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

Outline: Family Law – Fall 2015
Rutgers School of Law Newark
Professor Kim
·         Non-Marital Relationships
o   Functional Equivalency Approach to Family
§  Goes beyond just recognizing family by blood, marriage, or adoption
§  Upside: reflects reality of modern society
§  Downside: makes it harder to determine who comprises family
§  Totality of circumstances; factors to consider:
·         Exclusivity and longevity of relationship
·         Emotional and financial commitment
·         How they hold themselves out to society
·         Reliance on one another for daily familial services
·         Cohabitation
o   Baker v. State (BB) – benefits to married couples have never been greater and same-sex couples must have these too: inheritance should spouse die intestate, wrongful death action for spouse, health insurance, marital immunity
o   Braschi v. Stahl Assocs. Co (BB) – NY law = can’t evict spouse if death to one; Braschi lived with significant other in apartment for eleven years but they never married
§  Functional equivalency approach to family – lifelong partners should be considered “family”
§  Totality of the circumstances approach (longevity of relationship, shared finances, represent as couples to others, exclusivity, cohabitation)
o   Hann v. Housing Authority of the City of Easton (BB) – notice of eviction for two unmarried people who had three children together because not in the definition of “family” for low-income housing
§  Definition should consider “modern” families – couples with children create a “positive” family situation
o   Matter of Mahoney v. Marrano (BB) – Mother took child to live in commune away from father, elders wouldn’t let father visit, child isolated from outside work
§  Custody given to father; not a positive environment for the child
·         Non-Sexual Relationships
o   Village of Belle Terre v. Boraas (Pg. 547) – city had ordinance prohibiting more than two unrelated people from living together; six students wanted to live together
§  Living with others is not a “fundamental right” (rational basis test)
§  City can use housing ordinances to protect family values, clean air, overcrowding of streets (all legitimate state police power)
§  Dissent: uses heightened scrutiny due to “right to establish a home” under 14th amendment
·         Means aren’t narrowly tailored to the ends – problem of fit
·         Other options could limit the state goals
o   Penobscot Area Housing Dev. Corp. v. City of Brewer (Pg. 551) – city ordinance saying only “single families” could live in one house; ∏ wanted to create a wanted to create a group home for mentally disabled individuals
§  Not allowed because this is not a typical familial structure – staff not permanent and patient only lives there for 1.5 years
§  Doesn’t advance zoning purpose
§  Residents don’t choose who comes in, who leaves, length of stay, etc. and household duties are not delegated in family style
o   Borough of Glassboro v. Vallorosi (Pg. 553) – city prohibited groups other than “single families” from residing together; students wanted to live together
§  Okay here because students looked like they formed a family: cook together, eat together, clean together, share chores, share funds
§  Plan to live together in a “stable and permanent living situation” so “traditional equivalency” of family
o   Moore v. City of East Cleveland (Pg. 535) – ordinance limited dwelling to “single family”; Ms. Moore who lived with her son and two grandsons (cousins) was evicted because this didn’t fit the definition of “single family”
§  Not constitutional because this “cuts into the family” – constitution protects the sanctity of the family
§  More than rational basis test because interferes with blood ties
§  This is too narrowly defined
·         Introduction
o   What restrictions are appropriate in marriage?
o   What is the purpose of marriage?
·         Constitutionality of Marriage Restrictions
o   Loving v. Virginia (Pg. 133) – black woman and white man were married in D.C., moved to VA where it was illegal, and were told to leave the state
§  Rigid scrutiny: Distinctions based on race are not allowed under 14th A. – doesn’t matter that it was applied equally to both races in terms of punishment
§  Do not advance a permissible state objective independent of racial discrim.
§  Due Process has also been violated because we have a fundamental right to marry
o   Zablocki v. Redhail (Pg. 139) – WI statute said that if you have issue that you need to pay child support for you have to get a court order saying that you have paid before you can marry
§  Statute unconstitutional; rigorous scrutiny because privacy to enter into a relationship that traditionally starts a family (significant interference)
§  Significant burden to some who want to marry – intrusion into freedom of choice
§  Fit is wrong
o   DIRECT & SUBSTANTIAL interference with the right to marry gets HEIGHTENED SCRUTINY (if not direct or substantial à rational basis test)
o   Turner v. Safley (Pg. 148) – MI statute that inmates couldn’t get married unless they were given permission by superintendent of prison due to “compelling reasons” to get married (usually birth of i

  Definitions of incest:
·         Consanguinity – blood relationships
·         Affinity – legal familial relationships such as marriage and adoption
§  State Justification for Incest Bans:
·         Possible genetic defects of children
o   But what about evidence that first cousin sexual relationships don’t really have this threat?
o   What about when members to marriage cannot procreate?
·         Social norms
·         Protects minors in family relationships
·         Protects marriage from familial threat
·         Forces society to have separate units and reach outside the family to forge relationships
·         Protect children’s development without the threat of sexual exploitation
o   Same-Sex Marriage
§  United States v. Windsor (BB) – DOMA – allowed states to refuse to recognize same-sex marriages performed under the laws of other states and defined spouse as husband or wife in heterosexual marriage; Spyer died in 2009 and left estate to Windsor, but Windsor didn’t qualify for marital exemption of property taxes under DOMA even though same-sex marriage recognized in NY
·         Federal law may be designed to injure the same class the State seeks to protect (family matters traditionally left to State)
·         Law has purpose and effect of disapproval for same-sex couples
·         Takes away fundamental benefits of marriage to some couples: EP
·         Gov’t efficiency not enough to deny these benefits
§  Obergefell v. Hodges ­(BB) – Legalized same-sex marriage in 2015
·         Right to personal choice regarding marriage is inherent in the concept of individual autonomy
·         Right to marriage is fundamental because it supports a two-person union unlike any other
·         Right to marry safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education
·         Marriage is a keystone of our social order where society protects the married couple by conferring benefits
·         Based on fundamental due process right
·         Constitution is a living, breathing document
§  Obergefell translated by Polikoff: