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

Professor Kim Suzanne
Family Law
Fall 2012
Non-marital relationships:
Baker v. State (CB 10-11): Benefits of marriage.  The VT SC discussed the benefits of marriage in that state, including: inheritance rights; preference in being appointed as the personal representative of a spouse who dies intestate; the right to bring wrongful death and loss of consortium lawsuits; the right of workers’ compensation survivor benefits; homestead rights and protections; the presumption of joint ownership of property; the evidentiary privilege for marital communication; hospital visitation rights; and the right to receive spousal support and a share in property in the event of separation or divorce.
Baker v. State
·         Same sex should be provided with the benefits that opposite sex couples have.
o   Tax benefits
o   Intestate law
o   Tort law
o   Health insurance
o   Employment law (Worker compensation benefits)
o   Public benefits
o   Hospital visitation
o   Make decisions for other member when in hospital
o   Spousal support
o   Property rights
Braschi v. Stahl Associates Company (NY 1989) p. 15 –  functional definition of family
§  Facts: Rent control ordinance provides that upon death of a rent-control tenant, the LL may not dispossess “either the surviving spouse of the deceased tenant or some othr member of the deceased tenant’s family who has been living w/ the tenant. Miguel Braschi lived w/ his male partner, Leslie, for 10 yrs in a rent-controlled apt under Leslie’s name until Leslie died. Stahl, owner of the apt building, sent a letter of eviction to Braschi. The two men were considered a couple by family, friends, and their doormen.
§  Issue: Whether Braschi, a male partner, was a “family member” within the meaning of the rent control regulation.
§  Opinion: Yes. The term family should not be rigidly restricted to those people who have formalized their relationship by obtaining a marriage certif or an adoption order.  Instead, the term family should be based on the reality of family life, not fictitious legal distinctions. Such a realistic approach would include two adult lifetime partners whose relationship is long-term and characterized by emotional & financial commitment and interdependence.
§  This it determined by the totality of the relationship, including the exclusive commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services. Exclusivity, longevity, emotional and financial commitment. Dedication, self-sacrificed  of parties, carrying.
§  Here they have joint finances, involved with each other’s families, present themselves as partners (Life partners). Live together for 11 years. Monogamous or no other romantic commitments.
§  Positive about this approach
o   More inclusive, descriptive, better adapt to today’s society and social reality
§  Negative about this approach
o   Norms of tradition
o   Fairness
o   Case of administration
o   Weakens institution of marriage
Hann v. Housing Authority of the City of Easton
·         Defendants cannot arbitrarily exclude all applicants who are not related by blood, marriage, or adoption from low-income housing. They are required to make individual determinations concerning whether applicants constitute a family.
·         Held that exclusion of unmarried couples from eligibility for low income housing programs violated United States Housing Act.
Matter of Mahoney v. Marrano (BB):
·         Respondent mother sought review of an order from the Wyoming County Family Court (New York), which modified a custody order and gave custody of the parties' children to petitioner father.  The mother moved with the children to a religious commune in Vermont. The father went to visit the children there on three occasions but then was told by the elders of the commune that he was no longer welcome and that they would not permit him to take the children for a visit. On appeal, the court held that the mother embarked on a course of conduct designed to deny the father of his visitation rights. Such interference with the joint visitation rights of the children and the father was so inconsistent with the best interest of the children that such action raised a strong probability that the mother was unfit to be the custodial parent. In addition, it was clear that the mother had delegated her parental authority and responsibility to the elders of the commune. Such abdication of parental responsibility was clearly not in the best interest of the children. Finally, the commune's attitude appeared harmful because it failed to prepare the children to lead productive lives in the outside world if and when they chose to leave the commune. As a result, the transfer of custody would serve the best interest of the children.  The court affirmed the trial court's order transferring custody.
