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


Constitutional Concerns


Family law is state-based; SCOTUS only becomes involved when state laws and state court decisions impinge upon certain basic constitutional rights.

Harris County: 9 Family Law District Courts
Only state that permits jury trials for divorce and custody cases.

Exceptions: When NO Jury Trial Permitted

Agreement prohibits trial (mediation, etc.).
Too expensive.
Trial would be more of a production than it’s worth.

Recognizes CL Marriage.
Provides guidelines for support based on income.

What is a Family?

Marriage and family are fundamental liberties.
Family: Extends beyond the nuclear family.

Texas: 2 Elements (defined in terms of homestead)

A legal or moral obligation on the head of the family to support the other member(s); AND
Corresponding dependence by the member(s) of the household on the head of the family for support.

Rule: A statute that narrowly defines family is unconstitutional à violates the DPC of the 14th Amendment because family is a fundamental liberty.

Rationale: The notion of family is deeply rooted in the nation’s history and tradition, and the modern family extends beyond the nuclear family.
Example: Moore v. City of East Cleveland (SCOTUS, 1977)

OH housing ordinance restricting the permissible members of a household to only immediate family members and a certain number of extended family members was unconstitutional.

Who is a Parent?

Rule: A statute cannot presume that all unwed fathers are unfit parents and take custody of a child without a proper hearing à violates the EPC of the 14th Amendment.

Rationale: Statute is too broad and the presumption that all unwed fathers are neglectful is “constitutionally repugnant.”
Note: Beyond this constitutional argument, the state doesn’t gain anything by separating children from fit parents and making them wards of the state!
Example: Stanley v. Illinois (SCOTUS, 1972)

IL law requiring that children of unwed fathers automatically become wards of the state upon the death of the mother based on the presumption that fathers were not presumed to be “fit” parents was unconstitutional.

Polygamy v. Religious Freedom

Rule: Congress may pass a law that prohibits polygamous marriages because laws may be made that interfere with religious practices (acts), but not beliefs and opinions.

Religious Acts v. Religious Beliefs

Religious Acts/Practices = Government Regulation

Example: human sacrifice
Rationale for Regulation: Ensure that the law – not individual religious beliefs – remains supreme.

Religious Beliefs/Opinions = NO Government Regulation

Example: Regina v. Wagstaff – Parents were not convicted for refusing medical care for their daughter because of their religious beliefs because there was no affirmative act that was knowingly done; rather, merely a decision based on their beliefs.
Example: Reynolds v. U.S. (SCOTUS, 1878) – Reynolds’ conviction of bigamy was affirmed even though he had permission from the Mormon Church to take a second wife because his religious belief could not serve as a justification for an overt criminal act.

TX Rule on Polygamy/Bigamy

Both applicants must not presently be married at the time the application is being completed.
Bigamy is an offense if the person is legally married and he/she either:

Marries someone else; or
Lives with someone else under the appearance of being married.

Interracial Marriage Constitutionally Protected

Rule: A state cannot adopt a statute that prevents marriages between persons solely on the basis of racial classification à violates EPC/DPC.

DPC: Marriage is a fundamental right that can only be regulated if state law meets strict scrutiny test.
EPC: Invidious racial discrimination is prohibited; state must have another legitimate purpose for the law.
Rationale: Marriage is a basic civil right that is fundamental to our existence and survival. Freedom to marry rests with the individual and cannot be infringed upon by the state.
Only permitted if the state has a legitimate purpose independent of invidious racial discrimination!
Example: Loving v. Virginia (SCOTUS, 1967)

Jeter (black woman) and Loving (white man) got married in DC and returned to VA, where they were convicted under a VA law prohibiting interracial marriage. VA law declared unconstitutional à violated DPC & EPC.

Recognition Between States of Marriage

Full Faith and Credit Clause allows states to recognize marriages from other states.
Exception: Same-sex marriages are not required to be recognized pursuant to the Defense of Marriage Act (DOMA).

Same-Sex Marriage

Does Loving Support the Constitutionality of Same-Sex Marriage?

YES à Dicta re. the right to marry as being a basic civil right to which everyone is entitled.
NO à The fundamental freedom of marriage is based on existence and survival. Since gays can’t naturally procreate, they are outside the boundaries of this explanation.

Marriage Cannot Be Barred by Support Obligation

Rule: No restrictions may be placed on one’s right to obtain a marriage license (i.e., failure to pay child support) because marriage is a fundamental right.


Marriage is a fundamental right and the restriction risks prohibiting someone from ever getting married.
State has numerous other means to exact child support obligations from delinquent fathers, so the means is not narrowly-tailored to the end.

Example: Zablocki v. Redhail (SCO

restricts religion and religious ways of life violates the 1st and 14th Amendments.

Exception: A state can compel education in the face of a religious challenge by showing that, either:

The statute does not deny the free exercise of religion; OR
There is a state interest of sufficient magnitude to override a claim made under the free exercise clause.

A state has a strong interest in educating its children, but the interest in universal compulsory education is not absolute to all other interests.
A law is unconstitutional if it unduly burdens the free exercise of religion.

Balance: Duty to Educate v. Parental Right to Bring Children Up With Religious Beliefs
Example: Wisconsin v. Yoder

WI statute that parents had to send their children to school until age 16, which was invoked to force Amish and Mennonite parents to send their children to school past 8th grade contrary to their religious beliefs, was deemed unconstitutional.

The Marriage Relationship

Introduction: Important Code Sections

PP Behind Marriage

§1.101: Every Marriage Presumed Valid

Presumption – Every marriage is presumed valid unless expressly made void or voidable.

Void: Marriage was never valid.

May be done by a 3rd party.
May be done at any time, even after the death of one of the parties to the marriage.
Examples: age requirement, no same-sex marriage, polygamy

Voidable: Certain types of marriage may be voided at certain times.

Must be done by a party to the marriage via annulment.
Examples: impotence

§1.102: Most Recent Marriage Presumed Valid

Presumption – If a person is alleged to be married to 2+ persons simultaneously, the most recent marriage is presumed valid against each marriage that precedes it.

BOP: The party asserting the validity of the prior marriage must prove the validity of the prior marriage and that it never dissolved.
HYPO: If H1 and W2 are married, and then W1 shows up and claims she and H1 are still married and that she wants a divorce and ½ of everything H1 has with W2, then BOP on W2 to prove that her marriage to H1 is valid and never dissolved.