Family Law Outline

 
Browne-Barbour Family Law Fall 2015
 
 
I.                    Constitutional Concerns in Family Law
A.    Intro
B.     What is Family?
1.      Moore v City of East Cleveland – city convicted Moore of violating city ordinance because one of her grandsons living with her was not “family” within their definition. Cleveland’s definition was found to violate the 14th amendment because court found it arbitrary and did not further some legitimate state purpose.
2.      FC title 4-§71.003 – Family includes individuals related by consanguinity or affinity, individuals who are former spouses that share a child without regard to marriage, and a foster child and parent, without regard to whether those individuals reside together.
C.     Who is a Parent?
1.      Stanley v Illinois – a mother died leaving behind 3 children and their father. Illinois law took the children as wards of the state because they regarded unwed fathers unfit as parents. Law was found to violate protection of the laws under the 14th amendment because the state denied him a hearing to determine whether he was a fit father, a hearing others had access to.
2.      Title 5-§101.024 – parent means the mother, a man presumed to the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father. The term does not include a parent as to whom the parent child relationship has been terminated.
D.    Constitutional Rights of Grandparents – Do they exist?
1.      Troxel v. Granville – Troxel, paternal grandparents, petitioned for right to visitation with their grandchildren after their father died, and the mother remarried and reduced their visitation time. SC ruled nonparents lack standing to seek visitation unless a custody action is pending
2.      Title 5-§153.433 – The court may order reasonable possession of or access to a grandchild by a grandparent if 1. At the time the relief is requested at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated, 2. The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well being and…..
E.     Polygamy vs. Religious Freedom
1.      Reynolds v. US – Issue is whether religious belief canbe accepted as a justification of polygamy, which is a criminal act in the US. Court held religious freedom is guaranteed, however, a second marriage is always void. Though a government cannot interfere with one’s religious beliefs and opinions, they can interfere with their practices.
2.      Texas Penal Code §25.01 – An individual commits an offense if: he is legally married and he: (A)  purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor's prior marriage, constitute a marriage
F.      Interracial Marriage Constitutionally Protected
1.      Loving v. Virginia – Virginia interracial couple married in DC, marriage was not recognized in Virginia and was criminal. USSC ruled Virginia’s statute a violation of the Equal protection clause and the due process clause of the 14th amendment because marriage is a fundamental right essential to the pursuit of happiness.
G.    Can Marriage be Barred by Support Obligation
1.      Zablocki v Redhail – Zablocki barred from marrying because he owed back child support. The Wisconsin statute was found to violate the equal protection and due process clauses of the 14th amendment, and that the statute did not propose a legitimate state interest in banning marriage through the imposition of state child support laws.
 
H.    Homsexuality Protected From Criminal Prosecution
1.      Lawrence v. Texas – Homosexual couple arrested after police invaded their home and found them engaging in sexual contact. USSC ruled the texas statute violated their right to privacy under the equal protection clause.
I.       Standing to Challenge Same Sex Marriage
1.      Hollingsworth v Perry
2.      OBergfell 2015 overturned state statutes that prevent recognition of homosexual marriage between states.
J.       DOMA’s Definition of Marriage – Unconstitutional
1.      US v Windsor
II.                The Marriage relationship
1.      Obergefell v Hodges – USSC held that same sex couples may exercise the fundamental right to marry in all states, and that there is no lawful basis to deny or refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character.
A.    Intro
·         §1.102 – when 2 or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage
B.     No Same Sex Marriage in Texas VOID
1.      Littleton v Prange
C.     Premarital Education Courses and the Texas Marriage License
·         § 2.013 – each person applying for a marriage license is encouraged to attend a premarital education course of at least 8 hours during the year preceding the date of the application for the license and includes a) conflict management b) communication skills c) key components of a successful marriage (no fee if course is completed)
·         § 2.204 –  72 hour waiting period exceptions:
1.      members of the armed forces on active duty
2.      works for the US department of defense either as an employee or contractor
3.      obtains a written waiver under (c)
4.      completes a premarital education course
5.      court ordered for good cause
·         § 2.101 General age requirement is 18 +, or 16-18 with guardian’s consent, or under 16 by court order right only.
D.    The Evolution of the Evidentiary Common Law Marriage Statute in Texas
·          The common law marriage may be established in 2 ways:
1.      filed declaration of which the parameters are established by statute and filed with the county clerk
2.       § 2.401 3 prong evidentiary test – must coalesce
a.       couple agree to be married
b.      live together in this state as a married couple
c.       represent to others that they are married (if couple separate, and do not meet tests by the 2nd anniversary of separation, marriage is not valid.) (holding out)
3.      a person may not make declaration of marriage if that person is presently married to a person who is not the other party of the informal marriage
4.      a person under 18 may not:
a.       be a party to an informal marriage
b.      Execute a declaration of informal marriage (§ 2.402)
E.     Denial of Marriage by Parties does not Bar Common Law marriage
1.      Estate of Claveria v Claveria – a party claiming to be an interested party concerning a party he claimed as his common law partner (CLP). Alleged wife passed testate leaving her estate to her 2 children, alleged husband claims a community interest in a portion of the estate. SC found evidence of a previous CLP. SC holding: because there is evidence of a previous CLP, Patricio’s marriage to the deceased is void as a matter of law.  RULE: §1.102 see above
F.      Common Law Marriage Requires Holding out in Texas
1.      Winfield v Renfro – the jury in this case found that there was evidence of a CLM but because of a jury instruction error, that the word “there” referring to “in Texas” was left out, the judge reversed. The CA R&R DC’s holding, ruling that there was factual and legal evidence of a CLM in Texas. The difference? Judge o