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Functions of Family Law A. Protective: Protect citizens against harms done them by other citizens B. Facilitative (Organizational): help people organize their lives and affairs in the ways that they prefer C. Arbitral helps people resolve disputes D. Channeling Function: Family law channels people into social institutions which are thought to serve desirable ends (ex: marriage, parenthood, the societal definition of family) 1. Family Law creates and supports social institutions which are thought to serve desirable ends a. Institutions a pattern of expected action of individuals or groups enforced by social sanctions, both positive and negative 2. Channeling does not force people into these institutions, but offers incentives marriage and divorce are not value free. 3. Limitations a. Limited by the degree of social support the functions institutions receive i. Ex: marriage and parenthood changing b. Promoting one institution by disadvantaging the alternative can be troubling i. Cohabitation c. Violates the notion that states should be neutral in a moral issues such as family life 4. Indirect/Direct Channeling


Central Dilemma: What is the right amount of state intervention? What is the role of the state in regulating family? A. Are we okay with judges making these decisions or do we leave these decisions to the legislatures? 1. COURTS a. Cant leave disagreement to popular bodies when minority rights are at issue i. Courts are entrusted with counter-Majoritarian rule 2. LEGISLATURE a. When courts step in too soon to protect minority rights, there can be a powerful backlash against the cause DeShaney mother brought substantive due process claim after child killed by abuse father when state knew or should have known that child was in danger a. Rationale: i. Due Process Clause does not require states to protect citizens against private actors ii. Child not in custody, otherwise there might have been a duty b. Counter Arguments: i. State created DSS and the impression that the state was going to do the job of protecting the child ii. State granted custody to the father 4. Buck v. Bell- forced sterilization of feeble minded woman (too much intervention) a. Upheld demonstrates courts intrusiveness b. Rationale: i. Best interest of the patient and society Feebleminded people sap the resources of society Prevents society from being swamped by incompetence Better for these people (offspring) not to exist because eventually they will commit crimes or starve b/c of imbecility ii. Not detrimental to her health


c. 1927 substantive due process claim (govt action is challenged regardless of

the correctness of the procedure s used) i. Skinner did not overrule but started a trail of Supreme Court cases where substantive due process rights were recognized for bodily integrity ii. Unenumerated under 14th d. Fundamental Right 5. Definition of Family for housing code a. Reasonable: define family as those related by blood, marriage, or adoption (also permitted two unrelated persons to live together). It does not have to include all people who want to live together. i. Village of Belle Terre v. Borass, pg. 28 States interest: keeping residential areas free of disturbing noises, increased traffic, hazard of moving and parking cars, depriving child of the privilege of quiet and open spaces for play Not a fundamental right = RBR (restricted unrelated persons from living together, no restrictions for persons related by blood or marriage) LOOK AT DISSENT for narrowly tailoring, pg. 31 b. Unreasonable: city ordinance limiting ability of extended family members to live together (grandchildren of different parents (ie: cousins) could not live together) Moore v. City of East Cleveland, pg. 1118 i. Distinguished from Belle Terre Persons related by blood = greater intrusion = less deference States interest legitimate, but not enough to justify intrusion and not close enough fit Extended family recognized as a basic value in society protected by due process BUT still limited: court will look at fit between the interest, must be a compelling state interest that is narrowly tailored 6. Presumption of Paternity Michael H v. Gerald D, pg. 74 (CA law presuming parenthood by a man if the man is the husband of the mother, lived with the mother at the time of conception and birth is not impotent or sterile power of biological father to assert parental rights over a child born into a womans existing marriage with another man) a. Illegitimacy is not a protected liberty interest i. Scalia looks at history to determine that common law did not protect this interest, in fact historically, the presumption has been to legitimacy ii. The Due Process Clause affords only those protections so rooted in the traditions and conscience of our people as to be ranked as fundamental. 7. Moore, Belle Terre, Michael H Protection of the family instead of protection of the individual and potentially threatening to a family unit a. Protecting institution of marriage/family b. Discouraging alternative institutions

FORMING FAMILIES UNCONSTITUIONAL RESTRICTIONS ON GETTING MARRIED I. Racial Restrictions Loving v. Virginia, pg. 58 A. Law prohibited marriages between whites and other racial classifications B. Holding: There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the EPC 1. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness of freedom. 2. Marriage is one of the basic civil rights of man, fundamental to our existence 3. Discuss with same sex marriage II. Economic Restrictions Zablocki v. Redhail, pg. 62 A. Law prohibited marriages for people who had a prior child and who was under state obligation or order to support the child. Person could only marry after proving that he/she was in compliance with support obligations and that the child covered were not likely to become public charges B. RULE: when a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interest and is closely tailored to effectuate only those interests (compelling state interest that is narrowly tailored) 1. Not every law that regulates marriage is subject to strict scrutiny, the law must substantially interfere with that right C. Reasoning: 1. Law significantly interfered with fundamental right 2. States interest not narrowly tailored a. State prevents person from marrying but does not ensure that the money will get to the child b. Other means of requiring support obligations c. Under-inclusive: does not limit financial decisions of parent except the marriage D. Distinguishing (Stevens, concurrence) 1. A classification based on marital status is fundamentally different from a classification which determines who may lawfully enter into marriage relationship E. Summary: Zablocki & Loving: 1. Marriage is a fundamental right subject to Due Process Analysis of 14th Amend 2. If a statute directly and significantly interferes with the right to marry it is subject to SS 3. In order to survive SS analysis, the state mush show a compelling state interest and that the statute must be narrowly tailored to meet that end III. Restrictions for Prison Inmates Turner v. Safley, pg. 71 A. Law prohibited inmates from marrying unless given permission from superintendent of the prison permission granted only if compelling interest given (compelling interest seemed to be pregnancy or illegitimate child) B. Prison inmates retain those constitutional rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the correction institution 1. Different Test still a fundamental right, but strict scrutiny does not apply because prison officials have security concerns 2. Holding: failed 3. Test: Whether a prison regulation is reasonably related to a legitimate penological interest

89INCEST, AGE AND STATE OF MIND RESTRICTIONS INCEST RESTRICTIONS Different laws depending on the jurisdiction mostly between half and whole relations Not always a direct fit between who can get married and who cannot and the criminal statutes related to the prohibition of sexual relations I. Between half uncle and half niece Signh, pg. 83 A. Not an unwarranted/unconstitutional extension of the incest prohibition. Extending the prohibition to marriage of half-niece and uncles is consistent with the history and statutory construction of the incest laws in CT 1. Statute did not distinguish between half and full blood relations B. Even if marriage is valid in the state where the marriage took place, there are situations where invalidity in CT is appropriate II. Valid marriage only prohibits marriage between a man and the daughter of his wife, when the man is married to the mother Back, pg. 89 A. As soon as the mother sought a divorce, the daughter was no long the daughter of the mans wife AGE RESTRICTIONS I. Constitutional Statute requiring parental consent of minors A. Strict Scrutiny did not apply b/c minors 1. The power of the state to control the conduct of children reaches beyond the scope of its authority of adults because (instead RBR) a. The peculiar vulnerability of children b. Their inability to make critical decisions in an informed and mature manner c. The importance of the parental role in child-rearing 2. Minors argued that it was arbitrary b/c neutral 3rd party (judges) is in a better position to judge whether a minor is prepared for marriage presumption that parent acts in the best-interest of the child B. Temporary Infringement- the plaintiffs will be able to marry when they turn 18 C. Benefits of Age Restrictions 1. Avoid children raising children 2. Avoid instability of marriage 3. Competent decision to marriage 4. Corresponds nicely with the end of minimal education 5. Protects rights of parents to make decisions for their children 6. Prohibits marriage between older and younger persons II. AGE & INCEST A. Statute prohibited sexual intercourse between a stepparent and a stepchild, even if the stepchild is an adult State v. Lowe, handout 1. Whether the statute applied to adult or only minor stepchildren a. Statute unambiguous as long as the relationship creating the half-blood relationship still existed b. Nothing in the statute differentiated between adult and minor stepchildren 2. Whether the right at issue is a fundamental right? a. Not a fundamental right RBR Lawrence right of consenting adults to engage in sexual activity 3. Does the statute pass RBR? a. State has a legitimate interest to protect the family unit and family relationships

STATE OF MIND RESTRICTIONS Basis for Annulment I. Coercion or duress Lester, pg. 135 A. Rule: to be valid a marriage has to be entered into freely and voluntarily 1. Coerced marriage unable to act as free agent because of a coercive act a. Very high burden necessary to invalidate marriage B. Marriage is presumptively a relationship into which two individuals enter upon freely and voluntarily 1. But not really free & voluntary b/c education, conventions at a given time, and in a given place, and economic status of the parties sometimes control the character of the freedom and the voluntary attitudes of the parties entering the marriage C. Man tried to show that marriage was invalid at inception because of an agreement of the parties 1. RULE: Agreements entered into ante-nuptially between parties which do violence to the accepted conventions and laws of the state and the community are unenforceable as a matter of public policy a. Private individuals may not by agreement, set aside the law of the land II. Insanity most widely recognized holding bases for annulment that one of the partners did not have the capacity to consent to the marriage III. Fraud Annulment A. RULE: Marriage is voidable if consent obtained by fraud 1. Fraud must be matters that go to the essence of the marriage a. Deliberately giving false picture about whether they will consummate the marriage or have children b. Concealment of impotence c. Lying about religious beliefs i. Concealed intent not to go through with a promise to follow secular conclusion of marriage with a religious ceremony considered by the other party essential to relieve intercourse from the stigma of sin d. False representations of venereal disease e. Pregnancy by a third party (concealment of a pregnancy) 2. NOT: character, age, health, wealth, ancestry, number of prior marriages or divorces 3. SPLIT: false statement of pregnancy B. Johnston, pg. 138 1. Before marriage man was clean shaven bathed, very nice 2. After marriage disrespectful, unshaven, unsatisfactory sex life, dirty, unattractive, unemployed 3. Fraud must go to the essence of the marriage 4. Various definitions of deceit - Deceit is either: a. The suggestion, as a fact, of that which is not true, by one who does not believed it to be true b. The assertion as fact of the which is not true, by one who has no reasonable ground be believing it to be true c. The suppression of a fact by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of that fact; or d. A promise, made without any intention of performing it. C. Void vs. Voidable Marriage 1. Voidable marriage: the marriage was invalid and one or more parties want it annulled 2. Void marriage: marriage has s serious defect to legitimacy that would not need an annulment proceeding MONOGAMY AND ITS ALTERNATIVES I. Prohibitions against Polygamy are constitutional Bronson v. Swensen, pg. 99 A. Argument that it violates freedom of religion - difference between prohibition on beliefs and practices B. Lawrence


