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Family Law Outline

Defining Family Adult-Child Relationships - Adult Relationships o Conjugal Baker v State Vermont created a civil union, allowing rights that use to be reserved to only marriages to be extended to same-sex couples. Braschi family should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order, but should find its foundation in the reality of family life. i. Non-Conjugal - Groups o Belle Terre (1974) Court used Rational Basis to uphold a zoning ordinance that defined family as one ore more persons related by blood, marriage, adoption, living and cooking together.

o Penobscot (1981) Court upheld a city ordinance that defined family

as a collective body of persons, cooking and living together as a separate housekeeping unit in a domestic relationship based upon birth, marriage, or domestic bond.

o Glassboro (1990) Court found that 10 students residing in a house to

fit within the zoning ordinance and defined a family as a single, nonprofit housekeeping unit, stable, permanent living unit, functional equivalent of a traditional family.

DIVORCE: Background: - In ancient days, there was no absolute divorce. When marriage vows were broken by adultery or acts of cruelty that made further cohabitation unsafe, the innocent spouse was permitted to live apart from the wrongdoera divorce from bed and board. - This did not sever the marital tie, and the parties remained husband and wife. - Neither party could remarry during the spouses lifetime, and the husband was normally required to provide his wife with permanent support. Fault Emerges: - By the 20th Century a fault based system emerged. - The person seeking the separation had to prove fault on the part of the spouse. - To determine fault, the court asked whether the erring spouse had committed one of the sins recognized by the Churchphysical cruelty,

adultery, and unnatural sexual practices. This allowed spouses to live apart although they were not permanently divorced. Innocent spouse must prove: o Injured by conduct of guilty spouse o Innocent of any wrongdoing Fault also played a role in determining whether support was to be ordered. o EX: If a wife committed adultery during the marriage, she was considered at fault and her husband was not required to support her.

Grounds for Divorce: - Cruel and Inhuman Treatment: o A plaintiff alleging cruel and inhuman treatment, in order to prevail, has to show a course of conduct by the defendant that is harmful to the plaintiffs physical or mental health, which makes continued cohabitation unsafe or improper. o The conduct of the defendant has to be serious and not just an indication of incompatibility. o In some jurisdictions, cruel and inhuman conduct may be in the form of emotional abuse; however, it must be more than mere unkindness, rudeness, or incompatibility. o As a general rule, the charge of cruel and inhuman treatment must be founded in conduct that is continuous and not based on one isolated incident, unless it was a particularly serious or shocking incident. EX: Benscoter v. Benscoter (p359): The main indignity of which the husband complains is that the wife expressed her disappointment in failing to have a female child and that she verbally abused him and blamed him for this failure. The wife was stricken with MS. Ill health both explains and excuses a wifes conduct and the acts of a spouse resulting from ill health do not furnish a ground for divorce. The conclusion is inescapable that the plaintiff did not become dissatisfied with his wife until she became ill with MShe cannot now discard her. EX: Hughes v. Hughes (p360): Wife brought this action saying that her husband treated her coldly and indifferently, was habitually intemperate and that on an occasion he ordered her from the family home and threatened to do her bodily harm. They separated for a year and then began living with one another again. After about a month, husband returned to his evil ways. Testimony from daughter revealed that he was cruel to wife and daughter. Divorce allowed. Wife satisfied innocent and injured party. Mental Cruelty: o The conduct of the offending spouse was unprovoked and constituted a course of abusive and humiliating treatment that actually affected the physical or mental health of the other spouse, making life of the

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complaining spouse miserable or endangering his or her life, person, or health. Can be inflicted by the use of words or acts or conduct that constitutes quarreling or fault finding and that affected the health, well-being, or peace of mind of either parties. Incompatibility of temperament is not viewed as cruelty and a ground for divorce.

Adultery: o Normally proven by circumstantial evidence. o Lord Mansfield Rule: A presumption that the child of a married woman is that of her husbands. Been abolished in a number of jurisdictions. In some jurisdictions, the burden of proof that the wifes child is not her husbands can be met by showing: (a) that the husband did not have access to the wife during the period of conception; (b) that he was impotent or sterile at that time; or (c) that blood tests exclude him as a possible father of the child. A fourth alternative is to show that a spouse has been convicted of adultery, rape, or prostitution. o EX: Arnoult v. Arnoult (p361): Wife was at a bar with another man, dancing and kissing before leaving at 2:10am. After 2:10am, they got in wifes car and were kissing for 45 minutes. Thereafter, Wife followed man to his house. Investigators testified that no lights came on for 2 hours and no one came or left the house. At 530 am, wife left mans house. The trial court found circumstantial evidence sufficient to prove wife committed adultery. The nature of the act of adultery requires that circumstantial evidence most likely will be used to sustain the proponents burden of proof. Desertion: o Occurs when one spouse breaks off marital cohabitation with the intent to remain apart permanently without the consent or against the will of the other spouse. o The cause of action is based upon persistent separation from the spouse against the latters will for a designated number of years. During the designated period after the initial separation, the erring spouse may return. The offense is not complete until the entire time has expired. EX: Assume that P and D were married for five years. However, the relationship broke down and P sued D for divorce, claiming desertion. At the trial, evidence was presented that for the last ten years D believed more or less that the marriage was over. During the entire time, D slept on the couch. D testified that after moving out of the marital home a year before P filed for Divorce, he began living in a school bus that he and his son used for hunting. P denied asking or forcing her husband to

leave their marital home. Does P have a sufficient basis to support a divorce on the ground of desertion? Answer: Yes, the court will most likely rule that P has proven that D deserted her. The reason is that circumstantial evidence supports the conclusion that D broke off marital cohabitation with P with the apparent intent to remain apart permanently. Furthermore, the action by D was without the consent and against the will of P. Constructive Desertion: o Court-created cause of action. o A basis to grant relief on the ground of desertion to a spouse driven from home by his or her partner. o Constructive desertion if proven both defeats the spouses cause of action and serves as an alternative ground for divorce. o EX: It has been held that refusal to have intercourse without contraceptives constitutes constructive desertion. Habitual Drunknness: o Ground for divorce in some states. o Defined as a fixed habit of frequently getting drunk; it does not necessarily imply continual drunkenness. o One need not be an alcoholic, but it is sufficient if the abuse of alcohol causes the breakdown of normal marital relations. Traditional Defenses to a Divorce Action (Raised by Defendant) Recrimination: o If the complaining party was guilty of an offense that would justify a divorce, then a court could not grant the divorce. o For example, if both parties were guilty of adultery, neither could obtain a divorce. o However, in some jurisdictions, the guilt of both parties was weighed and must be equal in order to trigger the recrimination defense (drunkenness or cruelty would not constitute a sufficient recriminatory defense when weighed against a charge of adultery) o EX: Rankin v. Rankin (p364): Husband claimed the wife was treating him in a cruel and barbarous way. Wife countered that he treated her in a cruel and barbarous way. The court decided that since they both do not get along with one another, there is no divorce, just because the parties do not get along. This is the downfall of fault divorceit does not promote public policyyou do not want people living together that hate each other. Connivance: o Defined as consent by one party to the adulterous act of the other (the act must actually be committed).

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For example, if the couples swapped spouses for a night at a party, this incident could not later be used as the basis for a divorce.

Condonation: o Defined as representing forgiveness, usually conditional, based on a promise not to repeat the offense. o The forgiveness could be either actually expressed or implied, in either case, spouses, the forgiver and the forgiven, continued their married life as before. o An offense that was condoned could not later be used as grounds for a divorce. EX: Willan v. Willan: Husband alleged that wife assaulted him, showed violence to him, immensely jealous of his relations with other women and she frequently demanded sexual intercourse with him at time when he did not wish to have it. He would have sex with her to shut her up. Her defense of condonation was accepted because of the husbands act to voluntarily have sex with her. The fact that Willan engaged in sexual intercourse shows voluntarinesshis failure to leave shows condonation. Collusion: o Defined as an agreement by the two parties to create a false-fact situation upon which a divorce could be granted. o For example, collusion when the married partners, having decided that they would divorce, stage a fake adultery scene in an effort to create grounds for divorce. To carry out their scheme, the husband goes to a hotel room, where a paid co-respondent joins him and partially undresses. While the two of them sit on the edge of the hotel bed, the wife, as prearranged, walks in with a detective and photographer. The photographs and testimony of the detective provide the evidence of adultery, and this forms the basis for the divorce action. Because the incident was rigged, the divorce proceeding would be viewed as collusive and as a fraud on the court. Insanity: o Recognized under certain circumstances o For example, where the ground for a divorce was a claim of cruel and inhuman treatment, the action would fail if it was based on acts attributable to the insanity of the defending party. o 2 possible standards: MNaghtens Case: Unable to distinguish right from wrong then able to raise the defense as an alleged fault conduct Durham Standard: The defense is established by showing (a) a mental disease or defect; and (b) that the act in question was the product or result of the disease or defect.

No Fault Divorce: California lead the way in 1969, by 1985 every state had adopted at least in part, a no fault approach to divorce. Under no-fault statutes, divorces were granted when it was clear there were irreconcilable differences. The no-fault statutes eliminated fault and wrong as a substantive ground for dissolution. 2 requirements for no-fault: o Irremediable breakdown of the marriage/irreconcilable differences o Period of Separation o Incurable insanity

Uniform Marriage and Divorce Act (UMDA): - Section 305 permitted a divorce when there was an irretrievable breakdown of the marriage and both parties stated under oath or affirmed that this was the case. - It also permitted a divorce when one party stated under oath that the marriage was irretrievably broken and the other party did not deny it. - If one party challenged the allegation, a court was required to make findings that an irretrievable breakdown had occurred or continue the matter for 3060 days with an eye toward recommending that the parties seek counseling. Adjudicating No-Fault Divorce (p380): - In Re Marriage of Dennis D. Kenik o Both husband and wife lived separate lives under the same roof. They had no meaningful conversation with one another, ate at separate times, slept in different rooms, did their own chores, etcThe court found that they lived separate apart lives and allowed their dissolution of marriage. Contractual Divorces (p381): - Covenant Marriage: no way to get out of marriage unless both parties consent or show that one party can prove fault on the other. - Massar v. Massar (p388): o In an agreement, Husband agreed to move out of the marital home and Wife agreed not to seek termination of the marriage for any reason other then 18 months continuous separation. Husband moved out. 6 months later, Wife filed for divorce on the ground of extreme cruelty. No divorce was allowed, an agreement like this does not violate public policy. o Diosdado v Diosdado Whether a K entered into by a married couple that provides for payment of liquidated damages in the event one of them is sexually unfaithful to the other is enforceable? No. Recovery in no-fault dissolution proceedings is basically limited to half the community property and appropriate support (alimony) and attorney fee orders no hefty premiums for emotional angst. Contrary to public policy underlying CAs no-fault divorce laws, the agreement attempts to impose just such a premium caused by Ds breach of his promise of sexual fidelity (meaning hes at fault). To be enforceable a K must have a lawful object; a K is unlawful if it is contrary to an express provision

of law, contrary to the policy of express law, or otherwise contrary to good morals Tort Claims: - Twyman v Twyman Whether a spouse may bring a claim for infliction of emotional distress in a divorce proceeding (TX)? Yes. But only intentional (?).First, joinder of the tort claims with the divorce, when feasible, is encouraged, up to the judge to decide. Second, When a tort action is tried with the divorce, it is imperative that the court avoid awarding a double recovery. When dividing the marital estate, the court may take into account several factors: (1) the fault of the parties, (2) spouses capacities and abilities, (3) benefits which the party not at fault would have derived from continuation of the marriage, (4) business opportunities, (5) education, (6) relative physical conditions, (7) relative financial condition and obligations, (8) disparity of ages, size, of separate estates, and (9) nature of the property. However, a spouse should not be allowed to recover tort damages and a disproportionate division of the community estate based on the same conduct. Therefore, when a factfinder awards tort damages to a divorcing spouse, the court may not consider the same tortious acts when dividing the marital estateBrought interpousal tortcan sue wife Religious Restrictions (p408): - A litigant who challenges a divorce proceeding on religious grounds will fail, as the law clearly does not recognize such a defense. - Aflalo v Aflalo Whether a court can force a husband to provide a get for the wife? No. First, the Free Exercise Clause of the 1st Amendment, applicable to the states through the 14th Amendment, prohibits governmental regulation of religious beliefs. A state action that affects religion must have both a secular purpose and a secular effect. The relief P seeks is contrary to the threshold tests of the Free Exercise Clause. Second, in Minkin in NY, and other courts held that they could specifically enforce the ketubah which is a marriage K obligating the couple to comply with the laws of Moses. Those courts held that as long as the order does not require the party to participate in a religious ceremony, it does not constitute excessive entanglement in religion. This court, however, held that those cases are not persuasive for the following reasons: (1) Those courts did not examine the problem from the Free Exercise Clause, rather they used the Establishment Clause. The Free Exercise Clause, however, prohibits govt from interfering or becoming entangled in the practice of religion by its citizens; (2) The court was not convinced that an order requiring the husband to provide a get is not a religious act; (3) the conclusion by the other courts that its order concerned purely civil issues is equally unconvincing; (4) Forcing the husband to provide the get would not be enough, the get must be phrased and formulated in strict compliance with tradition. Finally, enforcement of this type of thing is exactly what gave rise to the 1st Amendment. While it may appear unfair that D may refuse to provide a get, the unfairness arises from Ps (and Ds) own religious beliefs. Court should not get in way of religion.

