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

Family Law Outline – Pamela George- Spring 2015

SAPCR – Suit Affecting the Parent Child Relationship

UCCJEA – Uniform Child Custody Jurisdiction Enforcement Act

UIFSA – Uniform Interstate Family Support Act

I. CONSTITUTIONAL CONCERNS IN FAMILY LAW

Exam

½ is multiple choice

i. Midterm of just multiple choice

½ essay

i. Bar exam essay during spring break to see how well do

General Overview

Basic Constitutional rights are infringed upon by a states laws

Constitutional issues exist within the family law context

SCOTUS does get involved in family law, usually to determine how much a state can interfere in family or parent-child relationships.

Constitutional errors must be raised in the trial court or waived later on

What is a Family?

Moore v. City of East Cleveland – a statute that forbids a grandmother to live with her grandchild because they do not fit the limited definition of family in the statute is unconstitutional because it violates the Due Process Clause of the 14th Amendment

i. Grandmotheràsonà sons son and grandson of Grandmothers daughter

ii. Son and son’s son were exception D to ordinance

1. Limited definition to family

2. Problem: where does grandson of daughter go? (not allowed under ordinance)

iii. Factor why want ordinance: over-parking, traffic, burden on school system

1. Crt said that ordinance not fix=no rational relationship

iv. Marriage and Family = Fundamental Liberty

v. Protection of Sanctity of Family

1. The Constitution protects the sanctity of the family b/c the institution of the family is deeply rooted in America’s history and tradition, BUT:

a. Not Limited to Nuclear Family

i. “Family” is not a tradition that is limited to respect for the bonds uniting the members of the nuclear family.

1. i.e. aunts, uncles, cousins, and especially grandparents can share a household along with parents and children

2. Parental rights can extend to other members of the family (i.e. grandmother)

TX “Family” Definition

i. “Family” (defined in terms of homestead)

1. A relationship of status AND

2. It is not necessary for the family to include both husband and wife;

a. Rather it requires:

i. A legal or moral obligation on the head of the family to support the other member or members AND

ii. There must be a corresponding dependence upon the part of such member or members for such support

b. Grandmother of Moore case can fall under this definition

Examples of Family

i. Would a divorcee taking care of her mother-in-law be a family? Yes.

ii. Would a father who has a son, but does not have custody, be a family? Yes

Who is a Parent?

Stanley v. Illinois – Mother of children and father of children lived together but were never married and no assertion of common law marriage but they had three kids together. Mother died and the children became wards of the state and taken away from the father. Illinois Law – presumption that unwed fathers are unfit

i. ROL: Can’t have a presumption that all unwed fathers are unfit because that is too broad and all unwed fathers are not neglectful.

1. Cant deny father on an event that he has no control over (wife’s death)

2. Rights of parent are automatic

ii. If dad had died then moms rights wouldn’t have been gone

iii. Dad’s Claim: Claim never been considered unfit parent=equal protection

iv. State said Two ways could have done:

1. Could have petitioned for guardianship or adopt them

v. State interest?=no state interest for state to just cut dad off just because mom died

1. By denying parent to children it affects the children even more since mom died

Polygamy v. Religious Freedom

Reynolds v. US – Reynolds lived in Utah and had multiple wives, claiming that his religious belief kept him from being guilty of a criminal offense.

i. ROL: A religious belief cannot serve as a justification for an overt criminal act.

Rules on Religious Acts and Marriage

i. Religious ACT/PRACTICES = Government Regulation

1. i.e. human sacrifice, wife burning herself on funeral byre of dead husband, etc.

ii. Religious BELIEFS = Regulation

TX Rule on Polygamy/Bigamy

i. Both applicants must not presently be married at the time the application is being filled out to get married

1. Bigamy is an offense if person is legally married and he either:

a. (1) marries someone else

b. (2) lives with someone else under appearance of being married

2. *Applies also if the person is single but is marrying/living with someone who is already married

Age to Marry in TX

i. General Rule – County clerk cannot issue license if under 18 years of age

1. Exception:

a. Parental Consent for Underage Applicant

i. If 16 or older but under 18, county clerk must issue license IF parental consent is given

ii. If under 16 – only allowed to marry by court order!!!

Interracial Marriage Constitutionally Protected

Loving v. VA – a black woman and a white man lived in VA, went to DC, got legally married in DC, and then went back to Virginia. Virginia considered interracial marriages illegal and charged them with a criminal offense.

i. ROL: A state cannot adopt a statute that prevents marriages between persons solely on the basis of racial classification.

Can’t Limit Marriage based on Race

i. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State

ii. Deprives individuals of Liberty w/o Due Process

1. Marriage is a fundamental freedom and can’t be limited b/c of racial classifications

Argument to Support Same-Sex Marriage

i. Does Loving reasoning support same-sex marriages?

1. Yes – right to marriage one of basic civil rights of man, everyone entitled, society should be progressive

2. No – Loving says based on existence, survival – gay people can’t naturally procreate

Marriage CANNOT Be Barred by Support Obligation

Zablocki v. Redhail – Wisconsin residents were prevented under a Wisconsin statute from marrying in or out of state if they were behind in their child support obligations or if the children to whom they were obligated were not then and never likely to become public charges. Had to get a court order for permission to marry.

i. ROL: A statute that restricts/prevents marriage for failure to pay child support is unconstitutional.

ccess to Grandchild § 153.433 – .434

i. Court must order “reasonable possession of or access to” a grandchild by a grandparent IF:

1. (1) at time of request – 1 biological parent of the child has not had that parent’s parental rights terminated

2. (2) the grandparent overcomes presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that:

a. Denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; AND

3. (3) grandparent is a parent of a parent of the child and the child’s parent:

a. Has been incarcerated in jail/prison, OR

b. Is found competent, OR

c. Dead, OR

d. Does not have actual/court ordered possession of or access to child

ii. EXCEPTION to Rule

1. Grandparent may NOT request possession of or access to a grandchild, if:

a. (1) [Parent’s Gone] each of the biological parents of the grandchild has:

i. Died; OR

ii. Parental rights terminated; OR

iii. Affidavit of waiver of interest in the child and state agency is in charge of child (AND)

b. (2) [Adoption of Child] the grandchild has been adopted, or is the subject of a pending suit for adoption by a person other than the stepparent.’

Homosexuality Protected from Criminal Prosecution

Lawrence v. TX – a TX statute making it a crime for 2 persons of the same sex to engage in intimate sexual conduct violates the Constitution.

i. ROL — Freedom to make personal, intimate decisions inside your own home

II. THE MARRIAGE RELATIONSHIP à TX Fam. Code §§ 1 and 2

Introduction

Public Policy Behind Marriage

i. Marriage Presumption – “ Every marriage is presumed valid unless expressly made void or if it is a voidable BUT:

1. If voidable – it must be annulled

ii. Void v. Voidable Marriage

1. Void – 3rd party can establish this

a. EX: age requirement, no gay marriage, bigamy, polygamy

2. Voidable – only party to the marriage can establish this

a. EX: impotence, grounds for annulment

iii. Most Recent Marriage Presumed Valid

1. Issue: 2 or more marriages of a person to different spouses are alleged:

2. Rule – the most recent marriage is presumed valid as against each marriage that precedes the most recent marriage until:

a. One who asserts the validity of a prior marriage proves the validity of the prior marriage

i. EX: H1 and W2 are “married” and then all of a sudden W1 shows up and claims that she and H1 are still married; she wants a divorce and ½ of everything H1 has with W2

1. W2 must prove that the marriage was valid and never dissolved!!!

iv. Persons Married Elsewhere