C. Precedent does not have to have a compelling state interest if the statute is neutral and generally applicable 1. ADD PRECEDENTS Best Interest of the Child and Polygamy Sanderson v. Tryon, pg. 105 A. Evidence of a parents polygamous relationships can be considered as one among many other factors regarding the childs best interest. It cannot be the only factor. 1. Court awarded custody to dad, even though separated from dad for 5 years 2. Court did not make findings as to best interest of child, as required by statute B. Whether polygamous relationships are in the best interest of the child 1. In Best Interest a. More parental figures and more sources of nurturing b. Single area of authority the father 2. Against Best Interest a. Less time with dad b. Less stability upon death inheritance c. Too many figures of authority d. Lost boys male children will not be able to access the institution of marriage e. Children raised in a household where the law is flouted f. Communicates a set of ideas/morals/values

SAME SEX MARRAIGES I. Whether it is constitutional for a TX Statute to criminalize consensual sexual conduct between two persons of the same sex Lawrence (states cannot base their sodomy laws on the sex of the persons engaged in those activities) 1. RULE: Unconstitutional as a violation of Substantive Due Process a. Did not apply strict scrutiny legitimate state interest is furthered by the statute (failed RBR) b. Does not address the issue of homosexual couples to marry c. Did not further a legitimate state interest that can justify its intrusion into the person and private life 2. Overruled Bowers 3. Concurrence OConner a. TX statute makes homosexuals unequal in the eyes of the law by criminalizing a behavior for homosexuals only (leads to, encourages discrimination) b. Is the states interest a legitimate state interest: the moral disapproval of homosexuality is not a legitimate state interest 4. Dissent Scalia a. Classifies on account of sex treats men and women equally b. Argues that numerous laws are for the purpose of furthering the beliefs of its citizens by prohibiting behavior that is immoral and unacceptable i. Preserving the traditional institution of marriage has been accepted as a legitimate state interest B. Whether denying the protections, benefits, and obligations conferred by civil marriages to individuals of the same sex who wish to marry is constitutional under MAs constitution Goodridge v. Dept. of Public Health, pg. 109 1. Reasoning: a. Right to marry is a fundamental right b. Laws may not substantially interfere with the right to marry c. State is a party in every marriage state identifies the benefits, privileges, obligations and protections 2. Fails RBR a. States interest i. Primary purpose of marriage is procreation But statutes do not limit marriage to fertile couples Procreation is not an essential element ii. Ensures that children are raised in the optimal setting

The best interest of the child standard does not depend on the sexual orientation of the parents iii. Conserving scarce State resources and private financial resources Not rationally related Assumes that same-sex couples are less financially dependent on each other, Ignores the fact that same sex-couples maybe have obligations for children or parents under their care MA laws do not condition marriage on a demonstration of financial dependence for opposite-sex couples Dealing with a same-sex marriage question Due Process Fundamental Right 1. Marriage is fundamental right (Loving, Zablocki, Turner) 2. But, the fundamental right of marriage is between a man and a woman (vs. right to marry) 3. Bowers v. Hardwick - depends how the right is characterized a. No fundamental right for homosexuals to engage in sodomy b. BUT fundamental right, or traditionally protected interest in two adults engaging in consensual, sexual activity EPC gender classification (intermediate scrutiny, quasi-suspect classification) 1. Important government interest that is substantially related 2. An individuals choices are being constrained a. A woman can marry a man, but a woman cannot marry a woman 3. Not the essence of the complaint 4. It may be strategic benefit EPC Sexual Orientation as a new suspect classification 1. History of Discrimination 2. Irrelevance of the characteristic to functioning/contribution to society 3. Immutability a. Religion is considered immutable although people undergo religious conversion, still treated as immutable b/c asking someone to change their religion would inherently go against our fundamental principles of individuals and religions 4. Political Powerlessness a. Legislation against homosexuals b. But, so many NGOs and cultural icons supporting the cause c. But this was also true for the womens movement and the civil rights movement RBR 1. Does not necessarily mean that the Plaintiffs lose, Romer v. Evans, Lawrence, Goodridge

II. A.




INTERSTATE REGULATION I. Four Categories of Conflict of Laws with Marriages A. Evasive Marriage: couples intentionally leave and start and marry in another jurisdiction and then return home 1. EX: Loving and Wilson B. Migratory Marriages: Parties did not intend to evade the laws of any state. 1. Got married in one state, and then subsequently moved to a state where their marriage is not recognized C. Visitor Marriages: One of the members of a couple is temporarily in a state where their marriage is not recognized. 1. EX: same-sex couple visiting another state D. Extra-territorial: when parities have not ever lived in the state, but for whatever reason (ex: inheritance) the comes in contact with the couple 1. EX: If a same-sex couple is married and one of them passes on, but has property in a

state that does recognize same-sex marriages E. Place of Celebration Rule: A marriage is valid where performed/celebrated is valid everywhere, UNLESS it violates the strong public policy of the state that had the most significant connection to the spouses and the marriage at the time of marriage 1. Examples of when the public policy exception has been invoked and successful a. Polygamy no state ever legalized polygamy b. Incest c. Interracial marriage II. DOMA Defense of Marriage Act A. Marriage, for federal purposes, is between one woman and one man 1. Departure from precedent b/c typically state law would determine the existence of marriage B. Choice of Law Provision 1. States are not required to recognize marriages of same-sex couples C. Counter-Argument: Full Faith and Credit Clause state must give full faith and credit to the acts, readings, and. . . of other states D. Difference between marriage license and judgments 1. EX: Texas would have to enforce a judgment by a MA court to require driver to widow of same-sex couple in MA E. Case Law Wilson v. Ake, pg. 121 couple legally married in MA and them moved to Florida 1. States do not have to recognize same-sex marriages. DOMA is not a violation of the FFC. 2. FFC has only been utilized when judicial processes are at issue a. Marriage is not judicial process administrative b. Will apply to divorce decree 3. FFC gives Congress the authority to enact legislation, such as DOMA, in order to regulate conflicts between the laws of different states a. If Congress was not allowed to do this, then one states decision to honor same-sex marriages would essentially create a national policy COMMON LAW MARRIAGE I. Court Proceedings A. Difficult to demonstrate that a common law marriage existed B. If court finds that a common law marriage did exist, then same rights as other married couples II. Whether a Common Law Marriage existed is a question of fact - In re Estate of Love, pg. 141 A. Only reversed on abuse of discretion standard B. TEST: Totality of the circumstances 1. Living together as husband and wife 2. Holding themselves out to the world as such 3. Repute in the vicinity III. A CL marriage is established by A. (1) The mutual consent or agreement of the parties to be husband and wife in the present, followed by B. (2) A mutual and open assumption of the marital relationship so as to objectively demonstrate that the parties considered themselves husband and wife. 1. Two key elements of the objective evidence needed to determine whether there was a mutual, present intent to be married a. Cohabitation: i. Cohabitation is a necessary component to a CL marriage. Such cohabitation must be pursued with the habit and repute of marriage and not of an illicit sexual relationship. b. A general reputation in the community that the partied hold themselves out as husband and wife. i. A marriage-like relationship involves a general and uniform understanding among the neighbors, family, members, and acquaintances with who the parties associate in their daily lives that the parties actively

and purposely hold themselves out as H and W with the mutual present intent that they are H and W. c. The burden is on the petitioner to prove each of these elements. C. Colorado 1. Affirmative conduct on the part of the couple a. Mutual consent or agreement of the parties to be husband and wife b. Much harder to figure out (especially in retrospect) whether the parties actually agreed to be married c. What other facts can you look at to see if the couple manifests that agreement? i. Objective evidence (evidence that outsiders can view) ii. Vs. Subjective evidence (evidence the parties themselves can see) d. Marriage like relationship 2. Evidence that the parties made an agreement

REGULATION WITHIN THE MARITAL RELATIONSHIP 1. What do states and legislatures have to say about rights and obligations towards/between spouses? Marriage is surrounded by a zone of privacy Privacy that a married couple can assert against the rest of the world 2. What do courts and legislatures have to say about the rights that the married couples can assert against the rest of the world? More rigorously enforced I. Spousal Obligations A. When still married and still living together - McGuire v. McGuire, pg. 146 1. Couple had been married for years, but husband was very frugal with money and she did not have authority over decisions regarding money 2. Appellate Court The court cannot compel a man to support his wife in a specific way 3. Nothing in these precedents (below) gives the court authority to decide about financial matters in the marriage when husband and wife are still living together B. Husband sends wife away with child refuses to send child support and maintenance 1. If the wife is abandoned without means of support, a bill in equity will lie to compel the husband to support the wife without asking for a divorce decree Earle v. Earle 2. It is the duty of the husband to provide support for the family and the style must align with the means C. Wife separated from husband without any fault of her own Conchran Case 1. Secret divorce by husband 2. She got support D. Married couple living with husbands mother. Mother-in-law ran the household and refused to let the wife have control over any part of the house Brewer 1. Wife is entitled to a home corresponding to the circumstances and condition of her human over which she may be permitted to preside as mistress 2. Even though still married husband had to provide a home for the wife wife did not forfeit her rights by refusing to live with impossible mother-in-law II. Reproductive Choices A. Criminalization on sale and use of contraceptives to married couples Unconstitutional (Griswold v. CT, pg. 238) 1. (Penumbra) Numerous rights that are not explicitly stated in the Constitution are still protected a. Right to educate a child b. Right to study a particular subject c. Freedom to associate and privacy in ones associations d. Majority sees these cases as an interlocking whole i. Dissent argues that majority does not point out which amendment is violated by this statute 2. Governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means tat weep unnecessarily broadly and thereby invade the are of protected freedoms 3. Does not apply strict scrutiny B. 9th Amendment Argument 1. 9th amendment limits what the federal government can do (does not apply to the states) 2. Libertarian argument C. Prohibition on sale and use of contraceptives to unmarried couples Unconstitutional (Eisenstadt v. Baird, pg. 241) 1. RULE: Right of individuals, married or unmarried to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to whether to bear or beget a child 2. Violates EPC a. State does not have a legitimate state interest that is rationally related to the


means sought to achieve the interest i. Health FDA already regulates drugs ii. Deterrent for fornication punishment of unwarranted children for fornication is marginally related to the states proffered rationale iii. Contraceptives are wrong b. Right of privacy in marriage pertains to the individual, not the married couple D. Casey v. Planned Parenthood, pg. 258 1. RULE: whether the state obligation places a substantial obstacle (undue burden) to women having an abortion a. Before, Roe, followed due process of a compelling state interest narrowly tailored 2. Focus on narrow issue of marital/spousal notification a. 3209 a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion i. Exception existed for pregnancy that was the result of a sexual assault woman had to have reported the sexual assault within 90 days of the assault b. Balance of interests husband vs. wife i. Where the interests diverge, should be the wifes because she physically has to bar the child (woman has more liberty at stake) c. Rehnquist state has a legitimate interest i. Spousal notice is a reasonable requirement to encourage communication between spouses Rebuttal: majority of wives will notify their husbands, the rest will not because they have really important reasons not to and the law will not foster marital harmony d. Other Arguments: Spousal Notification Requirement would i. Give benefit to married men ii. Confer a hardship on married women (b/c no requirement that unmarried women have to tell their boyfriends) III. Marital Privileges A. Trammel v. US, handout 1. Marital Communications a. Information privately disclosed between a husband and wife in the confidence of the marital relationship is privileged under the independent rule protecting confidential marital communications i. Utterances or expressions intended to communicate b. Barred from admission even after marriage dissolved c. Martial Status: when the communication took place d. Either spouse can insist on non-disclosure 2. Adverse Spousal Testimony acts or communications witnessed by 3rd parties a. Only lasts until the end of the marriage i. Matters what the marital status of the couple is at the time of testimony b. Can include acts or communications prior to marriage c. Privilege still exists i. Testifying Spouse can invoke the privilege ii. State cannot compel the spouse to testify