Access to Divorce (p415): - Boddie v Connecticut Whether a state can require indigents to pay filing fees before the courts will consider their petitions for divorce? No. Due process requires, at a minimum, that individuals must be given a meaningful opportunity to be heard. The court held the states refusal to admit these Ps to its courts, the sole means in Conn for obtaining a divorce, must be regarded as the equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of their marriages, and in the absence of a sufficient countervailing justification for the states action, a denial of due process. Sosna v. Iowa: o The issue is whether the Iowa statute requiring a one year residency to get a divorce is unconstitutionaldoes it violate the equal protection clause of the 14th Amendment. o No, it is not unconstitutional for a state to have this requirement. o Used rational basis test Custody: General: - When it functions well, the child custody legal process meets three objectives: o It protects the interests of children, o It assists parents in restructuring their relationships with the children, o It leads to fair and predictable results for families Defining Custodial Relationships: - Legal Custody: technical term used by courts to describe a parents authority to make major decisions on behalf of the child. o Decisions that legal custodian might make include: childs religion, education, and medical treatment. o Can be awarded to one parentsole legal custody or it can be sharedjoint legal custody. - Physical Custody: technical term that describes a parents right to have the child reside with him or her and the obligation of that parent to provide for the routine daily care and control of the child. o Can be awarded to one parentsole physical custody or it can be sharedjoint physical custody With joint physical custody, child maintains a residence in both homesdoes not have to be a 50/50 time sharing. States generally allow joint legal and/or joint physical custody awards that are in the best interests of the child. In Floridalegal presumption is joint primary residential caretaker Parenting Plans: - Detailed agreements built around the needs of the particular family.

Frequently developed in mediation and typically cover topics such as parenting time schedules, decision-making protocols, parental cooperation and communication, dispute resolution, and financial support. Under the ALI proposal, courts should reject parenting plans agreed to by the parents in cases where the agreement was not knowing or voluntary or if the plan would be harmful to the child.

Applying the Best Interest Standard (p525): Uniform Marriage and Divorce Act (UMDA): - Section 402 of the UMDA states: o The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including: The wishes of the childs parent or parents as to his custody The wishes of the child as to his custodian The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the childs best interest The childs adjustment to his home, school, and community; and The mental and physical health of all individuals involved. o The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child. I. Fitness: - In re Marriage of Carney(p525): o The issue is whether a fathers handicap should be the factor in taking away his children and giving them to the mother. o In 1972, husband and wife separatedwife giving full custody to husband. o In 1976, father was in a jeep accident and became a quadriplegic paralyzed legs and impaired use of his arms and hands. o In 1977, father filed for a divorce, wife moved for full custody. In the past 5 years, she never attempted to visit her sons, make any contribution to their supportsole contact with the boys consisted of some phone calls, and few letters and packages. Mother was given custody because the court found the father was not in shape to take care of the children because of his handicap. o In the examination of the decision the court only looked at the normal relationship that the crippled father could give the childrenthey failed to look at the other aspects which define a relationship intellectual growth, ethics, a role model, any way in which the father could provide a strong foundation for the children. o The district court gave the rugrats to the mother, but the appellate court reversed and gave full custody to pops. II. Weighing Multiple Factors (p532):

Hollon v. Hollon (p532): o The issue on appeal is to see if the facts were applied correctly to give the father full custodymother wants custody o The court gave way too much power to the moral fitness aspect of the decision because the mother engaged in homosexual activity o The father admitted that the only problem he had with mother retaining permanent custody of child was his belief that she engaged in homosexual activity o The court based their decision on 11 factors Age, health and sex of the child Determination of the parent that had the continuity of care prior to the separation Which has the best parenting skills and which has the willingness and capacity to provide primary child care Employment of parent and responsibilities of employment Physical and mental health and age of parents Emotional ties of parent and child Moral fitness of parents Home, school and community record of the child Preference of the child at the age sufficient to express a preference by law Stability of home environment and employment of each parent Other factors relevant to the parent-child relationship o After review, mom gets custody when it is found that her lesbian activity is not that big of deal and does not impact the child

III. Race and Ethnicity (p538): - The Court has held that courts cannot use race as the sole or decisive factor in awarding custody - Palmore v. Siidoti (p538): o Father sought custody of child because of changed conditionschilds mother was cohabitating with a black dude. o Father said he should have custody because the child is growing up in bi-racial household which will severely affect the childteasing from other children from environmental pressures. o Racial prejudice cannot be the basis for taking the child from the mother and giving it to the father o The trial court used RACE as the controlling reason for transferring custodythis is unconstitutionalviolates 14th Amendment o The Supreme Court reversedchild stayed with mom

Jones v Jones Whether the court can properly consider race in custody determination as the issues relate to a childs ethnic heritage and the more appropriate parent to address that heritage? Yes. The decision was based, in part, on cultural background, but not race. P expressed an interest and need to raise his children in their ethnic heritage. The court held that it is proper for a court, when determining the best interests of a child in the context of a custody dispute b/t parents, to consider the matter of race as it relates to a


childs ethnic heritage and which parent is more prepared to expose the child to it. Ethnic Heritage!! IV. Religion (p549): - Courts cannot favor one religious tradition over another - Courts can consider the compatibility of a parents religious behavior with the health and well being of the child - Kendall v. Kendall: o Before the parties were married, the parties decided the religious upbringing of the children would be raised Jewish o The husband became a member of the Boston Church of Christ and believed that those who do not believe in Jesus are damned to go to hell. o The majority of courts adhere to the view that predivorce agreements are unconstitutionally unenforceable but in this case the children had primary familiarity with the Jewish faith. The children had a Jewish identity based on evidence that the parties were married in a traditional Jewish wedding, Ariel (son) circumscribed in accordance with Jewish traditional both Moriah and Rebekah had traditional Jewish naming ceremonies, and all three children attend Jewish school. o The judgment was affirmed that the father was not to try and infuse his religious views in the children because it could cause substantial harm as it is not in the best interest of the children. o Pre-divorce agreements are unconstitutionally unenforceable. o Parenns Patriaeto protect the children from the parents. V. The Childs Preference (p554): - Most courts will consider the wishes of the child as to his custodians. - The court has discretion to determine whether the child has sufficient maturity to express a meaningful preference. - The court will evaluate the reasons behind the childs expressed preference - The child is not asked to express a parental preference in open court2 alternatives: (1) the judge can interview the child in chambers and on the record with the attorney present (parent should ask for it to be videotaped to make sure no coercion); or (2) the court can seek the advice of a professional who can submit a written report to the court. - McMillen v. McMillen: o Mother received custody of sonfather had visitation rights o A custody order is modifiable without proof of a substantial change in circumstances where such a modification is in the best interest of the child o To be successful, the father need only show that the modification is in the best interest of the son o The son testified that he preferred to live with his father because his stepfather frightens, upsets, and threatens him, and his mother does nothing to prevent this mistreatment. He also does not get along with his mother or stepfather and that he gets along well with his stepmother. Also, his mother and father leave him alone after school and his mother refuses to watch him play ball. o The court reversed and allowed the son to live with his father and stepmother because it is in his best interest.


VI. Reliance on Mental Health Experts (p557): - K.J.B. v. C.M.B.: o Husband-father appeals from modification of divorce decree which terminated his rights of visitation and temporary custody with the parties two minor children o Mother alleged the children were being physically, psychologically and sexually abused during their visits with father or his parents. o Both expert witnesses (fathers and mothers) testified that their was a lot of anxiety in the boys and something is wrong in their relationship between them and their father and fathers parents. o The court decided it would be in the best interest of the children to have contact and visitation with the father but not with the fathers parents. VII. Counsel For the Child (p560): - Schultz v. Schultz: Whether in an action for dissolution of marriage, if a child is represented by both a guardian and litem and an attorney, may the trial court allow the childs attorney to advocate a position that is different than that recommended by the guardian ad litem? Yes. The court rejected a rule that would unduly restrict the trial courts ability to receive information that might aid it in determining where the best interests of a child lie. The court, instead, holds that it is within the trial courts discretion to determine, on a case-by-case basis, whether such dual, conflicting advocacy of position is in the best interests of the child. The guiding principle in determining custody is the best interests of the child. The best interests of the child include the childs interests in sustained growth, development, well-being, and continuity and stability of its environment. This principle also governs the appointment of counsel for a minor child. Alternative Approaches Tender Years Presumption: NOT in Forida - Children of tender years included preschool children through the age of ten. - These young children were seen as best cared for by mothers who would provide for their physical and emotional needs while the father was working away from home. - This presumption could be overcome by showing the mother was unfit - Pusey v. Pusey (p566) o The court conversed with the two children in chambers and learned that the older boy expressed a preference for living with his father, whereas the younger boy indicated equal attachment to both parents.. o The trial court awarded custody of the older boy to the father and custody of the younger child to plaintiff o Mother feels she should have custody of both because of her maternal instinctstender years doctrine o The tender years doctrine should not be usedthe court should look to the primary caretaker during the marriage. The parent with greater flexibility to provide personal care, and the parent with whom the child


has spent most of his or her time with, and the stability of the environment provided by each parent. Even outside of constitutional analysis, the presumption lacks validity because it perpetuates outdates stereotypes. The choice in competing child custody claims should instead be based on function-related factors. The judgment is affirmed.

Primary Caretaker Presumption: Florida - States no longer use this as the determining factor; however, some states currently use it as a factor to be considered among others as determining the best interest of the child - The primary caretaker was defined as the parent who preformed the following types of tasks for the child: o Bathing, grooming, and dressing o Purchasing, cleaning, and caring for clothes o Providing medical care o Educating o Disciplining o Providing religious training, etc - Garska v. McCoy: o The issue is whether the sex of the parent should ply into the decision of who should be the primary caretaker o The court found the father to be more intelligent, make more money, have a better command of the English language, and othersbut this did not make him to be a better fit as primary caretakerbut he was fit to be a good parent o The mother was going to allow the grandparents to adopt the child so he could receive medical care and have a respiratory condition fixed. The father objected and wanted custody of the child. o The court felt that mom should remain in full custody of child because she does everything she can for the child and was only letting the grandparents adopt the child so he could have a better life. Joint Custody (p574): - Squires v. Squires (p574): o The issue is whether parties who are found to be good parents who will endeavor to place the interest of their child uppermost should be denied joint custody due to their hostility and refusal to cooperate with one another. The court said that the benefit of joint custody outweighs the hostility between the parents because both parties were good parents so this was in the childs best interest. Likelihood of future cooperation between the parents, by looking at Emotional maturity, Cooperation to rationally participate in decisions affecting the upbringing of the hcild


Past Division of Parental Responsibility (p579): - Young v. Hector (p579): o The issue is whether the trial court abused its discretion when it determined that the best interests of the two minor children dictated that their mother be designated their primary custodial parent. o The court held that there was no abuse of discretion and custody should be awarded to the mother. o The family resided in Santa Fe, NM until the fathers business ventures began to suffer and the mother became bored with her practice in NMfather is an architect, mother is an attorney. Both parties decided to relocate in Miami. It is significant that neither of these parties ever testified that they ever agreed or expected the mother to pursue her legal career while the father remained at home as the full-time caregiver to their minor childrenthe father actively pursued employment but was unable to gain any because he was not schooled in computer use for architecture- he was old school. Mom made the guap while husband was on a treasure hunt with wifes father. Housekeeper took care of the kids. After husband returned from his expeditions (14 months) mother asked for divorce because his continued refusal to gain employment. Only did this, get the father to start taking care of the kids. It was too little to latethe mother was the one who was financially stable and the kids should be with her because she had continuously been there to care for the kids throughout their lives when father was away NOTE: The father said that people who have incomes over $300,000 (wife) can afford the luxury of having hired helphe also stated that he is not the kind of person that sits around and watched soap operasI try to do meaningful worthwhile things. 1. ALI Principles of Family Dissolution a. Section 2.08: allocation of custodial responsibility (sort of physical custody) i. Unless otherwise resolved by agreement of the parents, the court should allocate custodial responsibility so that proportion of custodial time the child spends with each parent approximates the proportion of time spent prior to separation or if the parents never lived together, before the filling of the action, except to the extent necessary to achieve one or more of the following objectives: 1. To permit the child to have a relationship with each parent which, in the case of a legal parent or a parent by estoppel who performed a reasonable share of parenting functions, should be not less than a presumptive amount of custodial time



set by a uniform rule of statewide application; 2. To accommodate the firm and reasonable preferences of a child who has reached a specific age, set by a uniform rule of statewide application; 3. To keep siblings together when the court find that doing so is necessary to their welfare; 4. Avoid impractical splits; and 5. Avoid substantial harm. 2.09 Decision-making Responsibility: i. The court should allocate responsibility for making significant life decision on behalf of the child, including decisions regarding the childs education and the health care, to one parent or to two parents jointly, in accordance with the childs best interest in light of the following: 1. The allocation of custodial responsibility under section 2.08 2. The level of each parents participation in past decision-making on behalf of the child; 3. The wishes of the parents 4. The level of ability and cooperation the parents have demonstrated in past decision-making on behalf of the child (education & health care, plus others in comments)

