Select Page

Family Law
South Texas College of Law Houston
Carlson, Richard R.

South Texas College of Law

Professor Carlson

Family Law

Summer 2014

Families and Other Intimate Relations

A. Scope and Definition

1. Defining Family- A unit of persons bound by affiliation through: 1) marriage, 2) blood (genetics), and 3) adoption. Be wary of degrees, even if second or third degree blood relation (cousins) if the relationship mirrors first degree siblings it can still be considered family by a court.

Courts use 2 part test for determining status as family when a relationship does not fit into any of the 3 affiliations. Looks at 1) scope of affiliation and 2) function of relationship. Ex: gay couple; scope if affiliation wide ranging like family (or married couple) and its function is similar to a family unit as well when they are engaged in a long term cohabitating relationship with shared financial burdens.

B. Constitutional Rights to Elements of Family Life

1. Overview- Elements of family include: 1) Intimacy between adult partners, 2) reproduction, 3) nurturing of children, and 4) cohabitation (creation of a household)

2. Right of Intimacy

a) Lawrence v. Texas- Intimacy as a liberty interest spanning both spatial liberties (privacy at home/bedroom) and autonomy liberties (right to form relationships and decide about reproduction). Right to intimacy both physical and emotional. Intimacy interest must be absent injury or abuse (does not extend to prostitution, minors, rape).

3. Right to Have Children- Fundamental right, essential to the human race. Desire to procreate is instinctive. Fulfills need for companionship, perpetuation of self and values/culture, and reciprocated support.

4. Right to Nurture or be Nurtured- Key to fulfilling this right is right to possess and manage. Parent- right to fulfill instinct to nurture. Child- right to be nurtured until they are mature enough to be independent. Right to convey culture included in nurturing. Nurture includes: school, health care, discipline, lifestyle, and religion.

5. Right to Cohabit and Form a Household- Cohabitation serves clear economic functions like economies of scale, joint labor, and mutual support. Fulfills need for companionship.

Adult-child cohabitation is a means for nurturing.

Rent controls or single family affinities requires ct. decision regarding degrees of affiliation (Grandmother and grandson living together, are they a household in traditional sense with right to rent control? Up to court, will look at affinity factors, but yes in lots of instances).

Compare state interest in limiting density traffic v liberty interest in family. While laws are legitimate, they are overly burdensome to the fundamental right of creating a family

C. Constitutional Right to Marry- Choice of partner a fundamental liberty interest (Loving v Loving). Right to marry exists, but not in constitution, equal protection challenge, since marriage is fundamental liberty it gets greater scrutiny (Zablocki v Redhail)

Marriage for Love- personal and public declaration of commitment

Marriage for Child Rearing- marriage is basis for presumed paternity and right to support in case of dissolution

Marriage for Economic Advantage- Mutual duties of financial support and caregiving. Economies of scale and division of labor. Assures enjoyment of all public rights assigned to marriage.

Rights: Marital Property

Rights of Inheritance

Spousal/Child homestead rights

Standing to sue for consortium or wrongful death of spouse

Public welfare benefits (SS)

Private employer welfare benefits

Joint Tax Returns(pooling of deductions , gift and estate tax exemptions)

Presumed surrogate decision making in case of incapacity

Easier eligibility for adoption

Testimonial spousal privilege and confidentiality

Immigration status for spouse of citizen or resident

II. Regulations of Entry Into Marriage

A. Presumption of Validity- If it looks, acts, and walks like a marriage, it is strongly presumed to be valid for the following

1. Appearance of marriage invites reliance

2. Parties can arrange their lives based on a right to property and support

a) Texas is a community property state. All property acquired during the marriage (except for gifts and inheritances) are presumed to be community property. If spouse dies intestate, surviving spouse gets one half of the community property and the remainder is distributed according to the law of intestacy. Will might change children’s inheritance, but neither spouse can divest the other of his or her share of the community estate.

3. Legitimacy of children presumed

4. Present marriage creates rebuttable presumption that any prior marriages are fully and properly dissolved

5. Cohabitation and declaration (holding out) in TX leads to presumption of marriage and can create common law marriage in TX

B. Qualifications to Marry

1. Minors- Modern TX Law

a) Under 16 cannot get married, automatically void if married

b) 16-18 need parental consent, voidable, minor spouse’s parents have standing to seek annu


Returns deference of marriage issues to the states, even those aspects of marriage within federal scope. Ex: IRS now says same sex couples validly married in any state to be viewed as married for tax purposes.

d) What Is Sex? Types:

(1) Intersexual- Being born with both female and male parts

(2) Transexual-Transgender- Gender ID conflicts with anatomy

(3) Transitioning- Period of moving from one gender to other through sexual reassignment surgery, changes sex

Factors determining sex:

Chromosomal Factors

Gonadal Factors (presence/absence of teste ovaries

Genital Factors (includes internal sex organs)

In Texas sex is fixed at birth or by using the above factors. TX does not want same sex marriages, but also will presume validity of birth certificates, ID’s, etc. even if out of state. TX will recognize sex reassignment for purposes of identification ONLY.

2. Pre-Marital Family Affiliation with the Other Partner: Consanguinity Rules: About half of the states allow for cousins to be wed, degrees vary. Creates choice of law issue similar to same sex marriage except that criminal prosecution is still a possibility. Typically, place of marriage rule will be overridden in a state that criminalizes cousin marriages because the public policy against it is stronger than same sex marriages (avoidance of birth defects)

TX does not allow clerks to issue marriage licenses to cousins, but TX will not void cousin marriages (recognizes valid out of state cousin marriages? and TX common law marriages) and it is not a criminal act to be married to your cousin.

a) Cook v Cook

D. One Spouse at a Time:

3 Types of Polygamy: 1) Religious 2) Secular by mistake (belief that first marriage was dissolved) 3) Secular with mistake by one and possible fraud by others

Polygamy does not void the first valid marriage

Later marriages are void if the first one is not dissolved

Problem: Latest marriage presumed valid subject to challenger’s proof than an earlier marriage has not been dissolved