Domestic Violence and Marital Rape A. Questions to Ask: 1. Does marriage make acceptable other forms of conduct that would otherwise be unacceptable? 2. To what extent should a womans abuse be considered when she kills her batterer? 3. Has mandatory arrest been effective and what type of entitlements conferred to the married woman? ? ? B. Marital Rape 1. 11 states only allow men to be convicted of rape, if the couple is separated j 2. Rape of wife is a distinct crime from rape a. Less serious consequences b. Narrower range of offenses (perpetrator must use force, rather than just the non-consensual requirement) c. Procedural Requirements ex: Ohio, must report within 30 days C. Domestic Violence 1. Whether information regarding Battered Womens Syndrome is relevant to the objective prong of the self-defense prong People v. Humphrey (1996-CA), pg. 289 a. Objective and Subjective Test for Self-Defense: i. OBJECTIVE: would a reasonable person in a similar situation and similar knowledge also conclude that killing was necessary for self-defense ii. SUBJECTIVE: Whether the victim actually believe that she needed to use deadly force for self-defense b. Jurisdictional Rules i. 12 jurisdictions have similar rules to CA (NY, NJ, PN) ii. Vast majority allow battered woman syndrome evidence, but not for both prongs Some jurisdictions allow expert testimony regarding battered women syndrome, but cannot testify that the D has battered BWS c. BWS is not a defense on its own under self-defense 2. Enforcement of Restraining Orders: Whether an individual who obtained a state law restraining order has a constitutionally protected property interest in having the police enforce the restraining order when they have probable cause to believe it has been violated Procedural Due Process Claim Town of Castle Rock v. Gonzalez , pg. 336 (Permanent restraining order made permanent, kids get taken by dad, mother makes numerous attempts to get police to put out an arrest warrant or go get kids, cops do nothing at 2am dad shows up to police station, opens fire and kids found dead in his car) a. No property interest because too much indeterminacy to create a mandatory duty i. What did she want police to do? Arrest guy, seek a warrant, or use reasonable means b. More of a public good than an individual entitlement c. Property interests are incidental with no ascertainable monetary value d. Requirements for a Protected Property Interest: i. Must have mandatory enforcement ii. Must be individually conferred, not conferred on the whole of society and cannot be an announcement of what police officers need to do iii. Must be property


DIVORCE AND FAMILY BREAK-UP DIVORCE I. Fault Based Divorce (33 states permit spouses to choose between fault and no-fault divorces) A. Benefits Why is fault-based divorce quicker? 1. Psychological Reasons blame 2. Affects how property is distributed, alimony, and custody 3. Affects how fast divorce can be obtained a. B/c no fault requires a certain time requirement for separation B. Cruelty: bodily harm or reasonable apprehension of bodily harm that endangers the life, limb or health and renders cohabitation dangerous 1. Cruel and barbarous treatment that comprises of actual personal violence or a reasonable apprehension thereof, or such a course of treatment as endangers life or health and renders cohabitation unsafe (Rankin, pg. 364 i. A single incident of cruelty may be so severe, and with such attending circumstances of atrocity, as to justify divorce 2. Unpredictable when court will find cruelty a. Excessive sexual demands b. Refusal to have sexual relations c. Physical abuse of children - Sometimes for mental cruelty d. Cold and indifferent treatment coupled with ordering wife from home and threatening bodily harm (cursing and physical threats) Hughes v. Hughes, LA pg. 360 3. NOT cruelty a. Wife expressed disappointment in not having a daughter and verbally abused husband Benscoter v. Benscoter, PN, pg. 359 i. Court rejected cruelty argument: inescapable conclusion that husband did not become dissatisfied until she became ill with MS ii. Husband had to clearly show that he was innocent and injured spouse (evidence of another woman) C. Adultery- Gender, sexual orientation, not relevant 1. Post-Separation Adultery a. Standard: circumstantial evidence b/c the nature of the act of adultery requires that circumstantial evidence will most likely be used to sustain the proponents burden of proof b. TEST: Totality of the Circumstances i. A prima facia case of adultery can be made out by showing facts or circumstances that lead fairly and necessarily to the conclusion that adultery has been committed (Arnoult, pg. 361) 2. Investigator a. Courts must look with caution to the testimony of an investigator hired by one spouse to watch the other i. Ordinarily corroborated by facts and circumstances in evidence and/or other witnesses 3. LORD MANSFIELD RULE: There is a presumption that the child of a married woman is that of her husband a. Burden of proof can be overcome with evidence that: i. The husband did not have access to the wife during the period of conception ii. That he was impotent or sterile at the time iii. The blood tests exclude him as a possible father of the child iv. Some jurisdictions: show that a spouse has been convicted of adultery, rape or prostitution D. Desertion: Mere departure is not sufficient to be grounds for divorce, must a cessation of cohabitation without cause or consent with intent to abandon continuing for a period specified in the relevant statute


Constructive Desertion: operates like a defense if proven defeats the spouses cause of action AND serves as an alternative ground for divorce (unlike most other divorce defenses) 2. Examples: a. Refusal to have intercourse without contraceptives (Kreyling v. Kreyling) b. If husbands conduct is so bad that the wife had to leave (Crosby v. Crosby, pg. 363 Wife refused to follow husband when he moved i. Violation of EPC: State Statute stated that a wife is bound to live with her husband and follow him wherever he chooses to reside E. Defenses 1. Recrimination: if both spouses are equally at fault, neither can clearly be said to be the innocent and injured spouse and the law will leave them as they put themselves together a. It must be clear from the evidence that the plaintiff was the injured and innocent spouse i. If both are equally at fault, neither can clearly be said to be the innocent and injured spouse b. Court has obligation to raise sua sponte c. Has been statutorily abolished in 17 states d. Others States have limited it by: i. Granting divorce to both spouses ii. Requiring the recrimination to be pleaded by a party rather than raised by the court iii. Adopting the Doctrine of Comparative Rectitude The party least at fault would be entitled to a divorce iv. Rationale for limiting the defense: No policy/good purpose served by refusing to grant the divorce v. Provocation: When Plaintiff Spouse is seeking a divorce and the other spouse (defendant spouse) asserts that PS provoked the D Spouse Ex: Wife pleaded abandonment, Husband claimed provocation b/c wife had 75 cats (Husband succeeded) 2. Connivance: The tacit encouragement of or assent to another's wrongdoing; if the spouse participated in the course of action leading to the grounds that the spouse alleges for divorce, the grounds for divorce are null b/c the spouse is assumed to have consented to the fault of the defendant spouse a. Rationale: one who consents to misconduct, is not injured by it b. Elements: i. More than just consents ii. Must have actually created an opportunity for the marital offense Sargent, pg. 367 H has reason to believe W cheating on him with chauffeur. Kept chauffeur, hires detectives gave his wife the opportunity to be alone in the car with chauffeur, purposefully was absent from the home at night and all during the day 3. Condonation: The false consent that a P gave to a Ds past conduct during their marriage which the P then asserts as a grounds for divorce (forgiveness for antecedent marital offense) a. Sex after alleged cruelty is conclusive evidence of condonation reinstates wife as wife and shows that wife was forgiven i. Wilian, pg. 368 W demanded sex, pulled Hs hair, etc. H eventually consented. Next morning, gets dressed, kisses his wife and says goodbye ii. Exceptions: When sex is induced by fraud b. Problematic: i. Showing of unwillingness to have sex is not saying that the intercourse was not voluntary (ie still voluntary even with showing of unwillingness)



ii. Encourages people not to forgive iii. Relationship patterns DV, marital rape c. Other evidence of condonation: i. Expression of forgiveness Verbalization Voluntary ii. Cohabitation after spouse has learned of the marital offense court will look at whether the cohabitation was because of logical reasons or because of forgiveness 4. Collusion: an agreement for one of the spouses to commit or appear to commit or to be represented in court to have committed a marital offense in order for the other spouse to obtain a divorce (fraud on the court); secret agreement to cooperate; agreement between the spouses to obtain a divorce a. Court can raise it sua sponte b. Fushs, pg. 370: Wife does not contest divorce b/c H says that he will not contest custody of children; wife agrees; gets divorced (more like coercion than collusion) c. Problems with Collusion: i. Part of the rationale behind No-Fault Divorces b/c recognition that fault based divorces were undermining the judicial system by encouraging perjury ii. Judges stopped looking at collusion b/c so common with fault-based divorces 5. Insanity a. Burden: Burden of proving mental condition relieving D of responsibility is on the Defendant i. D must establish by a preponderance of the evidence that she was suffering from a mental and emotional disorder so as to maker her incompetent and irresponsible for the acts charged against her in the complaint ii. ADD CASE Didnt testify so couldnt decide on credibility decided for husband b. Grounds for divorce i. If the insanity resulted in more than 2 years of hospitalization or incurable c. Rationale: Negates culpability i. Similar to criminal cases II. The No-Fault Revolution III. Religious Divorce, Covenant Divorce and the Question of Access A. Bodie v. Connecticut


FINANCIAL CONSEQUENCES OF DISSOLUTION Questions to ask: Equitable distribution (fair) v. equal (50/50) Division by title is bad - b/c typically men had all the titles in their names - Very unfair to stay at home spouse as all property and assets would be working spouses name Unpredictability Hard to negotiate if you dont know what the court will do On the other hand, unpredictability could leave to settling b/c fear what husband will do