Kanter, Commitment and Community: Communes and Utopias in Sociological  Perspective: Utopia is the imaginary society in which humankind’s deepest yearnings noblest dreams, and highest aspirations come to fulfillment, where all physical, social, and spiritual forces work together, in harmony, to permit the attainment of everything people find necessary and desirable.  Utopia is held together by commitment rather than coercion.  Underlying the vision of utopia is the assumption that harmony, cooperation, and mutuality of interests are natural to human existence, rather than conflict, competition, and exploitation, which arise only in imperfect societies.  Grew into Oneida Community.
Kephart, The Family, Society and the Individual (CB 38-47): Oneida Colony was barely able to survive the first few winters.  Famers and Mechanics, invented a steel trap.  Come to be based on the manufacture of the now famous traps.  One integrating element was the fact that practically the entire membership was housed under one roof.  Each adult had a small room, communal dining hall, recreation rooms, library, concert hall, outdoor picnic, etc.  Three basic principles: (1) economic communism – members of O community held equal ownership of all property, their avowed aim being to eliminate competition for the possession, various jobs within the Community were rotated from year to year in order to eliminate feelings of discrimination,  it was work rather than a specific type of job, that was held in high regard; (2) mutual criticism – the Oneida community had neither laws no law enforcing officers, mutual criticism was the method by which such problems were handled a committee of peers would meet with the offender to discuss the matter, the criticism according to Edmonds were administer in a purely clinical spirit, free love, complex marriage, pantogamy, combination of communitarian living and groups marriage, Romantic love or special love as it was called in the Community was believed to give rise to jealously and hypocrisy and, according to Perfectionist doctrine made spiritual love impossible to attain.  This collective spiritual union of men and women also included the right to sexual intercourse.  The system was inaugurated as Parker points out so that the women members might without embarrassment, decline proposals that did not appeal to them; and (3) complex marriage.  Women had important role, believed in eugenics.
Carl E. Schneider, The Channeling Function in Family Law, 20 HOFTSTRA L. REV.: Function of family law, channeling function – the law recruits, builds, shapes, sustains, and promotes social institution.  Five functions.  First is protective – protect citizens from the harm done them by other citizens, second function is to help people organize their lives and affairs in the ways they prefer, help people resolve disputes, in the channeling function the law creates or (more often) supports social institutions which are thought to serve desirable ends, a pattern expectation of individuals or groups enforced by social sanctions, both positive and negative, does not specifically require people to use these social institutions, the social currency they have.  Marriage and parenthood, it is monogamous, heterosexual, and permanent, rests on love, husbands and wives are to treat each other affectionately, considerately, and fairly.  They should be animated by mutual concern and willing to sacrifice for each other.  Parenthood, parents should be married to each other.  They are preferably the biological father and mother of their child.  They have authority.  Parents are expected to love their children and to be affectionate, considerate, and fair.  Support and nurture their children during their minority.  Normative models.  Our legislator might see family law as setting a framework of rules, one of whose effect is to share, sponsor, and sustain the model of marriage.  Discouragement against quasi marital arrangements.  To shape parental behavior, parents to support their children, penalize abuse or neglect of.  Custody law obliquely sets standards for parental behavior and emphasizes the centrality of children’s interests.  Finally, some states further elaborate the relationship between parent and child by obliging adult children to support their indigent parents.  Channeling function namely to create – or more often to recruit social institutions and to mold and sustain them.  Channel people into institutions.  First it does so simply by recognizing and endorsing institutions, thus giving them some aura of legitimacy and permanence.  A second channeling technique is to reward participation in an institution.  Tax law advantages, social security.  Third the law can channel by disfavoring competing institutions, competitors are flatly outlawed, as by laws prohibiting sodomy, bigamy, adultery, and prostitution.  Bans on fornication and cohabitation mean that to have sex one must marry.  People are not forced to marry.  The function forms and reinforces institutions which have significant social support and which, optimally come to seem so natural that people use them almost unreflectively.  Party a specialized way of performing its protective, facilitative, and arbitral functions.  Attempts to induce in spouse a sense of obligation to treat each other well – to love and honor each other.  Also assists the facilitative function.  Family law’s institutions offer people models for organizing their life.  Further marriage offers people a kind of relationship with social and legal advantages which are primarily available precisely because the law gives marriage a special status.  Finally serves the dispute resolution functions, providing rules and a forum in which to adjudicate the disputes.  Like the corporation, marriage and parenthood serve some broad social purposes.  Third such purposed in marriage, regulation of sexual behavior, reduction of sexual conduct, the orderly perpetuation of the species, the building and reinforcement of an economic unit, the regulation of wealth, and the development of individual personality.  Spare people having to invent the forms of family life de novo.  Society and the law supported it.  The channeling function does not just relive people of the burde

t limited occupancy of a dwelling unit to members of a single family. The ordinance defined “family” as only a few categories of related individuals. Specifically, unmarried children of the nominal head of the household could live in the household, provided that the unmarried children have no children residing w/ them, etc. Moore’s family, living together in her home, did not fit any of the statutes categories, and therefore was convicted of a criminal offence.
