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

Chapter 1: Select group of family law opinions issued by the USSC
Managing conservator – has primary possession of child
Possessory conservator – has visitation possession of the child
Today there is a presumption of joint managing conservatorship
January 17, 2008
What is a family?
Moore v. City of East Cleveland
The court holds that this statute does not survive constitutional scrutiny and they cannot limit family members ability to live together
Texas tends to view families in terms of homestead – see note three following this case; and this is a broader interpretation because under Texas law a family is defined by a legal or moral obligation of the head of the family to support the family or family members and corresponding dependents. 
Who is a parent?
Stanley v. Illinois
–          Here, Peter’s due process rights were violated because he should have a hearing regarding custody, only if he was found to be unfit AFTER being given custody automatically, because he is the natural father
Reynolds v. U.S. – Bigamy
–          Polygamy is now barred by the constitution
–          in Texas, the punishment for polygamy is “two wives”
January 22, 2008
Continuing Constitutional Issues in Family Law
Loving v. Virginia – Interracial Marriage
–          the sole basis of this statute was racial classification; and this is not a legitimate state purpose that survives strict scrutiny
o       there is no legitimate purpose here and they are violating the fundamental right to marriage
–          this case will not support same sex marriage because this case deals w/ race and not gender, but it could be argued that it violates the fundamental right to marriage
–          Barring interracial marriage is unconstitutional and violates the fundamental right of marriage
Can the right to marriage be barred by support obligations?
Zublacki v. Redhale
–          Marriage is a part of the fundamental right to privacy and is older than the Bill of Rights itself. This shares the protection of child rearing, familial relationships and procreation. 
–          Thus, it is subject to strict scrutiny
–          Why is the relief offered in this statute not adequate to Red Hale and those similarly situated?
o       Because Red Hale will never be able to meet the financial requirements and the child is not a charge of the state
–          When is a statute that interferes w/ a fundamental right upheld?
o       when the state’s interests are so overwhelming in comparison to the infringement on this fundamental right
o       State’s interest – child welfare and counseling for the father, this purpose is not really being served because there are no counseling aspects to this statute, this was only mentioned prior to enactment in the legislative history. 
§         Child welfare is important, but there is already legislation regarding paying child support in Wisconsin in the form of garnishments, turnover orders, tax refunds, no hunting and fishing licenses – most of these are in Texas and more effective in realizing this goal than not letting people get married
o       this does not meet the test and as a result, the statute is unconstitutional
Parental Rights
Wisconsin v. Yoder
–          parents are Amish and don’t want their children to have to be sent to school until 16, because they don’t’ want to promote competition and individualism and want to get their children used to their lifestyle
–          state claims interests:
o       participation in political system through education, but an 8th grade education is sufficient to utilize the political system
o       make children self sufficient to exist in society – the Amish lifestyle makes these children self sufficient to survive and function in society
–          Amish win b/c they have a fundamental right to child rearing and the children do not have to continue going to school
Grandparent’s rights
Troxell v. Granville
–          the trial judge thought it would be in the best interest of the children to visit their grandparents, and in turn, takes all control away from the custodial parent as to who can see and visit their children – she is treated like a stranger and is given no deference whatsoever an ignored the presumption of a fit parent making good decisions for their child.
–          State Supreme Court said the statute was unconstitutional because it infringes on the fundamental rights of parents choosing who their children associate with – Child rearing
–          this case deals with the fundamental right to raise your children and this statute takes it away and gives the best interest finding to the court/judge
–          What should be the test to make these determinations?
o       state can interfere on child rearing when:
§          to prevent potential/actual harm to the child, but this isn’t occurring here
·         would have to show the parent is unfit in this situation or that the denial of the visitation would harm the child
–          this statue was unconstitutional as applied
153.432 & 153.433 TFC – See these
– Possession access if file suit for modification under certain aspects
Texas courts have been applying Granville for the most part.
Lawrence v. Texas – Homosexual Relations in Privacy of Home
–          the court overrules Bowers and uses private conduct of consenting adults as the basis for overruling the Texas Courts
–          Case analysis of Bowers
o       no fundamental right to engage in sodomy was held in Bowers and the USSC found that this was offensive to Lawrence, because it would demean a married couple as saying being married is only equal to sexual intercourse
–          Application of case at bar to Bowers:
o       bringing the case at bar only to a sex act is not the way to look at this, you should look at this as more than just one act relating to their sexual orientation and a liberty interest in the right to express yourself in an intimate relat

is also barred
·         convince someone’s spouse to leave the other spouse and run off with you this is barred today
o       promisor agreement on consideration of marriage or non-marital congecal martial habitation must be in writing
The Marriage Relationship – Chapter 2
Littleton v. Prange
–          P was born a male and had a sex change to become a woman
–          A transsexual is the same sex that they were before the reassignment surgery
–          Court looks at 4 cases for guidance
–          P attacked the MSJ on several grounds
o       D didn’t meet their burden to achieve summary judgment by proving as a matter of law that P was actually a man
–          the court reasons that P’s “female anatomy is all ‘man made’”
o       As a result, they hold the P is a man baby
–          P had been reassigned a birth certificate by Texas that recognized her as a female, but the court rejected this because this was not the type of inaccuracy that the legislature thought of when they allowed recertification of birth certificates. Only inaccuracies that occurred at the time of birth are allowed to be recertified
–          Future concerns from this holding according to George
o       What about ambiguous chromosomes where you can’t tell where a person is male or female? We will have an issue using the guidelines the court set forth here, because their chromosomes prior to surgery do not establish a sex to begin with
–          this holding not only would affect P’s ability to file a wrongful death action; but also descent and distribution, retirement benefits, insurance proceeds from life insurance policies
–          However, if P had a will he/she would still get most of the above examples, except w/ the wrongful death statute action
–          2.013 of TFC
o       in 2007, 2.013 people that desired to marry are encouraged to take premarital education course during the year before they apply for a marriage license – this part passed, but the below did not pass legislative voting:
§         establishes what subjects to be taught and who can teach it
·         Fee was raised from $30 to $60 and if you take this course they will waive the marriage licensing fee and the 72 hour waiting period to get your license – this is still good law
·         this would make it harder to get divorced and wipe out the no fault divorce and extend the divorce waiting period to 1 year