Is it in fact property? (The Identification Question) a. Advanced Degrees: i. Minority Postema, pg. 713 RULE: here an advanced degree is the end product of a concerted family effort, involving sacrifice, effort, and contribution of both spouses, there arises a marital asset subject to distribution, where in the interest of the nonstudent spouses consists of an equitable claim regarding the degree ii. Majority Rule Graham, CO Case An educational degree, such as an MBA, is not encompassed under even broad views of property 1. Not inheritable 2. Cannot be conveyed 3. Cannot be acquired by an expenditure of the marriage Instead court can compensate for the unfairness by allowing for an assessment of the degree under appropriate employment for maintenance Is it marital or non-marital? (The Characterization Question) a. Burden of Proof: The party that asserts a marital interest bears the burden of producing evidence as to the identity of the property (Innerbichler v. Innerbichler MD, pg. 700) b. The party seeking to demonstrate that the particular property acquired during the marriage is nonmarital, must trace the property to a nonmarital source i. if the property cannot be traced to a nonmarital source, it is considered marital property ii. Created the business 1 year before the marriage, but he got the company certified after marriage the increase was marital property (go back to look at case) All due to his work = active efforts of the owner spouse c. Another test: passive ownership and increase in value resulting from active efforts of the owner-spouse (ALI 4.05) i. Not all jurisdictions make this distinction ii. Colorado does not when separate property increases in value, the entire increase is marital property d. ALI 4.03, pg. 698 i. Marital Property: property acquired during the marriage Property acquired before the marriage, but during a relationship between spouses that immediately proceeded marriage (same for domestic partnerships) ii. Not Marital Property: inheritances, gifts from 3rd parties are the separate property of the spouses, even if acquired during marriage Property received in exchange for separate property even if acquired during marriage


e. Advanced Degrees i. Minority Postema, pg. 713

RULE: here an advanced degree is the end product of a concerted family effort, involving sacrifice, effort, and contribution of both spouses, there arises a marital asset subject to distribution, where in the interest of the nonstudent spouses consists of an equitable claim regarding the degree Rationale: fairness dictates that a spouse who did not earn an advanced degree be compensated whenever the degrees is the end product of a concerted effort involving sacrifice and effort by both spouses Examples of concerted family effort: Financial contributions Child-rearing responsibilities Increased share of daily tasks Management of household and family affairs so spouse can study Share of emotional and psychological burdens of the educational experience increased tension/stress in the house Reduced availability to pursue personal interests Postponing own educational or career pursuits b. Celebrity Status, Elkus, pg. 719 (took care of the kids, put his career on hold) i. RULE: Career and/or celebrity status can constitute marital property to the extent that the Ds contributions and efforts led to the an increase in the value of the plaintiffs career An increase in the value of separate property of one spouse, occurring during the marriage and prior to the commencement of the marriage, which is due in part to the indirect contributions or efforts of the other spouse as homemaker or parent, should be considered marital property Not limited to professions requiring a license or degree ii. RATIONALE: the statutory definition of marital property does not mandate that it be an asset with an exchange value or be salable, assignable, or transferable. The property may be tangible or intangible. c. Pensions and other Deferred Income (Laing, pg. 724) i. RULE: Vested and non-vested pension and retirement benefits are subject to division by a divorce court ii. RATIONALE: income earned during the marriage is marital property, and pensions are basically deferred income d. Financial Misconduct i. Majority Rule (41 states authorize taking misconduct into account in dividing property at divorce) ii. Tests for dissipation: Proximity of the expenditure to the breakdown of the marriage Whether the expenditure was typical of an expenditure made during the course of the marriage Ex: flying lessons if consistent with marriage expenditures Whether the expenditure benefited the joint marital enterprise or if it was for the benefit of one spouse to the exclusion of the other Specific Expenditure Amount and need iii. Example: Gambling Debt, Siegel, pg. 722 e. Debts and Liabilities




i. Not technically assets, but most jurisdictions include an order about incurring debt and take it into consideration ii. But, not fatal to a judgment if not considered How much is it worth? (The valuation Question) a. Advanced Degrees i. Valuation Factors: (Postema, pg. 713) Length of the marriage after the degree was obtained 1. parties separated shortly after getting degree, wife received little reward for her contributions The sources and extent of financial support given to the degree holder during the years in school 1. Wife accounted for 80% of financial support while he was in school 2. Wife furthered her own career but on her own 3. BUT husband responsible for student debt The overall division of the partys marital property ii. Two-Step Process: Examination of the sacrifices, efforts, contributions of the nonstudent spouse toward attainment of the degree Given such sacrifices, efforts, contributions, a determination of what remedy or means of compensation would most equitably compensate the nonstudent spouse under the facts of the case (Restitution for the sacrifices focus on what is necessary to compensate the non-student spouse for the burdens or sacrifices made so that student-spouse could pursue degree) b. Non-Vested Pensions: Most jurisdictions allow courts to decide whether to apply present value or reserving jurisdiction on a case-by-case basis i. Reserving Jurisdiction: court reserves jurisdiction until the pension is actually vested, then the other spouse gets a fraction of each pension payment actually received Court can determine the value of the pension at the time of the divorce, once the pension is vested Negative: not final Laing, pg. 724 adopted if could not use REACT ii. Present-Value Approach Rejected in Laing, pg. 724 Value of asset at date of hearing (date depends on the jurisdiction) Then an expert determines the probability of vesting (ex: if there is a 50% chance of vesting then the PV would $50,000 on a $100,000 pension) A % of the PV is taken for the % of time the couple was married, and that is considered the PV marital value iii. REACT approach - Laing, pg. 724 To avoid continuing financial entanglement between former spouses Spouse files a qualified domestic court order so that when the pension vests and matures then the administrator makes automatic payments directly to the non-employee spouse How much should each spouse get? (The Distribution Question) a. UMDA 307, pg. 696 i. Alternative A minority of jurisdictions (16 states) Hotchpot Key feature: Equitably apportion all property. . . without regard to title Basically skips question #2: The Characterization Question ii. Alternative B Majority Rule


b. Fault i. UMDA recommends that marital fault should not be considered in financial division but 15 jurisdictions consider marital fault

Each person gets their own property Martial property gets divided based on 4 Factors: Contribution of each spouse to acquisition of the marital property, including contribution of a spouse a homemaker Value of the property set apart to each spouse Duration of the marriage 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 Requires the court to categorize property as marital or non-marital



Distribution of Property and Spousal Support A. Early Retirement 1. Voluntary Early Retirement is it a change in circumstances? a. Courts will typically find a change of circumstances if the court find that it was a good faith decisions to retire and objectively reasonable b. Court will consider i. Industry ii. Health of person iii. Age B. Increase in Value of the Company Innerbichler v. Innerbichler MD, pg. 700 1. RULE: Increase in value of company can be considered marital property, if the company increased in value because of marital labor a. Facts: 1 year prior to marriage founded company, D owned 51%, 6 months prior to marriage submitted application for certification, 3 months after marriage certification granted i. Post-marriage increase in value was marital ii. 51% ownership in stock, marital 2. Factors to consider, Ferguson v. Ferguson, pg. 709 - Guidelines: (these factors at least give the lower courts a template to lay out their reasoning) a. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows: i. Direct or indirect economic contribution to the acquisition of the property ii. Contribution to the stability and harmony of the marital and family relationships as measured by the quality, quantity of time spent on family duties and duration of the marriage; and iii. Contribution to the education, training, or other accomplishment bearing on the earning power of the spouse accumulating the assets b. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree, or otherwise c. The market value and the emotional value of the assets subject to distribution d. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distributions, such as property brought to the marriage by the parties and property acquired by inheritance or intervivos gift by or to an individual spouse e. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distributions f. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties g. The needs of the parties for financial security with due regard to the combination of assets, income, and earning capacity; and h. Any other factor which in equity should be considered i. When to change title: i. A spouse who has made a material contribution toward the acquisition of property which is titled in the name of the other may claim an equitable interest in such jointly accumulated property incident to a divorce proceeding. If contribution toward the acquisition of assets is proven by a divorcing party, then the court has the authority to divide these jointly accumulated assets Including giving title to the non-title holder


C. Alimony: Courts are instructed to consider alimony and property division together
1. Purpose: a. To compensate a homemaker for contributions to the family well-being, not otherwise recognized in the property distribution 2. UMDA 308: Maintenance, pg. 731: The court may grant an award of maintenance for either spouse, only if the spouse: a. Lacks sufficient property to provide for reasonable needs b. Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment c. Amounts and duration should be determined on the following factors, without regard for marital misconduct: (but 25 states use marital fault in determining alimony) i. Financial resources of the party seeking maintenance, including marital property apportioned to him, ability to meet his needs independently, provision for support of child ii. Time necessary to acquire sufficient education or training to enable the party to find appropriate employment appropriate employment in the circumstances of the marriage and individuals, what the individuals agreed to in the marriage (not from UMDA) iii. Standard of living established during the marriage Easier for the court to look back at how the parties lived during the marriage to decide what a person reasonably needs Clapp, pg. 734 iv. Duration of the marriage v. Age, physical and emotional condition of the spouse seeking maintenance vi. Ability of the spouse for whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance vii. appropriate employment in the circumstances of the marriage and individuals, what the individuals agreed to in the marriage 3. Each of these factors must be balanced in light of the others In re Wilson, pg. 732 Need is not a threshold question a. Married for 70 months, 2 years before separation, wife injured and disabled unable to continue work as bartender b. Husband made considerably more c. Policy decision to switch support from husband to society 4. Discretion a. Family court has broad discretion in determining maintenance and the duration of the support payments Clapp. pg. 734 b. Appellate court will only reverse if there is no reasonable basis to support the award c. Even if award is higher than recipients reasonable needs i. Statute does not prohibit such an award need is only one of the factors to be considered (relative vs. absolute need) ii. After 20 years of marriage, separation iii. Wife income $45,000, husbands $137,000 iv. Wife stayed home with daughter, then intentionally pursued a career in education v. Court awarded monthly maintenance to bring her up to her husbands income d. Reasonable needs allows the court to balance equities whenever the financial


contributions of one spouses enable the other spouse to enhance his or her future earning capacity 5. ALI 5.04: Compensation for Loss of Marital Living Standard, pg. 746 a. A person married to someone with significantly greater wealth or earning capacity is entitled to compensation for a portion of the loss in the standard of living he/she would otherwise experience i. When the marriage was of sufficient duration that equity requires that some portion of the loss be treated as the spouses joint responsibility b. Entitlement should be determined by a statewide rule that creates a presumption of entitlement if i. Marriage of specified duration ii. Spousal-income disparity 6. ALI 5.05: Compensation for Primary Caretakers Residual Loss in Earnings Capacity a. A spouse should be compensated for the earning-capacity loss arising form his or her disproportionate share during the marriage of the care of children (marital or children of either spouse) b. Should be a statewide presumption when: i. There have been children, marital or non ii. While under the age of majority, have lived with claimant for a minimum time period iii. Claimants earning capacity at dissolution is substantially less than that of the other spouse c. Presumption exists unless court finds that claimant did not provide substantially more than half of the total care of the children d. Amount paid in periodic payments determined by applying a percentage, called the child-care durational factor, to the difference between the incomes the spouses are expected to have at dissolution 7. UMDA 316: Modification and Termination of Provisions for Maintenance, Support, and Property Disposition (pg. 752) a. Provisions may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. The provisions as to property distribution may not be revoked or modified, unless conditions justify reopening of judgment under state law. b. Obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving the maintenance, unless otherwise agreed to in writing c. Provisions for child support are terminated by emancipation of the child, but not by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked or commuted to a lump sum payment, to the extent just and appropriate in the circumstances. 8. Rationale for Alimony a. Barriers to womens employment i. Mommy track ii. Part-time b. Not enough property at the time of divorce to address inequality



