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

a.       Right to Marry
                                i.      Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause; such protection is not limited to respect for the bonds uniting the members of the nuclear family. MOORE v. CITY OF EAST CLEVELAND, SCOTUS, 1977
1.      Grandmother challenges East Cleveland city ordinance banning the co-habitation of family members beyond that of a single immediate family.
2.      The court held that the right of both immediate and extended family members to live together is a fundamental right protected by principles of substantive due process.
3.      Texas defines family in terms of homestead… a legal or moral responsibility on the head of the family or rest of the family or corresponding dependence thereof.
                              ii.      Legislation which restricts freedom to marry solely on the basis of racial classification violates the Equal Protection Clause of the Fourteenth Amendment. LOVING v. VIRGINIA, SCOTUS, 1967
1.      Inter-racial couple appeals conviction under Virginia’s miscegenation law.
2.      Court held that a strict scrutiny reveals Virginia had no rational or legitimate interest in enforcing its ban on inter-racial marriages.
3.      If racial classification is used, it must be judged using a strict scrutiny test.
a.       Requires a compelling/overriding governmental interest.
b.      Must be a legitimate interest, Ø animus towards a group.
c.       The only state interest here was keeping the races from mixing, which was considered illegitimate, in contrast to denying fundamental freedom of marriage.
                            iii.      Reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. ZABLOCKI v. REDHAIL, SCOTUS, 1978
1.      Man challenges state statute denying his right to marry after fathering an illegitimate child which he is not able to support.
2.      The court held that it was a an unreasonable denial of the fundamental right to marry to deny a man’s right to marry a woman because of a statute banning marriage by fathers owing unpaid child support, or fathers of children who had become wards of the state.
3.      Marriage – not just a fundamental right, but also protected under the right of privacy.
b.      Right to Raise Children
                                i.      Parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. STANLEY v. ILLINOIS, SCOTUS, 1972
1.      Un-wed father challenges state law denying him parental rights over children born out of wedlock upon the death of their mother.
2.      The court held that it was a violation of father’s Due Process rights to sever his parental rights based solely on his legal status, without a hearing.
3.      Parental rights are considered fundamental and essential.
a.       Focus on individual right, rather than marital right.
b.      Here, state presumes lack of fitness based solely on legitimate status.
                                                                                            i.      Objective belies intent because it denies the possibility of fitness of unwed parents.
                              ii.      So long as a parent adequately cares for their children there will normally be no reason for the State to inject itself into the private realm of the family to question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. TROXEL v. GRANVILLE, SCOTUS, 2000
1.      Grandparents use state law to seek grant of visitation rights limits for grandchildren.
2.      The court held that a state law that grants a judge the sole ability to adjust visitation rights, absent any showing of inadequate parental care, violates the parent’s due process right to make decisions concerning the care, custody, and control of the parent’s children.
3.      Fundamental right of grandparents to raise children? NO.
a.       Constitutional rights limited to parents. No extension to other family members.
a.       SCOTUS takes care to say that all statutes related grandparent visitation should be reviewed on a case-by-case basis.
5.      The liberty protected by the Due Process Clause of the United States Constitution includes the right of parents to establish a home and bring up children and to control the education of their own
6.      It is cardinal with the court that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder
7.      If a fit parent’s decision regarding grandparental visitation becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination
c.       Freedom to Create Family According to Religious Beliefs
                                i.      The First Amendment protects individuals from legislative intrusion over “mere opinion” but may govern actions which violate “social duties or subversive of good order.” REYNOLDS v. UNITED STATES, SCOTUS, 1878
1.      Δ challenges bigamy conviction on religious freedom grounds.
2.      The court held that state was entitled to criminalize polygamy, despite the alleged religious basis for the practice.
3.      Those who believe in polygamy as part of their religious belief may not be excepted from the statutes making polygamy a crime.
4.      Does separation of church and state give this man the freedom to be a bigamist? No… governm

Dissolution of Marriage” includes:
a.       Divorce – Dissolution of legal marriage.
b.      Annulment – Dissolution of marriage based on lack of capacity.
                                                                                            i.      Voidable – simply erased as a matter of law.
                                                                                          ii.      Strictly by statute.
c.       Declaration of marriage as void – Lack of legal basis for marriage.
                              ii.      Every marriage is presumed valid. § 1.101
1.      Rebuttable as void or voidable.
2.      Based on public policy promoting marriage.
                            iii.      Most recent marriage is presumed valid over prior marriages. § 1.102.
1.      Rebuttable as void or voidable.
                            iv.      The law of Texas applies to persons domiciled in Texas, who were married elsewhere. § 1.103.
1.      DOMA protects Texas from being forced to recognized gay marriages authorized by other states.
                              v.      CAPACITY – A person, regardless of age, who has been legally married, has the capacity and power as an adult (including the power to contract). § 1.104.
                            vi.      No requirement of joinder of spouses in civil suits. § 1.105.
                          vii.      A promise or agreement made on consideration of marriage or nonmarital conjugal cohabitation is not enforceable unless the promise is in writing and signed by the person obligated by the promise. § 1.108.
1.      Marital agreement Statute of Frauds
b.      Tex. Family Code §§ 2
                                i.      Marriage License
1.      Man & woman desiring ceremonial marriage must obtain a marriage license from the county clerk. § 2.001(a).
2.      No marriage license may be issued for marriage between persons of the same sex. § 2.001(b).
a.      For the purposes of determining whether to allow marriage, gender is immutably established at birth. LITTLETON v. PRANGE, Tex. App.—San Antonio, 2000
                                                                                                                    i.      Transsexual Π in wrongful death suit involving spouse challenges SJ based on void same-sex marriage.