 Approach 1
o Present Value (PV)
o Contingencies to collection factored in to ‘reduced to present
value’ calculation
o Fraction of present value represents marital contribution to
accrued pension benefits
o # year pension accrued during marriage/total years during which
pension accrued
o Ee spouse gets interest and non ee spouse gets off-setting interest
o Rejected by Court as unfair
 Approach 2 – Deferred distribution (Laing)
o Reserved jxn to trial ct till vest
o Not in initial prop distribution

Niroo v. Niroo MD 1988 pg. 727


Anticipated renewal commissions on insurance are MP
Held
 Davids interests in renewal income are marital property
 Contractually vested rights in renewal commissions are a type of
property interest encompassed within the definition of marital property
under § 8-201(e)
 That an insurance agent has a vested right in commissions on renewal
premiums when provided for by contract is well settled
 This contractual right was clearly established in the husband's agency
contract whereby Penn Life agreed to pay him a stipulated percentage
of renewal premiums collected in the future.
Issue
 Are anticipated renewal commissions on insurance policies sold by
spouse during marriage but accruing after dissolution of marriage, MP?
yes
Facts
 H sells life insurance and gets commissions on polices he and agents
under him sell
 If policies renew, he gets income from net profits, subject to certain
conditions (renewal income)
 This is vested even if dead or disabled b/c it goes to heirs or assigns

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Family Law Notes Marianne E Dutton

 Anticipated renewal commissions on insurance policies sold by the


husband during the marriage were included as marital property because
the husband was entitled to receive the income under a contractual
agreement with the insurance company which also provided for the
husband's heirs to receive the renewal commissions in the event of his
death and allowed the husband to assign the commissions under certain
circumstances

Laing v Laing Alaska 1987 pg 724


Non-vested pension
Held
 The court has a preference for reserving jxn as an alternative to valuing
non-vested pensions at the time of trial.
 Under this approach, a non-vested pension is not considered when the
trial court makes its initial property division at the time of the divorce.
 Rather, the court reserves jurisdiction and if the pension vests, the non-
employee spouse may seek an order dividing the pension, which will be
done in the same manner as it would have been if the pension was
vested at the time of the divorce
 (From elsewhere, if it’s not going to vest, then the contributions will be
returned so it’s like a savings account)

Alimony – Maintenance – Spousal Support


 Legal financial arrangement b/w separated or divorced couples
 Contract with child support
o Financial support by non-custodial parent
o Different tax consequences

UMDA 308 Maintenance (pg 731)


 Presumption against alimony (historical stuff in slide 4/20)

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Family Law Notes Marianne E Dutton

 Alimony only if:


o 1. Spouse lacks sufficient property to provide for his/her
reasonable needs; AND
o 2. Is unable to support him/herself or is custody of child and
should work outside the home
 Purpose
o And (§ 307’s allocation of property) is to encourage use of
property division rather than alimony to meet financial needs of
divorcing spouses
 If both conditions satisfied court may award alimony, taking into
account several factors, up to judicial discretion how much weight to
give each, and marital misconduct not considered in UMDA but 41
states do allow (see note on pg731-32)
o Financial resources of party seeking maintenance
o Time necessary to acquire sufficient education/training to find
appropriate employment
o Standard of living during marriage
o Marriage duration
o Age/physical/emotional condition of spouse seeking; and
o Ability of spouse from whom maintenance is sought to meet his
needs while meeting those of ht espouse seeking maintenance

ALI 5.05 Maintenence


Compensation for Primary Caretaker’s Residual Loss in Earnings
Capacity
o Souse entitled to comp for loss in earning capacity during marriage b/c
of primary responsibility for child care
o Primary caregiver doesn’t have to prove income loss (say they made
peanuts b/f marriage, it is presumed they didn’t go for a career b/c kids
in the plan) but can rebut:
o Presumption of entitlement can be rebutted by evidence that claimant
didn’t provide disproportionate share of the child care
o HOW TO CALCULATE
o Say 10 year marriage, W didn’t work last 7 b/c of kid
o Ask what is her expected income after divorce
o What is the difference b/w hers and his income
o What is the child care durational factor
 Not specified in ALI; leaves states to determine. Here
assume 0.02
o Calculate

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Family Law Notes Marianne E Dutton

 Multiply child care durational factor by years W had


primary child care responsibility
 Multiply this by the difference in income
 (.02)(7) = 0.14
 (0.14)(2000) = $280/mnth
 For how long? ALI doesn’t say. State sets this.

ALI 5.04 CALC for MUCH WEALTHIER SPOUSE pg 739


o Person married to someone of ‘sig greater wealth or earning capacity
entitled to comp for reduced standard of living if marriage long enough
that equity requires
o Assume state statute says 8 years qualified as sufficient duration
o Calculate:
o Factor 1: difference in incomes say 16,667 v 2500/month
 Difference is 14,167
o Factor 2: Durational factor = (yrs marriage)(o.o1 state durational
factor)
 Mult factor 1 by factor 2
 (14,167)((8)(0.01))

Alimony Review: 4 approaches to financial comp at divorce


o Reimbursement for contributions to other spouses earning power
(Postema) calculation req
o Grant of entitlement to some portion of earning power that one spouse
helps the other enhance (Elkus) calc required
o Compensation for career sacrifices w/o requiring calculation of
contribution or sacrifice ALI 5.05
o Income sharing based solely on length of marriage after a certain period
(ALI 5.04) note ALI sys ‘spousal compensatory payments)

Review of Alimony Principles/Reasons/Theories on pg 764


o Need
o Status
o Rehabilitation
o Contribution
o Restitution
o Compensation for Forgone Opportunities
o Return on investment

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Family Law Notes Marianne E Dutton

o Partnership

Alimony: Cases

In re Marriage of Wilson CA 1988 pg 732


Trial court discretion; Duration of Marriage
Held
o The trial court gets wide discretion on matters of duration of spousal
support; Court must consider totality of the circumstances
o Here the court followed the relevant CA statute guidelines (see pg 733)
which provides for spousal support in any amount and for any period
just and reasonable, provided the trial court considers the list of
circumstances on 733 (GO THRU THIS ANALYSIS ON EXAM STEP
BY STEP)
o Earning capacity of each
o Needs of each
o Obligations/assets of each
o Marriage duration
o Ability of supported spouse to engage in gainful employment
w/o detriment to dependent children in his/her custody
o Age/health of parties
o Standard of living of parties; and
o Other factors which the court deems just and equitable
o (Time for the state to take care of the wife, not the husband)
Issue
o Did trial court abuse discretion by terminating lifetime support even tho
supported spouse was permanently disabled? NO. Wife not entitled to
lifetime support after a 70-month marriage.
PP
o Trial court considered length and nature of marriage, duration of
support, and ruled hubby no longer needed to pay.

Facts
o Couple married 70 months; spousal support terminated at 58 months by
court order; she is permanently disabled from accident 2 years after
separation; the infection from dental work; couldn’t bartend anymore;
needed rehab; head doctor said h=she had brain damage.
o Short marriage, no kids, disability happened after split

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Family Law Notes Marianne E Dutton

Clapp v Clapp VT 1994 pg 734


Duration factor and Reasonable Needs Argument
Standard of Living and Permanent Alimony (she can marry and still gets it)
Usually terminates on remarriage can be modified w/change of circ tho
Held
o Here the court uses an income equalization’ and used standard of living
I marriage as factor
o Equalized income for one year
o H gets to keep increasing share of combined income in future
o Award doesn’t change b/c parties change in incomes
b) To balance equities whenever the financial contributions of one spouse
enable the other spouse to enhance his or her future earning capacity (Clapp
– Vt.. 1994)
c) To compensate a homemaker for contributions to family well-being not
otherwise recognized in the property distribution (Clapp); award tailored to
W at standard of living during marriage
d) Entity view: Pooling of emotional and economic resources in marriage
makes equality in post-dissolution financial positions appropriate.