c. Property Claims of Unmarried Cohabitants A. Vs. Marriage: public declaration signifies intent to merge financial means B. RULE: Agreements between non-marital partners fail only to the extent that they rest upon a consideration of meretricious sexual services Marvin v. Marvin, pg. 769 1. The fact that a woman and a man live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earning, property, or expenses 2. Neither is such an agreement invalid merely because the parties may have contemplated the creation or continuation of a non-marital relationship when they entered it 3. The parties may order their economic affairs as they choose, and no policy precludes the court from enforcing such agreements 4. The court may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or agreement of partnership or joint venture or some other tacit understanding between the parties. 5. Severability a. Even if sexual services are part of the contractual consideration a severable portion of the K supported by independent consideration will still be enforced C. Options for the Court 1. Implied Contract: where the Plaintiff provides goods or services to the D, lacks express contract but the court will imply a contract in order to avoid unfairness 2. Implied Contract of Fact: course of dealing between parties leads the court to determine that a contract exists, even if the parties did not explicitly enter into a K 3. Constructive Trust: person who obtained property has equitable duty to share (based on the premise that keeping it would be inequitable or unjust) 4. Resulting Trust: One person holds property but it is understood to be done for the interest of both persons 5. Quantum Meruits: unmarried partner working in the business of the other partner under no express agreement allowed laboring partner to walk away with something a. "as much as he deserved," the actual value of services performed D. ALI 6.03 Approach 1. No state has adopted the ALI approach 2. Domestic Partners: two persons of the same or opposite sex, not married to one another, who for a significant period of time share primary residence and a life together as a couple a. Remedies based on living together UNLESS agreement states otherwise i. No need to find express or implied agreement to share b. Determination of Domestic Partnership Factors: Totality of the Circumstances i. Statements, promises, representations made to one another or third parties ii. Intermingling of finances iii. Economic interdependence or dependence iv. Conduct in furtherance of lives together v. Extent to which relationship changed life in either or both parties vi. Parties acknowledged responsibilities to the other vii. Emotional, physical intimacy viii.Reputation in the community ix. Participation in a commitment ceremony or registration as domestic partnership x. Procreation or adoption, joint assumption of parental functions toward a child 3. ALI Relationship to existing law a. Most courts rely on contract laws to conclude that cohabitating parties may require financial obligations to one another (unless contracted out) i. Majority recognize express contracts


ii. A few require written contracts



Child Support A. Duty to support ones children is applicable to all parents 1. Judicially enforced typically only when parents do not live with their children 2. The marital status of the parents is not key, it is whether the parent does or does not live with the children B. History 1. Courts used to determine child support like alimony with a lot or discretion given to courts a. Courts were not awarding enough child support b. Congress enacted legislation that required states to adopt a formula in order to be eligible for AFDC funding C. Three Approaches 1. Flat Percentage of Income a. Adjusted for the number of children b. Simple, but crude 2. Income Shares (33 jurisdictions, incl. Colorado) a. Combines the income of both parents b. Chart - Basic support obligation based on the number of children and combined income c. Adjust for extraordinary expenses (ex: special needs education) d. Each parent contributes to this total based on the financial resources of each parent CRS 14-10-114 3. Nelson Formula (3 states, best job of balancing needs of parents and children, most sensitive to extreme poverty) a. Basic subsistence need of each adult b. Income several round of allocations i. Childrens basic needs ii. % goes to each child as additional support D. Deviation from the Standards 1. Excessive Child Support a. In re Marriage of Bush, pg. 788 i. RULE: Court can set a child support order less than the guidelines, but the court must clearly state the based for the lower order Reasonable basis exists where both parents have more than enough income to provide for a child ii. Facts: both parents make a significant amount of money Court must consider the standard of living the child would have enjoyed absent parental separation and marital dissolution BUT the court cannot require excessive child support so that the child (of the custodial parent) can diminish the accumulation of the estate of the noncustodial parents 2. Other Considerations Supporting children in a second family a. H was supporting his step-child, but not through a support order Ainsworth, pg. 798 i. Typically the court can consider Preexisting spousal maintenance $ from public assistance Cost of health insurance for children ii. Actual expenditures (mortgage, students loans, etc.) not included iii. RULE: exclusion applies equally to stepchildren and natural children (b/c father has obligation to support step-child even if there is not an order) iv. The court can consider second families in child support BUT must also consider the voluntary nature of second families


v. The court is entitled to deviate from the number if the result would otherwise be inequitable (CO and VT) vi. Child Support Factors 3. There must be a child support agreement a. Can be part of settlement b. But court can still review the support order E. Child Support Enforcement 1. Means of ensuring payment a. Employment conditions (requiring him to hold two jobs, etc.) b. Further criminal sanctions c. Revocation stayed sentence d. Boots on cars e. Wage garnishment f. Public shaming deadbeat dad websites g. Revocation of drivers license or professional/occupational license h. In lieu of prison time, D given 5 years probation (after 3 years in prison) i. Cannot have children while on probation unless he can demonstrate that he can support his 9 children and a new child WI v. Oakley, pg. 834 ii. Rationale: Convicted individuals do not enjoy the same degree of liberty as citizens who have not violated the law The choice to procreate or not is a fundamental liberty interest BUT limitations on fundamental rights for convicted felons on probation are not subject to strict scrutiny iii. TEST: condition of probation may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to the persons rehabilitation A condition is reasonably related to the persons rehabilitation if it assists the convicted individual in conforming his or her conduct to the law iv. Limitations: Not any probation requirement will be upheld simply because it is less onerous than incarceration v. Not overly broad Did not eliminate his ability to procreate Can satisfy the requirement by making efforts to support his living children (did not require payment of $25,000) No limit on the number of kids he can have Condition is temporary at end of probation 2. Other Issues: a. Intentional Underemployment i. Court can assign potential vs. actual wages ii. Enforcement proceedings Criminal or civil contempt proceedings An element of contempt is inability to pay but courts have been expansive of inability to pay (ex: if someone voluntarily takes a job that does not garner enough wages to make payments) 3. Trigger for Enforcement Proceedings a. Person entitled to child support can initiate i. Complicated because of federal and state interests When mothers fall below the poverty level (states and feds will go after fathers) b. Criminal Statute like WI v. Oakley i. Most states have these


CHILD CUSTODY Best Interest Standard A. UMDA 402: Best Interest of the Child (pg. 436) 1. The Court shall use the following factors in determining the best interest of the child: a. The wishes of the childs parents or parents as to his custody b. The wishes of the child as to his guardian c. 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 d. The childs adjustment to his home, school, and community e. The mental and physical health of all individuals involved 2. The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child B. Fitness In re Marriage of Carney, pg. 525 (father given custody by agreement, gets in accident, then mother wants custody trial court abused discretion when awarded mother custody b/c focused too heavily on fathers physical disability, not the emotional connection that he had with his children) 1. Change in Circumstances a. California 1979 In re Marriage of Carney, pg. 525 i. A child will not be removed from the prior custody of one parent and given to the other unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change ii. Burden of showing a sufficient change in circumstances is on the party seeking the change in custody b. Pennsylvania 1992 McMillen , pg. 554 i. A child custody order is modifiable without proof of a substantial change in circumstances where such a modification is in the best interest of the child ii. Facts: Originally court awarded primary custody to mother, order has been modified and each time more time given to father. TC found homes equally acceptable but child expressed preference to live with father Step-father threatens, frightens, and upsets him Mother does nothing to prevent this treatment Mother interferes with sporting and farming activities 2. Physical Handicaps of Parents Totality of the Circumstances Test a. Persons actual and potential physical capabilities b. How he or she has adapted to the disability and manages the problem c. How the other members of the household have adjusted to the disability d. Special contributions that other members make to the household e. Whether the parents condition will have a substantial and lasting adverse affect on the best interest of the child f. In re Marriage of Carney, pg. 525 (father given custody by agreement, gets in accident, then mother wants custody trial court abused discretion when awarded mother custody b/c focused too heavily on fathers physical disability, not the emotional connection that he had with his children) i. The health and physical condition of the parent is a factor of minor importance and whenever it is raised the court must weigh it with an informed and open mind ii. If handicap, not okay to have a primia facia evidence of persons unfitness as a parent II. Childs Preference A. RULE: Expressed wishes not controlling in custody decisions, but an important factor that must be carefully considered in determining the best interest of the child 1. Maturing and intelligence must be considered 2. Weight of testimony determined by the judge I.



Tender Years Presumption A. RULE: Totality of the Circumstances Test (no longer maternal preference) Pusey, pg. 566 1. Primary caretaker during the marriage not exclusive factor 2. Parent with greater flexibility to care for child 3. Parent with whom child has spent most of his or her time pending the custody determination (if the time has been significant) 4. Stability of the environment that each parent provided B. Rationale for abolishing Maternal Preference 1. Out-dated 2. Unconstitutional 3. Particularly problematic when used as tie-breaker C. Alternative (Garska v. McCoy, pg. 569) 1. Primary Caretaker Presumption a. RULE: Where one parent can demonstrate with regard to a child of tender years that he or she is clearly the primary caretaker parent, then the court must further determine only whether the primary caretaker parent is a fit parent. i. If the parent is a fit parent, then the trial court must award custody to the primary caretaker parent ii. (Unfit parent: where the primary caretaker fails to provide emotional support, routine cleanliness, or nourishing food, the presumption shall not apply J.B. v. A.B) b. If both parents are equally the primary caretakers, then the court must look into parental competency c. Factors to determine primary caretaker i. Preparing and planning meals ii. Bathing, grooming, and dressing iii. Purchasing, cleaning, and caring of clothes iv. Medical care v. Arranging for social interaction among peers vi. Arranging alternative care vii. Putting child to bed at night, attending to the child in the middle of the night, waking child the morning viii.Disciplining child ix. Teaching elementary skills reading, writing, arithmetic d. Rationale: i. Removing child more traumatic for the primary caretaker ii. Hearings do not necessarily improve the outcome b/c judges are not particularly adept at determining better parenting iii. Gives parties a sense of what the court might do Allows for better negotiating Parent who is not the primary caretaker is typically the one more financially well off iv. Primary Caretaker will react with Solomon syndrome parent will be willing to sacrifice their interest for the best interest of the child e. TODAY i. States do not use primary caretaker presumption ii. Instead, used as a factor in determining best interest of the child a. EMERGING APPROACH Approximation Approach - Best reflected in ALI 2.08 & 2.09 i. ALI 2.08: Allocation of Custodial Responsibility (pg. 588) Court should allocate custodial responsibility so that proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents separation, or if parents never lived together, then before the filing of the petition Permit the child have a relationship with each parent



