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

George_FamilyLaw_Fall_2010

I Constitutional Concerns in Family Law
Introduction
o USSC has great interest in family law, Texas does not.
o Texas- have same rights in CL marriage as formal marriage.
§ TX recognizes meretricious, common law, and putative marriages.
§ Once est CL marriage, have same rights as someone in conventional marriage
o Family Law encompasses Marital
§ Past bar had 1 on modification of custody agreement and another on premarital agreements
§ In TX marriage ends due to insupportability—TX No Fault Divorce, means marriage us unsupportable
o Marital is what is CP etc—how to deal with property on death or dissolution
o Here: Marriage, grounds for divorce etc
§ TX is only state in US that has jury for divorce and custody cases
§ Judge only can divide prop but jury can characterize property
§ In TX isn’t custoy—it is conservators
· Managing conservator makes decision
· Possessor conservator—has visitation rights
· We have guidelines in texas for possession and access
o What if we have obligor that exceeds guidelines (7500 per month then 20% go to child supp)
§ If want more then must show child needs it
What is a Family
o USSC Definition (City of East Cleveland): constitution protects sanctity of family b/c it is deeply rooted in the nation’s history and tradition. Family extends beyond the nuclear family, therefore a city housing ordinance that narrowly defines family slices deeply into the meaning of family & violates the DPC.
§ Marriage and family are fundamental liberties.
o Texas Homestead Law definition of Family: BROAD. Household or family is a relationship of status and is not necessary for the family to include both H and W, but rather it (1) requires a legal or moral obligation on the head of the family to support the other member or members and (2) there must be a corresponding dependence on the part of such member or members for such support.
§ Ex. An aunt who took care of deceased brother’s kids was considered a family and could claim a family homestead.
§ Ex. Brother taking care of adult sister deemed to have family homestead.
§ Ex. Father who only had visitation with son could still claim family homestead.
Who is a Parent- (equal Protection Clause)
o Stanley: A state may not presume that unwed fathers are unfit parents and take custody of the child w/o a proper hearing, as this violates the EPC.
§ A presumption that burdens all unwed fathers is constitutionally repugnant.
§ “This court has not however embraced the general proposition that a wrong may be done if it can be undone.”
§ No longer use legitimate or illegitimate children in the Texas Family Code.
§ The Equal Protection clause does not permit procedure by presumption where the procedure forecloses the determinative issues of competence and care. Such a procedure risks running roughshod over the important interests of parent and child.
Polygamy vs. Religious Freedom (1st Amendment)
o Reynolds: Congress may pass a law that prohibits polygamous marriages, as laws may be made that interfere with religious practices (acts), but not beliefs and opinions.
§ Religious belief cant be a justification for overt criminal act.
§ Polygamy has always been odiousamong N/W Europe.At CL the 2nd Marriage is a is void and is an offense against society.
§ Permitting a violation of civil law based upon religious beliefs would allow each man to become a law unto himself.
§ Marriage is a civil K that is regulated from state to state.
§ Consenquity- u cant marry people W/I certain relations (sister). All of these relationships are deemed void unless it’s a marriage to your 1st cousin.
Interracial Marriage Constitutionally Protected (EPC and DPC)
o (Loving) A state may not criminalize interracial marriage.
§ Strict Scrutiny is required for racial classes. (any law restricting people’s rights to marry are subject to strict scrutiny) – must have a compelling state interest and the law must be necessary to achieve that interest.
§ The state of Virginia has no legitimate state purpose, independent of invidious racial discrimination that justifies a classification that prohibits interracial marriages.
§ Interracial marriage is constitutionally protected and states cannot place limitations on people’s freedom to marry whom they choose to marry.
§ Marriage is one of the basic civil rights of man, fundamental to our existence and survival. Freedom to marry rests with the individual and cant be infringed upon by the state.
§ Full, Faith and Credit Clause allows states to recognize other states marriages, except Same Sex marriages according to the “defense of marriage act.”
Marriage barred by Support Obligation (EPC and DPC)
o (Zablocki) No restrictions may be placed on one’s right to obtain a marriage license (failure to pay child support) b/c marriage is a fundamental right.
§ Marriage is a basic civil right of man and shares pedestal procreation, contraception, family relationships, child rearing and abortion.
§ State has numerous other means to exact child support obligations. Contempt proceedings, criminal proceedings. It is not necessary to burden right to marriage to help state interest to collect.
§ Texas Statute- none
Religious Freedom, Parental Rights, and State’s interests
o (Yoder) The state has a strong interest in the education of it’s children, but the interest in universal compulsory education is not absolute to all other interests, so the Amish do not have to send their kids to HS.
§ States have a right and responsibility to provide universal education, but to compel education in the face of a challenge based on religion, the state must show either:
· The requirement does not deny the free exercise of religion or
· There is a state interest of a sufficient magnitude to override a claim made under the free exercise clause.
§ A parent’s interest in shared religious or moral beliefs will prevail over the state’s interest in compulsory education, but a state may still determine a program of compulsory education.
§ A statute that mandated only English outweighed by parent’s interests, so it was void.
Constitutional rights of Grandparents
o Troxel: Statute that permits “any person” to petition the court for visitation is overly broad and infringes on parent rights. This also infringes on the presumption of a fit parent.
o Traditional presumption is that a fit parent will act in the best interest of the child. A state cant shift the benefit to a grandparent, and burden the parent with a rebuttable presumption. Rebutting the presumption requires the grandparent or state to show:
. It is acting to protect the child from actual or potential harm or
· Example: imagine child has close relationship with grandparent, and parent drops child off at grandparent’s house every morning. One of the parents dies, and the other parent doesn’t want to do this anymore. The mother is fit- what the grandparents show?
o That child will be adversely affected due to this change. It is the burden of the grandparent to show this.
2. The parent is unfit to make decision of care, custody, or control
o The statute in the case unconstitutionally infringes on the fundamental right of parents to make decisions concerning care, custody and control of their children.The DPC provides heightened protection against the govt’s interference with certain fundamental liberties.
Homosexuality Protected from Criminal Prosecution
o Lawrence: state may not criminalize consensual sexual activity b/w consenting adults. DPC protects fundamental liberty of private sexual intimacy b/w consenting adults.
§ Bowers case was overruled here, due to the cases of like planned parenthood, Griswold, etc and the right to privacy asserted by post-bowers SC cases.
§ Statute that only prohibits certain sexual activities b/w persons of the same sex is protected by the DPC, and not equal protection. If this was overruled on Equal Protection grounds then the law could be rewritten to include all persons (aka ban all sodomy).
§ The present case does not involve minors, public conduct, prostitution, etc. but instead adults who fully and mutually consent in homosexual activity and are entitled to the right of privacy.
§ Effect on Family Law: the ct has opened doors for same-sex relationships, and protects relationships.
II. The Marriage Re