Issue
o Standard of living is higher than reasonable needs here. What to do?
Facts
o Married 20 years; H has to pay 2K/ month. He says wife’s reasonable
needs are met; He says gives W income higher than her reasonable
nedds
o Duration relates to:
o (1) Financial need arising from the marriage
o (a)Courts believe that the longer a person is married, the more plausible
it is that her financial disparity is attributable to the marriage.
o (b) Also more plausible that spouse has benefited from homemaking
labors that gave rise to financial disparity
o (i) See Clapp, which discusses the right of both parties, after a long
marriage, to maintain the marital standard of living
o (ii) And Wilson, where court denied support to wife who was disabled
in an accident. Because marriage only lasted two years and disparity
not attributable to marriage, no support even though husband able to
pay.
o (c) The older one gets, the more they rely on the marital commitment
because life course becomes harder to change, and the prospects of
finding a new spouse decline

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Family Law Notes Marianne E Dutton

Support Modification and Cases

UMDA 316 Alimony Modification pg 753


o Higher standard
o Changed circumstances so substantial and continuing as to make
the terms unconscionable pg 753
o To discourage repeated or insubstantial motions for mod

UMDA 316 Property Disposition


o May not be revoked or modified unless
o Condition justifies reopening of j/mt under state law
o Ex. Fraud
o Terminated by death of either party OR remarriage of party receiving
maintenance
o Unless otherwise agreed in writing or decree

Graham v Graham D.C. 1991 pg 753


Alimony/child support modification: change in income
Held
o A material change (Hamilton case) for the standard of modification
says that the change can be a change which affects either parent’s
ability to pay or the needs of the minor children
o So a fat change in salary is enough to modify
Issue
o Does an increase in ability to pay of the non-custodial parent’s ability
to pay possibly constitute a material change in circumstances sufficient
to justify an increase in support? YES
PP
o Trial court said that increase in income, alone, was insufficient basis to
modify a court order for support
Facts
o 20 year marriage; was paying 625/wk combined; his income almost
tripled up to 255K per year

D’Ascanio v D’Ascanio CT 1996 pg 756


Two prong test re alimony modification in CT
Living with new person
Held

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Family Law Notes Marianne E Dutton

o The statute imposes upon the movant a two-pronged burden: first, the
movant must prove that the party receiving alimony was living with
another person and second, the movant must prove that the living
arrangement caused a change in circumstances altering the financial
needs of the support recipient.
o Here, with an agreement in place, the only thing the trail court should
have done is assess if there was cohabitation, and then enforce the terms
of the agreement that the parties entered into and the court approved.
Remanded to render judgment reducing the plaintiff’s weekly payment
in accordance with the agreement. (This says reduce 350 instead of the
reality of 100)
Issue
o Parties agreed to remove the discretion of the court in adjusting
alimony. Can the court disregard? No. Reversed.
PP
o Trial court won’t apply modification agreement
o Applies cohabitation statute
o Change in circ so as to alter the financial needs of the receiving
spouse
o For equity reasons reduces alimony only to 600
 Living w/Dean only altered her financial needs by 100/wk
instead of $350
 Appellate review of a factual finding, therefore, is limited
both as a practical matter and as a matter of the
fundamental difference between the role of the trial court
and an appellate court.’’
Facts
o CT statute provides that cohabitation may result in suspension,
reduction, or termination of alimony if “living arrangements cause such
a change of circumstances as to alter the financial needs of that party

Other Modification Holdings re Cohabitation


(1) Courts have also generally recognized that cohabitation may not always
alter the financial need of the spousal support recipient. See Smith v.
Smith, 849 P.2d 1097 (Okla. App. 1992) (holding that where no
showing was made that wife's expenses decreased during cohabitation,
alimony should not be reduced); In re Marriage of Dwyer, 825 P.2d
1018 (Colo. App. 1991) (finding no error in continuation of alimony
during cohabitation, in light of evidence that payee was still in financial
need); Mitchell v. Mitchell, 418 A.2d 1140 (Me. 1980) (upholding

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Family Law Notes Marianne E Dutton

finding that wife's financial conditions had not changed through


cohabitation).

MAINTENANCE: UNMARRIED PARTNERS PG 769

Marvin v Marvin CA 1976 pg 769


Landmark Palimony case – Unmarried, or course
(Arguments enforcement of this are in the slides on 4/21)
Held
o 1. Nonmarital partners are not entitled to division of community
property, but the courts will instead enforce express agreements
between the parties to the extent that these agreements do not rest on an
unlawful meretricious consideration.
o 2. 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.
o NOTE: court must ascertain expectation of the parties as expressed by
words or conduct
Rationale
* Nonmarital partners may lawfully contract concerning the ownership
of property acquired during the relationship.
* A contract between nonmarital partners is unenforceable only
to the extent that it explicitly rests upon the immoral and illicit
consideration of meretrocious sexual services.
* A standard which inquires whether an agreement is
"involved" in or "contemplates" a nonmarital relationship is vague and
unworkable, in that virtually all agreements between nonmartial
partners can be said to be "involved" in some sense in the fact of their
mutual sexual relationship, or to "contemplate" the existence of that
relationship.
* Awarding the plaintiff some of the property to which Marvin's first wife
would be entitled is not counter to public policy, because Betty Marvin could
have asserted her community property rights but did not.
 Adults who voluntarily live together and engage in
sexual relations are nonetheless as competent as any
other persons to contract respecting their earnings
and property rights.
Issue
o Was the live gf entitled to half of whatever he got during relationship?
NO

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Family Law Notes Marianne E Dutton

PP
o Marvin was ordered to pay $104,000 to Triola for "rehabilitation
purposes" but denied her community property claim for one-half of the
$3.6 million, which Marvin had earned during their six years of
cohabitation
Facts
o Marvin was sued by long-time girlfriend Michelle Triola (who called
herself Michelle Marvin at the time). Though the couple never married,
she sought financial compensation similar to that available to spouses
under California's alimony and community property laws.
o After all, she had lived with the rambunctious, hard-drinking actor for
six years and had even legally changed her name to Marvin. At first she
accepted the $833 per month he sent to support her while she tried to
resume her singing and acting career. When the promised checks
stopped, she decided to sue him.
o He agreed to support her for life. She gave up entertainment career to
be homemaker

Enforceability of Palimony Arguments


o An express contract would create incentives for clear expression of
parties’ intent
o Probably can’t modify for change in circ b/c jxn of court isn’t based on
dissolution principles but contract theory
o Court simply is charged with enforcing according to intent at time of
contract
o Tho, consider unsonscionablity to address destitution due to
enforcement
o Is it VAPP? No
o Implied theory of contract? Expectations? Court says look at economic
integration and if they hold themselves out as couple
o Living together would probably say sharing assets etc and give
her equitable distribution

ALI 6.03 Domestic Parners pg 779


o Explicit rejection of K as basis for recognizing claims
o Entitled to same compensatory payments ALI make for spouses
o Comment b pg 781
o Eiligility effectively based on status of lving together for x time
rather than K law

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Family Law Notes Marianne E Dutton

o Heading toward system where unmarrieds must expressly opt


our of rights and obligations
 Burden of showing K on party wishing to avoid
o Couple can qualify as domestic partners
o Same or opposite sex
o If for sig period of time
 Share primary residence AND
 Life together as a couple 6.03(1)
 13 factors to determine (7)
 Maintain common household with their common child for
state law determiened period of time (2)
 Criteria in (4) ande (5)

ALI 6.06 Compensatory Payments for Domestic Partners pg 782

Enforcement of Palimony Cases

Norton v Hoyt RI 2003 pg 776


Promissory estoppel for an adulterous relationship (he promised to support
her)
Held
o See issues for response to elements. Doctrine of estoppel has no
application to contract that is void b.c it violates an express mandate of
the law or public policy. Public policy in favor of marriage militates
against recognizing support claims arising from adulterous
relationships.
Issue
o Are these elements of Promissory Estoppel in RI met?
o Was there a clear and unambiguous promise?
 No. He said he take care of her for life, but that can mean
a lot of things, not just money.
o Reasonable and justifiable reliance on the promise
 Her reliance on the promise was unreasonable; she knew
he was married and that he spent time with wife and kids;
she knew he was a liar and an adulteror; reliance on an
unclear and ambiguous promise was imprutent
o Detriment to promisee caused by the reliance on the promise
 She says she left gainful employment as school teacher
and gave up marrying someone else at a younger age
 Whatever reliance she had is insufficent

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Family Law Notes Marianne E Dutton

Facts
o 23 year relationship; adulterious; D said he would leave his wife and
marry gf and support her forever
o Gail/P met Hoyt. He said he was divorced. Not. He kept lying and
leading her on. Lavish lifestyle. He totally supprted her. He left. She
was uber upset.

