FAMILY LAW OUTLINE FALL 2011 Prof: Solangel Maldonado
WHAT IS FAMILY? (1)
I. Course Introduction
a. Overview
i. Regulation on entry into marriage
ii. Marriage as a contractual relationship
iii. Reproductive Technology
iv. Divorce – grounds for, economic, child custody, child support
b. Themes
i. Marriage as a contract regulated by the state
ii. Role woman’s movement has played in family law
1. Custody, alimony
iii. Shift from state law to the federalism of family law & uniformity
c. Family
i. Both blood relationships and legally sanctioned relationships
ii. Common law marriage
iii. Same-sex cohabitation – controversial
iv. Friends choosing to live together are not a family (probably)
v. Can have a family without the marital relationship
d. Tangible Benefits of Marriage
i. Health Insurance
ii. Tax Benefits
iii. Property Transfers at Death
iv. Social Security
v. Pension
vi. Presumption of Next of Kin
e. Marrying
i. Restrictions
1. Sex gender
2. One spouse at a time
3. No family members
4. Infancy
5. Mentally competent
6. Fraud/duress/coercion
7. Blood tests/waiting periods/attire
ii. Constitutional Limits
1. Race
2. Economic Status
3. Incarceration
4. Sex/gender
f. Void Marriages
i. Incest
ii. Same sex
iii. Mental Illness – varies from state to state
iv. Bigamy – last in time presumption
g. Voidable
i. Age
ii. Fraud
iii. Coercion/Duress
iv. Physical Incapacity
v. Intoxication
vi. Mental Illness
II. Adult-Child Relationships
a. Kavanaugh Excerpt
i. Doctrine of Exclusivity: Legal families have two defining features:
1. Children have only two parents, of the opposite sex and preferably married.
2. Adults stand in relation to children either as full legal parents or as strangers. Parents generally have exclusive control over and access to children, without the possibility of some access or limited control or input.
3. Parents given more control, narrows beneficiaries
ii. The statistics suggest a shift to full inclusive families
1. Caregivers should be included as long as they don’t have a separate motive (unpaid, mutual bond) – rights flow from the relationships between caregivers and children (village to raise child, harder to terminate rights, more possibilities for Standing in litigation)
2. “Needs” are more important than “rights”
iii. Best-Interests Standard: The best interests must be balanced with the parents’ fundamental right to raise their child as they see fit (14th Am.).
iv. Care-Based Standard: These are mutual care-giving relationships, in which an adult provides for the needs of a child, should be fully recognized. The level of legal protection accorded should be appropriate for, reflective of, and limited to that which is beneficial & necessary to protect & support the established relationship. (relationships>parental rights)
III. Adult Relationships: Conjugal and Non-Conjugal
a. Baker v State (Benefits and Protections of Marriage)
i. Benefits: Tax benefits, right to inherit property, right to bring certain lawsuits, rights to spousal benefits such as health and life insurance, evidentiary privilege, hospital visitation, legitimizes the relationship, immigration, and right to receive/obligation to provide support, etc.
ii. Rationale: (a.) Uniformity; (b.) Beliefs regarding stability & longevity; (c.) Simplification (administrative efficiency); (d.) Makes people happier & more productive; (e.) Social acknowledgement
iii. The state encourages marriage in various other ways as well
b. Smock and Manning Excerpt “Living Together Unmarried
i. Trends: lower childbearing, higher divorce rates, increase in age at marriage, rising non-marital childbearing, rising levels of cohabitation.
ii. Cohabitation is cheaper than marriage. Also, marriages that begin as cohabitation tend to last longer. They also tend to have lower education levels, lower income levels, and higher poverty rates than married couples.Cohabitors are also more likely to be black or Hispanic than white.
c. Braschi v Stahl (Who is a family member? Totality of the Circumstances Approach)
i. The term “family” should not be rigidly restricted to those people who have formalized their relationship
ii. TEST – Objective examination of the relationship of the parties involved.
1. FACTORS: Totality of the relationship. (i.) Exclusivity and longevity of relationship; (ii.) Level of emotional and financial commitment; (iii.) How they conduct their everyday lives and hold themselves out to society; (iv.) Reliance on each other for daily family services
iii. Problems with a functional system: (1) Too intrusive (2) Non-uniformity
iv. NOTE: In this case, Braschi couldn’t marry so the result may differ if it was his GF
d. Law Commission of Canada Excerpt: Beyond Conjugality
i. “Economic Family” – broad concept that encompasses all relatives living in the same household, regardless of how they’re related. This may be the approach NJ is trying to mimic with its “functional equivalent” language.
ii. There are Four Legal Models of regulation of personal relationships
1. Non-Conjugal
a. Private law model that uses contracts
2. Conjugal
a. Ascription – treating unmarried cohabitants as if they were married, without their having taken any positive action to be legally recognized.
i. Cons: This treats ALL conjugal r’ships alike and infringes on autonomy
b. Registration – provides alternative way for the state to recognize personal relationships.
i. Pros: promotes equality, affirms autonomy, broadens options.
ii. Cons: difficult to design the scheme
c. Marriage
e. Should the State regulate (and not just promote) marriage?
i. YES: if you are receiving benefits then you are subject to regulation (strict scrutiny)
ii. Challenge: What are the limits to state regulation?