§  Issue & Holding: Whether the ordinance violates the DP Clause of the 14th. Yes.
§  Opinion: The ordinance slices deeply into the family itself, selecting certain categories of relatives who may live together and declares that others may not. When the gov’t intrudes on choices concerning family living arrangements, the Court must examine carefully the importance of the gov’tl interests advanced, and the extent to which they are served by the challenged regulation. The ordinance has a tenuous relation to the interest advanced by the city, preventing overcrowding. Although there is no fundamental right for a grandmother to live w/ her grandkids, the DP clause protects certain rights associated w/ family. The Constitution protects the sanctity of the family b/c the institution of family is deeply rooted in our Nation’s history and tradition. This tradition is not limited to members of the nuclear family, but includes extended family, which has roots equally deserving of const’l recognition. The Constitution prevents the city from forcing people to live in narrowly defined family patterns.
§  Note the Court distinguishes the ordinances in Belle Terre and Moore. Ct says unlike the ordinance in Belle Terre, the East Cleveland ordinance regulates housing by slicing deep into the family itself. In Belle Terre, did not have regulation blood-related family members; it regulated unrelated individuals, and allowed those related by blood, adoption or marriage to live together.
§  Dissent’s reply to argument that the E. Cleveland ordinance slices deep into family: this is not a deep slice into family life. This is not a fundamental right, to live with your grandkids, unlike saying you cannot live with your wife or children.
§  The issue, then, is how deep is too deep? What constitutes intervening into private family life? In these cases have Supreme Court struggling to define family and what the Constitution says about it, what the scope is of the right to privacy
Kavanagh, Rewriting the Legal Family: Beyond Exclusivity to a Care-Based Standard (CB 3-10): Increasingly families are coming in less traditional forms (step parents, children, etc.)  But the American legal system has its own narrative of what the family looks like, this is the rule of the exclusive family.  Parenting and caregiving in the US is too often understood as work to be done in isolation and in private.  Private, two parent nuclear family, gender norms followed, positioning care as a private concern.  Many court decisions reflect a state intrusion on beliefs by the state about what a family should look like and the rights and responsibilities of just two members of the family.  Today nearly one third of first marriages end within ten years.  One in three women giving birth is unmarried.  Only 69% of children live in two parent families, these families include over six million step kids, 75,000 same sex families with kids, refusing to recognize them in the law is not helpful.  Traditional notions about exclusive families have not stood the test of time so the law needs to adapt.  There should be a care based standard when it comes to children based on the caregiving relationships that surround the child.
Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (CB 19-28): Recognizing and supporting caring personal adult relationship is an important state objective.  A majority of Canadian households have long consisted of married couples or other conjugal couples living together with or without children.  Variety of living arrangements.  Significant number of adult siblings, widows and widowers forming blended family.  Domestic relationships are diverse. Definition of family should include non-conjugal relationships, both between relatives and nonrelatives, they should also recognize caregiving relationships.  Canadians have always formed a diverse array of personal adult relationships, recognizing and supporting these relationships is an important state objective.