CHILD SUPPORT

Federal Gvt
1. 1984 Aid to Families with Dependent Children program
o Shapes state policy by conditions imposed by the programs through
conditions of receiving AFDC assistance to establish numerical
guidelines on which to rely in determining child support obligation
o These are rebuttable presumptions of the appropriate amount
o Judges may deviate only upon a written finding that applying them
would be inequitable
2. Child Support and Establishment of Paternity Act 1974
o Recipients of public assistance
o Must cooperate I establish and enforcing support orders and
locating potential obligors
o Objectives
o Reduce public expenditures on welfare
o Help families get support and get off public assistance
o Simulate state action for paternity for nonmarital kids
3. Child Support Enforcement amendments
o States have to make advisory guildelines or they lose federal funding
for AFDC
o Trying to enhance uniformity in child support and gtive judges basis to
determine support
4. Family Support Act 1988
o Required state guidelines to apply to all cases
o Rebuttable presumption
o Any deviation supported must be by findings that applying guidelines
would be inequitable
5. Three Models for Guidelines
o 1. Income shares
o 33 states including WA pg 783
o Prorates support based on each parents % income
o Theory

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Family Law Notes Marianne E Dutton

 Kid should get same proportion of parents income as if


they were still together
o Method to Calculate
 Add income CP and NCP
 Determine % available for support
 Add expenditures for med or child care
 Prorate total amount b/w parents based on each % share of
total
o 2. Percentage of Income
o 14 states and DC pg 784
o Percentagle of NCP income only
 Vary by number kids
 Example 20% for one kid, 50% for >6
 Illinios guidelines on pg 790-1 nt 2
o 3. Delaware Melson Formula (slides on 4/21)
o 3 states pg 784
o Generally
 Calculate parents’ Basic needs b/f formula applied
 Then kids basic needs including child care and meds
 Portion of remaining to additional child support
ALI Approach
o Based on data that indicate how much more income a family necds after
divorce to sustain its s predivorced standard of living
o Bureau of labor statistics
 Eg. Parents with 1 child need 114% of predivorce income
for same SOL
 CP needs 70% and NCP needs 44%
 CP chould get 70%/114%, or 61%of the income
 NCP should get 44%/114% or 39% of the income
o Focuses more directly on post divorce needs than assuming same % of
income should be spent on kids before and after

Schmidt v Schmidt SD 1989 pg 784


Two fathers both want custody of their respective kids
Net Income and number of Children Affected Approach
BIC
Held
o Court held that although it is in Christian’s best interest to be with Jody,
it is in Christian and Micheal’s best interest to be with Heather

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Family Law Notes Marianne E Dutton

o Splitting custody of minor children is undesirable, but will affirm split


custody if supported by compelling reasons
Issue
o How to decide with two brothers where one’s BIC is for the kids to be
together and with the mom, and the other would rather be with his dad?
Facts
o SD is income share state
o No deviation of guidelines w/o specific findings
o Deviation okay for any financial condition of either parent which
would make application of schedule inequitable
o Here M was CP for 3 kids, F paid monthly
o F gets a kid, pays support for 2 kids
o M with higher salary ordered to pay for 1 kid, so this cancels out
The Story Here
o Heather and Jody marrie,d split had, JC of their son Christian
o Heather married Stephen, split, and Heather got physical custody of
Michael
o Heather got her degree and then married Brent moved from Madison to
SD; they let Jody have Christen for the summer, Stephen got Michael
for summer. They did fine apart.
o The two fathers each filed for custody; Doc recommending that primary
custody of Christian be awarded to Jody and that Heather get Micheal
b/c Stephen was a worse parent
o The trial court found that Heather, as primary caretaker, provided
appropriate education, recreation, care, parental love, affection and
guidance.

In re Marriage of Bush Ill 1989 pg 788


Support Valuation when both parents are RICH
UMDA § 309(3) pg 784
Held
o The court reversed a child-support award of 20 percent of the father's
income or $30,000 per year for one child, stating that a four-year-old
child could not possibly need "more than the average income of most
Americans," and remanded the issue to the trial court for a reasonable
monthly support amount.
Rational
o Illinois courts, in the context of child support, have consistently held
that when one or both parents have incomes that are ample to provide
the reasonable needs of the parties' children; even taking into account

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the lifestyle the children would have absent the dissolution; the court is
justified in setting a figure below the statutory child support guideline
amount (see text pg 791 for guideline percentages)
o And despite the requirement that a court consider a child's station in
life, the courts are not required to automatically open the door to a
windfall for children where one or both parents have large incomes."

Solomon v Findley AZ 1991 pg 791


Statute doesn’t req paying for college, but court can enforce express
agreement
Held
o No statute or case law holding parents to a duty to college support in
the absence of an agreement; courts will enforce contracts to provide
such support
o Authority for a court enforcing child support where the parties have
agreed to share the cost of college (an action to enforce the agreement
as a contract)
Issue
o In Arizona does father still pay child support as long as she is in
college? NO Does she need to be living at home also?
Facts
o F (findley) and M (Solomon) submit joint petition for
o In AZ Termination of support at 18 or until child graduates from high
school, but not past 19

Curtis v Klein PN 1995 pg 794


Can selective require some parents to pay for college and not others
Held
o Can have a statute that allows courts to order parents to pay for college
b/c this is an EP violation. Not all children have a right to court ordered
college support and not all parents are made to do so.
o Note: modern trend to req support or adult disabled
o RBR: no basis for state to provide help to children of unwell parents
simply b/c they are divorced
Issue
o Statute allowing cts to order divorced parents to pay support for adult
children attending school violates the equal protection clause bc not an
entitlement that all children have

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Family Law Notes Marianne E Dutton

Child Support Modification UMDA 316 pg 752-3


o Changed circ so substantial and continuing as to make the terms
unconscionable
o To discourage repeated or insubstantial motions for modification
o Terminated by emancipated child
o Not automatically terminated on death of parent obligated to support
child

Child Support Schemes vary by state


o Income Shares
o Presumption that amount calc under guidelines is appropriate
obligation
o Statute permits deviation if
o Just finds child support under guidelines would be inequitable,
considering specific factors

Ainsworth v Ainsworth VT 1990 pg 798


Child support modification standard and subsequent families
See below for discussion re this law
Held
o Standard for modification: real, substantial, and unanticipated changes
of circumstances (court’s discretion)
o New step kids or new your own kids doesn’t make a difference (can
argue for and against this; see slide on 4/23)
o Court gets discretion, and legislature authorized exclusion of pre-
existing support order from gross income
o Guideline deviation when inequitable
o Intended discretion
o Secondary family obligations are voluntary and generally not
considered in establishing child support in this state. Affirmed trial
ct decision that the financial resources of the new spouse of the parent
is also relevant consideration. A parent should not be able to rely on
second family expenses without consideration of second family income
and resources (so the new wife’s income hadn’t been considered at trial,
but they were considering the couples debt. Should have done both of
these)
o The court considered all statutory factors here and didn’t find the
evidence weighed enough to tell if the amount was right; trial court

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Family Law Notes Marianne E Dutton

erred b/c opinion didn’t explain if they used factors and how they came
to the amount; remanded so that trial court explains the process.
Issue
o Whether there can be a downward modification to pre-existing child
support when subsequent family is involved. YES
o State statute pg 799 nt 1 says ‘real, substantial, and unanticipated
change of circumstances
Facts
o In this case, subsequent family children were step-children.
o The duty to support stepchildren is considered in the guidelines
calculation in only four states: Michigan, New Hampshire, South
Dakota, and Vermont. Mich.