IV. Groups (we skipped these)
a. Village of Belle Terre v Boraas (Law in which a village restricted to one-family dwellings)
i. The law must be “reasonable, not arbitrary” and must bear “a rational relationship to a [permissible] state objective.”
ii. There was no violation, court drew line at marital or blood ties
iii. Family = “One or more persons related by blood, adoption or marriage, living and cooking together as a single housekeeping unit, exclusive of servants. A number of persons, but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption or marriage shall be deemed to constitute a family.”
b. Moore v City of East Cleveland (Did Housing Ordinance violate the DPC of the 14th?)
i. Cleveland’s housing ordinance limited occupancy of a dwelling unit to members of a single family. Part of the ordinance was a strict definition of “family” which excluded Mrs. Inez Moore who lived with her son and two grandsons.
ii. Purality held that the ordinance violated Moore’s rights as it constituted “intrusive regulation of the family” without accruing some tangible state interest.
c. Penobscot Area Housing v City of Brewer (Retarded persons living with 2 staff members)
i. Family = single individual doing own cooking, living upon premises as separate housekeeping unit or collective body of persons doing own cooking and living together as a separate housekeeping unit in a domestic relationship based upon birth, marriage, or other domestic bond.
ii. The concept of of “domestic bond” implies the existence of a traditional family-like structure of household authority.
iii. In this case, because the staff would not live at home and would serve on a rotating basis, central figure of authority was clearly absent.
d. Borough of Glassboro v Vallorosi (Ten unrelated college students lived together)
i. Family = “one or more persons occupying a dwelling unit as a single non-profit housekeeping unit, who are living together as a stable and permanent living unit, being a traditional family unit or the functional equivalent.”
ii. Distinguished from Penobscot – the kids were doing all their own cooking, cleaning, etc. Also, membership was stable. The Court seems to emphasize cooking and cleaning
iii. Court held they were a family.
1. The “single family” is equated with “singe housekeeping unit” and Students had a “stable and permanent living unit” à functional equivalent of a family.
V. The Purpose and Meanings of Family Law
a. Schneider Excerpt: The Law as “Channeling Function” that promotes marriage
i. The law recognizes and endorses the institution, rewards participation, and disfavors competing institutions.
ii. Promotes marriage: inhibits divorce, disfavors other institutions, gives marriage aura of legitimacy, fewer rights for unmarried fathers, hurdles for non-marital children seeking to inherit presumption of paternity, exclusive right to decide who has access to children
iii. Purpose: forms and reinforces institutions whic
ale is NOT enough to justify restriction
c. This restriction too broad – not allowing marriage to anyone anywhere. May result in children born out of wedlock, marriage can improve one’s financial situation.
d. Different from incest/bigamy – prohibits marriage to a small group
4. Dissent: Would consider RB review, protects support of children
ii. Turner v Safely (Restrictions on marriage for prison inmates)
1. The statute restricts marriage of prison inmates without the warden’s permission
2. State interests asserted: Security concerns, independence of women, should be judged on reasonableness standard, different rights apply in prison
3. Holding:
a. Marriage is still a fundamental rights, but restrictions on prisoners will only be subject to rational basis scrutiny
b. Prison officials may regulate the circumstances under which a marriage may take place but cannot ban all marriages
c. Complete ban on decision to marry is not reasonably related to legitimate penal objectives (excessive paternalism, reasonable alternatives)
d. Marriage provides emotional support, gov’t benefits, dedication
4. This is an example of the Court saying we will not always apply strict scrutiny to marriage restrictions.
d. Incest
i. Singh v Singh (Half-blood; not allowed as contrary to public policy)
1. Parties got married and later found out they were half-uncles and half-niece and got marriage annulled in Connecticut. They re-married in California, but want the court to re-open annulment proceedings because only 1/2 uncle & 1/2 niece. Argue that since only 1/2 blood – the statute does not apply. Important because W is a citizen of Guyana and if marriage is annulled she will have overstayed her visa and would have to return to Guyana.
2. Issue: Whether marriage between half relations in incest?
3. Holding:
a. Connecticut does not recognize the California marriage because it violates public policy and Court refuses to reconsider the marriage because under its statute this constitutes incest and incest is contrary to public policy
4. Generally, states recognize marriage in other states unless it is contrary to public policy
5. Reasons why incestuous relationships are not allowed by states:
a. Higher rate of birth defects – this is now debatable
b. Protect family relationships – safe place for children
ii. Back v Back (Relationship of affinity ends upon divroce)
1. Here, there was no consanguineous relationship, just affinity. Back married a widow who had a daughter from a previous marriage. They got divorced and he married the daughter.
2. Holding: There was no incest. The relationship of affinity which existed during the marriage terminated once they got divorced. The statute is meant to punish a sexual relationship between a man and his wife’s daughter. Once mother & husband were divorces the legal relationship ended so this marriage is valid
3. Hypo: Decedent had no children with 1st wife à if he had then he would have married his children’s half-sister à would this have made a difference?
iii. NJ Case discussed in class
1. A woman was adopted as a teenager by a married couple. At 18 she began a relationship with adopted father and had a child. Woman wanted the adoption vacated so she could marry adopted father and make her child legitimate. Court allowed based upon the best interests of the child/infant
iv. Generally
1. Much of what remains today is just the prohibition of sex in consanguineous relationships. There is little protection when individuals are asked to live in close contact with others in a household with whom they don’t have consanguineous relationship. Laws are needed for child rearing.
v. Kershaw: Shaking off the Shame (Blackboard)