Modification (p594): - Most courts will modify a custody decision only if there is a substantial change in circumstances (Material). I. Change in Circumstances (p595): a. Uniform Marriage and Divorce Act Section 409 i. No motion to modify a custody decree may be made earlier than 2 years after its dateunless there is reason to believe the childs present environment may endanger seriously his physical, mental, moral or emotional health. ii. Subsection (b) authorizes modifications which serve the childs best interestbut this standard is to be applied under the principle that modification should be made only in three situations: where the custodian agrees to the change; where the child, although formally in the custody of one parent, has in fact been integrated into the family of the petitioning parent; or where the non-custodial parent can prove both that the childs present environment is dangerous to physical, mental, moral, or


emotional health and that the risks of harm from change of environment are outweighed by the advantage of such a change to the child. b. Hassenstab v. Hassenstab (p596): i. Father tries to get custody orders modified so he will get custody of child. 5 years after the custody order had been put in, father appeals it. Father says custody should be modified because of mothers homosexual behavior, her attempted suicide 7 years prior to the modification hearing and that she drank too much. The trial judge met with the daughter in chambersdaughter expressed a desire to stay with mother. ii. Custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the minor child require such action. iii. In determining a childs best interests in custody and visitation matters, the Nebraska statute provides that the factors to be considered shall include, but not limited to, the following 1. The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing 2. The desires and wishes of the minor child if of an age of comprehension regardless of chronological age, which such desires and wishes are based on sound reasoning; 3. The general health, welfare, and social behavior of the minor child; AND 4. Credible evidence of abuse inflicted on any family or household member. iv. The evidence does not establish that the daughters best interests require a change of custody.

c. Wetch v. Wetch (p599):

i. The issue is whether the trial court erred in refusing to consider custody evidence relating to conduct and events occurring before the original judgment. This court finds that there was an abuse of discretion. ii. Wife had custody of kids and wanted to move from North Dakota to Tennessee with themfather appealed this decision and court said wife had to stay within 60 miles of husbandduring the summer, wife moved kids to Tennesseefather now wants custody iii. When the court considers a request to modify an original custody award, two issues must be determined (1) whether there has been a significant change of circumstances since entry of the original divorce decree and custody award; AND , if so, (2) whether the changed circumstances require in the best interest of the child custody be modified. iv. Wife says that change of circumstances does not justify a change of custody because prior to the divorce husband engaged in domestic violence against wife and children.


v. Court says that if the previous custody placement was based upon the parties stipulation and not only by consideration of the evidence and court made findings, the trial court must consider all relevant evidence, including pre-divorce conduct and activities, in making a considered and appropriate custody decision in the best interests of the childrenhere the pre divorce evidence is relevant to the courts evaluation of what is in the childrens best interest. II. Relocation (p605): a. Two types of child custody modifications: (1) typical request for a change of custody from one parent to another, after an initial order has been made and primary or sole custody awarded to one parent, and relocation is not an issue; OR (2) Custodial parents request to relocate to another state or to a foreign country with the minor child or children after an initial order awarded primary or sole custody to the parent requesting the move. b. Baures v. Lewis (p605): Husband and Wife were married in Wisconsin. Husband was office in the Navy. The couple moved to New Jersey because that is where husband was stationed. Son had autism. Parties got divorced. Wife wanted to move with son to Wisconsin to go to special school and have her parents help raise him. Husband objected and wanted custody so son would stay in New Jersey. i. In order to move with child, the child needs to have regular communication and contact with the noncustodial parent that is extensive enough to sustain their relationshipthe childs interest will be served. ii. Template for removal case: 1. Moving party bears a 2 pronged burden of proving a good faith reason for the move and that the child will not suffer from it. a. Produce evidence to establish there is a good faith reason for the move AND b. That the move will not be inimical (child would not suffer) to the childs interests i. A visitation proposal should be included. 1. After the prima facie case has been shown, the burden shift to the noncustodial parent to produce evidence, not just that visitation will change, but that the change will negatively affect the child 2. FL Relocation factors No presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent. Factors to determine when primary custodian wants to move:


a. Whether move likely to improve quality of life for parent and child; b. Extent of which visitation rights have been (a) allowed and (b) exercised; c. Likelihood of custody parent to comply with substitute visitation arrangement; d. Whether substitute visitation will be adequate to foster a continuing meaningful relationship.; e. Whether cost of transportation is financially affordable by parties; and f. The best interest of the child III. Visitation (p612): a. UMDA Section 407: Visitation: A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the childs physical, mental, moral or emotional health. i. General rule implies a best interest of the child standard. Visitation rights should suit the childs interest rather than the interest of either the custodial or noncustodial parent. ii. To preclude visitation completely, the judge must find that visitation would endanger seriously the childs physical, mental, moral, or emotional health.

b. Eldridge v. Eldridge: This issue is whether the trial court abused its
discretion in ordering unrestricted overnight visitation with the mother? NO. In reviewing the trial courts visitation order for an abuse of discretion, the childs welfare is given paramount consideration, and the right if the parents visitation may be limited, or eliminated, if there is definite evidence that to permit the right would jeopardize the child, in either a physical or moral sense.

c. Zummo v. Zummo: Whether an order prohibiting a father from taking

his children to religious services contrary to the jewish faith during periods of lawful custody or visitation violated fathers constitutional rights? YES. The majority of courts have concluded that each parent must be free to provide religious exposure and instruction, as that parent sees fit. Therefore, this court holds that in order to justify restrictions upon parents right to inculcate religious beliefs in their children, the party seeking the restriction must demonstrate by competent evidence that (1) the belief or practice of the party to be restricted actually presents a substantial threat of present or future physical or emotional harm to the particular child or children involved in absence of the proposed restriction, and (2) that the restriction is the least intrusive means adequate to prevent the specified harm. statute infringes parents fundamental right to care/custody of their

d. Troxel v. Granville (p621): The issue is whether a no-parent visitation


children and is therefore unconstitutional? YES. The statute permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parents children to state court review. The statute contains no requirement that a court accord the parents decision any presumption of validity, instead the statute places the best interest determination solely in the hands of the judge. In this case, the decision by the superior court judge directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. Thus, the court held that some deference or special weight must be given to parental decisions because it is presumed that fit parents will act in their childs best interestthe Granvilles fundamental constitutional right to make decisions concerning the rearing of their own daughter. IV. Stepparents: a. ALI Principles of Dissolution (tried to follow Troxel)3 types i. Legal Parentparent by blood, adoption ii. Parent by Estoppela parent by estoppel is a person other than the legal parent who: 1. Is obligated to pay child support 2. Lived with the child and accepted parental responsibility for at least two years in the good-faith belief that he was the childs father; OR 3. Lived with the child since birth and acted as a parent pursuant to a parenting to co-parenting agreement a. In essence it is by agreement b. Pre-birth agreement and lived with since birth; OR c. Post birth agreement and lived with 2 years and accepted full responsibilities of parenting i. Could be by money or actual care ii. Actual care need not be 50 % of parenting time iii. De Facto Parenta person other than a legal parent or parent by estoppel who for at least 2 years: 1. Lived with the child, AND 2. Performed the majority of care taking functions or as many care taking functions as the parent with whom the child resided 3. Either by agreement or due to the failure or inability of the legal parent to do so 4. Although a parent by estoppel has more rights than de facto parents, both statutes require the adult I question to have significantly functioned as the childs parent and are consequently theoretically consistent with acting in loco parentis a. In essence, a function approach to defining a parent


b. Must be at lest equal child-contact related parenting activity, if not more c. Money support is not enough Kinnard v. Kinnard (p630): Bernard and Debra Kinnard divorced. The court awarded shared custody of the daughter between her father Bernard, and her stepmother Debra. The trial court found that even though Debra was a stepmom, she was still a psychological parent and that removal of Debra from the child life would be detrimental to the child. o The issue is whether the court erred in awarding shared custody to D (stepmother) under decision in Troxel? NO. Standard of Review: will reverse a courts custody determination only if a court in convinced that the trial court has abused its discretion or that controlling findings of fact are clearly erroneous. Proper legal Standard: Detriment to child standard (stepparents and psychological parents): Parental custody is preferable and only to be refused where it clearly would be detrimental to the child. And severing the bond between the psychological parent and the child may well be clearly detrimental to the childs welfare. The best interest standard is used in stepparent and third party custody disputes. Simmons v. Gisvold (p633): The issue is whether preference should be given to the natural mother over the stepmother for custody, after the natural father (who had custody) dies? YES. In custody cases, the natural parents paramount right to custody prevails unless the court finds it in the childs best interest to award custody to the psychological parent to prevent serious harm or detriment to the welfare of the child. Quinn v. Mouw-Quinn (p635): Patrick is the biological father of two children, but not the third. The daughter only knows of Patrick as daddy even though he is not her biological dad. The parties divorced for a second time and Patrick sought custody of all three childrenhe lost and was given visitation rightsto his two children and his non-biological child. The issue is whether a non-biological father can be awarded visitation rights? YEShowever, only in extraordinary circumstances. This is so, because it would be devastating to Samantha, if she did not get to visit with Patrick when he visited his two childrenwho she thought were full siblings, and because Patrick is the only father she has even known and Patrick established a parent-child relationship with her. Patrick is also required to pay child support for her.

V. Unmarried Persons: a. Fathers: i. Stanley v. Illinois (638): In this case, P (father), had three children with the motherhowever, they were never married. Under Illinois law, the children of unwed fathers become wards of the state upon the death of the mother. The issue is whether a State may deprive an unmarried father of his natural children


without providing the same notice, hearing, and proof requirements granted to married parents, divorced parents and unmarried mothers? NO. The Court held that P was denied his equal protection rights under the 14th Amendment because all parents were constitutionally entitled to a hearing on their fitness before their children were removed from custody. The States interest in caring for Ps children was too minimal, if P was shown to be a fit parent. In fact, this seems contrary to state goals.

ii. Lehr v. Robertson (p641): The question presented is whether a

putative father is entitled to notice of a proceeding to adopt a child he claims, if he has not established a familial relationship with the child? NO. Here, the father has never supported and rarely seen his daughter in the two years since her birth. The State of New York maintains a putative father registry, in which a man who files with that registry demonstrates his intent to claim paternity of a child born out of wedlock and is therefore entitled to receive notice of any proceeding to adopt that child. Father never registered. Due Process ClaimParental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring in order to establish a fundamental right. EP ClaimIf one parent has an established custodial relationship with the child and the other parent has either abandoned or never established a relationship, the EP clause does not prevent a state from according the two parents different legal rights because they are not similarly situated.

b. Couples: i. V.C v. M.J.B. (p649) 1. What is the proper standard for third party visitation? a. Four-part test to determine whether a person is a psychological or second parent: i. Whether the biological or adoptive parent consented to, and fostered, the psychological or second parents formation and establishment of a parent-like relationship with the child; ii. Whether the psychological or second parent and the child lived together in the same household; iii. Whether the psychological or second parent assumed the obligations of parenthood by taking significant responsibility for the childs care, education and development, including contributing towards the childs support, without expectation of financial compensation [need not be monetary.]; and



d. e. f.

psychological or second parent 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. Once a third party has been determined to be a psychological parent to a child, under the previously described standards, he or she stands in parity with the legal parent. Custody and visitation issues b/t them are to be determined on a best interests standard. Visitation will be the presumptive rule, subject to the considerations as would be the case if two natural parents were in conflict. The denial of visitation rights are almost invariably granted to the non-custodial parent. The denial of visitation rights is such an extraordinary proscription that it should be invoked only in those exceptional cases where it clearly and convincingly appears that the granting of visitation will cause physical or emotional harm to the children or where it is demonstrated that the parent is unfit.

iv. Most important: Whether the

Titchenal v. Dexter (p657): One woman in a dyke relationship adopt a kid. The other dyke did not adopt the kid as her ownshe thought that Vermonts laws would not permit itthe Court said she should have at least tried to show she was interested in being a legal mother to the child. Their relationship failed. P now wants visitation rights. The issue is whether there is a legal basis for de facto parents to have standing to assert custody rights? NO. Here, the court found no legal basis for plaintiffs proposal. There is no common-law history of courts interfering with the rights and responsibilities of fit parents absent statutory authority to do so. The Supreme Court state it was up to the states to decide: (1) P would have to show D to be an unfit parent; OR (2) Best interest of child standard. o This is not a problem in Florida because gays cannot adopt.