How could Ainsworth be contested?


o Julie could argue that a statutory deduction from gross income only for
a preexisting support order and not a later support order indicates
priority to child of prior marriage
o Reginald could argue that exclusion from gross income occurs for ht
purpose of determining a support obligation at the time of divorce; at
that point, unlikely to have any subsequent support obligations
o Majority thinks that person should be able to start a new life
o Dissent thinks person should have to take prior obligations to children
into account in making decisions
Concluding things to remember
o Finding support inequitable doesn’t automatically justify a lower
support award
o Court must consider all relevant factors
o A deliberate and voluntary act that reduces income w/o sufficient
reason will not support deviation
o Ainsworth: reluctance to burden intimate choices post divorce
 But parent can’t automatically reduce a support or
obligation, even if guideline amount found inequitable;
attempts to protect child of prior marriage

Little v Little AZ 1999 pg 804


Voluntary unemployment for school  modification of support?
Held
o Generally the court will not disturb a support order in these cases, but
balances lots of factors and may do so if in BIC

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Family Law Notes Marianne E Dutton

o A court must balance a number of factors to determine whether to


modify a child support order to reflect a substantial and continuing
change of circumstances; trial court decision affirmed;
o Standard applied for mod is substantial continuing change of
circumstances pg 805 see guidelines here
Issue
o What standard should a court apply in determining whether NCP’s
voluntary decision to leave work and become FT student? (substantial
continuing change of circumstances) constitutes a sufficient change in
circumstances to warrant a downward mod of support obligation? See
factors considered on pg 806 balancing things like how long the
schooling is, how young the kids are so that they may benefit from the
parent’s increased earning after the school etc.
PP
o Trial court denied modification b/c appellant failed to prove a
substantial and continuing change of circumstances according to the
AZ statute; specifically he voluntarily left his job for his own ambition
and failed to consider the needs of his kids; on appeal reversed; that
court find the decision to persue a law degree reasonable;

Voluntary Termination of Employment tests


o Good faith test: actual earnings, provided in good faith
o Strict rule test: earning capacity
o Intermediate test: balancing to decide an actual earnings and earning
capacity

Bender v Bender PA 1982 pg 807


Parent paying support wants to stay home with new baby
Support Modification (nurturing parent doctrine kind of weak)
Held
o Trial court erred in not considering Mr. Bender’s ability to support the
daughter in determining whether Mrs B should be permitted to remain
at home with new baby; remand must consider adequacy of people who
might assist wife in caring for baby should she be required to return to
work in order to provide support for girl; note that the child ‘to be
nurtured’ is not the subject of the support order, tho it’s not completely
disregarded either
o Factors considered
o Age and maturity of child

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Family Law Notes Marianne E Dutton

o Availability and adequacy of pothers to assist


o Adequacy of available financial resources
o Perception that the welfare of child served y parent at home
Issue
o Should a court relived a mother who wishes to care at home for kids ant
not work from her support obligations to the child that her ex-husband
has custody of?
PP
o Appealing an order that suspending wife’s obligation to support 9 yr
old daughter; dad has permanent custody, start support proceedings;;
since she was 8 months pregnant at that time, support order given 6
week hiatus; she decides to be stay at home mom; trial court said she
had a right to be a stay at home mother

Miller v Miller NJ 1984 pg 809


Stepparents support after divorcing natural parent
Equitable Estoppel (this is the general consensus)
Held
o Yes, he can be estopped from denying support duty; he actively
interfered with girls relationship with natural father
Issue
o Can a stepparent be equitably estopped from denying the duty to
provide child support for minor step-kids after divorcing the natural
parent? Does his obligation terminate at divorce?
o If not, then must decide what evidence must be presented to establish a
cause of action for child support?
PP
o At trial equitably estopped from denying support duty; bona fide
parental relationship; affirmed on appeal
Facts
o Couple marries, no kids but W has two girls that live with them for 7
yrs. H never adopted them;

Johnson and Louis IA 2002 pg 815


Unmarried parents and college support
Held
o District court affirmed; support denied the request for postsecondary
education subsidy

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Family Law Notes Marianne E Dutton

o The classification by the legislature is RATIONAL


Issue
o Statute says parents must pay until kid is 18; another section says court
may order to pay college tuition for married parents; is this an EP
violation against unmarried parents that they can’t use that section?
PP
o Mother appeals courts denial to modify the dads support obligation to
include college subsidy; reversed on second appeal;
Facts
o Mother had the kid and got support from father;

Dubay v Wells US court of appeals 6th cir; 2007, supp pg 110


Unmarried parents; she tricked him and had his baby; support? yep
Held
o The 14th does not deny the power of the state to treat different classes
of persons in different ways; assume statute valid and party challenging
must show no RATIONAL BASIS for the statute;; the statute’s
purpose is to be sure that minor bastards are provided with support and
education
Issue
o Is the MI Paternity Act constitutional re EP of the 14th?
PP
o District Ct dismissed his case by FRCP 12b6, failure to state a claim;
affirmed by USSC
Facts
o Wells told Dubay she was infertile AND on b.c. pills; she had his baby
and wanted support; MI court did so;
o Paternity ct establishes duty of unmarried parents to support;

Vanderbilt v Vanderbilt USSC 1957 pg 817


Jurisdiction that can modify support obligations
Held
o The NV decree to the extent it purported to affect W’s right to support
was void and FFC didn’t obligate NY to give it recognition
o The wife’s right to support had not been reduced to judgment prior to
Hs ex parte divorce
o NV didn’t have jxn over her, so they had no power to extinguish any
right, which she had until NY law for financial support
o A court can’t adjudicate a personal claim under which is has no jxn
Issue

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Family Law Notes Marianne E Dutton

o Is the order of support from the NY court (divorce obtained in NV)


unconstitutional b/c it contravenes FFC?
PP
o NY court found that even tho NV ordered divorce decree and it was
valid, it still could order support payments; upheld on NY appeal;
Facts
o Married 4 years; sep in CA; W moved to NUY; H filed suit for divorce
in NV; divorce decree granted; W didn’t get notice of process in NV
and didn’t appear before the court
o The next year she files for divorce in NY and wants alimony; NY ct
didn’t pave personal jxm over him, but sequestered his property w/in
the state; he argued the FFC and since NV didn’t order support blah
blah

DOMESTIC VIOLENCE pg 291

RCW 26.50.010 Stat defineitno of domestic violence


Lots of info in slides that I didn’t put in the notes

Protection Orders in WA State (slides 4/24)


o Sexual assault
o A civil or criminal order issued by ct on behalf of assault victim
(see slide for how to get one)
o Domestic violence
o Relationship requirement
o Fear/harm requirement
o Two legal responses to violence
 Civil Protection Orders CPO
 Mandatory Arrest MA
o Anti harassment
o Course of conduct requirement
o Vulnerable adult
o Someone over 60 who has some functional limitation and cant
care for the selves or has in-home health care or admitted to
facility
o 1 year limitation
o No contact (Criminal)
o Reporting requirement, household relationship requirement and
expiration

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Family Law Notes Marianne E Dutton

o Restraining order (Dissolution)


Who is eligible?
o 16 or older, under that need parent or guardian
o See slide for legal definitions of sexual conduct, sexual penetration,
basis for petition

Traditional Immunity and Exemption (Doc of Interspousal Tort


Immunity)
 Marital rape exemption (must be gender neutral for EP, RBR)
o Basis was rooted in privacy
o Claimed to facilitate marital reconciliation
o Still exists in some form in most states
o Vindictive wife argument pg 283
o Claim to privacy reason pg 282
 Modern Marital Rape Exemptions
o Gender neutral statutes
o RBR review
 Vindictive Wife Defense
 Arguments for this
o Marital privacy
o Facilitates marital reconciliation
 Fails to consider lasting harm on W
 Vindictive wife;

WA on Marital Rape
 Doesn’t recognize this except for 1st degree rape (rape involving
kidnapping, threat of deadly force, serious physical injury)
 Does allow exemption for 3rd degree rape (where victim does not
consent)