To accommodate the firm and reasonable preferences of a child who has reached a specific age To keep siblings together when the court finds that doing so is necessary to their welfare To avoid allocation of custodial responsibility that would be extremely impracticable or that would interfere with childs need for stability in light of economic, physical, or other circumstances, including distance between homes, daily schedules and ability of parents to cooperate with the schedule ii. ALI 2.09 Allocation of Significant Decision-making Responsibility (pg. 590) Unless otherwise agreed by parties, the court should allocate decision making responsibility to one parent, or to two parents jointly, in accordance with the childs best interests, in light of the following: The allocation of parental responsibility The level of each parents participation in past decisionmaking on behalf of the child The wishes of the parents The level of ability and cooperation the parents have demonstrated in past decision-making on behalf of the child WV has adopted this approach Approximate the proportion of time that the parent spent with the child prior to the divorce proceeding 2. JOINT CUSTODY a. RULE: Individualized determination of whether joint or sole custody serves the childs best interest Squires, pg. 584 b. When parents are hostile and refuse to cooperate, but found to be good parents award joint custody c. Rationale: it is much easier to modify joint custody than sole custody i. Assumption that it is in the best interest of a child to be brought up by two parents who are married to each other, joint custody is the next best available option d. Must make particular finding that joint custody is in the best interest of the child e. Some states presume that joint custody is in the best interest if both parents favor it Race, Ethnicity, Religion, Gender, and Sexual Orientation (in Child Custody) 1. Best Interest Factors (from Hollan v. Hollan, pg. 532) a. TC placed too much weight on moral fitness and ignored the voluminous evidence for the other factors (Hollan mother shared a bed with another woman) b. Procedure rule: TC must engage in each of the factors, cite evidence to each factor, and state which parent weighs in favor of the factor c. RULE: Court must weigh all the factors: i. One factor is not enough, possible exception: DV rebuttable presumption that DV perpetrator should not have custody 2. Race and Ethnicity a. A decision to grant custody to a parent cannot be based solely on race or on protecting the child from social stigma. i. Private racial prejudices do not justify a state decision removing custody of a child from its mother (Palmore v Sidoti, g. 540)


No issue as to either partys devotion to child, but mothers lifestyle

(marriage to a black man) would subject the child to environmental pressures and suffer for social stigmatization ii. The Constitution cannot control such prejudices but neither can it tolerate them. iii. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. b. A court can 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. (Jones, pg. 541) i. Mother appealed custody decision granting Native American father custody of the children on the grounds that the TC improperly considered race- that father had suffered prejudice, and will be able to better deal with the needs of child when they are discriminated against Not the sole reason. Court also cited strong family support on fathers side. ii. Assumptions: Parent not part of the heritage will not develop the link White women doesnt have culture or the child will be exposed to the majority culture anyways 3. Religion a. TEST: Whether, in particular circumstances, exposure to two different parental religions is so disturbing to a child as to cause substantial injury, physical or emotional, and will have a similar harmful tendency in the future (Kendall, pg. 548) i. Harm: a likely source of proof of substantial harm by implication could be derived from testimony as to the childs general demeanor, attitude, schoolwork, appetite, health, or outlook. Wholly uncorroborated testimony of parent is insufficient Substantial harm is considered a form of strict scrutiny Acknowledge that an infringement is in place (1st amendment) and you need a justification of substantial harm to uphold the infringement Hybrid right right of parents to educate their children in religion (Care, custody, and control of children) + religion (or some other right) In practice, hybrid rights are subject even stricter scrutiny ii. Kendall harm found Father shaved sons religious sideburns Would not let his son wear the Jewish garb Took children to services where it was taught that they and their Mom would burn in hell Opposes children being taught about the Holocaust Child had strong Jewish identity and efforts to change damaged son iii. Trial Courts decision upheld: Parents could not promote alienation of either parent Dad could not take children to church or bible study IF it promotes rejection of their mother or their own Jewish identity Dad cannot share religious beliefs if those beliefs cause children significant emotional distress about their mom or themselves Dad can have pictures of Jesus on wall and celebrate Christian holidays



Modification and Relocation A. Change in Circumstances 1. UMDA 409: Modification, pg. 595 a. No motion to modify may be made earlier than 2 years after its date, UNLESS court permits it based on a reason to believe the childs present environment may endanger seriously his physical, mental, moral or emotional health b. IF court has jurisdictions under UCCJA, the court shall not modify UNLESS the court finds based on facts that have arise since the decree or that were unknown to the court at the time of the entry of the prior decree that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. Court shall retain the custodian UNLESS i. the custodian agrees to the modification ii. The child has been integrated into the family of the petitioner with consent of the custodian iii. The childs present environment endangers seriously his physical, mental, moral, and emotional health, and the harm likely to be caused by a change in the environment c. Attorney Fees: assessed to party seeking modification if court finds purpose was to harass 2. GENERAL RULE: 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 a. Two Part Test: (Wetch, pg. 599) i. Has there been a material change in circumstances since entry of the original divorce decree? If yes, ii. Do the changed circumstances require in the best interest of the child that custody be modified? 3. RULE: Sexual Activities of Parents a. A parents sexual activity is insufficient to establish a material change in circumstances justifying a change in custody absent a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity (Hassenstab, pg. 596 mother in homosexual relationship, father filed motion to modify) 4. Evidence of Change of Circumstances a. Evidence of custodial parents behavior during the year or so before the hearing or motion to modify is more significant that the behavior prior to that time i. Rationale: court interested in best interest of the child now and in the immediate future (relevant in Hassenstab, pg. 596 b/c mother was suicidal but previously, not currently) b. New Evidence: Res judicata should not be used to bar the court from considering relevant evidence bearing on considerations of what is in the childs best interest (Wetch, pg. 599) i. In deciding a change in custody motion, if the previous custody placement was based upon the parties stipulation and by consideration of the evidence and court made finding, the trial court MUST consider all relative evidence, including pre-divorce conduct and activities (10 States) ii. Courts can consider facts prior to decree if there was fraud or misrepresentation iii. Permit modification on facts that existed at the time but were unknown to the court


B. Relocation parents contest the relocation or the parenting time suggested by the
relocating parent 1. No majority rule 2. Trilemna: custodial parents right to move, noncustodial parents right to parent, best interest of the child (to be raised by both parents, opportunities for child) 3. One Approach from Baures v. Lewis, pg. 605 - Two Prong Test: a. The party seeking to move, who has had time to contemplate the issues, should initially produce evidence to establish a prima facie i. Good faith reason for the move ii. The move will not inimical to the childs interest iii. Should include a visitation proposal iv. (not too onerous of a burden moving for extended family, education, etc) b. Then the burden is on the noncustodial parent to produce evidence, not just that visitation will change, but that the change will negatively affect the child. Examples: i. Work schedule would preclude visitation ii. Education or health care unavailable in new location iii. Child taken away from extended family 4. Wyoming Approach: Higher priority on the Constitutional Right of parent to travel a. Not considered a change in circumstances UNLESS the move would have detrimental effect on the child b. CO rejected b/c presumption to custodial parent 5. Minnesota Approach: Childs Welfare is a compelling state interest that trumps parents right to travel a. CO rejected this approach b/c compelling state interest is too high of a burden, should be reserved for paramount interests i. Too high of a burden doesnt protect the interests of the parents ii. Short of preventing harm, the best interest standard is insufficient to serve as a compelling state interest (It is only when the BIC is preventing harm to a child that it should be elevated over a parents rights) 6. New Mexico CO adopts a. Both parents share equally the burden of demonstrating how the childs best interest will be served. Court must consider all the relevant factors to determine what arrangement will serve the childs best interest. b. 21 factors: pg. 605



Visitation A. UMDA 407: Visitation (pg. 612) 1. A parent not granted custody of a 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. 2. Court may modify an order granting or denying visitation rights whenever modification would serve the childs best interest but the court shall not restrict a parents visitation rights UNLESS the court finds that the visitation would endanger seriously the childs physical, mental, moral, or emotional health 3. Both parents have right to visit their child a. Only restricted if the court finds that visitation would seriously endanger the childs physical, mental, moral, or emotional health B. GENERAL RULE: the childs welfare is given paramount consideration and the right of the noncustodial parent to reasonable visitation is clearly favored (Elderidge, pg. 613) 1. The noncustodial 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 way 2. Presence of homosexual partner a. Not serious endangerment to the child to necessitate a court order prohibiting the presence of the mothers lesbian partner during overnight visits (Elderidge, pg. 613) b. Mere unsubstantiated predications of a vying parent C. Examples of Restrictions: 1. Supervised Visitations when one parents conduct has been particularly egregious 2. No overnight visits 3. 3rd party restrictions 4. Environment of noncustodial parent visits have to take place in specified location, outside of the home 5. Refrain from drugs and/or alcohol 6. Religious restrictions/requirements a. RULE: In order to justify restrictions on a parents right to inculcate religious beliefs in their children, the party seeking the restriction must demonstrate by competent evidence that 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 the absence of the proposed restriction and that the restriction is the least intrusive means to prevent the specified harm (Zummo, pg. 618) b. Majority Rule: i. Each parent must be free to provide religious exposure and instruction as the parent sees fit, during any and all period of legal custody or visitation without restriction, UNLESS The challenged beliefs or conducts of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child in the absence of the proposed restriction Needs to be least restrictive?


