Professor Maldonado: Family Law Outline
I. Defining “Family”
a. Adult Relationships
b. Traditionally is parent’s of two different sexes.
c. Ways to create a family:
i. Blood
ii. Adoption
iii. Marriage
Conjugal
Baker v. State
àBenefits and protections incident to marriage
Transfer of property
After death
After injury
After divorce
Dignity rights
Evidentiary protection
Decision-making rights
Hospital visitation
Rights of support
Health insurance
There are many legal benefits that stem from marriage:
Receive portion of intestate estate from spouse
Protection against disinheritance through elective share provisions
Lawsuits for wrongful death
Right to loss of consortium action
Right to worker’s compensation survivor benefits
Covered as a spouse under group life insurance policy
Why provide benefits only to married couples?
Promote social norms
Encourage procreation
Matthew Kavanagh, Rewriting the Legal Family: Beyond Exclusivity to a Care-Based Standard
Current US family law and politics prescribe the exclusivity family model:
Two married and opposite-sex parents living with biological children
Gender norms assign care and responsibility to women
Adults are either full legal parents to children, or complete strangers
Administrative convenience is served by this exclusivity model but it is not a reality for a huge portion of the population
Suggests a “care-based” model à must imagine fully-inclusive families
Children receive care from more than just the nuclear family
Mutual caregiving relationships must be legally recognized
Caregiver can show that a family relationship exists with a child based on the acts the caregiver performs
Ensures legal rights for these caregivers
Centers on relationships of the children and not adults
Test: whether there is a mutual caregiving relationship in which an adult provides for the needs of the child à case-by-case determination
Child who is old enough can determine what caregiver’s role is
Problems:
Doesn’t serve administrative convenience
People can act like a family and subsequently get treated as one
Handout Articles
NY Times Article: Men w/o college degrees marrying in dramatically lesser numbers
Unstable finances (manufacturing jobs no longer stable)
Women have more education/jobs
àLess education
àDivorce rate among blue-collar men nearly 2x that of those w/ education.
àAvg. age of marrying women is 25. Men 27.
àFinances (less money, more problems). Are people marrying FOR money? Gray area.
àFewer children. Much more cohabitation. Social attitude toward cohab positive.
àChildren out of wedlock is decreasing (although has increased in general).
àRace/class issues.
àCohab likely to end w/in 5 years either by marriage or ending altogether.
Children to unwed cohabitating parents:
Bad b/c
Unstable emotionally
Support issues for children. Financial instability.
Legal issues/custody
Religious objections
We should support b/c
Both parents are present in child’s life
“Trial run”—pre-marriage, divorce might be more troublesome to a child
Preferable to single parents
Legal restrictions prohibiting marriage (gay marriage)
Still allows kids to have two parents
Not stigmatizing the children—judgment does not help children
Braschi v. Stahl
Occupancy rights to rent-controlled apt—LL may not dispossess “either the surviving spouse of deceased tenant or some other member of deceased tenant’s family who has being living with the tenant”—who is covered as a family member?
Noneviction provision does not concern succession to real property but rather is a means of protecting a certain class of occupants from sudden loss of homes, does not create an alienable right, need not be construed as coextensive w/ intestacy laws (blood, consanguinity, and adoption)
We conclude that the term family should not be rigidly restricted to those ppl who have formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order. Intended protection should find its foundation in reality of family life. More realistic view of family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. Leg intended to extend protection to those who reside in HH having all normal familial characteristics.
Look at relationship: exclusivity, longevity, emotional and financial commitment, everyday lives, how they present themselves to society, reliance for daily family services.
Non-Conjugal
Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships
Ascription: imposes set of obligations on ppl in conjugal relationships which are presumed to correspond to expectations of majority of ppl; default arrangement for couples who have not provided for any arrangements and who would otherwise have to resort to cumbersome traditional private law models
Treats all conjugal relationships alike
Infringes upon value of autonomy
Not best way to respond to needs of non-conjugal relationships
Imposes obligations upon couples who may not necessarily want to take them on
Registration: registered partnership/registered domestic partnership (RDP)à provide an alternative way for state to recognize and support close personal relationships, range of rights and responsibilities similar to marriage
Promotes equality w/o compromising privacy—how? No restriction on who registers, unlike marriage.
Role of state in giving rights to multiple caregiving relationships.
Some of these rights (incident to marriage) are negotiable, we can contract around. But should we allow people to do this or should we provide a system where this is all taken care of?
Groups as Families
Village of Belle Terre v. Boraas (six college students)
“family” = “one or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household 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.”
A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land use project addressed to such famly needs…the police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion, and clean air make the area a sanctuary for people.
