Constitutional Law II Outline

Fundamental Right of Privacy as read into the Liberty Clause of the Due Process Clause of the 14th Amendment.

STANDARDS OF REVIEW ON APPEAL
– Abuse of Discretion
o It’s hard unless it’s CLEARLY ERRONEOUS
– Mistake of law
o Applying the wrong standard @ trial Preliminary – prima facie
o Normal Civil – perponderance of evidence
o Heightened Civil – clear and convincing
o Criminal – beyond a reasonable doubt
o Recall: Santosky – terminating parent’s rights must be CLEAR AND CONVINCING EVIDENCE
– Mistakes of Fact
o The trial judge got facts wrong in the opinion

PROCEDURAL DUE PROCESS
1) Is there a liberty interest?
2) If there is a liberty, how much process is due???

ELDRIDGE FACTORS
– Private interest affected
– Risk of erroneous deprivation & probable value of additional procedures
– Government interest (including administrative/fiscal)

Braschi Test
– Totality of Circumstances
o Exclusivity & Longevity – monogamy, the longer the better
o Emotional and Financial Commitment – paper trails for financial, legal documents, wills, etc.
o Manner of Daily Life & Holding Out – favorite testimony by the doorman
o Reliance on each other for daily “family services” – sexual relationship and beyond – cleaning, cooking, etc.

RULE FROM TROPEA: Best interest of the Child
In determining the best interest of the child…
FACTORS (include but not limited to)
(1)each parent’s reasons for seeking or opposing the move
a. Must have a relation based upon the relationship with the child [noncustodial parent – court looks to make sure that they are not just being vindictive] (2)the quality of the relationships between the child and the custodial and noncustodial parents
a. Non custodial parent must exercise visitation proactively, if not, then the move wouldn’t matter
(3)the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent [CALLED A CENTRAL CONCERN in this opinion] a. This is kind of what it should all be about
b. PRAGMATICS à What reality makes the biggest difference – FINANCIALS!!!
(4)the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally, and educationally by the move
a. ABOUT THE CHILD
(5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

Constitutional Law

Positive Law – STATE LAW (except when it’s not…)

Challenges to “positive law” under federal and state constitutions
– important – government is someone involved à not just between 2 people

The primacy of state law (federal exceptions)

Origins in EQUITY – discretion

DPC
EPC
1ST AMENDMENT

Codified
Caselaw
Common Law

STATE ACTION

PRIVATE PARTIES
– however, abuse and neglect (involve the state – parens patriae)

GROUNDS FOR DIVORCE
I. Cruel and inhuman 170 (1):
a. endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
b. Courts will look at the length of the marriage:
i. The longer the marriage, the less likely it is to be deemed cruel and inhuman. The burden of proof is higher. It could just be just transient marital discord. We know this from Brady and Silver.
c. More than “dead marriage” “riotous quarrels” “unpleasant”
d. The underlying policy is to preserve long-time marriage. LESSON: IF YOU ARE IN AN UNSAFE MARRIAGE, GET OUT SOONER RATHER THAN LATER.
e. The courts want wrong-doers. They don’t want to accept the idea that a dead marriage is enough because it is too close to no-fault.
II. Abandonment 170 (2):
a. period of one or more years.
b. UNJUSTIFIABLE REFUSAL TO FULFILL BASIC OBLIGATIONS OF MARRIAGE DESPITE REPEATED REQUESTS
c. Constructive abandonment:
i. Unjustifiable refusal:
ii. Refusal may be justified (“erotic nightwear”)
iii. Obligation: Sexual Relations
iv. Repeated requests:
v. 365 days
III. Confinement 170 (3):
a. The confinement of the defendant in prison for a period of three or more consecutive years AFTER the marriage of plaintiff and defendant.