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

Family Law
Spring 2016
Constitutional Concerns
“Power of the state to regulate the health & welfare of its citizens” à States regulate FL
10th Amendment
Domestic Relations Exception: Allows FedCt to decline to hear FL issues unless there’s a federal question.
Right to marry & live as a family unit à Protected liberty under the 14th Amendment DP Clause (Moore v. City of E. Cleveland)
Marriage is a basic civil right known to man
State can’t limit right of family to live together
TX: Legal or moral obligation of the head of the family to support it or members & dependents (accepting responsibility)
Includes: Tradition extends to family members that co-habitate
To Restrict: Weigh state interest v. interest of the family
Constitutional to make a fitness determination, but can’t deny fitness inquiry (Stanly v. Il)
EP violated when unwed father deprived custody w/out evidence they’re unfit. Req’d by 14th Amendment DP w/  notice & hearing (Stanley v. IL)           
EP Test: Legal test (not biological relationship)
Procedure by Presumption: DP requires notice & hearing to remove custody from a parent (EP)
Must be given custody automatically, the declared unfit
Custody denied bc of poor finances à Violates constitutional right
TX: Only state that allows 12-person jury to decide custody
Lawful termination of custody
Applies: Dependent child w/out support
Proper notice, hearing & facts
Death of both parents
Rights protected by the USSC concerning family
Right to live together – integrity
Right to marry (hetero only)
Care, control, & custody / right to nurture the child
Right to reproduce (Skinner)
Privacy in the home (Griswold)
Right to companionship of the child
Rule: States can’t shortcut eliminating the rights protected by US constitution with per se rules
Constitutional Concerns
Domestic relations w/in province of states !!!
Const limits: race, polygamy, right to marry !!!
Domestic Relations Exceptions !!!
Fundamental Rights of parents concerning their children: care, custody, mgmt., education !!!
Restrictions on the Freedom to Marry
Right to Free Exercise of Religion
Rule: Religious belief must be well-grounded to warrant an exception to general law.                   EX: Can require kids to attend school
Amish Exception: Established by long-standing, recognized beliefs. Protected by 1st Amendment (WI v. Yoder)
Policy: State interest in educating kids insufficient to interfere w/ the free exercise of religion
Rule: Congress can’t regulate religious beliefs, but may regulate religious action that violates the law (Reynolds v. US)
Exception: Can’t practice polygamy even if part of one’s religious beliefs
Policy: Avoid placing religion above the law
State interest in banning illegal religious actions outweighs a person’s right to freely exercise their religion
Historical: Strong precedent against polygamy & bigamy. Was punishable by death
Note: Marriage is a civil K & a status
Interracial Marriage
Rule: Can’t restrict the right to marry based on race. Violates EP bc race is a suspect class & a fundamental right (Loving v. VA)
Test: Strict Scrutiny. Must have compelling state interest & law narrowly tailored to achieve it
A valid marriage created in another jsd should be recognized as valid in other jsd’s
Applies: Legislative miscegenation is unconstitutional (mixing of races by sex or marriage)
Vs. Same-Sex Marriage
§’s clearly drawn upon gender-based distinctions. A § that makes the legal consequences of an action turn on race is invalid. Seems that under full faith, & credit the states should have to recognize same-sex marriages validly made in another jsd. BUT, there’s a FF&C exception: If it directly contravenes the policy of that jsd, they don’t have to recognize it. SupCt is final arbiter. States can decide the definition of marriage
Marriage can’t be barred by support obligations
Rule: Can’t deny marriage license just bc someone has outstanding child support obligations (Zablocki v. Redhail)
Test: A § that significantly interferes w/ the exercise of a fundamental const’l right must be supported by sufficiently important state interests & narrowly tailored to effectuate those interests
Analysis: Strict Scrutiny
Heightened scrutiny bc important gov’t interests that are substantially heightened by the law
Policy: Older than Bill of Rights & part of the fundamental right to provacy
Less Intrusive Regulations
Criminal charges
Civil Claim                                                                                                                                                                                                                                              EX: Garnish wages, suspend license (DL, hunting)
Can ask about child support obligations on marriage license                                            EX: Lie à Crime
Legitimate State Regulations
24-hour waiting period (Still allows you to marry)
Marital Status
Consanguinity (blood related marriages)
Constitutional Rights of Grandparents
Rule: State can’t substantially interfere w/ parents fundamental right to make decisions concerning care, custody, & control of their children (Troxel v. Granville)
Applies: Custody battle bw parent & non-parent (could be any 3P)
Doesn’t Apply: Fit parent à No reason for state to inject itself into the private family realm to question how they raise the child
Rebuttable Presumption: A fit parent will act w/in the best interest of the child
To rebut
Must show parent is unfit or
Removing visitation from the grandparent will be harmful to the child
§ 153.432 Suit for Possession or Access by Grandparent
Step-grandmother à Not in class of relatives who have standing à Ct doesn’t have jsd. Thus, Ct doesn’t have discretion to hear facts of her position
Grandfather à May have standing for access to the child, but he must overcome presumption that biological parent will act in best interest of the child
§ 153.433 Possession of or Access to Grandchild
153.432-3. § was amended following Troxel to make it comply with the presumption
TX § is more lenient, but Troxel is supreme
Primary problem w/ WA SupCts handling of Troxel?