JURISDICTION Choice of Law & Jurisdiction: two separate issues, dont get them confused Choice of Law: Which law should apply to the dispute Jurisdiction: Personal Jurisdiction: does the forum have authority over the respondent? Subject-Matter Jurisdiction: does the forum have authority over the dispute? I. Dissolution A. Residency Requirements 1. States may require residency requirements for subject-matter jurisdiction a. Iowa 1 year (Sosna v. Iowa, US 418) i. H & W married and lived in NY. Separated and W moved to Iowa with the kids. About a year after separation and a month after moving to Iowa, W filed for divorce in Iowa. ii. H served while visiting children in Iowa Not a personal jurisdiction issue H argued that Iowa did have SMJ iii. Iowa agreed with H based on statute that requires petitioner to live in the state for at least 1 year before filing for divorce b. Supreme Court: i. Statute is Constitutional ii. Different than durational residency requirement (ex: welfare, voting) that have not been upheld Those laws were not okay b/c their purpose was for budgetary purposes which does not outweigh constitutional claims of individuals iii. Here, Petitioner not denied right to divorce, just temporarily precluded from seeking divorce in Iowa (delay, not denial) There is a difference between denial of a right and a delay of a right iv. RULE: Residency requirements before a person can get a divorce in that state are constitutional because a state has a right to require that the petitioner have at least some attachment to the state before the state is compelled to get involved v. Rationale: Judicial resources states dont want to spend the $ on divorces when the parties do not have a substantial connection to the dispute Reduce forum shopping Fairness to the parties Appellant not foreclosed from divorcing (just had to wait a year, or file in home-state jurisdiction) States interest in not meddling in affairs where other states have an (greater) interest c. 48 states have durational residency requirements like this B. Ex Parte Divorces (Nevada ) when a state has subject-matter jurisdiction over the P, but no personal jurisdiction over the D to grant divorce 1. If at least one party is domiciled in a state, a state court can grant a divorce decree even if it doesnt have personal jurisdiction over the other spouse, as long as the other spouse had adequate notice (Williams v. NC 2 lovers leave NC to go to LV long enough to divorce their spouses in NC and get married. Neither of the NC spouses were served, but they got constructive notice, NV did not have personal J over them. Lovers marry and return to NC. NC did not recognize the divorce, punished for bigamy) 2. Full Faith and Credit


a. Only the divorce decree is entitled to interstate recognition b. Financial matters (alimony and child support) are not valid if no personal jurisdiction over the other spouse) divisible divorce



Financial Matters A. Must have personal jurisdiction 1. Chronology not important a. Vandebilt v. Estin i. Vanderbilt the order for alimony came after ii. Estin order for alimony came before 2. No right to extinguish Ws right to support without personal jurisdiction a. Vanderbilt - H goes to NV files for divorce W not served & no notice i. NV grants the divorce ii. A year later, W files for separation & alimony in NY NY did not have PJ NY sequestered property in NY and got quasi in rem jurisdiction H objected FF&CC compelled NY to treat NV divorce as final NY agreed that decree was valid, but NY ordered H to pay W alimony iii. Supreme Court held for W A court cannot adjudicate a personal claim or obligation UNLESS it has personal jurisdiction NV did not have PF over the W, it did not have the power to take away her right to support B. In rem jurisdiction 1. States can assert quasi in rem jurisdiction as an alternative to personal jurisdiction a. The property in the state must be related to the subject of the litigation in order for the state to have in rem b. State can only impose financial obligations in regards to the property in the state C. Long-Arm Jurisdiction 1. Most states have adopted statutes that give them jurisdiction over any matters that do not violate the US or state constitutions a. Minimum Contacts i. State courts who are entertaining an action for child support, alimony, or property distribution have to undertake the standard minimum contact analysis to determine whether the forum has personal jurisdiction over the Respondent spouse under the Long Arm Statute b. Kulko v. Superior Court of CA i. H and W lived in NY and had 2 kids. They separated, and W agreed that H would have custody of kids and W would get small amount of child support for the visitation time she had with the kids. After separation, W moved to CA. W also went to Haiti and got a divorce decree there About a year after W left, daughter said she wanted to go live in CA with W, so H bought her a one-way ticket to CA. Son eventually came too So then W brought suit in CA to enter the Haiti divorce decree, grant her custody, and increase Hs CS payments. H appeared specially and argued that CA didnt have personal jurisdiction over him: ii. US Supreme Court Minimum Contacts Although H got personal service in CA No minimum contacts with CA CA courts said that they had PJ over H b/c minimum contacts were established when H bought one-way ticket for daughter to move to CA and consented to her moving SCT reversedNO MINIMUM CONTACTS HERE c. Rule: Personal Jurisdiction requires:


i. Notice that an action was brought in the forum state AND ii. D must have a sufficient connection with the forum state to make it fair for D to have to defend an action in the forum state Acquiescence to a childs desire to live in the forum state with the other parent does NOT suffice as minimum contacts and thus does NOT confer jurisdiction over the H in CA No commercial interests Not availing himself of the responsibilities and privileges, protections of CA laws No reasonable expectation of being haled into court in CA D. Enforcement of Financial Decisions 1. UIFSA Procedural Framework for enforcing support obligations entered in another jurisdiction (does not create the duty of support) a. Elements: i. Order must have been valid (issuing court must have had PJ over D) ii. Provides for personal jurisdiction over the non-resident D spouse up to the Constitutional limits in Kulko, incl, specific basis: Causing child to live in other state Having lived in the other state with child iii. Order can be enforced without relitigation No independent de novo review iv. Issuing Court Retains jurisdiction No other court can modify the orders Other jurisdictions can enforce, but not modify Parties can file a written consent, allowing another court to exercise jurisdiction over the modification b. Brenkle



Child Custody A. Problems 1. Child custody orders can be modified, so not considered final 2. Not final, so not enforceable in other jurisdictions under the FF&CC a. Parents would kidnap their own children, take them to a new jurisdiction, and get a new child custody order 3. PKPA made custody orders subject to Full Faith and Credit B. UCCJEA (tried to fix PKPA and UCCJA) 1. Adopted by every state, except MA 2. Personal Jurisdiction a. UCCJEA supplants a PJ analysis b. If a court has jurisdiction over UCCJEA, then the court has enough 3. INITIAL CUSTODY DISPUTE: Prioritized List - only get to lower priority basis for jurisdiction if states decline jurisdiction or if the child moves around (Home state has the exclusive right to choose whether or not to exercise jurisdiction, before any other state has the option or if child has not home state) a. HOME STATE: state where the child lives with a parent (or a person acting as a parent) for at least 6 consecutive months immediately before the commencement of the proceeding i. OR the state that used to be the childs home state, but child has moved within last 6 months, but one parent still lives in that state b. SIGNIFICANT CONNECTION i. Where the child and at least one parent, or a person acting as a parent, has significant connection with the state, and there is available in the state substantial evidence about the childs care, relationship, medical and education c. DEFAULT any state that the parents file i. If all other states with better jurisdictional grounds deny jurisdiction ii. OR if no other state is a home state or has a significant connection d. EMERGENCY i. Only on a temporary basis and in emergency circumstances Only lasts long enough to resolve the dispute, provide for the safety and well-being and then jurisdiction would get transferred i. For children who are abandoned, or otherwise neglected or threatened with abuse ii. Child physically present in the state 4. Continuing Final Jurisdiction a. State with original custody determination retains jurisdiction UNLESS i. All parties have moved b. Child Custody orders can only be modified by state with continuing, final jurisdiction c. Court with jurisdiction can relinquish dispute to allow another state with more significant connections with child d. Requires i. Notice and Opportunity to be heard e. Does not require i. Personal jurisdiction over respondent parent C. Chaddick H&W divorced in MA. W moved to FL with children. H moved to VA and got summer custody. 1. Parents cannot relitigate child custody issues in another state, just because they did not like the first determination. 2. 1993- at the end of Dads summer visitation, he filed a custody petition in VA b/c Mom would not give Dad her address in FL which was necessary to purchase an airline ticket to send the kids back to FL


a. VA court granted custody to Dad b. Mom then retained a VA atty to contest the VA courts jurisdiction to hear the custody petition 3. She argued that under the UCCJA and PKPA VA did not have jurisdiction b/c Mass still had jurisdiction over the custody order a. March 1995- VA court ruled against mom and kept custody with dad b. April 1995- Mom then filed a petition in FL seeking to enforce the Mass decree c. But after speaking with the VA judge, the FL judge determined that VA judge had already decided all the issues, and that VA had jurisdiction, not FL 4. So FL judge dismissed the case a. Mom appealed this dismissal in FL, but C of A affirmed b. She appealed again 5. Holding: a. The FL judge did not err b. He did what he was supposed to do by contacting the VA judge c. And even though such phone calls should be completed in front of the parties in the future, this does not change the outcome in this case d. It is also up to the judges discretion to determine if a hearing is necessary to determine jurisdiction or not e. And in the future a judge should make it clear why the sister state was or was not exercising proper jurisdiction under the UCCJA 6. Rule: a. The UCCJA requires that a judge, upon learning that a proceeding regarding custody of a child is pending in another state, must stay the proceeding and communicate with the other court to avoid jurisdictional conflicts b. And even if a court has jurisdiction under UCCJA, it may decline to exercise it if it finds that it is an inconvenient forum to do so c. If decided under UCCJEA then the decision would have been different. Home-State (florida) would have jurisdiction D. Thompson PKPA 1. Did it create a federal claim? a. Does not create a federal claim b. No private remedy c. Congressional intent, remedy inapplicability of the FFC to make FFC applicable to custody decrees


PARENS PATRIAE III. Delineating the boundaries of Parental Rights A. RULE: Parents have a fundamental right to care, custody, and control of the child (Stanley, Prince, Pierce, Meyer) (protected by Due Process, EPC, and 9th) 1. But family is not beyond regulation in the public interest, as against a claim of religious liberty (Prince Jehovah Witness child handing out pamphlets at night with aunt in violation of child labor laws) a. Two liberties at stake: i. The parents liberty to bring up the child in the way he should go, which can mean teaching certain tenets and practices of their faith ii. The childs freedom to preach the gospel b. States Role: as parens patriae state may restrict the parents control by requiring school attendance, regulating or prohibiting the childs labor and in other ways i. Not nullified b/c parent grounds decision on religious grounds ii. The right to practice religion does not include the right to Expose child to communicable diseases c. Presence of guardian i. May lessen the evils that the legislation was trying to avoid, but does forestall them d. Holding: MAs child labor laws which prohibit the child from handing out religious pamphlets does not infringe on the parents liberty interest in bringing the child up in a religion, nor the childs right to freedom of religion. B. Who is the parent? Who is entitled to the fundamental right? (Stanley pg. 638) 1. Unwed Fathers who have created a relationship with his children a. Stanleys interest in retaining custody of his children is cognizable and substantial b. States Interests: - Legitimate State Interests i. Protect the moral, emotional, mental, and physical welfare of the minor and the best interests of the community ii. To strengthen the minors family ties whenever possible c. BUT means do not fit the ends i. Most unmarried fathers are unsuitable and neglectful (state argument) But all unmarried fathers are not in this category Might be that most unmarried fathers are unfit Speed & efficiency are not sufficient interests in light of the interests of unmarried fathers in retaining custody of their children ii. If Stanley is a fit father, the State then undermines its won articulated goals by removing the children from his custody b. HOLDING: ILs Statute is unconstitutional b/c it violates Due Process i. Stanleys interests are significant enough to warrant a hearing as to his unfitness before children are removed from his custody ii. RULE: Parents, wed or unwed, mothers or fathers, must be proven unfit with due process of law before the state can remove the children from the home. BUT. . . 2. Unwed Fathers who have not developed a relationship with the child a. RULE: If the only connection is biological, then the constitutional protections are not triggered. (Lehr, pg. 641) i. Existence and nonexistence of a substantial relationship between the parent and the child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child An established relationship demonstrates a commitment to the interests of the child ii. Biology alone without meaningful involvement is not sufficient to



bestow parental rights and obligations on a parent. b. The EPC does not prevent a state from according two parents different legal rights c. NY Statute does not require notice to a putative father or a hearing in adoption cases UNLESS i. Registered in putative father registry ii. Fathers who have been adjudicated to be the father iii. Fathers who have been IDd as fathers on birth certificate iv. Fathers who live openly with mother and child, and hold themselves out to be the father v. Fathers who have been IDd as the father in a sworn statement by the mother vi. Fathers who were married to the mother before child was 6 months old d. Father in this case did not fit one of these categories i. Lived with M prior to birth, not after birth ii. Visited M and child at hospital at birth iii. Name not on birth certificate iv. Did not provide financial support v. Never offered to marry mother e. FACTS: i. AFTER adoption case filed in Ulster County, filed Paternity Action in another county ii. Father learned of adoption with change of venue notice f. ADD: Quillion Caban Present day law: Presumption of father??

