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Family Law
Rutgers University, Newark School of Law
Kim, Suzanne A.

Family Law
Fall 2011

A)           WHAT IS A FAMILY?
1.            Introduction
(a)          What relationships should we define as a “family?” What characteristics do we have in mind when we say that an arrangement is “in substance” a family relationship?
(b)          Is marriage a private or public institution?
(1)          Public – public endorsement
(2)          Private – decide who you marry and when
Marital status insulates people from state review in contrast those not married are asked to open their lives into intense scrutiny and live more prescribed ways in order to get benefits; Ironic: marriage is usually viewed as the ultimate submission to the state

(c)           Traditional definition of family: limited to relationships based on
Ceremonially initiated marriage, consanguinity and/or adoption

Non-marital relationships
Traditionally, the law was hostile to unmarried couples who were living together – charge them with fornication, cohabitation, and sodomy. Some of these laws still exist but rarely enforced

(a)            Family = conjugal relationships Baker v. State

Baker v. State (VT. Sp. Ct. 1999)
Marriage laws are significant b/c it transforms a private agreement into a source of significant public benefits and protections. They include:
(1)      Right to perceive a portion of the estate of a spouse who dies 
(2)      Preference in being appointed as the personal rep of the spouse who
dies intestate
(3)      Right to bring a wrongful death lawsuit on behalf of spouse
(4)      Right to bring an action for loss of consortium
(5)      Right to worker’s comp survivor benefits
(6)      Right to spousal benefits of public employees – like health, life,  
disability and accident insurance
(7)      Opportunity to be under insurance
(8)      Right to claim marital privilege
(9)      Homestead rights and protections
(10)  Presumption of joint ownership of property & right of survivorship
(11)  Hospital visitation, treatments, etc
(12)  Right to receive and obligation to pay child support, spousal support, maintenance and property division

(b)           Family = lifetime domestic partners with emotional & financial
interdependence         Braschi v. Stahl Assocs. Co.

Braschi v. Stahl Assocs. Co. (Ct. of Appeals, NY 1989)
Whether a gay couple – who  have lived together for 10 years (cook together, share finances, mutual caregivers, etc)  and one is the formal tenant on the rent-controlled housing lease – may be considered “spouses” or “family” so that the surviving spouse cannot get evicted by the landlord?
Court held that a lifetime partner is a family member in the context of a long-term relationship characterized by emotional & financial interdependence.

Factors in assessing the relationship:
(1)    The exclusivity & longevity of the relationship
(2)    The level of emotional & financial commitment
(3)    The manner in which the parties conduct their lives and how the parties hold themselves out to society AND
(4)    The reliance the parties place on each other for daily family services
Look at legislative intent: 1) protect class of individuals in their efforts to
maintain housing 2) facilitate rent control to market system – vacancy de
control goal

This is a LANDMARK decision, where NY recognized the rights of gay partners
to be free from housing discrimination à BROAD FUNCTIONAL DEFINITION OF

(c)            Family = unmarried couples with children Hahn v. Housing Authority of the City of Easton

Hahn v. Housing Authority of the City of Easton
Whether under Federal law, one can exclude unmarried couples with children from low-income housing?
No, under federal law, you can’t exclude unmarried couples with children from low-income housing.

Reasons for the holding:
(1)    Demographics:  There are too many unmarried couples w/kids to exclude them from housing.
(2)    Most zoning ordinances already allow heterosexual couples to live together.
Hahn and similar decisions have strengthened the New Right, as alternative lifestyles are becoming                 more accepted.

(d)           Family = is NOT a commune where parental authority has been delegated to strangers
Matter of Mahoney v. Marrano

Matter of Mahoney v. Marrano (Sp Ct NY App Div 1987)
Whether a commune where “elders” made decisions re children can be considered a family?
No; example of Courts’ reluctance to recognize a non-traditional family, especially when their standard of living contrast so greatly with best interest of the child

2.            Non-sexual relationships (ZONING cases)
(a)          Family = IS NOT a communal group with no blood ties Village of Belle Terre v. Boraas

Village of Belle Terre v. Boraas (US 1974)
Whether village ordinance limiting the number of non-related people (in this
case college students) living in a house is constitutional?
This was not a family because they’re were not related in anyway and they do
not “cook or live together as a single housekeeping unit”. The ct sustained the
ordinance under the police power of the state and state ordinance did not
interfere with the right to travel or with fundamental right. Court held that the
statute bears a RATIONAL relationship to the permissible state objectives of
limiting congestion and noise and promoting family values
Marshall: law is both over and underinclusive; law undertakes to regulate the
way people choose to associate with each other within the privacy of their own
Prompts consideration of related and unrelated groups (contrast with Moore)

Supreme Court holds that communal families (of unrelated persons) have no
fundamental rights to association or privacy

Penobscot Area Housing Dev. Corp. v. City of Brewer (Sp Judicial Ct ME 1981)
Whether a group home for retarded adults met the definition of family under
City ordinance?
Ct. determined that the home wouldn't create a traditional family setting b/c:
-No perm resident/control when they would come & go.
– The living arrangements were not permanent
– The residents had no control over who lived in the house
– No central figure, rotating staff.
-No individual cooking or group cooking, staff would do that.
Court said objective standards  must apply to determine what is a family

(b)      Family = IS a “single housekeeping unit,” regardless of blood or marriage Borough of Glassboro v. Vallorosi

Borough of Glassboro v. Vallorosi (Sp. Ct NJ 1990)
Whether 10 college st

OSLY TAILORED to achieve state interests

(3)    In assessing a marriage regulation, look at whether it’s a direct barrier to marriage or distinguishable based on marital status (if latter, court will look at it merely as an indirect restriction and more lenient)

(b)               Race restrictions = Unconstitutional Loving v. Virginia

Loving v. Virginia (1967)
Whether VA’s statute which makes it a felony for a white person to
intermarry with a black person or the reverse was constitutional?
No b/c the law violates BOTH the Equal Protection Clause and Due Process Clause
·                                                         Equal Protection violation = The statutes were clearly drawn upon race
based distinctions. The legality of certain behavior turned on the races of
the people engaging in it. Equal Protection requires, at least, that
classifications based on race be subject to the “most rigid scrutiny” and 
prohibits classifications drawn by any statute that constitutes arbitrary and
invidious discrimination. The fact that Virginia bans only interracial
marriages involving whites is proof that the miscegenation statutes exist
for no purposes independent of those based on arbitrary and invidious
racial discrimination.
·                                                         Due Process violation = Marriage is one of the “basic civil rights of man,”
fundamental to our very existence and survival…. To deny this fundamental
freedom on so unsupportable a basis as the racial classifications embodied
in these statutes, classifications so directly subversive of the principle of
equality at the heart of the Fourteenth Amendment, is surely to deprive all
the State’s citizens of liberty without due process of law. The Fourteenth
Amendment requires that the freedom of choice to marry not be restricted
by invidious racial discrimination. Under our Constitution, the freedom to  
marry, or not marry, a person of another race resides with the individual
and cannot be infringed by the State.
Estab. Right to Marry; ending all race-based legal restrictions on marriage in US

The key to this case is articulated in J. Stewart’s concurrence. The miscegenation
statute was improper because it made the legal consequences of an action turn on
the races of the persons participating in it.

(c)                Poverty = Unconstitutional (restrictions on the right to marry based on poverty is invalid) Zablocki v. Redhail (1978) (SIGNIFICANT INTERFERENCE to marriage is invalid)