ust apply for marriage license w/I 30 days.
· Proof: (1) parent’s or person’s identity and (2) proof that parent/person has legal authority to consent to marriage for the applicant.
o §2.103 Court Order for Underage Applicant
If under the age of 16 and married the marriage is void, unless they obtain a ct order. (parents may not give

§permission to anyone under 16). Ct order granted if in “ct believes marriage to be in best interest of child”
o §2.202 Persons Authorized to Conduct Ceremony – Minister or priest, rabbi, officer(s) of a religious organization, judges, justice of the peace.
· Retired judge with 12 years of service may also conduct a ceremony.
· A person authorized to conduct a ceremony may not discriminate based on race, religion or national origin. Only judges and JP’s can be prosecuted for a violation. §2.205
· No particular form of ceremony is required. Don’t have to say anything.
· §2.204 72 Hour Waiting PeriodExceptions – Parties must wait 72 hours. Waiver of the waiting period is made if one of the parties is a member of the (1) Armed Services or an employee of the Department of Defense (2) or if ct waives waiting prd (3) or if the parties attend a marriage counseling class.
· Waiting Period After Divorce – A party must wait 30 days to remarry after obtaining a divorce.
· BUT divorced parties may marry each other at anytime §6.801
· Concealment: A marriage in violation of 30 day prohibition is voidable by innocent spouse but only if brought w/I 1 year, and parties did not cohabitate after innocent party learned of divorce.
o §2.301 Fraud, Mistake, or Illegality in Obtaining License:validity of marriage not affected by any fraud, mistake, or illegality that occurred in obtaining the marriage license.
o §2.302 Ceremony Conducted by Unauthorized Person: validity of marriage not affected by lack of authority of the person conducting the marriage ceremony if:
· (1) There was a reasonable appearance of authority;
· (2) At least one party participated in good faith and that party treats marriage as valid;
· (3) Neither party was a minor prohibited from marriage or commits offense against 25.01.
· §2.501 Duty of Support – Each spouse has a duty to support the other. Either spouse may be held liable to a third party who provides necessaries to support the other spouse.

No Same Sex Marriage in Texas

o Relates to 2.001 Marriage License- no same sex marriage.
o Littleton v. Prange: Texas law will determine the sex of an individual at birth. A transsexual’s gender is based on that before operation and in Texas one cannot marry a person of the same sex.
§ RULE: Gender change operation does not change the legally recognized gender of an individual. A changed birth certificate has no effect as a birth certificate will only be changed for inaccuracies at the time of birth.
§ Corbett Factors for Determining Gender:
· Chromosomal factors
· Gonadal Factors
· Genital Factors
· Psychological Factors