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Family Law
South Texas College of Law Houston
Browne-Barbour, Vanessa

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

without cohabitation for at least 3 years
7.      confinement in mental hospital for at least 3 years
·         Death
B.     The Constitutionality of the No Fault Divorce see § 6.001 above
1.      Waite v Waite – appellant challenges the constitutionality of 6.001 arguing that Establishment clause and the free exercise clause of the constitution protect his right to freedom of religion and that marriage is an institution which the government cannot interfere with, and protection of his personal records. AC ruled that “the institution of marriage is not one of the free institutions contemplated in the language of article I, but rather references institutions of state government necessary to ensure the right of local self-government.” Neutral laws of general application do not violate the 1st amend merely because they infringe on the particular religious convictions of individual citizens. (US v Lee)
C.     Proving the No Fault Divorce
1.      In re Marriage of Richards – P asserts D did not provide factual evidence to support the elements of insupportability. The court ruled that stating insupportability is evidence in and of itself, and needs no further evidence. P asserts her right to a jury. Court finds a jury is a finder of fact, and that here, the jury’s verdict would be merely advisory.
D.    Underage Marriage – Void or Voidable
·         Policy: changes were made to the TFC in concern that polygamous cults were fostering multiple marriages between young girls and older men, and related men.
·         § 6.205ANY marriage involving a child under the age of 16 is void, except for of a court ordered marriage.
1.      Husband v Pierce – P was ordered to return the 15 yo girl to her parents after they filed for a writ of mandamus. P married girl in Mexico, lived in Tx. With her and they represented themselves as married. Because the court ruled girls marriage emancipated her, and DC must vacate order to return girl to parents. RULE: Under Texas law a minor who has been married in accordance with the laws of this state has the power and capacity of an adult.
E.     Common Law Marriage Statute and Retroactive Application
1.      Creel v Martinez – Martinez and 17 year old wife had a child together, wife died 2 weeks later and Martinez sued. Dr. Creel filed motion for summary judgment on grounds that he and wife were common law married. Texas RULES that a person under the age of 18 cannot be considered married under common law except by court order. New rule enacted in 1997 made the marriage “voidable” not “void” however the woman died before the new law was enacted that verified a common law marriage upon the death of a spouse.
F.      Other Grounds for Annulment – see above
G.    A void Marriage can Yield a Putative Spouse
1.      Davis v Davis – Davis marries Mary Nell, leaves then marries Nancy, then dies. Both women have children claimed to be Davis’s. Court finds Nancy to be the putative wife, Mary Nell the wife by law, Mary Nell daughter is not Davis daughter, Nancy daughter is davis daughter
·         Rule of Lord Mansfield – man and wife shall not dispute relations in order to disclaim parental rights