Family Law Outline

FAMILY LAW
Our Goal: Helping people meet there needs for protections and care
PFACE:
·        Protection- of people esp. children
·        Facilitation (aka Accommodation, Descriptive)
·        Arbitral- helping people resolve disputes
·        Channeling- law is trying to influence what people do
o   If your going to protection you going to have to channel most likely
·        Expressive (to differentiate functions)- political and moral values
Constitutional Constraints/ State Regulation of Family and Intimate Relationships
 
·        Public Law- law affects the family in many different ways
o   By deciding what groups constitute a family the law has a significant impact on the benefits of familial structures
·        The constitution is implicated in family law
o   There are a lot of specifics about the constitutional doctrine
§ Nature, extent, scope of const. right of privacy
§ What is the relationship between the const. right of privacy to equal protection doctrine?
§ Substantive Due Process
·        Federal government- due process clause (5th)
·        State government –due process clause (14th)
·        Moore v. City of East Cleveland
o   Goes beyond the scope of the traditional family
o   Court used strict scrutiny because a fundamental right was involved
o   “The full scope of liberty granted by the due process is a rational continuum which broadly speaking, includes a freedom from all purposeless restraints….and certain interest require particularly careful scrutiny of state needs to justify their abridgement”- Harlan
§ When there is a fundamental interest at stake, this certain interest gives rise to heightened scrutiny.
o    “ Appropriate limits on substantive due process come not from drawing arbitrary lines but rather from careful respect for the teachings of history and solid recognition of the basic values hat underlie our society”-Griswold
§ Helps explain what these fundamental interest are
o   Whether or not the “conjugal tradition” is better is much more controversial
o   Discuses the basic reasons why certain rights associated with the family have be accorded shelter under the 14th amendment due process clause
·        Notes
o   Constitutional protects freedom of family members to chose to live together as an extended family
o   But does not require a state to provide certain benefits to assist members of extended families to live together
·        Evolution of the Right of Privacy
o   Origins of the right to privacy w/in the family trace back to Meyer v. Nebraska and Pierce v. Society of the Sisters
§ Concerned with parents rights to make decisions about their children’s education and had dicta concerns a parents 14th amendment substantive due process liberty interest in the “care custody and control of children”
·        Griswoldv. Connecticut
o   Privacy of marital bedroom
o   Can’t intrude on marital privacy which is a fundamental right
·        Eisenstadt v. Baird
o   Court turns to equal protection clause
o   Extends to unmarried- single persons have the same right
·        Contemporary Understandings of Privacy
o   In Bowers v. Hardwick the SC embraced a arrow test for recognized fundamental rights under the constitution:
§ To qualify for heightened judicial protection- a claimed liberty must be “deeply rooted in this Nations history and tradition” or “implicit in the concept of ordered liberty”- such that neither liberty nor justice would exist if it were sacrificed
o    The court in upheld the GA law criminalizing sodomy
·        Lawrence v. Texas
o   2003- SC overruled Bowers as a violation of substantive due process
o   Moves towards sexual privacy
o   Right to choice ones on sexual interests
o   Depends how we frame the issue
o   Addresses the fact that judges are