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Family Law
South Texas College of Law Houston
George, Pamela E.

Family Law


Spring 2013

Constitutional Concerns in Family Law

A. Right to live as a family unit is protected under the Due Process Clause of the Fourteenth Amendment—Moore v. City of East Cleveland—Criminal offense because P lived with two grandsons

a. Court looked at precedent—see Belle Terre

i. Restriction on unrelated persons living together

ii. Related to family needs and family values

iii. Restriction was OK because the right of unrelated persons to live together not historically protected

b. Balance state interest v. private right

i. State interest: Preventing overcrowding + minimizing traffic and parking congestion + avoiding an undue financial burden on East Cleveland’s school system

1. Statute serves the purposes marginally at best

2. Does not really make a positive impact

ii. Private interest: tradition is to have extended family living together

1. Certain interests require careful scrutiny of the state needs asserted to justify their abridgment

2. Unconstitutional to limit the definition of family because right is so important

c. Family is defined in Code by a legal or moral obligation of the head of the family to support the family or family members and corresponding dependent.

i. EX: brother taking care of adult sister is considered a family

ii. This is a liberal view that broadens definition + probably affords more constitutional protections

B. All parents are entitled a hearing before children are taken away without due process—Stanley v. Illinois

a. Statute suggested that un-wed fathers are presumptively unfit to raise children

i. “Children of all parents can be taken from them in a neglect proceeding, but only after notice, hearing, and proof of unfitness”

ii. It is unfair to the un-wed fathers

b. Court balances private interest v. state interest

i. Private Interest: parenthood, since they raised the children

1. Interest is more important than property rights

2. Thus, the un-wed father is owed some protection

ii. State interest: protect the moral, emotional, mental, and physical welfare of the minor and the best interests of the community

1. But, the interest is not furthered by the statute + hearing is needed to determine fitness

c. Un-wed father is entitled to hearing on fitness before the child is removed

C. Religious belief of polygamy is not a justification for criminal acts—Reynolds v. United States

a. Guilty for crime because there is a knowing violation of the law

i. Criminal intent is present; he knew he was married + violated the law

ii. It is not a defense that your religion says that it is proper behavior; does not negate intent

b. Policy reasons for prohibition against polygamy:

i. Prevent child abuse, under age marriage etc.….

ii. See 2.101 subchapter B

D. Violation of 14th amendment to prevent marriages based on racial classification—Loving v. Virginia

i. Balance state interest v. private interest; strict scrutiny applies

b. State Interest: “To preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride,” obviously an endorsement of the doctrine of White Supremacy”

i. Basically a reflection of White Supremacy, which is not a valid state interest

c. Private Interest: “Freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men”

i. Private interest is strong enough to find that it violates the constitution

d. NOTE: It seems like same sex marriage could also use this reasoning

E. Cannot place limitations on ability to get a marriage license; ban on support obligations—Zablocki v. Redhail

Statute required marriage applicant submits proof of compliance with the support payments

a. Marriage is a fundamental right with a strong private interest

i. Loving v. Virginia: the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men

ii. Maynard v. Hill – marriage is “the most important relation in life,” + “the foundation of the family and of society, without which there would be neither civilization nor progress”

iii. Meyer v. Nebraska – the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause

iv. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival

b. Statute interferes directly and substantially with the fundamental right

i. State interest 1: Permission-to-marry proceeding counsel the applicant as to the necessity of fulfilling his prior support obligations

1. This can be done by other methods

ii. State interest 2: Welfare of the out-of-custody children is protected

1. There is no direct relationship

2. There are other devices to preserve support, such as garnish wages, criminal contempt, etc.

iii. There needs to be a strong state interest + these state interests are not enough

c. Not all laws regulating marriage are unconstitutional; look for substantial and direct interference

F. Court cannot determine what is in the best interest of the parent’s child—Troxel v. Granville

a. Statute § 26.10.160(3) said that any person can petition visitation rights at any time if in best interest of child

i. A lot of discretion given to the court à they get to determine what is in the best interest

b. Private interest: parent’s interest in care, custody, and control of their children is a fundamental right

i. Due Process Clause protects parents’ rights to make such decisions

c. Statute is broad and presumes that parents cannot decide what is in the best interest of children

i. Statute places the best-interest determination solely in the hands of the judge

