Family Law Outline – Fall 2013(Purvis)
I. Right to Privacy: intermediate level of review (stricter scrutiny)
A. Freedom of intimate association (expansive positive right) v. zone of privacy (area in which the state cannot interfere, negative right freedom from)
1. Balance gov’t. interests with extent to which regulations serve purpose
2. Moore v. City of East Cleveland: legitimate state interest in preventing overcrowding not sufficiently related to restricting family definition
i. Zoning (health & safety goals of state) v. privacy (liberty interest)
3. Precedent: state can req. education; parent’s exclusive right to how
B. Privacy = interest deserving protection, right from gov’t. intrusion; “most private human conduct, sexual behavior and in the most private of places, the home”
1. Liberty = adults should be able to do as they please in own homes and still be regarded and respected as free persons
2. Griswold v. Connecticut: Planned Parenthood leaders arrested for handing out contraceptives; legit. gov’t. purpose of preventing adultery but legis. sweeps too broadly, should target mfg. and sale, not use
3. Einstadt v. Baird: prof. arrested for handing out contraceptives to single woman; legis. goal of deterring premarital sex not reasonable & actually moral legis., too broad, violation of equal protection re: married & single
i. Extends right to privacy re: sexual conduct to ALL individuals
ii. Casey: minors have right to make decisions about contraceptives
4. Lawrence v. Texas: rejects anti-sodomy statute as not furthering a legit. state interest, does not discuss whether right is fundamental & limits holding to criminalization of private sexual conduct, not marriage, etc.
i. Tradition & history alone are insufficient to enact legis. but relevant
ii. Overruled Bowers v. Hardwick (1986): upheld constit. of GA law criminalizing sodomy, moral legis. OK BUT still defining fundamental rights narrowly as only those implicit for liberty
iii. Romer v. Evans: CO constit. classifying gays as separate was intentionally discriminatory and served no legit purpose
II. Marriage
A. Who can marry: (1) intent & consent (age, capacity); (2) eligibility to marry (single) & marry each other (incest, same sex); (3) legal formalities (license & civil solemnization or religious ceremony)
1. CL marriage: (1) informal (2) express intention (3) community acceptance
2. Loving v. Virginia: state cannot prevent mixed marriage b/c (1) suspect class & equal protection (2) marriage is fundamental right & strict scrutiny, (3) no legit. state purpose (white supremacy)
3. CON LAW REVIEW: equal protection clause
i. Rational basis review: gov’t. permitted to differentiate b/t people so long as there is a rational reason for the distinction
a. Struck down if ∏ can show no relationship to legit. interest
ii. Strict scrutiny: applies to suspect classifications—race, national origin, gender—where discrimination is deep-seated and therefore law is presumed invalid unless state can show the distinction is necessary or narrowly tailored to achieve compelling public interest
iii. Quasi-suspect classifications permitted if substantially related to an important state interest—intermediate standard of review
4. Reasonable regulations that don’t directly & substantially interfere w/ right to marriage OK, can attach consequences, can’t regulate CHOICE to marry
i. Zablocki v. Redhail: legit. interest in protecting child welfare but legis. too broad, disproportionately affects poor, not tailored
ii. Jobst: termination of social security benefits upon marriage OK b/c not direct interference w/ right, consequences flow from choice
a. Turner: do not lose right to marry if in prison
b. Oakley: failed to pay child support so told he would go to jail if he had more kids; narrowly tailored b/c has a choice
B. Same Sex Marriage
1. Civil unions & domestic partnership = some legal benefits of marriage
i. Goodridge v. Dept. of Public Health: civil marriage created by gov’t. not religion & has overwhelming social benefits
a. State purpose of (1) providing favorable setting for procreation not legit. b/c heterosexual couples don’t marry only for kids, (2) ensuring optimal setting for child-rearing not rationally related to protecting child welfare, (3) no foundation for assumption that same sex couples are dependent on scarce state & private financial resources
b. Redefine CL marriage as voluntary union of 2 persons
2. Hernandez v. Robles: NY prohibition against gay marriage OK b/c (1) no fundamental right to same sex marriage, (2) not discriminatorily based on gender, (3) not a suspect class, (4) prohibition supported by legit. interest
i. Prevent same sex marriage b/c (1) welfare of children (mom & dad) & family stability, (2) prevents temporary relationships, (3) marriage intended to create stability & permanence for birth
ii. Assimilationist (denormalization of heterosexuality): marriage is central to social structure, gays should benefit from marriage, permitting gays to marry makes them equal (not endorsing institution but extend right to all) but will transform institution
iii. Radical (coerced normalization): marriage inherently unequal & sexist so affirm gay identity & legitimacy of alternative families
3. Pro: (1) due process: liberty interest, fundamental right to marry, (2) rational basis review: not related to legit. state interests, (3) equal protection, intermediate review, (4) sex-based classification
i. States increasingly recognize spousal-type benefits BUT form of separate but equal, does not provide same benefits
4. Con: (1) not fundamental to marry same sex, (2) not absolute denial, can still marry (w/ other sex) so no sex-based discrim., (3) legis. should change, (4) rational basis review: reasonable related, ct. need not agree
i. Interest in preserving institution of marriage NOT improper intent as white supremacy motivations in Loving, not suspect class
5. Full faith and credit: marriage valid in all juris. BUT void for public policy
i. Civil restrictions on marriage: void or voidable arrangement
ii. Criminal restrictions: incarceration or fines
iii. DOMA: (1) no state required to give effect to others’ legalization, (2) marriage = heterosexual union SO states can reject regardless of choice of law rules, sufficient contacts at time of marriage
C. How people can marry & restrictions
1. Void marriage = either party can challenge at any time (incest, bigamy, lack of capacity, same sex)—consider interest in regulation of marriage
2. Voidable marriage = need judicial declaration of invalidity, challenged by a spouse, not 3rd party (age); defined by intensity of public policy
3. Polygamy: intent to enter into multiple marriages sufficient (State v Holm: private ceremony, State v. Green: divorced ea. time), laws are neutral & of general application so no adverse impact on religion, rationally related to regulating marriage and serving state interests in preventing marriage fraud, misuse of gov’t. funds, exploitation & abuse of women
i. Holm D: other laws sufficiently protect women & children so polygamy laws not narrowly tailored, consenting adults OK
ii. Under Lawrence have a right to private conduct BUT state does not need to recognize your choice or polygamy (Bronson v. Swenson: wife’s consent to 2nd marriage irrelevant to state right to regulate)
4. Incest: intercourse or marriage b/t persons related to by any degree of blood or marriage, never direct lineal descendants, 1st cousins OK in ½
i. Affinity = legal (by marriage, adoption); consanguinity = blood
ii. State interest = genetics, protecting young from exploitation, stability of family hierarchy, ensures mov’t. outside the family, encourages political & economic ties—reflects social morals
iii. Smith v. State: right to privacy does not mean recognition of all private relationships (pre-Lawrence); apply rational basis review, state’s ban is legitimate and reasonable
a. Right to privacy arises from due process not constit.