C. Third Party 1. Troxel, pg. 621 M & F never married. F commits suicide. Grandparents sue for visitation rights. 2. Majority Rule: Unconstitutional as applied in this case a. Visitation order that the lower court ordered was unconstitutional b. Did not address whether a showing of harm was required for the court to intervene in 3rd party visitation c. Statute must give deference (some special weight) to parents won determination IV. The States Role in Child Protection A. Not Abuse Outside the Protection of the State 1. Corporal Punishment a. Laws allow parents to administer corporal punishment - Chronister, pg. 1195 2. Father beat 16 year-old with a belt (Chronister, pg. 1195) later that same day, discussion with father, daughter and fathers girlfriend, father left room, got a gun, and then walked by daughter no issue as to the facts a. Severity of injury i. Child told guidance counselor at school ii. Testified that it was painful iii. Testified that she was frightened and intimidated b. Courts Opinion i. Did not approve the behavior but not fur us (the court) to dictate, as a policy matter, how a parent should choose to discipline his or her child. ii. Court focused on intent, finding that the fathers act were intended to be just punishment, no evidence of malevolent infliction of pain or an attempt to terrorize his daughter c. Abuse: attempting to cause or intentionally, knowingly, or recklessly causing bodily injury or serious bodily injury. i. Bodily injury: impairment of physical condition or substantial pain This case pain was temporary


Did not cause bruises d. Use of force allowed if i. The actor is a parent and; ii. The force is used for the purposes of safeguarding or promoting the welfare of a minor, including Preventing or punishment of his misconduct iii. Where the force is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain, or mental distress e. Parents may use corporal punishment to discipline their children so long as the force used is not designed or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain, or mental distress or gross degradation. B. Removal of a Child Potential Abuse 1. RULE: Child may be taken into custody if law enforcement officer or authorized agent, has probable cause to support a finding that: the child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment (Doe 11th Cir. 2003) i. Two documented reports of severe sexual abuse involving John Doe One involved a disabled family member Both involved extremely young children ii. DHS worker received report of John Does criminal history lewd and lascivious behavior around children iii. DHS worker responded almost immediately after the facts brought to her attention Interviewed both parents and children Spoke with her supervisor b. Parent argues that it violated their due process rights to have the child removed without a court order c. DUE PROCESS is a flexible concept and what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been effected by the government action. i. This case: the government interest is high: paramount interest of protecting children ii. The sole focus of a due process analysis in an emergency removal should not be whether there is time to obtain a court order iii. Courts should be able to consider all relevant circumstances States reasonableness in responding to the perceived danger Objective nature, likelihood, and immediacy to the child After considering all relevant factors, courts may decide whether an objectively imminent danger justified the states removal of a child without prior judicial authorization iv. 2nd Circuit Rule that requires judicial authorization to remove a child in an emergency circumstance, unless there is not reasonable time to safely obtain the authorization tips constitutional balance away from the states paramount interest in child safety 2. Basis for Removal Domestic Violence (Nicholson) a. State must show by a preponderance of evidence that i. Childs physical, mental, or emotional condition has been impaired or is in imminent danger of being impaired Must be actual harm (or imminent danger), not just undesirable parental behavior Imminent Danger Does not mean that child has to be actually harmed Imminent must be near or impending, not merely possible


ii. The actual or threatened harm to the child is a consequence of the

failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship Link casual connection btwn the basis for the neglect petition and the circumstances that allegedly produce childs impairment (or imminent danger of impairment) Impairment (under NY law) must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care towards the child Minimum Degree of Care: Failure to exercise a minimum degree of care is necessarily dependent on facts such as the severity and frequency of the violence, and the resources and options available to her Risks attendant to: Leaving if batterer has threatened to kill her if she does Staying and suffering continued abuse Seeking assistance through governmental channels potentially increasing danger to herself or her kids Criminal prosecution against abuser Relocation Examples of when neglect may be appropriate in DV case Mother acknowledged that children knew of DV and had reason to be afraid of him, yet allowed him to return several times and lacked awareness of any impact of violence on the children Where children were exposed to regular and continuous extremely violent conduct, requiring official intervention and caseworkers testified to fear and distress of children c. Objective Parent Standard: would a reasonable and prudent parent have acted so, or failed to act, under the circumstances then and there existing met the stand of the reasonable and prudent person in similar circumstances d. NOT enough: i. Parent has been victim of DV ii. Child has been exposed to that violence e. Can injury that results to a child who has witnessed DV constitute a risk to the childs health? ie: grounds for removal i. File a Petition & have hearing: Blanket presumption never intended court must look at facts: whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal Must balance that risk against the harm removal might bring, and must determine factually which course is in the childs best interest ii. If insufficient time to file a petition, temporary removal of a child from a home before a petition is filed is permissible if 3 elements are satisfied: Parent must be absent Or if present, must have been asked and refused to consent to removal Child must appear to suffer from abuse of neglect to the extent that immediate removal is necessary to avoid imminent danger to the childs life or health Insufficient time to file a petition and hold a preliminary hearing f. Does the fact that the child witnessed such abuse suffice to demonstrate that removal is necessary or that removal was in the childs best interests or must the child protective agency offer additional, particularized evidence to justify




removal? i. Must other additional, particularized evidence Termination of Parental Rights (Pope, 1217) 1. To prove neglect in a termination: b. Standard: Clear and convincing evidence i. Juvenile has not, at the time of the termination proceeding, received proper care, supervision, or discipline from parent . . . or ii. Is not provided necessary medical care AND iii. Juvenile has sustained some physical, mental or emotional impairment or there is a substantial risk of such impairment as a consequence of such failure c. IF no evidence of neglect at the time of the proceeding, parental rights may still be terminated if i. There is a showing of a past adjudication of neglect AND ii. The court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to the parent 2. Facts b. M did not have custody of the child at the time of the termination proceedings i. M had personality disorder with seriously disturbed thinking, but high IQ and able to function well to meet her own needs c. Neglect adjudication in 1998 failure to thrive i. Doctors due to lack of proper care of child, not a medical condition d. After receiving services i. No progress made ii. Still lacks understanding of the seriousness of the childs condition Feb 1998 iii. Brought improper food for child food that the child was allergic to e. M denied that she had done anything to place the child at risk i. Only change M said shed get the child a pediatrician ii. Blamed removal of child on Ms. Foster (sister) 3. Difficult b/c: a. M dearly loves child b. But no evidence that with all Ms efforts she will ever be able to provide for the child in a way that would allow the child to grow up healthy, happy, and well developed Criminal Charges CS treatment that fails 3. Child ill for 17 days but received no medical treatment 4. Charged with involuntary manslaughter and felony child endangerment 5. Defense exemption in other areas of the statutes that allow for CS treatment, but court held that there was no legislative intent to allow prayer along in life-threatening circumstances a. D&N: i. Children receiving treatment by prayer shall not for that reason alone considered abuse and neglected 6. RULE: prayer treatment will be accommodated as an acceptable means of attending to the needs of a child only insofar as serious physical harm or illness is not at risk. 7. First Amendment Claim: Absolutely protects religious beliefs, religiously motivated conduct remains subject to regulation for the protection of society. a. OLD TEST: to determine if government regulation of religious conduct is violative of the 1st amendment, the gravity of the states interest must be balanced against the severity of the religious imposition. i. Parents can be martyrs, but cannot make their children be likewise ii. Prince parents have no right to free exercise of religion at the price of a childs life iii. Felony liability for failure to seek medical care for a seriously ill child is a compelling state interest


b. NEW TEST: If the state regulation is neutral, generally applicable, and not
intentionally designed to oppress religious practice, then the regulation is not violative of the First Amendment. (Smith v. Employment Division, 1990) V. The Hardest Choices A. Poverty as a showing of neglect (DG, TG etc) 1. State intervention is justified only after it is demonstrated that the need arises form some act or failure to act on the part of the parent which endangers the welfare of the child a. Fundamental liberty interests of the parents in the care, custody, and management of the their child does not evaporate simply because they have not been model parents b. In the absence of danger to the physical or emotional health of a child, or the significant threat thereto, the state should be cautious in intervening. B. Presumption of Best Interest: 1. The purpose of the child neglect statute is to promote the best interest of allegedly neglected children, these interests are presumptively served by being with a parent, provided that the parent is not unfit a. House in deplorable state, and children dirty, in need of clean clothes and a bath b. Grandmother died i. Two of the children at grandmothers, two others at home of M&D ii. All four taken into custody on that day iii. All the evidence of parental housekeeping and child care was gathered on that one day c. DHS did not contact parents re: reunification until October, when the dispositional hearing was to take place d. Parents regularly visited the kids throughout the process C. Medical Decisions (Sampson) 1. Mother is a Jehovah Witness and will not consent to a surgery b/c it requires a blood transfusion a. Will allow surgery, but not blood transfusion and doctors say it is too risky to perform surgery without blood transfusion 2. Surgery would not cure the disease a. Only mitigate the cosmetic injury b. Not necessary for health or life i. Has not seriously affected his general health 3. Medically there is no harm in waiting 4. Child a. Does not go to school exempted from school for the last 6 years b/c facial disfigurement b. 15 years old c. Social development problems 5. Jurisdiction: a. Grounded in either neglect or physically handicapped b. Family Court has jurisdiction Handicapped child: a child, who because of mental, physical, or emotional reasons cannot be educated in regular classes but can benefit by special services and programs 6. Should the Court exercise its authority to compel the surgery? a. First Amendment Arguments: i. The free exercise of religious beliefs is constitutionally protected against any infringement. Free to believe is absolute. ii. Religious practices that are inimical or detrimental to public health or welfare are not constitutionally protected against infringement Conduct remains subject to regulation for the protection of society. iii. Courts have unequivocally upheld the power of the State to authorize



the administration of a blood transfusion over the religious objections of the parent where blood transfusion was shown to be necessary for the preservation of the minors life or the success of needed surgery b. Potential Good vs. Risk to Life i. Facts: no immediate threat, no material effect on life expectancy Dangerous procedure and involves considerable risk ii. RULE: It is not necessary for a childs life to be in danger before this court may act to safeguard his health or general welfare Surgeons, mother, and guardian ignored the developmental and psychological factors stemming from his deformity, which the court deemed to be of the utmost importance Holding: a. Court refused to defer the decision to the son when he reached majority age, and refused to allow Mothers religious views to stand in the way of attaining a chance at a normal, happy existence b. Adjudicated the child (Kevin) as neglected and ordered Mother to provide her son for the surgery