VI. Jurisdiction (p663): a. UCCJAUniform Child Custody Jurisdiction Act: i. Launched in 1968 ii. First, it sought to avoid jurisdictional competition and conflict among courts of different states in matter of child custody and to promote cooperation among the courts in matters of child custody. iii. Second, the Act sought to achieve a custody decree rendered in the state best suited to determine the best interest of the child. iv. Third, the Act was aimed at deterring abductions and other unilateral removals of children undertaken by parents to obtain favorable custody awards.


v. Must register when they come in a state and leave to determine what is the home state. vi. Two main bases: 1. Home state jurisdiction(1) child has lived with a parental figure for at least 6 months before the custody proceeding OR (2) a child has moved from his or her home state within the last six months AND one parent still lives in that state. a. EX: Jason lives with mother and father for seven years in Alabama. His mother and father separate, and Jason and his mother move to Tennessee. Three months later, father initiates a custody action in Alabama. Alabama has home state jurisdiction because Jason has moved from it within the last six months AND his father still lives there. 2. When a child and a parent have a significant connection with a State AND there is substantial evidence with respect to the appropriate care for the child. b. UCCJEA: Uniform Child Custody Jurisdiction and Enforcement Act i. Promulgated in 1997 ii. Goal was to reconcile differences between the UCCJA and PKPA iii. Some version has been accepted in all jurisdictions iv. General objectives remain the same as those found in UCCJA including the goal to address problems associated with the growing number of custody disputes between geographically separated parents. v. A court with home state jurisdiction has priority over a court with jurisdiction based on significant connections and substantial evidence with respect to initial custody determination vi. A modification action can be brought only in the state that made the initial custody determination so long as a child or parent involved in the original custody ruling remains in that state. vii. In general, the UCCJEA applies to the following: custody, modification of custody, visitation disputes that arise in divorce and separation proceedings; domestic violence matters, and paternity disputes. It may also apply to neglect, dependency, guardianship, termination of parental rights, and grandparent visitation. viii. Four areas where UCCJEA may play an important role in the outcome of an interstate custody dispute: 1. In initial custody determinations; 2. When continuing jurisdiction exists because the court originally possessed personal jurisdiction over the parties to the action; 3. When a modification motion is brought to change an existing custody determination; AND


4. In situations where an emergency exists and a court must act to protect the child. c. PKPAParental Kidnapping Prevention ActFederal: To Prevent forum shopping i. Created to discourage interstate forum shopping and to allocate powers and duties between courts of different states. ii. Enacted in 1980 iii. Applies to more than parental kidnappingapplies to civil interstate custody disputes iv. Created the home stateget priorityresidence of child last 6 months v. Provides once a state has exercised jurisdiction, the initial decree granting state retains exclusive continuing jurisdiction if it remains the residence of the children or any contestant. vi. 2 requirments: 1. The Act establishes a federal standard for continuing exclusive custody jurisdiction in the state that initially possessed jurisdiction over the parties at the time the custody order was entered 2. Second, the Act incorporates a state lawi inquiryto retain exclusive responsibility for modifying its prior order, the first state must still have custody jurisdiction as a matter of its own custody law.

Chaddick v. Monopoli (p665): The issue is whether the parties have a right to be present when the judge in the state hearing their case calls the judge of a sister state to determine whether the sister state has appropriately exercised its jurisdiction over a child custody case? YES! The UCCJA provides that a court of this state (Fl) shall not exercise its jurisdiction under this act if, at the time the petition is filed, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reason. The court held that (1) the parties must be given the opportunity to be present during a Fl judges conversation with a judge of a sister court but the parties may not participate in that conversation; AND 2) the Fl judge must explicitly set forth in the record the reasons for the judges finding that the sister state was or was not exercising its jurisdiction in substantial conformity with the UCCJA. Thompson v. Thompson (p668): The Supreme Court declared that under the provisions of the PKPA, once a state properly exercises jurisdiction, other states must give full faith and credit to the determination and no other state may exercise concurrent jurisdiction, even if it would be entitled to under its own laws. The Court stated that the chief aim of congress in enacting the Law was to extend the Full Faith and Credit Clause to custody determinations. Basically, states must give full faith and credit to the custody decrees of other statesthe PKPA is to avoid jurisdictional competition and conflict between State Courts.


Full Faith and Credit Clause: requires states to give full faith and credit to, among other things, the final judgment of other states. Custody decrees, however, are not regarded as final judgments because the state court issuing the decree retains jurisdiction to modify it in the best interest of the child until he or she is 18.

International Custody Disputes (p672): - Ohlander v. Larson: The issue is whether a party has filed a custody petition in a federal court and then has filed a similar petition in a foreign court, may the original P have the federal petition dismissed? YES! The Hague Convention was intended to provide for a childs prompt return once it has been established that the child has been wrongfully removed to or retained in any affiliated state. There are exceptions: if the person opposing return can show any of the following: o The person requesting return was not, at the time of the retention or removal, actually exercised custody rights or had consented to or subsequently acquiesced in the removal or retention; o The return of the child would result in grave risk of physical or psychological harm to the child; o The return of the child would not be permitted by the fundamental principles of the requested State relating to the protection of the human rights and fundamental freedoms; OR o The proceeding was commenced more than one year after the abduction and the child has become settled in the new environment.

- Silverman v. Silverman (p677): In 1999 mom flew to Minnesota and filed bankruptcy while husband was still in Israel. In 2000, Mom took the kids from Israel to the States for vacation and overstayed her vacationnot returning the kids. Father invokes Hague Convention. Both parents state that their permanent address is in Minnesota. Mother won because the court found that the residence was in Minnesota and putting the kids in Israel would not be in the best interest. The law is clear that wrongful removal from a country does not change a childs Hague Convention habitual residencetherefore if the childrens habitual residence changed when they moved to Israel it did not change back when Julie removed them back to Israel. However, the court remanded and gave the kids custody to pops in Israel because they found the kids had started their life in Israel and had adjusted so Israel was there new home. o Habitual Residence: The court should determine the degree of settled purpose from the childrens perspective, including: (1) the familys change in geography along with personal possession and pets, (2) the passage of time, (3) the family abandoning its prior residence and selling the house, (4) the application for and securing of benefits only available to Israeli immigrants, (5) the childrens enrollment in school, (6) both parents intentions at the time of the move. o Grave Risk of Harm: this is an affirmative defense under the Hague Convention that the D must prove with clear and convincing evidence. There are two types of risks appropriate under this defense (1)sending


a child to a zone of war, famine, or disease, OR (2) in cases of serious abuse or neglect. Israel is not a zone of war as meant by the convention. VII. Enforcement: a. Wolf v. Wolf (p682): To establish a claim of tortious interference with custody a P must show: i. The P had a legal right to establish or maintain a parental or custodial relationship with his or her minor child; ii. The D took some action or affirmative effort to abduct the child to compel or induce the child to leave the Ps custody; iii. The abducting, compelling, or inducing was willful; AND iv. The abducting, compelling, or inducing was done with notice or knowledge that the child had a parent whose rights were thereby invaded and who did not consent.

b. U.S. v. Amer (p685): D took the kids from the US to Egypt when the
wife went to the store. The issue is whether a D under the International Parental Kidnapping Crime (IPKCA) may assert a defense of the Hague Convention? NO! The Hague Convention does not apply when children habitually residing in the U.S. are abducted from this country taken to a country that does not use the Hague Convention.

c. Hendrickson v. Hendrickson (p690): Wife lived in one town with their

four children while husband lived in a close town during the week and then with his family on the weekends, holidays and vacations. Marriage dissolved. Kids went to mom. Visitation schedule allowed Mark visitation 2 weekends per month and @ Xmas. Dad had to get police involved because the mom would try to bribe the kids to not see their dad. When a trial court entertains a motion to change custody of divorced childrenthe judge must determine 2 issues: (1) whether or not their has been a significant change in circumstances since the original divorce decree and custody award, and if so, (2) whether or not those changed circumstances compel or require a change in custody to foster the best interests of the child. If a parent is put in jail for a custodial matterthey cannot be in jail for a significant amount of time Look at difference between Civil and Criminal***

VIII. Farmer v. Farmer (p693): did the court err by linking visitation and the
payment of fees a. 2 problems: (1) the trial court impermissibly conditions Farmers visitation rights upon the payment of child support and (2) Second, the trial court threatens to revoke Farmers suspended sentence, which was ordered for failing to pay child support, if he does not continue visitation with his daughter. b. The court has held numerous times that a parent may not interfere with visitation when the non-custodial parent fails to pay support


c. Parents cannot be sent to jail fro not visiting their children Property, Alimony, and child Support Awards (p696): A. Property Division: a. Property settlements have no tax treatment b. Property distribution is not always protected from discharge in bankruptcy; certain things must be shown to avoid discharge of property award. c. Property settlements are finalno modification d. Property settlements are not affected by remarriage e. UMDA 307 (Alternative A) i. CL pure equitable distribution: All property divided ii. Courts is to equitably divide property. Factors generally: 1. Duration of marriage 2. Any prior marriage of either party 3. Any antenuptial agreement of the parties 4. Age 5. Health 6. Occupation 7. Amount and source of income 8. Employability 9. Estate 10.Needs of each parties 11.Custodial provisions 12.Homemaker and non-economic contributions considered f. UMDA 307 (Alternative B)Community Property Statute i. Factors: 1. Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as a homemaker 2. Value of the property set apart to each spouse; 3. Duration of the marriage; AND 4. Economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable period to the spouse having custody of any children. g. When valuing and distributing property, a court has three tasks: i. First, it must gather and then classify all the assets involved in the action to determine those that are subject to distribution as marital property and those items that are non-marital property , including contribution of a spouse as a homemaker; ii. Value of the property set apart to each spouse; iii. Duration of the marriage iv. Economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for a


reasonable period to the spouse having custody of any children. Distinguishing Marital from Separate Property o ALI Section 4.03 Property acquired during the marriage is marital property, except as otherwise provided in this chapter Inheritances, including bequests and devises, and gifts from third parties are the separate property of the acquiring spouse even if acquired during the marriage Property received in exchange for separate property in separate even if acquired during marriage. FL Factors: o 50/50presumption o Duration of marriage o Homemaker contributions o Wage earner contributions o Economic circumstances of the parties o Contribution to career o Keep family business with family o Contributions toward accumulation of marital assets o Maintain marital residence as home for children in conjunction with set-offs and credits o Waste- financial misconduct if within 2 years prior to filing or at anytime after filing

Three Theories for Property Distribution: 1.) Separate Property System: Outdated Each party was to attain an asset to which the party had title Considered unjustmost property was in husbands name Did not recognize a homeowners non- financial contributions to the family 2.) Community Property Theory: Used in 8 states Both spouses are vested in all property acquired during the marriage, other than property that by statute is specifically excluded from the community such as a gift to one partner but not the other, or an inheritance to one partner but not the other. The increase in the value of a partys separate property resulting from that partys effort during marriage is usually considered community property. The spouse acquires a present vested undivided one-half interest in all property acquired during the existence of the marital relationship regardless of the state of title The only issue that can be litigated involves the deceaseds remaining one half interest in the community propertythe survivor already owns the other half. In a noncommunity property state, when a partner dies intestate, intestacy laws may provide the survivor with a portion of or all of the estate.


3.) Equitable Distribution System: Used in 43 States Looks at marriage as a joint enterpriseequality is the cardinal ruleit is assumed that all wealth acquired b the joint efforts of the husband and wife is common property. Noneconomic ingredients are consideredraising children, making a home, performing personal services, providing physical and emotional support, etc Marital Property is defined as not including: o Acquired before marriage o Acquired by inheritance or gift from a third-party o Excluded by valid agreement; OR o Directly traceable to any of these sources. Marital property is viewed broadly and includespensions, retirement, investments acquired or earned during the marriage, as well as equity in property built up during the marriage. If a party claims that an asset is on-marital, the burden is normally placed on that party to trace the asset to its non-marital sourcein general, this means that when the original property claimed to be non-marital is no longer owned, the non-marital claimant must trace the previously owned specific interestif the claimant does so, then the trial court assigns the specific property, or an interest in specific property, to the claimant as his or her non-marital property. - Formulation for Calculating Value of Non-Marital Assets: Court determines the present value of a non-marital asset used in the acquisition of marital property by calculating the proportion the net equity or contribution at the time of acquisition bore to the value if the property at the time of separation. The remainder of the equity increase is characterized as marital property and is equitably distributed. o EX: Assume that P and D were married in an equitable distribution jurisdiction. Before the marriage, D owned a home, which on the day of her marriage was valued at $100,000 and had a $50,000 mortgage on it. During the marriage, the couple lived in the home, and D made all of the house payments. When they divorced, the home was valued at $200,000. P argues that because this is an equitable distribution jurisdiction, he should receive an interest in the home. D argues that because she made all the payments during the marriage, she should receive 100 % of the home. How will a court most likely rule? On the day the couple married, D had a 50% interest in the home ($50,000 of the $100,000 value). During the marriage, the value of the home increased as a result of market forces, and Ds 50% initial investment in the home should be recognized. Therefore, on divorce, she should receive $100,000 as her non-marital interest in the homestead (50% of $200,000). The remaining $100,000 will be divided equitably between P and D, with each probably


receiving about $50,000. D most likely will receive a total of $150,000.