1. Judge, not the parent, determines what the best interest / fundamental right

2. Statute gives not weight to parent’s decisions

ii. Usually, parent are presumed to act in the best interest of the child

1. Statute “presumes the grandparent’s rights would be granted, unless adversely impacted”

2. Puts the burden on the mother to show adverse impact on children, which is backwards

d. Correct standard is that grandparents must show that denying visitation adversely impacts children

i. Not all grandparent visitation statutes are unconstitutional; just apply the correct standard

G. In addition to grandparents’ rights, parental rights often supersede rights of the state in matters of education.

a. Meyer v. Nebraska—Court determined that mandating only English to be taught in school infringed on the parents’ choice of education

b. Pierce v. Society of Sisters—law prohibiting private education was outweighed by the parents’ interest in educating their children.

c. Wisconsin v. Yoder—because Amish children traditionally remained in the community and embraced the culture of the community, the Court found they had already learned everything they needed to be self-sufficient in the Amish community

i. Parent’s interest in shared religious and moral values prevailed over the requirement that students must attend school until they are 16 years old

H. Under Due Process, statutes cannot declare a sexual act unconstitutional, regardless of sexuality—Lawrence v. Texas

a. The Bowers decision: statute did not allow sodomy, regardless of whether the participants were of the same sex

i. Bowers discussed it as a moral issue, but it is really a right of privacy issue

b. Planned Parenthood: sexual acts are personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education

i. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life

c. Romer v. Evans: invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,”

i. Invalid because it denied housing based

ne man and one woman”

b. Courts consider following factors to determine sex of party

i. Chromosomal factor, which is the most important

1. Biologically, a post-operative female transsexual is still a male

2. Thus, P is still a male à entered into same-sex marriage à marriage is void under Texas law

ii. Gonadal factors

1. Presence or absence of testes or ovaries

iii. Genital factors

1. Including internal sex organs

iv. Psychological factors

1. Transgender is when anatomy does not correspond to sense of being or their sense of gender

2. While good argument in favor of P, chromosomal factors are most important

c. Birth certificate also supported the holding that transgender female is in reality still male

i. Original birth certificate clearly states that P was born a male

ii. Does not matter that the certificate was re-issued for inaccuracy after surgery

1. Inaccuracies need to be made at birth

2. Cannot conform the birth certificate to current sexual appearance

d. Note: the certificate was an amended legal document which should replace the original

i. Usually courts give this full force and effect to amended documents

C. Texas courts do not have jurisdiction over same-sex divorce cases

a. In re Marriage of J.B. & H.B—no subject matter jurisdiction to cover the divorce

i. Reasoning is that the Texas Constitution + the Texas Family Code limits marriage to opposite-sex couple

ii. Also, it does not violate the equal protection clause

b. Mireles v. Mireles—another transgender case

i. Both parties agreed that the marriage was void as a matter of law under the Constitution and laws of Texas because both ended up being female

ii. Court held that a Texas court has no more power to issue a divorce decree for a same-sex marriage than it does to administer the estate of a living person

Common Law Marriage

D. Current Statute in Texas—2.401(a) Marriage of a man and woman may be proved by evidence of:

i. A declaration of their marriage has been signed as provided by this subchapter; or

1. Declaration—2.402—used because you can select the date of the marriage

2. Affects insurance claims + tax benefits + social security + size of estate

ii. [An agreement to be married] + [parties lived together in this state as husband and wife after agreement] + [represented to others in Texas that parties were married]

1. All elements must be concurrent

b. Rebuttable presumption that parties did not enter into an agreement to marry if common law marriage not proved within 2 years after [parties separated + ceased living together]

i. Need to be separated + ceased living together

1. If deployed to Afghanistan, it does not mean that you are separated!

ii. Now it is a presumption that there was not an agreement to be married

1. You can rebut the presumption with evidence from Clavaria

c. If under 18 years of age, cannot be a party to common law marriage + cannot execute declaration

i. Minor under the age of 18 does not have the intent to form a common law marriage

d. If already married to another person, one cannot form common law marriage –OR- marriage by declaration

i. May not have multiple marriages; amendment to prevent polygamy