iv. Muth v. Frank: Lawrence does not permit incest b/c state interest can still justify constraining liberty interest
5. Age restrictions & consent: min. age 18 in most states, some permit permission of guardian, parent or the ct. (rational basis review)
i. Void for the very young, otherwise voidable marriage IF challenged by married minor; becomes valid when reach age of majority
ii. State interest = protect kids from being taken advantage of & from own poor decision making, unstable marriages BUT abortion OK
iii. Fraudulent inducement: need (1) proof that victim would not marry if truth was known, (2) objectively society would support that decision, reasonable person would not marry
a. Ct. tends to uphold marriage, find mental capacity
D. Equitable solutions to non-legal marriages
1. Common law marriage = (1) holding out, (2) living together, (3) intent
i. Lacks official certificate but still legal marriage, need divorce to end
a. Legal marriage requires (1) license and (2) solemnization
ii. In re Estate of Hunsaker: clear intent to marry, evident holding out
aw: rely on equitable doctrines to protect unmarried such as separate K that relates to something other than cohabitation (joint economic venture)
1. K setting terms of cohabitating relationship too close to prostitution
i. Hewitt v. Hewitt: unmarried couple have NO rights against each other based on status; unwilling to enforce express K b/c of cohabitation & legis. responsible for recognizing changing values
2. Marvin v. Marvin: couple holds selves out as married, ct. finds K where consideration is homemaking contributions (NOT sex)
3. Ct. can also look at conduct to find implied K (in fact or law), create constructive trust (avoid unjust enrichment) based on quantum meruit (payment for household services rendered), cohabitation agreement
i. Equitable fiction, claim-based remedy, terms of express K
ii. Recognition that non-marital relationships exist & need protection
B. Rights adhere to STATUS, not equitable (cohabitation à partnership à marriage)
1. In re Marriage of Pennington: recovery based on cohabitation (p. 266)
i. Meretricious relationship = stable marital-esque relationship where parties cohabitate knowingly w/out marriage, est’d through (1) continuous cohabitation, (2) duration of relationship, (3) purpose of relationship, (4) pooling of resources for joint projects, (5) intent
a. Fact-based inquiry, award ‘rights of marital property’ but actual distribution unclear, only property, = distribution
ii. Ct. must est. (1) existence of meretricious relationship, (2) evaluate interests of parties, (3) just & equitable distribution
2. Domestic partnership = new status granting unmarried cohabitating couples some benefits and rights of marriage, // to civil unions
i. ALI domestic partners accumulate property in the same manner as married starting with cohabitation, entitled to alimony
C. Parent-child relationship: differential treatment b/t non-marital mothers & fathers and b/t married and unmarried fathers; under CL, children in marriage presumed to be those of husband & illegitimate children considered part of mother’s family
D. Establishing fatherhood
1. Stanley v. IL: mother dies, father deemed unfit and children becomes wards of state, granted rights to fathers of non-marital children, overcome presumption that unwed fathers are unfit BUT must show fitness
i. Biology + parental relationship = natural father entitled to hearing to determine rights of custody (presumption in favor of father)
2. Michael H. v. Gerald D.: marital father’s rights greater than biological; family integrity & privacy essential, constit. right to family, not lover
i. Only husband & wife can challenge paternity, not natural father
ii. // to Bowers v. Hardwick: dispute over characterization of interest
iii. D: father est. parent-child relationship, interest is parenthood (not of non-marital father), tradition bad basis to est. liberty interest
E. Establishing motherhood: ct. prefers TWO parents, ignores non-family claims
1. Johnson v. Calvert: couple implants fertilized egg into surrogate; rights accrue to ‘natural’ parents with intent to conceive, protect nuclear family
2. K.M. v. E.G.: 1 donated egg for other to birth, both have equal rights, held selves out as married, est. significant relationship w/ mother and child (not anonymous donor), genetic relationship so visitation rights
i. D: signed form giving up rights, precedent relies on intent, not genetics, case-by-case determination of best interests
F. Financial liability for children: prioritize child’s interest over parent’s
1. Wallis v. Smith: mom lied about use of contraceptives but means of conception irrelevant to dad’s obligations of child support