Battered Women’s Syndrome

People v Humphrey CA 1996 pg 289


Self-defense and battered women’s syndrome
Perfect and imperfect defenses explained
Lots of explanation of BWS on pg 294
Held

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Family Law Notes Marianne E Dutton

 Battered Women’s syndrome is considered as a part of the


reasonableness determination in a self-defense plea
 Reasonable person standard, not reasonable battered woman
 Court distinguishes perfect and imperfect defense
o Complete/perfect defense escapes all charges including 2 nd
degree murder
 Actual and reasonable belief that killing necessary;
objectively reasonable
o Imperfect defense
 Releases D from 2nd degree murder
 Actual belief that killing was necessary
 Fails the reasonable test (objectively unreasonable)
o Fear must be of imminent danger to life or great bodily injury,
but not future harms
Issue
 Is battered women’s syndrome to be considered in a self-defense plea
to determine if the killer reasonably believed she was in danger? YES,
partly
 Since H was asleep, can there still be imminent danger for the self-
defense plea b/c he was a wife beater?
 Jury must determine what would appear to be necessary to a reasonable
person in a similar situation and with similar knowledge
Facts
 H beat W a lot. W killed H with his gun; was convicted of
manslaughter, 3 years, enhancement b/c of firearm, another 5 years
 H was asleep

R. v Malott (Canada) 1998 pg 295


BWS considered in RP test for self defense
Held
o The experience of a battered woman must now equally inform the
objective standard of the RP in relation to self-defense
o Judge and jury should be told that BWS is outside the normal
understanding of someone who hasn’t experiences

Legal Responses to Violence pg 304


o Civil Protection Orders CPO pg 304
o Mandatory Arrest MA

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Family Law Notes Marianne E Dutton

o Preferred over mediation; mediation would assume equal


culpability
o ProMA
 Arrest makes offender aware of seriousness
 Life or health of victim more important that attempting to
preserve a marriage
 A cop can’t effect a reconciliation; only the parties can do
this
o ConMA
 Insensitive to nuances of domestic setting
 Mediate
 Arrest could screw up relationship

Mitchell v Mitchell Mass 2005 pg 306


Protection Order Modification - Standard
Held
 Standard for modification of abuse prevention order is flexible: the
greater the likelihood that the safety of the protected party may be put
at risk by the modification, the more substantial the showing the party
seeking relief must make
 Modification of PO should be set aside only in the most extraordinary
circumstances where it has been clearly and convincingly established
that the order is no longer needed to protect the victim from harm of the
reasonable fear of serious harm
Issue
 What is the correct standard to apply when considering modification or
termination of an abuse prevention order? (substantial change in
circumstances) Does abuse need to continue to continue a protection
order? NO
Facts
 H beats W; W got protection order: H moved to vacate and said that W
had been contacting him; she says not; 10 yrs abuse, 3 police reports;

C.O v M.M.2004 Mass pg 310


Requirements to obtain an abuse prevention order
Substantial dating relationship factors
Held

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Family Law Notes Marianne E Dutton

o Order of abuse prevention order vacated b/c insufficient evidence in the


record to support the necessary substantial dating relationship required
by statute
o One time offenders, like if your neighbor molests you kids,
there is a gap in remedies; relegated to anti harassment orders
o Sexual assault protection order enacted to fill the gap
o Four facts considered when deciding if there existed a substantial dating
relationship (as required in the statutory language)
o Length of time of the relationship
o The type of relationship
o The frequency of interaction b/w the parties and
o If the relationship has been terminated by either person, the
length of time elapsed since the termination of the relationship
o The Legislature intended to address violence stemming from
relationships, which may not be considered traditional family or
household associations. And, the courts are instructed to give
broad meaning to the term ‘substantial dating relationship to
assure that the protective purpose of the statute is realized
o The Legislature did NOT intend the statute to apply to
acquaintance or stranger violence
Issue
 Did P fail to meet her burden of establishing the existence of
substantive dating or engagement relationship, since this is a domestic
relations statute?
 Were boys DP rights violated b/c he couldn’t call witnesses on his
behalf or challenge evidence from P?
PP
o Abuse Protection Order issued against the boy at trial
Facts
 17 yo boy 15 yr old girl; accused of sexually assaulting her; abuse PO
against boy; he was arrested; suspended from high school

Turner v Lewis Mass 2001 pg 314


Blood relation for Abuse Protection Order (okay if not blood here)
Held
o Grandmother and mother of the child, not related by blood, are still
covered by the statute that requires blood relation for abuse prevention
order
Rationale

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Family Law Notes Marianne E Dutton

o Civil protection statutes that address family members ust be equally to


all concepts of family as they exist in the reality of our diverse family
relationships
Issue
o Whether the paternal grandparent of a child whose parents were not
married is related by blood to the child’s mother, and thus, has a right
to invoke protection from domestic abuse under the statute. YES
Facts
o Unmarried parents; mom is a crackhead; fathers mom has the kid;
mother shows up high and wants the kid and winds up beating up
grandma

CHILD SUPPORT ENFORCEMENT (slides start 5/4)

Child Support Generally


o All states have guidelines
o Gender neutral duty to support (Dubay)
o Duty codified under divorce or paternity
o Modification
o Material or substantial change in circ
o UMDA 316: so substantial that to continue the prior agreement
would be unconscionable
o Not required to be married
o Usually step parents support can be terminated at will
o Unless estopped from denying duty b/c conduct induced child’s
reliance and dependence

Eunique v Powell 9th cir. 2002, pg 831


No international travel for deadbeat mom; RBR
Held
o International travel is not a fundamental right; no strict scrutiny; as
opposed to interstate travel; no 5th amendment violation b/c no
guaranteed liberty to travel internationally; as long as she is in
substantial arrears, (over 5K)
Issue
o Is it unconstitutional to deny this woman a passport for the reason that
she owes a bucket of child support?
PP
o Trial court said it was not unconstitutional. Affirmed on appeal.

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Fact
o Eudence Eunique denied passport b/c she hadn’t paid child support
payments in a while (20K); she wants injunctive relief; although she
won’t pay child support, she wants to travel internationally for business
and pleasure
o There is a statute that directs the state to notify the secretary of HHS,
and they did, and there is a law that then directs the secretary shall
refuse to issue a passport to the person in question

Wisconsin v Oakley WI 2001 pg 834


Deadbeat dad not allowed to have more kids; strict scrutiny here
Held
o The condition against procreation is narrowly tailored and sought to
protect the children; also it is narrowly tailored to achieve
rehabilitation; reasonably related to the rehabilitation thru probation
rather than prison; atypical facts here too
o Compelling interests of the state are having parents support children;
rehabilitation thru probation rather than prison, which would have
further victimized the kids
o Incarceration deprives a person of their fundamental liberty; here the
father is not being denied his fundamental right to procreate, he just has
to satisfy the probation conditions
Dissent
o Less restrictive means possible; see slide; not narrowly tailored
Issue
o Can a father’s (felony) probation include having to avoid having
another child unless he can support that child and his current kids? YES
PP
o Trail court gave the condition on probation b/c they thought it better to
have him not in prison so that he could support his kids, and if does go
to jail, he can support none
Facts
o Dad with 9 kids, 4 moms, refuses to pay child support; this is a
FELONY here

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o Statute says the court may set aside the sentence and impose any
conditions on the probation; wants to protect the kids from future
wrongdoing; broad discretion granted

Hicks v Feiock USSC 1988 pg 839


Conditional v Unconditional penalties
Criminal or civil enforcement
Held
o An unconditional penalty is criminal in nature b/c it is solely and
exclusively punitive in character
o A conditional penalty, by contract, is civil b/c it is specifically designed
to compel the doing of some act; the person has it in his power to avoid
any penalty; this is the same for someone who is imprisoned until they
obey the order b/c they can undo it
o Here, the trial court never did say that the probation would be lifted if
the dad paid the back child support. If it would, then it is civil in nature
and not a DP violation. Vacated and remanded to determine this
Issue
o If the dad says he is unable to comply with the support order, whose
burden is it to establish this? Is it a DP violation to shift this burden to
the dad, since this is an element of the crime?
o Is this civil or criminal??? Criminal contempt is punitive to vindicate
the authority of the court?
PP
o State court order Feiock to support his three kids; he stopped, they
ordered him again; he paid twice then stopped; prima facie case of
contempt for failure to comply with the order; instead of jail, they tried
again to make him pay; he claimed DP violation; appeals court agreed,
next appeal wouldn’t be heard; now to the USSC
Facts
o He paid sporadically and then stopped; ex sought to enforce; several
counts of contempt here