Marshall dissent: disputed classification burdens the students’ fundamental rights of association and privacy guaranteed by the First and Fourteenth Amendments. Many other means to accomplish gov’t purposes: ordinance is under and overinclusive.
Legal challenges:
Right to travel
Right to immigrate to and settle w/in the state
Bars ppl who are uncongenial to present residents
Ordinance expresses the social preference of the residents
Social homogeneity is not a legitimate interest of government
Restriction of those whom the neighbors do not like trenches on newcomers’ right of privacy, is of no rightful concern to villagers whether residents are married or unmarried
Ordinance is antithetical to Nation’s experience, ideology, & self-perception
Douglas makes arguments seem like “kitchen-sink”—almost mocks legal style of plaintiffs, then quickly dismisses all arguments by saying that it’s not a “fundamental right”—also ignores dissent entirely
Uses RR standard
“family values” as legit gov’t purpose
Marshall dissent suggests First Amendment freedom of association infringement and 14th A right of privacy
More analytic of goals of statute: limiting density, noise, parking, traffic, etc.—those are laudable goals, but there are ways to do that w/o involving political bodies in deciding who can live in your house
Uses SS b/c first amendment right of association, right to privacy
Penebscot Area Housing Development Corp v. City of Brewer (group home for retarded persons) (ME)
“family” is “a single individual doing his own cooking, and living upon the premises as a separate housekeeping unit, or a collective body of persons doing their own cooking and living together upon the premises as a separate housekeeping unit in a domestic relationship based upon birth, marriage, or other domestic bond as distinguished from a group occupying a boarding house, lodging house, club, fraternity, or hotel.”
Where the domestic bond is not based on a biological or legal relationship among the residents, the importance of a relatively permanent, resident authority figure to the existence of a domestic bond
n State of Missouri contended its prison regulation severely restricting inmate marriages was constitutional.
n Court ruled against them and said that there is a personal constitutionally protected right to marry while in prison.
INCEST
In Europe, no country prevents cousins from marrying—American phenomenon. Varies state by state. Can be married in one state, not in another.
Singh v. Singh (half-uncle, half-niece want to be married)
Degrees of relationship within which marriages are prohibited are not, from what we have already said, words of art. Fairly read, the prohibition against intermarriage of those related by consanguinity can be understood to extend to those of the half blood as well. Marriage between persons related to one another as half-uncle and half-niece is void under statutes as incestuous.
46b-21 does not contain any language that expressly distinguishes between relatives of the whole blood and half blood. But framers were aware of and adopted interp of ecclesiastical law as it then existed in England, thus treating relation of half blood like that of whole blood, when incest statute enacted in 1702—no substantive change since that time.
Back v. Back (H divorced W, married W’s daughter)
Relationship of affinity between the decedent and P which existed during the continuance of the marriage relation between decedent and plaintiff’s mother terminated when the latter procured a divorce from decedent, and after that time p was not the daughter of decedent’s wife, and the marriage between them was valid.
Primary purpose of statute is to punish carnal knowledge as btw persons having specified relationships as well as to punish marriage btw them, enumeration merely a way of stating more definitely what are degrees of affinity and consanguinity
How should the law construct these restrictions? Or is this something the law can really do?
Marrying stepsiblings? Marrying adopted parent (NJ case where she got pregnant during marriage of her adopted parents by adopted dad, NJ court severed adoption btw daughter and dad, left btw mother and daughter).
Levi Strauss Article
Danger of ill effects of incest would be much smaller if prohibition had never existed, ample opportunity for harmful hereditary characters to become apparent and automatically through selection
In same way that principle of sexual division of labor establishes a mutual dependency btw the sexes, compelling them thereby to perpetuate themselves and to found a family, prohibition of incest establishes a mutual dependency btw families, to give rise to new families
Family would not exist if there were no society
Incest prohibition is, in fact, a kind of remodeling of the biological conditions of mating and procreation, compelling them to become perpetuated only in an artificial framework of taboos and obligations
Margaret Mead Article
Permissible vs forbidden sex partner: close ties may be formed w/ forbidden sex partners w/o the intrusion of inappropriate sexuality; trust and affection, dependency and such occurrence [the act of seeking out affectionate care and social support.], can exist independently of a sexual tie
About all that remains today is prohibition of sex in consanguineous relationships—supported by popular belief that offspring of close relatives are defective
Does not provide for HH which includes stepparent, stepchild, stepsiblings, or adopted children
Final weakening of incest taboos in our society, as rationale has shifted from taboos governing relationships of persons of opposite sex and different generations in close domestic contact, to a mere precaution against defective offspring, when offspring are not in any event the purpose of such liaisons