No justification for state interfering w/ mom’s constit’l right to make decisions concerning care, custody, & control of her kids. The code was too broad bc anyone could request visits & Ct could grant them. Troxels petitioned for 2 wks/month + 2 wks in summer w/ granddaughters, which was significant bc they were never denied visitation.
TX Majority: Doesn’t recognize same-sex marriage
TX Rule: No SMJ over a same-sex divorce granted by another state (In re Marriage of JB)
TX Rule: TX Ct can’t issue a divorce decree for same-sex marriage (Mireles v. Mireles)
State can’t make private, consensual sexual conduct a crime, regardless of sex. Violates EP. (Lawrence v. Taylor)
Not minors, no injury, not public, not prostitution, doesn’t formally recognize a relationship
O’Connor’s Concurrence: Unconstitutional, but don’t overrule Bowers—shouldn’t expand rights
Reason to overrule Bowers:Premised on married couples right to commit deviate sexual intercourse, but didn’t consider it an EP issue. Instead it said sodomy could be prohibited. If not overruled, the fitness of parents could be scrutinized bc it would still be a crime
Defense of Marriage Act (DOMA)
Definition of Marriage: Bw one man & one woman
Applies: Federal purposes
Full Faith & Credit Clause: States must give FF&C…. à Doesn’t apply bc of DOMA
Public Policy Exception: No states req’d to recognize same-sex marriages from another state if it violates their policy (EX: Constitutional amendments that ban recognition of same-sex marriage
Created to prevent SS couples

§ of Limitations
Historical Rule: 1 year (Shepherd v. Ledford)
Modern Rule: 2 years w/in CL marriage ending
Purpose: Avoid stale claims                                                  EX: EP claim bc property concerns à Can file a declaration to extend (Shepard)
Disadvantage: More difficult to challenge !!!
Separated from a previous CL marriage à Must dissolve it by § req’s
No such thing as CL divorce à If CL Marriage à Must get a divorce !!!
§2.005 Age req’t, one man & one woman, etc
Void vs Voidable Marriage
Voidable Marriage                                                                                                                                                                                                                                                      Generally For Capacity & Consent Issues
Definition – Legal impediment/defect to the marriages validity
Remove defect à Can become a valid marriage
Marriage subject to annulment à Usually voidable, not void
If subject to annulment à Can’t challenge after spouse dies
If they knew of the impediment à Can’t annul, must divorce
If the cohabitate (sex) after learning of the impediment à Can’t annul
Remedy: Annulment
Requirements: No capacity (consent) to enter into marriage
Doesn’t Apply: After spouse dies, Minors
Effect: No property settlements like divorce
Who can establish
Marital parties or
Minors parents (must be w/in 90 days)
Timeframe: Generally 72 hours
§6.102 Marriage to Minor but 16-18 allowed if Ct order or parental consent marriage under 16
Suit brought by next friend à Must be w/in 90 days
§6.103 Underage Marriage barred by adulthood à Becomes valid @ 18
§6.104 Discretionary Annulment à Ct has discretion to annul                                                                                                                                                                      EX: Pregnant
§6.105 Under the influence of alcohol or narcotics (can’t cohabitate, expires when not under the influence)
§6.106 Impotency
Requirements: Permanent impotence & didn’t knew when married & no sex since learning
Policy: Implicit understanding in marriage that you can procreate
§6.107 Fraud Duress, or Force No sex after learning
§6.108 Mental Incapacity
Best interest & No capacity when married & no sex during & π didn’t know/couldn’t reasonably know
§6.109 Concealed Divorce
Not divorced w/in 30 days preceding the marriage ceremony &
Didn’t know &
Reasonably prudent person wouldn’t know
§oL: 1 year after discovering
§6.110 Marriage less than 72 hours after issuance of license
Requirement: Must be w/in 30 days
Exceptions: Premarital counseling or military
Doesn’t Apply
 §6.111 After spouse dies
Exception: Spouse dies & mental incapacity w/in 1 year of death
Annulment not pending on date of death à May if marriage w/in 3 years of death &
Decedent didn’t have mental capacity to understand the marriage or the ceremony (when married)
Unless later gains capacity & understood circs & acquiesced à Marriage stands