US v Bongiorno 1st cir, 1997 pg 842


Interstate enforcement of child support
Child support recovery act (CRSA)
Held
o Affirmed criminal conviction but reversed the civil order of wage
garnishment;

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o Child support payments to a person in another state are the


functional equivalent to interstate contracts b/ the obligations are
‘things’ in interstate commerce; it is appropriate for congress to
enact legislation that will prevent their non-fulfillment
Issue
o Is the CRSA an unconstitutional exercise of Congress’ authority under
the commerce clause, where a GA imposed support obligation is owed
by MI resident to a child in Mass? NO
o Does CRSA violate the 10th amendment protection of federalism since
domestic orders are left to the states? NO
Commerce Clause
o Can be regulated under CC
o Activities that involve use of the channels of interstate commerce
o Activities that implicate the instrumentalities of interstate
commerce including persons or things in the commerce and
o Activities that have a substantial relation to, or substantial affect,
interstate commerce
o Shubert: Commerce exists where there is a continuous and
indivisible stream of intercourse among the states including the
transmission of money and communications
PP
o Father supposed to be incarcerated for not paying 75K; but he accepted
a job in Michigan and the order was from Georgia ; MI got the jxn and
authorized garnishment; he quit his job and paid only 500/month; MI
court said he has to pay 300/wk. He didn’t.
o Then the US charged him with violating the CSRA; guilty of not paying
when he could have, 5 years probation and a work release agreement
which put him in the custody of the jail 12 hours a day
o The court also started a civil proceeding; court agreed to attach his
wages and disburse the proceeds
Facts
o Child Support Recovery Act (CSRA) is to help fill that gap that occurs
when parents flee a state to avoid child support; cumbersome for state
courts to try and extradite etc
o W gets custody of the kid; doc had to pay 5K a month in child support
o Dad wants to modify this now, but he hasn’t been paying the full
amount, according to the mom
o Court found he owed like 75K in back support;

Marriage: slide 5/5 pg 57

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1. Restrictions on Marriage
Equal Protection Analysis
o Id the relevant classifications
o Determine the standard of review
o Strict scrutiny
 Suspect classification
 Fundamental right/liberty
o Evaluate purpose according to test

3 step process of EP analysis


o ID the relevant classification
o Determine the standard of review
o Evaluate purpose according to test

Loving v Virginia pg 59
Miscegenation statute/EP
Marriage is fundamental freedom (still don’t say right)
Held
 Statutes violate EP of the 14th amendment; strict scrutiny for invidious
discrimination; fundamental right; no legitimate overriding purpose
 Also deprive the Lovings of liberty w/o DP 14th amendment
Issue
 Is there an EP violation in the miscegenation statute? Is there invidious
discrimination? YES. Is there a liberty DP violation? YES
PP
 District court denied motion to vacate the sentences; affirmed on
appeal;
Facts
 VA statute made it illegal to marry between races and set punishment
 Mixed couple living in VA went to DC to be married and returned to
VA
 Were sentenced each to 1year, suspended 25 years, and told to move
out of state
 State said no EP issue b/c both blacks and whites got the same
punishment

Zablocki v Redhail WI 1978 pg 62 TEST


Can’t use marriage as a collection device for child support payments
Marriage is fundamental freedom (still don’t say right)

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Held
 Strict scrutiny b/c marriage is fundamental right; statute is not narrowly
tailored to meet the goals of children being supported or more kids
being created that aren’t supported
 Under-inclusive re getting parents to support their children from a prior
marriage, not closely tailored
 EP violation
Test here:
 When a statutory classification significantly interferes with the exercise
of a fundamental right, it cannot be upheld unless it is supported by
sufficiently important state interests and is closely tailored to effectuate
only those interests pg 65
 Every reg by the state that relates in any way to the incidents or prereqs
to marriage do not all require strict scrutiny
From slide 5/5
 Classification here interferes DIRECTLY and SUBSTANTIALLY
with the right to marry
Stevens Concurrence
 The rich may marry and the poor not
Rationale
 Statute not narrowly drawn; many better ways to ensure that kids are
supported; garnish wages etc
 Possibly by allowing the next marriage the person will be in a better
financial situation to then actually make the payments for child support
Issue
 Is requiring WI residents to oblige court order or they can’t marry, a EP
and/or DP violation? YES
Facts
 Wisconsin tried to make a statute that provided that people who had
been married, divorced, and subject to court imposed child support
could not marry until they proved that they were keeping up with the
child support payments
 Criminal penalties if you marry w/o permission

Turner v Safely 1987 Justice O’Connor pg 71


Marriage is a fundamental right for prisoners too: strict scrutiny
Applied Zabloki test
Held
 Facially Invalid; used reasonable relationship test

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 Statute is not reasonable related to the interests presented by prison:


security and affects on women prisoners self reliance; Instead, other
alternatives available with a de minimsis burden
 Rehabilitation goal is overbroad; male inmates show no problems with
marriage; Inmate civilian marriages were not a problem; prison was
being paternal re female inmates even before this ant not approving
marriages;
 Time and place regs for marriage are okay
Issue
 What standard should be used in reviewing a statute that impinges on
the fundamental right to marry for prisoners?
o Prison reasons for the statute are security (love triangle fights)
and the well being of female prisoners who are too dependent on
male figures
Facts
 Missouri reg permits an inmate to marry only in compelling
circumstances which would be a baby on the way; before this inmates
could marry

In the Notes pg 74
 Four factors of reasonableness in Langone v Coughlin
o The statute not reasonably related to the stated goal
o No alt means for the person to be married
o With deference to prison, court found that accommodating the
inmates right to marry would not jeopardize the security
o No ready alternative to the fundamental right to marry

Michael H. v Gerald D USSC 1989 Scalia pg 74


How many legal fathers can you have?
Held
 The liberty must be both fundamental and traditionally protected in our
society; implicit in the concept of ordered liberty; rooted in our history
and tradition
 Here, the liberty in question is that of a paternal father, when the mother
is married and living with her husband; to provide protection for the
adulterous natural father is to deny protection to the marital father; the
claim that a state must recognize multiple fatherhood has no support in
the history of the traditions of this country
Brennan dissent

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Family Law Notes Marianne E Dutton

 Marriage is not decisive in answering the question whether the


constitutional protects the parental relationship in this case
 This result squashes the liberty that consists of the ‘freedom not to
conform; Brennan says the liberty protected is fatherhood, not just one
type of fatherhood (which would be in the marriage); tradition protects
fatherhood in all respects
 Tradition is not the end all; today we can conclusively determine
parenthood and there is no need for statutes that make illegitimate
children legitimate
Issue
 Is the CA law that provides that the issue of a wife who lives with her
fertile husband is presumed a marital child, constitutional? YES
because the relationship b/w Michael, the natural father, and the
daughter, is not one protected in our nation’s history
 Can challenge the law with blood tests w/in two years of birth, but only
H and W can do this, not the adulterous third person
Facts
 Carole, model, married Gerald, Oil guy, moved to CA; both would go
out of the country on business
 Carole has affair with neighbor, Michael H.
 Has a baby, Victoria. Says it’s Gerald and holds that out to the world,
but then tells Michael it might be his; DNA tests confirmed
 Gerald moves to NY for business; Carole stays in CA
 Carole visits Michael in St. Tomas, they hold the kid out as his
 She goes bac to CA where she lives with Scott in the spring
 In summer she goes to Gerald in NY, vacation in Europe, and return to
Scott in CA
 Michael files action in CQ court to establish paternity and visition rights
 Guardian ad litem for kid; Mother/daughter want to have filial
relationship with all rights with both guys
 Carole signed paper saying M was father, but told atty not to file it
 Carole moves back with Gerald and has two more kids
 Guardian ad litem sought visitation rights for M
 M challenges CA statute that says the marital dad is the father