Innerbichler v. Innerbichler (700): o Determining marital property. Property that is initially non-marital can become marital. The party who asserts a marital interest in property bears the burden of producing evidence as to the identity of the property. Conversely, the party seeking to demonstrate that particular property acquired during the marriage is non-marital must trace the property to a non-marital source. If a property trace cannot be traced to a non-marital source, it is considered marital property. When a party petitions for a monetary award, the court must first follow a 3-step procedure: For each disputed item of property, the court must determine whether it is marital or non-marital. The court must determine the value of all marital property. The court must decide if the division of marital property according to the title will be unfair, if so, the court may make a monetary award to rectify any inequity created by the way in which property acquired during the marriage happened to be titled. In doing so ,the court must consider the statutory factors: Contribution (monetary and non-monetary) of each party to the well-being of the family; The Value of all property interests of each party; The economic circumstances of each party at the time the award is to be made; The circumstances of each party at the time the award it to be made; The duration of the marriage; The age of each party; The physical and mental condition of each party; How and when specific marital property or interest in the pension retirement, profit sharing, or deferred compensation plan, was acquired, including the effort expended by each party in accumulating the marital property or the interest in the pension, retirement, profit sharing or deferred compensation plan or both; Any award of alimony and any award of other provisions that the court has made with respect to family use personal property or the family home; Any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in the pension, retirement, profit sharing, or deferred compensation plan or both. Thomas v. Thomas (p706) o The subject of this particular inquiry involves the proceeds from the sale of the marital home and from the sale of stock in the company,


which employed her husband. The house was in the wifes name and had been purchased by her shortly before the marriage but marital funds had reduced the mortgage debt against the house. The stock was purchased during the marriage as the result of the stock options obtained by the husband before the marriage. In order to divide marital property on an equitable basis, two things must be done: First the property must be classified as either marital or non-marital property; Second, the marital property must be divided, not necessarily equally under the principles elucidated in the classifying of property as either marital or non-marital. This is not discretionary but based on legal principles. The Source of Funds Rule: When property is acquired by an expenditure of both non-marital and marital property, the property is characterizes as part non-marital and part marital. Therefore, a spouse who contributes non-marital property to the marriage is entitled to maintain a proportionate non-marital share in an otherwise marital asset.

Divorcing Property Equitably: - Ferguson v. Ferguson (p709): o Does the equitable distribution system of dividing marital assets at divorce recognize the economic value of homemaker services? Yes. There are 3 basic systems used by the states to divide marital assets at divorce: The separate system (old system returned property to title holder) The community property approach; and The equitable distribution system this approach the court should consider: The parties contributions to the accumulation of the property, including both economic contributions and contributions to the stability of the family, as well as to the education of the spouse who accumulates the assets; The needs of the parties for financial security; The extent to which the property division may be used to eliminate periodic payments and other potential sources of future friction b/t the parties. The fair market value of the assets; and Any other factors

Postema v. Postema (p713): o Is one spouses law degree a marital asset to be divided b/t the parties in the event of a divorce? Yes. A divorce decree is intended to provide a fair and equitable distribution of marital assets under all of the circumstances. As part of this objective, when one spouse earns an advanced degree, the other spouse should be compensated if the advanced degree is the end product of a concerted family effort


involving mutual sacrifice and effort by both spouses (Minority). There are two methods of calculating compensation for a non-student spouses interest in an advanced degree: (1) a portion of the present value of the earnings from the degree; or (2) Restitution. However, the court held that the present value method is not proper b/c it suggests that the non-student spouse possesses a pecuniary interest in the degree itself. Instead the court should apply a restitution analysis: this involves evaluating the non-student spouses contributions and then determining what compensation would most equitably compensate the non-student spouse for the otherwise unrewarded sacrifices, efforts, and contributions toward the degree. The focus of an award involving an advanced degree is not to reimburse the non-resident spouse for loss of expectations over what the degree might potentially have produced, but to reimburse that spouse for unrewarded sacrifices, efforts, and contributions toward attainment of the degree on the ground that it would be equitable to do so in view of the fact that that spouse wil not be sharing in the fruits of the degree.

Elkus v. Elkus (719): o Whether the plaintiffs career and/or celebrity status constituted marital property subject to equitable distribution, when this status came during the marriage? YES. Contrary to the conclusion reached b the Supreme court, we find that to the extent the defendants contributions and efforts led to an increase in the value of the plaintiffs career, this appreciation was a product of the marital partnership, and therefore, marital property subject to equitable distribution.

Financial Misconduct: - Siegel v. Siegel (p722): The issue is whether casino gambling losses incurred pre-complaint, but when the marriage was irreparably fractured, fall within the matrimonial pot as shared between the spouses, or does It belong with the one who placed the family treasury at risk? The debt belongs to the gambler. Pensions and Other Deferred Income - Laing v. Laing (p724): o There are 2 methods for valuing approach: The present value approach: The present value approach requires a court to determine what the present value of a pension is & then divide that amount between the parties depending on their respective marital contributions to the benefits. This approach is unrealistic when the benefits never vest The reserved jurisdiction approach: This is the better approach is for the court to retain over the dissolution until the benefits do vest. At tha point, the court may divide the pension using the present value


approach or some other method. For example, under ERISA, the court can issue a order to the plan to pay a portion of the benefits directly to the non-employee spouse. B. Alimony (p730): a. The obligation of one party to provide the other with support in the form of income. b. Cannot be discharged in bankruptcy c. Taxable to the recipient and deductible to the payer d. May be modified in the future e. Traditionally terminate upon remarriage of the recipient f. Failure to pay can be enforced by contempt proceedings. 2 step process to determine eligibility: o The first step involves an assessment of the ability of the parties to provide alimony and their need for such support. o Step two involves successful completion of step 1, and the calculation of an amount of alimony to be awarded, if any, and its duration. Step 1: Typically, a court must find that a party seeking alimony lacks sufficient property to provide for his or her reasonable needs and is unable to be self-supporting through appropriate employment Step 2: Factors to consider when setting the amount and length of an award: A spouses capacities and abilitiesvery importantlooks at income spouse is likely to achieve in relation to the standard of living set forth during the marriage. Business opportunities Education Relative physical conditions Relative financial conditions and obligations Disparity of ages Sizes of separate estates Nature of the property Disparity in earning capacities or incomes Duration of marriagemajor factorespecially in cases involving a homemaker 2. UMDA Section 308 a. Presumption against alimony; use property to equalize money (clean-break notion) b. Alimony IF: i. Spouse lacks property to meet needs AND ii. Unable to support self OR is custodian of child & shouldnt work outside home c. If entitled, then look at factors to determine amount:


i. Financial resources of party seeking alimony, including marital property apportioned to him ii. The time necessary to acquire sufficient education or training iii. The standard of living established during marriage iv. The duration of the marriage v. The age and physical and emotional condition of the spouse vi. The ability of the spouse who has to pay alimony to meet HIS needs while meeting those of the spouse needing alimony. d. Marital misconduct not considered (note: Florida move away from adultery being a factor) 3. FL approach a. At trial courts discretion i. Rehabilitative or permanent 1. Permanent for long-term marriages over 20 yrs 2. Gray area is b/t 10 and 20 years ii. Court may consider the adultery of either spouse iii. Factors: 1. Standard of living, age, health, finances, need for education or training to obtain a job, contributions to marriage economic and non-economic iv. Modifiable upon changed circumstances v. Terminates 1. Upon remarriage or death of either obligor or obligee, also changing to terminate with cohabitation/remarriage. 4. FL statutory definition of cohabitation for purposes of alimony and child support modification a. FL Stat 61.14 modification due to supportive relationship with a person living with the obligee. i. Factors pooling of resources, formal or informal agreement regarding property sharing. b. What is the rule getting at? i. Moving back home with parents? ii. Roommates? iii. Its really getting at the cohabitation of individuals

In re Marriage of Wilson (p732): older couple was married for about 6 ears. About midway through marriage the wife was in an accident and became disabled. Court awarded alimony, temporarily for about 5 years. When it ended, the wife appealed. Court held that because of the short marriage, and taking all factors in total (UMDA), the husband was not required to continue alimony. Clapp v. Clapp (p734): Whether court abused its discretion when ordering maintenance support to maintain a standard of living for the wife? No. Reasonable needs allows the court to balance equities whenever the financial contributions of one spouse enable the other spouse to enhance his or her


future earning capacity. Purpose of maintenance is to compensate a homemaker for contributions to family well being not otherwise recognized in the property distribution. Wife has made a significant non-monetary contribution to the marriage as a homemaker and reduced her earnings over the years because of it. Can have permanent alimony; Family court has broad discretion to decide this. ALI on Alimony 5.05 - Loss Compensation Theory: Under this theory, one spouse makes compensatory spousal payments to the other spouse for certain losses that have been experienced by the second spouse. The ALI suggests that compensable losses include the loss of a standard of living and a loss incurred because the one spouse was primarily responsible for child care during the marriage. o EX: Assume that H and W were married for 20 years and that during that time their relationship was traditional in the sense that H worked at developing a business while W remained at home caring for their three children. If W proves that she provided a disproportionate share of the parental child care, the ALI proposal would create an inference that child care responsibilities adversely affected her earning capacity. Modifying Alimony (p752): - UMDA 316: An existing spousal-support award can be modified only if a change in circumstances has occurred that is so substantial and continuing as to make the terms of the original agreement unconscionable.

Graham v. Graham (p753): The issue is whether an increase in the noncustodial parents ability to pay can, by itself, constitute a material change in circumstances sufficient to justify an increase in support. YES! We think it is proper that a material increase in the non-custodial parents income can be the basis for an increase in child support. An original support may be modified only if there is a material change in the circumstances of the parties, which can be either a change in the childrens needs or the ability to pay (increase or decreases.) A former spouse seeking an increase in alimony bears the burden of showing that an increased is justified. DAscanio v. DAscanio (p756): Whether living with a person can be considered cohabitating and therefore lower the alimony award as stated in the agreement? YES. This issue was whether the defendant was cohabitating with another or just living with someone else. The court looked at the factors sleeping over 7 nights a week, identified by the children as their stepfather, and traveled with the defendant and her children. The court found this to be cohabitation and therefore lowered the alimony award.

Summary: Financial Awards to Divorcing Spouses (p763): - What principle should guide this attempt to do economic justice at divorce? o Need: Some minimum level at which a spouse is able to meet her basic needs. Furthermore, entitlement to post-divorce payments would


end once the recipient was able to meet her needs without alimony. This could be done through more gainful employment or through remarriage.

o Status: Requires that the court ensure that a less affluent spouse

enjoy the same standard of living that he or she had during the marriage. Most expressed through ALI 5.04usually benefits the longtime homemaker whose income at divorce is considerably less than that of her spouse. premise is that support should be for a temporary, rather than indefinite period of time.

o Rehabilitation: Similar to the need principle except its implicit

o Contribution: Reflects the idea that the spouses pool their efforts

during the marriage for their mutual benefit. Restitution: Attempts to return the spouse what she contributed to the marriage. Compensation for Forgone Opportunities: One way to compute this is to determine what the spouses earning capacity would be had she stayed full-time in the labor market during the marriage. Subtracting her actual earning power at divorce from this figure, discounted to present value, would represent her reduction in earning power as a result of the marriage. Return on Investment: This is where a marriage in which one spouse works to support both of them and to put the other spouse through school is an example. In such cases, the present value of the difference in lifetime earnings made possible by these contributions should be shared between the divorcing spouses. broader principle of marriage as a partnership.

o Partnership: In a broader sense, the contribution principle rests on a

C. Unmarried Partners (p769): a. Marvin v. Marvin: In this case, plaintiff and defendant lived together for seven years without marrying; all property acquired during this period was taken in defendants name. Plaintiff contests that she and defendant entered into an oral agreement that everything they owned would be equally shared. The clear and simple rule is: The fact that a man and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property, or expenses. Therefore, the rule asserted b the defendant, that a contract fails if it is involved in or made in contemplation of a non-marital relationship, cannot be reconciled with the decisions. In summary, we base our opinion on the principle that 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.

b. Norton v. Hoyt: The disputed claims arise out of an adulterous 23

year relationship between Plaintiff and Defendant, during which time Defendant allegedly maintained that he would terminate his marriage, marry Plaintiff and support her for the rest of her life. Basically, this was a promise that the Plaintiff should have realized would never come to fruition- he was married and sowed no signs of leaving his wife- there is no bass for enforcing this promise.

D. Child Support (p782): a. Intro Most statutes authorizing child support are written in general terms to give courts the maximum discretion. Judges typically use tables of incomes and family sizes as guides. These can be individually created or specially formulated by experts. A state may award child support as a fixed percentage of the supporting spouses gross income, established as a progressively higher percentage as income increases. i. Standards 1. Child Support guidelines: 1) Both parents share legal responsibility for their child. Support should be divided in proportion to their available income 2) Needs of each parent should be taken into account. However, support for child should never be zero. 3) Child support MUST cover childs basic needs, but child should also enjoy higher standard of living if parent does as well. 4) Each child has an equal right to share in the parents income 5) Each child is entitled to support regardless of marital status 6) Gender of custodial parent should not be a factor. 7) The guideline should avoid creating economic disincentives for remarriage or labor force participation 8) Guidelines should encourage the involvement of both parents in the childs upbringing. 2. Guidelines a-d or (1-4) are mandatory, afterwards there are two approaches: 1) Income Shares Model which is based on the principle that the child should receive the same proportion of parental income that he or she would have received if the parents lived together i. Child support is computed based on the combined income of both parents, which is then pro-rated in proportion to each parents income. Pro-rated shares of child care and extraordinary medical expenses are added to each parents basic obligation.