2. Traditional Restrictions on Marriage

a. Incest

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Singh v Singh 1990 Ct. pg 83


Half blood uncle niece can’t marry (Wife’s mother was Husbands half sister)
Held
 Half-blood uncle/niece is prohibited by the incest statute;
 Precedent in this state is Skinner that says brother/sister includes half
bloods
 The case with the CA statute is different b/c is uses the term half blood
and can be construed differently than here
 This state is following the ecclesiastical law set forth in 1702 in
Catalano
Issue
 Is the courts interpretation of the incest statute to include half blood
relationships an unwarranted extension of the law? NO
Facts
 Couple married in 1983; annulment in 1984; Trial court declined to
open the annulment judgment
 H and W got married and then found out they were related (uncle and
niece); then they found out she was half niece; they got remarried b/c
no laws against that
 Civil statute sets out the degrees or relationship that are not permissible,
and the criminal statute refers back to that, so there must be strict
construction
 The whole-blood and half-blood distinctions are not in the statute, so
strict construction would not allow an uncle to marry his half niece

Back v Back 1910 Iowa pg 89


Relationship of affinity ends when marriage ends
Held
 Marriage became valid when the mother died and the relationship of
affinity b/w her daughter and ex was valid at that point
Issue
 Is the marriage of Back to his divorced wife’s daughter incestuous and
void? The wife is dead now, so still? Is the second wife a widow or
not?
Facts
 Back Married Dirke, a widow, who lived with her daughter
 They divorced and he married the daughter and had 4 kids

b. Age

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Family Law Notes Marianne E Dutton

Moe v Dinkins 1992


Judicial approval case for girls 14-16 who want to marry
No strict scrutiny b/c this is minors and fundamental right
RBR
Held
 Parental consent requirement by the state is rationally related to the
state’s legitimate interest in light of the fact that minors often lack the
experience, perspective and judgment necessary to make important
affirmative choices with potentially serious consequences
 The illigitimacy of the child is a temporary situation at worst. They can
marry in a rfew years and fix it. Rights and benefits from marriage are
only temporarily suspended
 The power of the state to control the conduct of children reaches beyond
the scope of authority over adults
 Section 15 (parental consent) gets RBR
 Legitimate state interests are met
Issue
 Does parental consent violate DP liberty?
 Parental consent regulations say that for males that want to marry b/w
16 – 18 and females b/w 14 – 18 must have parental consent first
 For girls b/w 14 and 16 they also need judicial consent
Facts
 Couple is pregnant and wants to marry; mom won’t give permission
b/c it will interfere with her welfare benefits

Bronson v Swenson District Court UT 2005 pg 100


Polygamy strict scrutiny b/c religion
Held
 Monogamy is a fundamental value and woven into the fabric of our
society and it the bedrock of our society
 Reynolds is the controlling case where polygamy criminal conviction
upheld by the USSC
Issue
 Is polygamy an unconstitutional infringement on free exercise clause
of the 1A
Facts
 Wanted to take a second wife
 Utah has bigamy statute

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 Utah constitution required by enabling act to join the union to make


polygamy illegal

Sanderson v Tryon 1997 Utah pg 105


Polygamist custody dispute
Held
 The existence of a polygamist relationship is not sufficient to to support
a custody award to the other parent; BIC must also be considered;
morality is but on of the BIC factors
Issue
 Can children be taken from an otherwise fit and property parent solely
for the reason that the parent practices plural marriage
Facts
 Child custody over kid from polygamous relationship
 Wife left and joined another polygamous relationship, husband
abandoned the practice; husband got custoday

c. Same sex marriage slides from 5/7


Does process matter when it comes to devisive social matters?
Should be resolved in courts? Legislatures? What’s the role of states and fed
gvt here?

Nat’ Pride at Work Inc Supp 30

Yes, providing benefits violates the constitution see slide


Doesn’t just prevent marriage but also goes to domestic partners reciveing
benefits

Defense of Marriage Act DOMA


No state, territory or possession of the US or tribes shall be required to give
effect to any public act etc respecting a relationship b/w persons of the same
sex that is treated as marriage under the laws of other state or right or claim
arising from such relationship
Affects how states respond to this issue
This came up in context of Wilson case (same sex) who sued Ashcroft and
FLa court clerk and claimed FL was required to recognize their marriage;
DOMA, they said, unconstitutional

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Family Law Notes Marianne E Dutton

Fla statute similar b/c it says they won’t recognize marriages of this kind from
other states
Federal act
States not required to recognize same sex marriage from another state; and
they define what marriage and spouse mean in a legislative or executive
branch action.

RCW 26.09.430 Shared Parenting (relocation notification)


A PERSON WITH WHOM THE CHILD RESIDES A MAJORITY OF THE
TIME SHALL NTOIFY EVERY OTHER PERSON INTITLED TO
RESIDENTIAL TIME OR VISITTION WITH THE CHILD UNDER A
COURT ORDER IF THE PERSO INTENDS TO RELOCATE

RCW 26.09.240 Third party visitation


(1) A person other than a parent may petition the court for visitation with a
child at any time or may intervene in a pending dissolution, legal separation,
or modification of parenting plan proceeding

RCW 26.10.160 Visitation Rights for Anyone in BIC


(3) Any person may petition the court for visitation rights at any time
including, but not limited to, custody proceedings. The court may order
visitation rights for any person when visitation may serve the BIC whether or
not there has been a change in circumstances

Marriage Benefits Under the Law


Trusts and estates
o right to receive intestate share of estate
o spousal preferences: to be appointed a personal representative of a
spouse who dies intestate
Torts
o can bring suit for wrongful death
o bring action for loss of consortium
o right to workers comp survivor benefits
Evidence
o Right to claim evidentiary privilege of marital communication
Property
o Homestead rights & protections (protection of home from creditors)
o Depending on state, presumption of joint ownership of property and
concomitant right of survivorship
Other rights

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Family Law Notes Marianne E Dutton

o Hospital visitation & others rights incident to medical treatment of


family members
Separation and Divorce
o Right to receive & obligation to provide
o Spousal support
o Maintenance
o Property
Other Statutory Rights: Insurance
o Right to spousal benefits that are guaranteed by state statute to public
employees, including health, life, disability & accident insurance
o Right to be covered as spouse under group life insurance policies issued
to employee
o Opportunity to be covered as insured spouse under individual health
insurance policy
See Slide for Core Questions on same sex marriage

Goodridge v Dept of Public Health Mass 109 2003 pg 106


Same sex marriage; RBR (no permissive legislative objective here)
3 partners in a civil marriage (the third is the state)
Held
o No constitutionally (in the state of Mass) adequate reason for denying
civil marriage to same‐ sex individuals (Lawrence left this question
open)
o BUT, the marriage statute that exists can’t be construed to mean
marriage includes same sex marriage (reasons on 111) b/c of historical
reasons
o Cited as support from USSC
o The US Supreme Court affirmed that the core concept of
common human dignity protected by the 14A to US Const
precludes govt intrusion into the deeply personal realms of
consensual adult expressions of intimacy and one's choice of an
intimate partner.
o Reaffirmed central role that decisions whether to marry or have
children bear in shaping one’s identity
o Mass constitution is more protective of personal liberty and equality
o NOTE  this does not prevent anyone from refusing to perform a same
sex cereomony
Issue

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Family Law Notes Marianne E Dutton

o Whether, consistent with the Mass constitution, Commonwealth may


deny the protections, benefits and obligations conferred by civil
marriage to two individuals of the same sex who wish to marry? NO
PP
Facts
o 14 individuals, 5 counties, wanted to marry same‐ sex partner
o publicly affirm commitment & secure legal protections & benefits of
married couples & kids

In re Marriage Cases CA 2008 supp 10 (4-3)


Marriage is FR and it’s an EP violation to have a statutory ban saying
otherwise
Prop 208
Held
o 1. Statutes that treat persons differently because of their sexual
orientation should be subjected to strict scrutiny
o 2. California legislative and initiative measures limiting marriage to
opposite-sex couples violate the state constitutional rights of same-sex
couples and may not be used to preclude same-sex couples from
marrying
o NOTE: Prop 8 does not disturb that part of the court's holding that
gay men and lesbians constitute a Suspect Class for purposes of equal
protection under Art. I § 7
Issue

Wilson v Ake US Dist. Ct. Fla 2005 pg 121


DOMA
FR are those rights that are ‘implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were sacrificed; the DP
clause protects FRs rooted in deeply in nations history and tradition
 slides go thru challenges to this re EP etc and compelling interests etc and
CA prop 8 law and their constitution
Held
o Holding in Lawrence held marriage to be a FR, but no court has
recongnize that this right includes the right to marry a person of gthe
same sex; gay is not a suspect class; no strict scrutiny

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Family Law Notes Marianne E Dutton

o Courts would be deciding a FR, which is the role of the legislature


o RBR here: Encouraging child raising in homes w/ married
o mother and father is legit state interests,
o rationally related
o Adopting the Ps view re FFC would mean that any given state can make
national policy;
Issue
o Are the DOMA and Fla statutes that won’t recognize the valid Mass
marriage unconstitutional b/c they violate the FFC, DP and EP of 14 th,
the PI of the and Commerce Clause of USC
PP
Facts
o Lesbian couple married in Mass

Why would FFC clause not be violated by DOMA? Court dismisses citing
Baker. See slide. Gay not suspect class. Same sex marriage not guaranteed
by 14th b/c not rooted in our history and tradition, so not a fundamental right.
This is different from Goodrich.

Why did the arguments work in Goodridge?


That was under state constitution, so may be that’s the difference
Under RBR they have a legis interest

Nat’l Pride at Work Inc v. Gov of Mich. Mich Sup Ct 2008 [ Supp 30]
Taking even benefits away from same sex couples after amending constitution
to forbid gay marriage
Held
o Providing benefits would violate the state constitution; the language in
the amendment provided that ‘To secure the benefits marriage..for
society…between a man and a woman
Issue
o Whether an amendment to the Michigan state constitution prohibiting
recognition of same-sex marriages or any "union" that is "similar" to
marriage also prohibits public employers in the state from conferring
benefits on the same-sex partners of their employees. YES

International Perspectives Canada

Sex discrimination as opposed to sexual orientation discrimination

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Family Law Notes Marianne E Dutton

Which branch should make these decisions. In Canada they had leg and
judiciary working together. They determined that it’s okay for legislativei
branch to ast in this area and it is consistent with their equivelant of the bill of
rights

International slides

Prenuptial Agreements

Agreements in context of Marriage Generally


o Most states: marriage constitutes a legal status based upon contract
o 3 parties to every marriage, i.e., state can prescribe
o Age of marriage
o Procedures for valid marriage
o Duties & obligations created by marriage
o Grounds for the dissolution

Status vs Contract
 Status relationships are controlled by law
 Contract relationships controlled by agreement
 Arguably employment is moving towards a status relationship
o More limits on freedom to contract
 E.g. anti-discrimination laws
 Arguably marriage moving toward contract

Pre-marital or Prenuptial agreements


 PNA or PMA prenup and postnups
 What is permissible and what is not to put into these
 Have to start by asking whether there is a contract or a status
relationship
 How far is a court going to intervene in interpreting a contract?
 In most states marriage constitutes a legal status based on contract (slide
now)

Marriage moving closer to a contract than status b/c as seen in today’s reading,
courts are upholding
However, parent child relationships are more on status side, and you see that
in the cases today where they don’t let you contract out of child support and
custody etc. Here the state reserves the right to intervene

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Edwardson v Edwardson KY 1990 pg 201


Reallocation of duties in marriage by private contract (antenuptial agreement)
and Standard used
Held
o Antenuptial agreements are valid
o Special scrutiny requires full disclosure; agreement free of any material
omission or misrepresentation
o Terms may not be unconscioinalbe at the time enforcement is sought
Issue
Facts
o 75 years before the court would not allow these agreements if they
provided for forward looking to separation after marriage (Stratton)
o Here, the couple had each been married before and wanted to make an
agreement for the amount of support payments in the event of a divorce
o She was getting $75 a week from previous marriage which would end
if she married again; this agreement would have hubby 2 pay that and
some insurance things too

Edwardson
 In certain states they undergo ‘special scrutiny’
 They look closer than a normal contract
 There was a binding 75 year old precident not to recognize these
agreements
 Court decided to go ahead and enforce
 The terms may not be unconscionable AT THE TIME
ENFORCEMENT IS SOUGHT, as opposed to upon execution
 The validity of most contracts doesn’t usually depend on full disclosure
unless you can characterize as fraud; is this requirement sufficient for
a would be spouse who is dying to get married?

Simeone v Simeone PA 1990 pg 204


Marriage contract upheld
Held
o Contract is valid
o Independent counsel claim—had oppty
o Parties’ knowledge and bargain’s reasonableness not proper
subjects for judicial review

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Family Law Notes Marianne E Dutton

o BUT reasonableness inquiry is permitted (only) re full and fair


disclosure of the financial positions of the parties
o Can claim material misrepresentation in the inducement for entering
PMA
o PMA recited that each of parties considered agreement fair, just and
reasonable
o Can rebut the presumption of recitations by assertion of fraud or
misrepresentation--clear and convincing evidence
o W foreclosed from asserting PMA not reasonable
o Misrepresentation in financial assets (antique car colln)? No.
o Duress (wedding day execution)? No, ongoing negotiations, no atty
sought.
o Barred from receiving APL; PMA valid
Issue
o Were terms of PMA binding on W w/o regard to whether she fully
understood the terms prior to execution? YES
PP
o Lower court held the agreement valid at the time of execution
Facts
o Nurse (23) married neurosurgeon (39)
o Nurse unemployed, he has 90K salary and 300K assets
o Asked her to sign PMA on wedding day; no counsel for her to inform
her of rights she was giving up
o She says she didn’t know about PMA until that day (adverse
circumstances so void if true)

Uniform PMA Act pg 215 re spousal support


o Allows parties to contract re spousal support
o SPLIT IN AUTHORITY
o Some states don’t allow PMA to control
o Some allow if agreement meets certain conditions or
circumstances

Separation Agreements
o Agreement of the parties at the time of divorcing
o These are allowed by UMDA 306(a)
o Property division, alimony, child support, custody, visitation
o Rationale in comment
o Promote amicable divorce
o Must follow basic principles of contract law to be enforceable

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o Courts more strictly scrutinize child-related issues under parens


patriae
o Court will also enter a divorce decree
o Enforceability and modifications subject of litigation

Alimony Pendente Lite


􀂄 Alimony pending the litigation
􀂄 Money to spouse to allow spouse to sustain him
or herself during litigation
􀂄 Terminates upon the end of the litigation
􀂄 I.e., until divorce decree issued & property
distribution finalized
􀂄 Strategic implications for spouses
􀂄 Purpose: financial
Continuum drawn on the board

Contract ----------------------------------------------- Status

Engagement spousal support (child support, custody, visitiation)

Don’t forget predictability as discussed earlier re agreements


See slide

Property Division and Maintenance


UMDA 306(b)
o Standard of court review for property division and maintenance?
o Unconscionability
o SA terms binding on the court for property division maintenance
o Unless court finds unconscionable
 When unconscionable?
 May look to time of enforcement (Comment)
 Court may look to economic circumstances of
parties resulting from SA
 May look to other relevant evidence, including
knowledge when made
 Standard for determining unconscionability
 Used in the commercial context

Child Support, Custody + Visitation

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Family Law Notes Marianne E Dutton

UMDA (d)
 Treated differently; not binding on court
 Standard of review for child support?
o Whether contract is unsatisfactory
 Apply UMDA §309 standards for child support [Comment]
 If SA is unconscionable
o Court can ask the parties to revise it
o Court can establish terms based on §§307 (property distribution),
308 (maintenance)

More slides and cases on these on 5/12 slides

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