2) Delaware Melson Forumula i. Defines basic (subsistence levels) of need for parents and children. 1. It provides that parents are entitled to support themselves at a basis level before having the formula applied. Usually about $450/month (less if living with others). 2. Any additional income must be applied first in the form of child supports basic needs, usually $180/month for first child, $135/month for 2nd and 3rd child, and $90/month for 4th, 5th, and 6th. 3. When income is sufficient to cover the basic needs of the parents and all dependents, a portion of income is allocated for additional child support, usually 15% for 1st child, 10% for 2nd and 3rd, 5% for 4th, 5th, and 6th. UMDA Section 309 factors: - The financial resources of the child; - The financial resources of the custodial parent; - The standard of living the child would have enjoyed had the marriage not been dissolved; - The physical and emotional condition of the child and his educational needs; and - The financial resources and needs of the non-custodial parent.

Schmidt v Schmidt Whether a court must follow statutory guidelines in assessing child support? Yes. Even though, it may end up with absurd results. Although, a careful reading of the statute allowed for deviations based on specific findings, therefore on remand the court should look for these, which may support a deviation from the guidelines. In re Marriage of Bush Whether the court may deviate from the statutory guidelines if the parents income is far greater than is necessary to provide for basic needs? Yes. Regardless of what the guidelines say, where the individual incomes of both parents are more than sufficient to provide for the reasonable needs of the children, taking into account the lifestyle the children would have had absent the dissolution, the court may set a figure below the guideline amount. Solomon v Findley Whether one parent can enforce an agreement contained in a divorce decree whereby the other parent agreed to provide support (educational, etc) for a child after the child reaches the age of majority? Yes. Although a divorce court only has jurisdiction to enforce child support provisions until the child reaches majority, this issue can still be upheld in a separate contract action. Furthermore, b/c the divorce court doe


not have authority to enforce post-majority support provisions, that portion of the K did not merge into the dissolution decree.

Curtis v. Kline (p794): The issue is whether a statute that requires a noncustodial parent to provide support for educational purposes for a child over the age of 18 is constitutional? NO. This violates the EP Clause. Rational basis is used. The court applied a 2 step test: (1) whether the statute promotes a legitimate state interest; and (2) whether the classification adopted by the legislation is reasonably related to accomplishing the state interest. This rule fails the rational basis test. This is so, because this classification creates two groups of needy studentsone from families that are intact and the other from non-intact homes (divorced). Therefore, this statute violates that EP Clause and is therefore unconstitutional. Ainsworth v. Ainsworth (p798): Whether expenses for a second family affect the determination of child support for the preexisting family? Yes. First, the court looked to the language, where the statement if the guidelines would be inequitable was found to give the court discretion to deviate from the guidelines. Second, the court reasoned that since the statute allows the parent to exclude child support obligations from their gross income, the legislatures must have intended the courts to use their discretion to consider expenses connected with second families. The court analyzed what was covered by the exclusion of preexisting support orders: (1) there must be an actual support order; (2) it requires that the order, not merely the obligation, be preexisting at the time the calculation is made; and (3) that payments be made on the order. Under the law, a stepparents duty to support a stepchild is coextensive with the duty to support a natural child. He also has an obligation to support his second wife. Little v. Little (p804): The issue is whether a non-custodial parents voluntary decision to leave his employment to become a full time student constitutes a sufficient change in circumstances to warrant a downward modification of the parents child support obligation? NO. An intermediate balancing test is used whether the decision to go back to school full-time would place a financial impact on the child. If so, then the award should not be downward modified. Here, the court found that by reducing child support payments would put the child in financial peril and the dad has a BA and MBA so gaining a JD will not increase his earning capacity by a whole lot. Also, the court found that the father failed to act in good faith and instead endeavored to further his own ambition when he c hose to forego employment and become a full-time student. Bender v. Bender (p807): Whether Mrs. Bender had to pay child support when she was pregnant with someone elses baby. The court said that she can modify the support until her baby is born After her baby is born she convinced the court to allow her to stop paying child support on her first child because she did not want to go back to work so she could stay at home and nurture her new baby. The court needs to look at whether the father can support the daughter without her child support.


Miller v. Miller (p809): The issue is whether a stepparent can be equitably estopped from denying the duty to provide child support for minor stepchildren after divorcing their natural parent? YES! After the biological parent got released from jail, he tried to give money to the stepparent for his children and tried to get to know them. The stepfather refused the money and told him to leave. Therefore, the stepparent is responsible for support. o If the custodial parent demonstrates that he or she (1) does not know the whereabouts of the natural parent; (2) cannot locate the other natural parent; OR (3) cannot secure jurisdiction over the natural parent for valid legal reasons and that the natural parents unavailability is due to the actions of the stepparent, a trial court could hold that the stepparent is equitably estopped from denying his or her duty to support the children. o If, as in the present case, the wife knows where the natural father is, she has the burden to bring him before the court and to seek child support form him. Once in the court, the burden is on the natural father to show why he should not, in equity, be required to pay child support for his children. If the court finds that the natural father should not be required to pay child support due to the stepfathers conduct, the natural father having relied thereon and having laced himself in such a position that he is unable to meet that obligation, the stepparent should be responsible for the childrens continued support.

Jurisdiction (p817): - - Vanderbilt v. Vanderbilt: The wife contends that Nevada can only terminate the marriage, not all economic responsibilities. The Husband brings up the Full Faith and Credit Clause. Nevada had personal jurisdiction over the husband and not the wife. For economic rights, there must be personal jurisdiction. With divorce, the court only need jurisdiction over the petitioner to determine statusno jurisdiction over the respondent need be found. Therefore, only a divorce decree may be statedno change in economic responsibilities. Long-Arm Jurisdiction (p818): - Kulko v. Superior Court of California: The issue is whether in this action for child-support, the California state courts may exercise in personam jurisdiction over a nonresident, non-domiciliary parent of minor children domiciled within the State? NO! We hold that the exercise of such jurisdiction would violate the Due Process Clause of the 14th Amendment. The children were living with the father in New York and would live with the mom for the summer and on some holidays. The children eventually told the father they wanted to live with mom in California so the father said ok. The mom applied for increased child support. The father said that California does not have personal jurisdiction over him. The father relied on International Shoe and their minimum contacts test. The Court decided that their was not minimum contacts because no purposeful act had been done so by the father. A father who agrees in the interests of family harmony and his childrens preferences, to allow them to spend more time in California than was required under a separation agreement can hardly be said to have


purposefully availed himself of the benefits and protections of Californias laws. Uniform Interstate Family Support Act (p825): - Requires that states recognize the continuing, exclusive jurisdiction of a tribunal of another state that issued a child support order. - The trial court may modify the child support order: (1) upon both parties consent to the court assuming jurisdiction OR (2) if after registration of the order, the trial court determines that the child, the individual obligee, and the obligor do not reside in the issuing state. - An issuing state loses exclusive jurisdiction to modify child support provisions of a divorce decree once both parents and all their children move away from that state. - Child Support Enforcement v. Brenckle (p825): - This case raises questions about the relationship between successive Massachusettss statutes for the interstate enforcement of child support orders. - Mom has custody of child. Dad moves away from Alaska and mom and child stay. Dad sends child support check and it comes back returned. The mom never asked father to resend or inquire why he stopped paying. 12 yrs later, mom tries to collect for all past child support payments because she cannot afford to send son to college. - The court says father owes $75,000 plus interest - The husband files a motion to dismiss in Massachusettsheld him liable for $107,365. - Appeal transferred to Massachusetts Supreme Courtcourt found the law to be retroactive. - There was a K for postsecondary support so that K will be upheld. - If father does not pay his monthly payments then it will be declared a judgment so it will not be modifiable and cannot challenge the amount. - Laches was not a defense Child Support Enforcement (p830): - Eunique v. Powell: Eunique was denied a passport because she was severely in arrears on her child support payments. She brought an action that this was unconstitutional. Judgment affirmed. - Eunquie was denied a passport because she owes over $20,000 in child support. - Any debt in over $5,000 in child support will allow one not to get a passport - There is a limit of right to travel in this case - The Court distinguished between a right to travel via United States and via Internationally - If it is express than it is enumerated right - If it is implied right than it is an unenumerated right - Strict scrutiny is implied in this casethis kind of scrutiny is almost usually fatal to the statute


The court will look to see if it is narrowly tailored (see if there is a better way to do what the statute wants) to achieve a compelling state interest If strict scrutiny is not used than rational basis review is usedapplies to all economic regulation. o There must be a reasonable fit between the governmental purpose and the statute o Must be rationally related to any state interest She argues the right to travel is fundamental so this is unconstitutional o Wants strict scrutiny to apply The court holds this is not unconstitutional because the right to international travel is not fundamental but the right to interstate travel is fundamental so that would be unconstitutional. Also, this statute is set in place to prevent people from fleeing the country and not paying child support. Dissent: moms right to interstate travel is being violatedthis should be a fundamental right.

- Wisconsin v. Oakley (p835): - Oakley had 9 kids with 4 different women. He was in arrears of $25,000. Got sent to jail. Got probation. The court said he was not allowed to have any more kids until he pays child support on the ones he has. The court said that convicted individuals do not enjoy the same degree of liberty as citizens who have not violated the law. - Hicks v. Feiock (p839): - Whether a punishment the court makes out is civil or criminal intent - If it is criminal then his due process right will be violatedthe burden is not on you - If it is civil contempt, your conduct holds the keys to your jail cellif you comply then you are let free REGULATION OF MARRIAGE (P57) Regulations with respect to marriage: o Age o Licensing o Gender o Illegal for step-relatives to marry o Bigamy o Polygamy o Fundamental right to marrygender, right to marry

Loving v. Virginia (p58): - Black man and white woman wanted to get marriedthey left the state because it was illegal to interracial marriage in Virginiathey went to D.C. and got marriedwent back to Virginia and were told they could go to prison or get banned fro the State for 25 yrs.


Challenged the constitutionality of this statutesaid it violated the Equal Protection and Due Process of the 14th Amendment. The Court said this statute was unconstitutional because the right to marry is a fundamental rightdeserves strict scrutinywhenever race is used as a classification strict scrutiny is usedthere must be a compelling state interest and whether it is narrowly tailored to protect that interest. Strict scrutiny is almost always fatal Bottom of page 61-Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.

Zablocki v. Redhail (p62): - Issue: The constitutionality of a Wisconsin statute, which provides that any man that has owes child support, cannot remarry unless you can show that you are current on your child support payments and that your child will not become a warden of the state. - This is not narrowly tailored - The Court used strict scrutinymarriage is a fundamental right - The Wisconsin reason is deemed faultyit is unconstitutionalthere are deemed better collection devices Turner v. Safely (p71): - Court applied rational basis to a regulation that restricted prison inmates from marrying. Court held a prison regulation will be upheld if it is reasonably related to a legitimate prison objective. Traditional Restrictions on Marriage: These limitations were justified as being in the public interest, due to scientific or moral considerations. - Incest: All the states prohibit marriages between parent and child, brother and sister, aunt and nephew, and uncle and niece. Most states also prohibit marriages between first cousins. The usual justification given for such restrictions is that consanguineous marriages lead to birth defects, but geneticists know that harmful hereditary characteristics are eliminated through natural selection of the off-spring of consanguineous unions. The prohibition against incest is better explained as a social tool to create and protect families. Prohibiting incest forces inter-marriage between families, which in turn builds society. Another reason for incest taboos is the creation of protected environment for children, who thereby learn trust, affection, maintain close non-sexual relationships with persons other than their spouse o Singh v. Singh: Noted that although a marriage that is valid where the ceremony was performed is generally valid everywhere, an exception applies if the marriage is considered incestuous under state law. Age: Moe v. Dinkins (p95): - Plaintiffs seek a judgment declaring a New York law unconstitutional. Plaintiffs are an 18 yr old male and 15 yr old female who wish to marry but need parental consent because of the NY law. Females mother will not give consent, thus not allowing daughter and her boyfriend to be married. The court decides that strict scrutiny will not be usedthey decide on a rational basis review. Here, the court views Section 15 solely to determine whether


there exists a rational relation between the means chosen by the NY legislature and the legitimate state interests advanced by the State. Section 15 clearly meets this test. The State interests include the protection of minors from immature decision making and preventing unstable marriages. Paternal consent is required because it ensures that at least one mature person will participate in the decision of a minor to marry. o Strict scrutiny is denied because they are not denying her a right to marrythey are just delaying her marriage until she is an adultthe court realizes that she has the capacity to marry. o The NY statute is constitutional and the mother can deny her the right to marry until she is 18. o Sec 15.2Males between 16-18 need parental consent to marry o Sec 15.3Females between 14-16 need parental consent to marry o Could there be an Equal Protection problem because that statute applies to males and females at different ages? o Can this survive intermediate scrutiny? UMDA permits a child under 16 to marry, but only with the consent of both parents and with judicial approval. Judicial approval is based upon whether the marriage is in the best interests of the child and whether the c hild is capable of assuming the responsibilities of marriage. The female being pregnant can be a factorbut it is not determinative.

Polygamy: Forbidden in western culture - Reynolds v. US: First court to rule that state has compelling interest to keep marriage monogamous, thus prohibiting polygamy Bronson v. Swensen (p99): - Plaintiffs are husband and wife and third-party whom husband wished to marry. Defendant is a county clerk who refuses to issue a marriage license because this would lead to polygamy. Plaintiffs assert that polygamy is a deeply held religious belief and that Defendants refusal to permit a legal marriage deprives them of their constitutional rights to free exercise of their religious beliefs, right of association and their right to privacy, as protected by the First, Fourteenth, and other Amendments to the Constitution. - Past case are used to decide this case. In Reynolds v. United States, the Court upheld the criminal conviction of a Mormon for practicing polygamy, and rejected the argument that a prohibition on polygamy violated the right to the free exercise of religion. Also in Potter, the 10th Circuit found no authority for extending the constitutional right of privacy so far that it would protect polygamous marriages. Here, the Plaintiffs were not found to be able to marry because the state has a compelling interest in protecting monogamous marriage. Sanderson v. Tryon (p105): - The central issue in this case is whether children may be taken from an otherwise fit and proper parent solely for the reason that the parent practices plural marriages. The plaintiff in this case is the mother of three children she had with defendant husband. They were never married lawfully but lived a polygamous lifestyle. After they separated, wife took custody of kids and


began an unlawful marriage and brought back her polygamous lifestyle. Defendant contends that the children should not be subjected to this lifestyle defendant had given up this lifestyle. The Defendant received custody of the children, plaintiff appeals. The court said that her polygamous ways should only be one factor among many others regarding the childrens best interest. She is found to be a fit mother. Here, the court vacated the order entered for defendant to have kids and remanded this case to the district court to enter further findings of fact and judgment in accordance with this opinion. Same-Sex: Goodridge v. Department of Public Health (p109): - The question before the court is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marryWe conclude that it may not. - The plaintiffs are fourteen individuals from 5 Massachusetts counties. - The larger question as whether, as the department claims, government action that bars same sex couples from civil marriage constitutes a legitimate exercise of the States authority to regulate conduct, or whether, as the plaintiffs claim, this categorical marriage exclusion violates the Massachusetts Constitution. - The department provides three legislative rationales for prohibiting same sex couples from marrying(1) providing a favorable setting for procreation; (2) ensuring the optimal setting for child rearing, which the department defines as a two-parent family with one parent of each sex; and (3) preserving scarce State and private financial resources. o (1): The judge held that the states interest in regulating marriage is based on the traditional concept that marriages primary purpose is procreation is incorrect. Fertility is not a condition of marriage, nor is it grounds for divorce. o (2): The first rationale shades into the second and is found incorrect because raising children in a same-sex marriage household will not harm the child if the parents are fit; AND o (3): First it is found incorrect that same sex couples are les financially dependent on each other than opposite sex couplesthis ignores the fact that many same-sex couples have children and other dependents such as aging parents that they take care of, Second, Massachusetts marriage laws do not condition receipt of public and private financial dependence on each other. NOTE: Massachusetts is the only state that recognizes same sex marriage DissentSosman: The issue is whether it is rational to reserve judgment on whether this change can be made at this time without damaging the institution of marriage or adversely affecting the critical role it has played in our societys. NOTE: Vermont is the only state that permits civil unions **Whats the difference when a state changes a law from when it amends its constitution on gay marriages? Judicial review is eliminatedcannot say that it is unconstitutionalUS Supreme Court might say that that states law is unconstitutional


Wilson v. Ake (p121): - Plaintiffs are two lesbians who reside together in the Middle District of Florida. They were married in Massachusetts and tried to get their marriage license accepted and validated in Florida. It was denied. Plaintiffs allege that the two Florida statutes violate the Full Faith and Credit Clause, the Due Process clause of the 14th Amendment, the Equal Protection Clause of the 14th Amendment, the Privileges and Immunities Clause, and the Commerce Clause. - If the plaintiffs rigid and literal interpretation of the Full Faith and Credit Clause was adopted, this would create a license for a single state to create national policy. The Court has already established that the Full Faith and Credit Clause does not require a State to apply another States law in violation of its own legitimate public policy. Also, Florida is not required to recognize to apply Massachusetts same sex marriage law because it clearly conflicts with Floridas legitimate public policy of opposing same-sex marriage. - Plaintiffs also argue that this Court should apply strict scrutiny in determining the constitutionality of DOMA because it violates the EP Clause of the Fourteenth Amendment. However, DOMA does not discriminate on the basis of sex because it treats women and men equallytherefore, this court must apply rational basis review to it EP analysis of the constitutionality of DOMA. - The Unites States motion to dismiss is granted. DOMA- page 323 handout Transsexuals: M.T. v. J.T. (p126): - The issue before the court is whether marriage between a male and a postoperative transsexual, who has surgically changed her external sexual anatomy from male to female, is to be regarded as a lawful marriage between a man and a woman. This court held that it was a lawful marriage. - The plaintiff was born a man but always felt that he was a woman. He met defendant and told him of his plan to become a female. Defendant paid for the sex-change operation. They had a kid together. Defendant did not want to pay child support because he said that the marriage was not lawful because it was between to men. The Court disagreed. - The court said, if such sex reassignment surgery is successful and the postoperative transsexual is, by virtue of medical treatment, thereby possessed of the full capacity to function sexually as a male or female, as the case may be, we perceive no legal barrier, cognizable social taboo, or reason grounded in public policy to prevent that persons identification at least for purposes of marriage to the sex finally indicated. Restrictions on the Procedure for Marrying (p132): - Rappaport v. Katz: Held that federal courts should not supervise marriage forms and proceduresthis is a state function. o All states and the Uniform Act require a license before formal marriage, and the majority of states impose a waiting period (usually three days


as in the UMDA) between the application for the license and its issuance. State of Mind Restrictions: - Lester v. Lester: Held that a 10-year old marriage cold not be voided by claiming the marriage was entered into under duress. Further, parties cannot marry publicly and then privately vitiate obligations via a separate agreement/contact nullifying the public marriage. Putative Spouse lawsLearn (p135) Johnston v. Johnston (p138): - The husband appeals a judgment annulling his marriage to Brenda Johnston. The husband agreed the marriage should be terminated but instead of an annulment it should be a dissolution of the marriage. The wife wanted the annulment because in short, her husband went from a prince when they were dating to a frog after they were wed. He turned out to have a severe drinking problem, he refused to work, he dissatisfied her in the sack, he was dirty and unattractive. In California, fraud must go to the very essence of the marital relation before it is sufficient for an annulmenthere, there was no fraud thus, the trial court erred in granting the annulment. The granting of the annulment is reversed and a judgment of dissolution will be entered. Also, the parties respective property rights in the real property shall be determined based on their previous stipulations. o What constitutes a voidable marriage on fraud? Ability to procreate and consummate the marriage Common Law Marriage: Statutes will recognize common law marriage as long as it is recognized in the state that it hailed from. In re Estate of Love (p141): Introduces us to Common Law Marriage - Issue: Is there a common law marriage? - Holding: Fa sho - This is a will dispute. It was determined and affirmed that Daryl Arnold was the common law husband of Barbra J. Love by virtue of marriage entered into prior to January 1, 1997, and remained so, until the time of her death. The facts show that there was a common law marriage between the two because the lived together, they had a sexual relationship with one another, they wore each others rings, referred to each other as husband and wife and a plethora of other instances which prove they were wed at common law. This court has held that whether a woman and a man have entered into a common law marriage is a question of fact, and the factfinders determination shall not be disturbed on appeal if there is any evidence to support itbecause there was evidence to support the verdict, we reject Loves argument. The trial courts decision to admit or exclude evidence is reviewed under an abuse of discretion standardno abuse is found here. - The only time you get a jury in family law is when deciding a common law marriage.


-A practioner should advise his clients to write a will or just take the plunge and get hitched Common law marriage is still available in about 10 jurisdictions-a dying breed. - Once the trial court has found sufficient evidence (clear and convincing), the appeal is given an abuse of discretion appeal. ***P145: Putative Spouse Void v. Voidable Marriages: - Void: never validno court proceeding necessary o Invalid (polygamy, bigamy, incestuous) o Lack of Capacity o Nothing can be done by the parties to create a valid marriage o Subject to collateral attack - Voidable: Valid until declared invalid by court o Valid unless and until annulled (under age, fraud, duress) o Upon removal of the impediment, parties may condone and ratify o Only parties may challenge validity of the marriage Marriage: - Marital Privacy: McGuire v. McGuire (p146): - The plaintiff-wife brought this action in equity against her husbanddefendant, to recover suitable maintenance and support money, and for costs and attorneys fees. Plaintiff won, but on appeal it was reversed for Defendant. - The basic facts are that the defendant was a shitty husband, did not give his wife any money except in rare occasionsthe wife was not happy but she had been living this way for 33 years and never brought action. Husband and wife were living together and had not been separated. The court found that in order to bring a case such as this one, the parties must be separated or living apart from each other. Also, it appears that the plaintiff is not devoid of money in her own rightshe has a fair-sized bank roll and is entitled to use the rent from the 8- acres of her land left to her by her first husband, if she so chooses. Doctrine of Necessaries: Available to creditors who provide necessary services and items to a spouseif one spouse can not pathe look to the other spouse for payment (EX: hospitals) Gender Roles: Graham v. Graham (p151): Gender Roles - The question presented is whether the complaints sets forth any consideration for the alleged contract between husband and wife. The court held that this contract, even if there is consideration, goes against public policy because the parties are married, thus it is void. - The K was for the husband to quit his job and travel with his wife and in return, she would pay him a monthly stipend of $300. Section 587 of the Restatement for the law of Contracts says, "A bargain between married persons or persons contemplating marriage to change the essential incidents


of marriage is illegal. This K would also allow the husband to not support his wife because she is paying him. NOTE: It is important to note that the K entered into between parties who were living together at the time and who obviously contemplated a continuance of that relationship. The case is to be distinguished in this respect from those cases which hold that a K made after separation or in contemplation of an immediate separation which takes place as contemplated is legal, if the K is a fair one, even though it contains a release of the husbands duty of support.

Bradwell v. Illinois (p154) - Applied for admission to the bar of Illinois after being denied admission because she was a womanshe had met the requirements-but being a chick did not work in her favor. The state felt that the paramount destiny and mission of women are to fulfill the noble and benign offices of wife and motherthis is the law of the creator. Constitutional Limits on Sex Discrimination: Orr. Orr (p174): - The question presented is the constitutionality of Alabama alimony statutes which provide that husbands, but not wives, may be required to pay alimony upon divorce. Support is based on need not gender. - What is the appropriate level of review? Intermediate scrutiny will be used because this is a gender case. Gender uses intermediate scrutiny. Also, legitimacy falls under intermediate scrutiny. United States v. Virginia (p176): - This issue in this case is whether VMI should allow women to enter their schoolwhether the precluding women to enter VMI violates the EP Clause of the 14th Amendment. The Court held that it does. VMI is an all male school that prepares its students for the rigors of life. Basically, VMI gets its character from the housing the students live in, the military training, the education, the alumni, and the stress that the student learn to cope with only 15% of VMI students go into the military. Instead of allowing women into VMI, Virginia created VWLI at Mary-Baldwin College. The opportunities were not nearly as goodacademics, physical training, housing, alumni, funding, etc The Court came to the conclusion that precluding women from being able to enter VMI was a violation of the 14th Amendment because the opportunity that Virginia provided women was not equal to that the men received. Federal Statutory Limits on Sex Discrimination: Hopkins v. Price Waterhouse (p191): - This case arises from a decision by defendant Price Waterhouse to deny partnership to one of its employees, plaintiff Ann B. Hopkins. Ms. Hopkins was denied partnership because of her sexfalls under title VII sex discrimination. This case only involves an employees elevation to partnership; it does not involve a partys retention of partnership or the regulation of the relationship among partners. The sexual discrimination was founded on a number of comments submitted by partnersalso when Hopkins consulted with the


head partner, he told her to walk more femininely, talk more femininely, dress more femininely, wear make up, have her hair styled, and wear jewelry. All of these comments proved by a preponderance of the evidence that sexual stereotyping had taken place. Reallocation of Duties within the Marriage: Edwardson v. Edwardson (p201): - The issue before the court is whether any antenuptial agreement which contemplates divorce and provides for the payment of maintenance and the disposition of property upon subsequent dissolution of the marriage is enforceable. Here, the court was reviewing the old standard which did not allow antenuptial agreements. In the present case, the parties created an agreement which provided details in the case of a divorce. The court found a few limitations upon parties to an antenuptial agreement. o First limitation is the requirement of full disclosurefree of any material omission or misrepresentation. financial o Second limitation is that the agreement must not be unconscionable at the time enforcement is soughtupon a finding of unconsciousability, the court entertaining an action may modify the parties agreement to satisfy the necessary standard, but should otherwise give effect to the agreement as nearly as possible providing the agreement was not procured by fraud or duress. Must shock the conscience At time of enforcementregulated by contract remedies and defensesno fraud, duress, and misrepresentation. They are closely scrutinized - Also, antenuptial agreements may apply only to the disposition of property and maintenancequestions of child support, child custody and visitation are not subject to such agreements; and unless the parties otherwise agree, nonmarital property retains its character. The trial court is reversed and remanded- Antenuptial agreements are allowed if they meet the above criteria. Simeone v. Simeone (p204): - The issue is on the validity of a prenuptial agreement executed between the appellant and appellee. The prenup was given to the wife to be at 5pm, the day before the wedding. It was presented to her by husbands counsel, and wife had no independent counsel to look over it. She signed it. Wife advances that she had no knowledge of the date that the prenup would be presented and claims to have signed it under adverse circumstancesshe says it should be void. A masters report upheld the valditiy of the prenup. The court held that prenups are contracts and should be evaluated under the same criteria as contracts areabsent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements. The court found that the agreement should be found not to be void on the ground that she did not consult with independent legal counsel. The court also says that parties would not have entered such agreements and indeed might not have entered their marriages if they did not expect their agreements to be strictly enforce.


The court affirmed the lower courts determination that the prenuptial agreement that appellant signed was enforceable and she is barred from recovering alimony pendent elite. o Financial disclosure very important because parties may be signing away their right to alimony. o Parties should disclose all of their assetshave evidence of appraisals, exchange income tax-returns, and disclose liabilities. 2 types of Pre-nups (210): Hypos: 1.) Traditional MarriagePartnership of Doctor and Housewife: having an abortion in pre-nupinvalid, constitutional right to have baby courts would enforce cost of living property settlementenforceable best interest of child controls over what is in pre-nup 2.) Young, DualCareer , Professional Couple Section 6 page 215learn: show the agreement was made under duress o A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: The party did not execute the agreement voluntarily; OR The agreement was unconsciousable when it was executed and, before execution of the agreement, that party Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; Did not voluntarily and expressly waive in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; AND Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

By Public Policy (p216): McCourtney v. Imprimis Technology, Inc. (216): - The issue is whether a mothers persistent absences due to a sick baby do not constitute disqualifying misconduct. Here, the mother gave birth to a baby who was born severely ill. Because of babys illness she was consistently absent from work so she could care for it. Up until her babys birth she hardly ever missed work. The mother could not find a solution through day care and could not afford a nanny. She was fired for too many misses from work. McCourtney does not challenge her employers right to terminate her due to absenteeism but she challenges the fact that she was turned down from receiving unemployment. One cannot receive unemployment for being terminated due to misconduct. The court reversed the lower courts order and found that McCourtney was not fired for


misconduct and that being absent to care for a family member does not count as misconduct. Vaughn v. Lawrenceburg Power Sys. (p219): - The issue is whether anti-nepotism laws are unconstitutional. The court held no. In this case, the Vaughns met while working at LPS. The company policy at LPS says that anyone employees that marryone of them must quit. Here, the wife was the one to quit, but the husband ended up getting fired too. They bring this action saying forcing one spouse to quit is unconstitutional. The court held it is not because LPS rule exists to (1) prevent one employee from assuming the role of spokesperson for both, (2) to avoid involving or angering a second employee when an employee is reprimanded, (3) and to avoid marital strife or fraternization in the workplace. The court concluded that LPS has demonstrated its exogamy rule advances a legitimate governmental interest. o NEPOTISM: marriage discrimination Knussman v. Maryland (p228): - Facts: Knussman worked for the Maryland State Police. His wife was pregnant and was having trouble with the pregnancy. Knussman asked for 48 weeks of family paid sick leave to care for his wife and the baby. His request was denied. He then asked if he could have partake in the new statute which allowed primary care givers 30 days of paid leave to care for a newborn. He was denied this because the MSP claimed he was not a primary care giver because he did not have the baby and because he cannot breast feed the baby. He was considered a secondary care giver and was given 10 days of paid leave. This suit comes from an equal protection challenge that Knussman has brought. - Issue: Whether it is a violation of the Equal Protection Clause that only mothers may be considered the primary care givers - Holding: YES - Reasoning: An EP violation is present because the defendants applied a gender-based presumption that the birth mother was the primary care giver. o Whenever suing the state you have to overcome the defense of sovereign immunity Encroachments on the Doctrine of Family Privacy (p238): Griswold v. Connecticut (p238): In 1961, Connecticut had in effect a law which provided that any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than 50 dollars or imprisoned not less than 60 days nor more than one year or both fined and imprisoned. Also, there was an aiding and abetting law, which applied to those who assisted or counseled another in the connection of a crime. Here, a the executive director of Planned Parenthood of Connecticut was arrested for aiding and abetting when he gave information about contraceptives to married couples at a clinic where he worked. o HELD: The Court found that there are specific guarantees in the Bill of Rights that have penumbras, which create zones of privacy. This law was held to be unconstitutional.


Eisenstadt v. Baird (p241): - Facts: Appellee Baird was convicted at a bench trial for exhibiting contraceptive articles in the course of delivering a lecture on contraception to a group of students at Boston University and for giving a young woman a package of Emko vaginal foam at the close of his address. - Issue: Whether there is some ground of difference that rationally explains the different treatment accorded married and unmarried persons under Massachusetts General Laws. - Holding: No such ground exists - Reasoning: If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. On the other hand, if Griswold is not bar to a prohibition on the distribution of contraceptives, the State could not, consistently with the Equal Protection clause, outlaw distribution to unmarried but not to married persons. We hold that providing dissimilar treatment for married and unmarried persons who are similarly situated, these Massachusetts General Laws violate the EP Clause. Judgment affirmed. o Rational Basis is usedthis is to prevent the birth of out-of-wedlock children o This case extends Griswold because each person is looked at individually Lawrence v. Texas (p243): - Whether the Ps were free as adults to engage in the private, conduct (homosexual sex) in the exercise of their liberty under the DP clause of the 14th Amendment to the court? Yes. Here the issue is framed as a fundamental right to privacy, whereas in Bowers the issue was whether there was a fundamental right to homosexual sex. Since right to privacy is a fundamental right, the court must have used a strict scrutiny analysis and held that Ps were entitled to respect for their private lives and the State could not demean their existence or control their destiny by making their private sexual conduct a crime. Abortion Regulations: - Roe v. Wade - Planned Parenthood v. Casey - The shift from trimester to viability and introduces no prohibition or substantial burden on right to choose prior to viability. - And may prohibit after viability unless necessary to preserve life or health of mom. Domestic Violence (p281): - Traditional Immunity Exemption: Husbands were not legally accountable for abusing their wives. The doctrine of interspousal tort immunity was one means by which this was accomplished, and the exemption of a husband from rape liability was another. Most states have now abolished interspousal tort immunity. This has enabled victims to bring actions against their abusers for such torts as assault, battery, IIED and false imprisonment. FL statue provides:


741.28 definitions o Domestic violence can include stalking and any criminal offense leading to bodily injury o Applies to family or household member and must currently or in the past lived together 741.283 minimum term of imprisonment for DV o If found guilty and caused bodily injury, min. of 5 days in jail. 741.2902 DV, legislative intent w/ respect to judiciarys role o At the first appearance the court will consider the victims safety first. o This may require removal of the D 741.30 DV, injunction, powers and duties of court o There is a created cause of action for an injunction for protection against DV. o Can file for injunction even if no report of DV P does not have to leave residence to get an injunction Any household member can get injunction Court is prohibited from requiring a fee for filing a petition for protection from DV. Type o o o o o o o of relief court can grant, including an injunction: Restraining D from committing DV Awarding P exclusive use of the dwelling Awarding P temp. custody, or temp. visitation rights Temporary support for children Ordering D to participate in treatment, counseling Referring P to a certified DV center In determining whether P has reasonable cause to be in imminent danger the court shall consider these factors: The history b/t P and D Whether D has attempted to harm P or Ps family Whether D has threatened to kidnap Ps child Whether D has intentionally killed a family pet Whether D has used or threatened to use against P any weapons Whether D has ever physically restrained P from leaving home or calling the police Whether D has a criminal history involving violence D has had a previous TRO Whether D has destroyed property (telephone, clothes)

The injunction (TRO) shall remain in effect until modified or dissolved. Either party at any time may move to modify or dissolve the TRO Person can violate an injunction by: Refusing to vacate dwelling Being within 500 ft of Ps residence, school, or job


Committing an act of DV against P Committing an intentional unlawful threat, word, or act to do violence to the P Telephoning or contacting P directly or indirectly, unless injunction allows third party (indirect) contact Knowingly and intentionally coming within 100 ft of P car whether occupied or not Damaging Ps persona property, including car Refusing to surrender gun or ammunition if ordered to do so by the court.

Battered Womens Syndrome: People v. Humphrey (p289): - Facts: Defendant shot boyfriend in the chest because he abused her constantly and she feared for her life that night. The night before he had shot at her but missed. Neighbors testimony matches with defendants. Expert says defendant suffers from Battered Womans Syndrome. Expert said many battered women stay in the relationship because they have no money and are too scared to leave. He said defendant had extreme case of battered womens syndrome. The jury was instructed to make a decision on what a reasonable person would do, not what a battered women would do. - Issue: Whether the jury should be instructed to find what a battered woman would do, not what a reasonable person would do? - Holding: NO - Reasoning: If everytime there was a group the jury would have to switch it around for themexample, what would a reasonable gang member do, etc.

R. v. Mallot (p295): Elements of a womans social context that help explain why she doesnt leave: (1) lack of job skills, (2) the presence of children to care for, (3) fear of retaliation, furthermore, (4) womans need to protect her children from abuse, (5) fear of losing custody of children, (6) pressures to keep family together, (7) weakness of social and financial support, and (8) no guarantee that the abuse will end. Therefore, a judge and jury should, in considering her reasonableness, appreciate that a battered womans experiences are both individualized, based on her own history and relationships, as well as shared with other women, within the context of a society and a legal system which has historically undervalued womens experiences.

Giovine v. Giovine (p298): - Facts: Plaintiff and defendant were married in 1971. Defendant separated from plaintiff in 1978, filed for divorce in 1980. In 1982, the parties got back together and in 1993 they separated. Plaintiff had filed throughout all these years, numerous complaints of being a battered woman. This court disagreed with the idea of classifying battered womans syndrome as a continuous tort, but this court states that to sue for battered womans syndrome the battered woman must prove that she has medical, psychiatric, or psychological expert proof to establish that she was caused to have an inability to take any action


at all to improve or alter the situationbasically this is a continuous tort sans statute of limitations. o Husband raises the statute of limitations defense2 yr statute in New Jersey. o The Court develops a continuous tort theory to beat the statute of limitations 2 year period 4 part test for BWS: involvement in a marital or marital like intimate relationship physical or psychological abuse perpetrated by the dominant partner to the relationship over an extended period of time the abuse has caused recurring physical or psychological injury over the course of the relationship a past or present inability to take any action to improve or alter the situation unilaterally. Legal Responses to Violence MA Abuse Prevention Statute Who is protected:Married Couples o Co-habitants o Persons related by blood or marriage o Couples that have a child together regardless of whether they live together or not. o Those that have been in a substantive relationship or engagement determined by a 4-prong test: The length of time of relationship The type of relationship The frequency of interaction b/t the parties; and Who terminated the relationship and the time elapsed since the relationship was terminated.

C.O. v. M.M. (p310): - The defendant, M.M., is a seventeen yr old high school student accused of having sexually assaulted a 15 yr old schoolmate. The defendant asks that we vacate the abuse prevention order on the bases that: (1) the plaintiff failed to meet her burden of establishing the existence of a substantive dating or engagement relationship: as required by the statute. The General Laws provides a range of protections from those persons suffering from abuse from an adult or minor family or household memberincluded within the definition of family or household members are those individuals who are or have been engaged in a substantive dating or engagement relationship. The defendant maintains that the plaintiff failed to show the existence of a substantive dating relationship between him and the plaintiffs daughter, and that, consequently, the abuse of prevention order against him was improperly issued and extended. The statute directs courts to adjude the existence of a substantive dating relationship by considering four factors: (1) the length of time of the relationship; (2) the type of the relationship; (3) the frequency of the interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship. The


court held that the lower court erred in its decision because that judge relied on factors including the fact that a criminal matter had issued and the age of the alleged victimhe did not take in the four factors listed above. The abuse of prevention order is vacated. Ba v. United States (p318): - Ba was convicted of violating a civil protection order. The order was sought by Ms. Howard. The order was filed in December 1999 and it ordered that Ba was not to assault, threaten, harass or physically abuse Ms. Howard in any manner, and to stay at least 100 feet away from her, her home, and her work, and prohibited him from contacting her in any manner. Ba violated this order on May 13, 2000, when he went to her home and was 10 feet away from her. Ba cotends that Howard consented to the violation of the CPO when they reconciled shortly after the CPO was issued against him-he asserts that the CPO had no legal effect when he entered her property in May and he maintains that Howards consent is a valid defense to all subsequent violations. - The government argues that this court need not reach the consent issue essentially because Ba and Howard could not, by their own conduct, void the CPO. - To establish the elements of a CPO violation, the government must present evidence proving...that defendant engaged in wilfull disobedience of a protective court order. - The purpose of the CPO proceeding is to protect the moving party, rather than to punish the offender. - The evidence establishes that beyond a reasonable doubt that Howard revoked her consent to the violation of the CPO, but the undisputed facts show that Ba tried to approach Howard at work and she reacted by calling the police and this act revokes the consent that Howard once had. Thus, the judgment of the trial court is affirmed, that Ba violated the CPO.

Town of Castle Rock v Gonzales Whether an individual who has obtained a TRO has a constitutionally protected property interest in having the police enforce the TRO when they have probably cause to believe it has been violated? No. The language of the statute implies that enforcement of a TRO is discretionary. Held that enforcement of the restraining order was not mandatory under CO law; were a mandate enforcement to exist, it would not create an individual right to enforcement that could be considered a protected entitlement, and even if there were a protected individual entitlement to enforcement of a restraining order, such entitlement would have no monetary value and hence would not count as property for the Due Process Clause.