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Family Law
South Texas College of Law Houston
Carlson, Richard R.

Family Law
Spring 2010 – Prof. Carslon
“Families is where our nation finds hope, where wings take dream.” – George W. Bush
I. What Is a “Family” and Why Does It Matter?
A. Defining “Family” or “Household.”
·         Basis for allocating rights and regulating lifestyle.
·         Problem: family is a subjective, personal, cultural
and religious concept.
·         It’s subjective – some families consider second cousins family, others don’t.
·         Webster’s: Family is an association of affiliated persons (or entities).
Braschi v. Stahl Associates – Two men living together as partners in a rent controlled apartment. The one’s name the lease is in dies and the landlord wants to evict him because NY’s intestacy laws say that only family members may in inherit a rent controlled apt. The court says that intestacy laws aren’t any good and state that their purpose is to protect all or most people who’ve treated the apt. as a home. Family includes persons in households having “familial character,” not just those bound by blood or marriage. They list several factors: exclusivity and longevity, emotional commitment, financial partnership, presentation to the outside world, performance of family duties, and treating the apt. as a home (though these factors will vary based on the situation). Court says Braschi gets to keep the place.
What if Braschi was a woman? Wouldn’t matter, still a family.
What if they were law students and not partners? Not a family.
·         Goal: Protect tenants from sudden impact of free market.
·         Legis. intended to protect all (or most) who have treated an apartment as their home.
·         Rejects “formal” approach.
·         Family includes persons in households having familial character (“family reality”).
B. Constitutional Rights to Family Life
Moore v. East Cleveland – Grandma Inez gets arrested for allowing her son and 2 grandsons to live with her. Zoning laws in the city prohibited multi-family homes in the part of town they were in. Since the second grandson was the child of another of her sons, they counted as a 2 family home. The court weighed the city rights versus the states and said the family is the bedrock of civilization. The second grandson had no where else to go, so he gets to stay. Wouldn’t have mattered if he was a foster child or a dead neighbor’s kid. Still a familial relationship.
C. A Right to Intimacy?
Lawrence v. Texas – Intimate relations between two men. One night stand, so they definitely weren’t a family. A cop with a prior grudge against Lawrence showed up in the bed room on a trumped up weapons charge and arrested them for deviant sex. Lawrence defended with equal protection. Court finds that if we have to protect family, we also must protect relations at the periphery of family, like the one here. Several key issues arise here: 1) Spatial privacy – home and bed are tied to privacy rights. 2) Autonomy and behavioral rights – rights of expression, belief, reproduction, and relationships. In Texas, we target conduct, not relationship or beliefs (though Kennedy rejects this distinction). Texas argues that the infringement of liberty is justified and that it CAN regulate morality. The Supreme Court, specifically Kennedy, concludes that morality is an insufficient ground for regulating such morality. Ultimately, the court views it as a liberty interest instead of an equal protection problem.
·         Before Lawrence, there was a stronger link between the rights of family and intimacy rights. The government now has a much more difficult time intruding on how we define family.
·         As a result, we now have more constitutional limits on state regulation on the scope of family as well as greater limits on state interference with intimacy.
·         HOWEVER, Scalia does say that it would be within state power to criminalize homosexuality as long as it has a substantial reason.
·         Post-Lawrence, some things are still illegal. However, the state must be wary of regulating personal relationships absent injury to another person.
·         SCOTUS (Kennedy in particular) made a specific note that the ruling in this case doesn’t force the U.S. to recognize gay marriage.
·         State must be wary of regulating personal relationships “absent injury to a person or abuse of an institution the law protects.”
·         Doesn’t involve minors, non-consensual sex, or doubtful consent.
·         Doesn’t involve prostitution.
·         Morality has been found to be sufficient justification for due process, but NOT equal protection.
D. Right to Marriage?
Zablocki v. Redhail – Redhail and Zablocki want a marriage license. Redhail had a child out or wedlock and the court ordered him to pay child support before it would grant a certificate. Texas has an anti-elopement provision stating that you can’t just go to another state, get married there, and have it recognized in TX. So why is having the certificate important? TX has a right to non-marital, conjugal cohabitation. However, Z & R likely wanted one for several reasons: 1) love – marriage permitted lawful sex. Also, it’s a personal and public statement of commitment and mutual economic reliance 2) kids – ensured their future kids were supported and would be R’s heirs (anti-bastardy laws back then were HARSH) 3) economic advantages- mutual duty of support, mutual right to public welfare, insurable interest, division of labor, and protection at dissolution. See also section on community property. Z & R seeking equal protection. Here, we have a group of people being denied a right based on their failure to pay child support. While there’s no specific constitutional right to marry, it is an important liberty interest. The court ultimately weighs the state’s interest vs. the liberty interest of the parties and decides that though no specific right to marriage exists in the Constitution, it remains an important right that may place a severe barrier on the poor. The state’s goal of enforcing child support is important, but it has less restrictive means to enforce child support policies (such as garnished wages, threats of jail time, etc).
II. Regulation of Qualifications for Marriage
A. Presumption of validity:
If it looks, acts, and walks like a marriage, it is STRONGLY presumed to be valid for the following:
1)      Appearance of marriage invites reliance
2)      Parties can arrange their lives based on a right to property and support
3)      Legitimacy of children
Marriages are declared void under only the most compelling circumstances.
Houston Oil v. Griggs – Wife married the father of her dead husband and they left Florida for Texas to avoid prosecution. She bought some land and her second husband died. Do the kids inherit part of the father’s community share of the land after she’d already sold the whole thing to Houston oil? A presumption exists stating that appearance of marriage invites reliance. See above- the marriage was strongly presumed to be valid.
Section 1.1001 of the TFC explains the multiple aspects of the presumption in TX:
1.      There are no disqualifications except for those expressly stated by the code.
2.      If a wedding or marriage violates a rule, unless the code says otherwise.
3.      The evidentiary presumption favors the existence of a marriage based on cohabitation and declaration.
4.      Fact of present marriage supports the inference that any prior marriage was dissolved unless proven otherwise (THE MOST RECENT MARRIAGE IS PRESUMED VALID).
5.      Cohabitation and declaration IN TEXAS leads to the inference of marriage (and can create a common law marriage if there’s no ceremony).
B. Legal Qualifications to Marry
·   At one point, Texas law denied 30% of Texans the capacity to marry at any age.
·         During most of the 20th century, Texas restricted a person’s choice of spouse to an approved group of adults that varied from 13% to as much as 87% other gendered adults.
·         The minimum age for marriage was recently changed to 16 or 17 with either parental consent or judicial consent. It was recently as young as 14.
·         Consent is no longer necessary at 18.
·         Reasons for limiting the age of consent include maturity and vulnerability of minors. Arguments in favor of lowering include the cultural differences of a diverse population as well as potentially provided a solution for uncared for teenage pregnancies.
Husband v. Piece – a 15 year old girl marries Teddy Husband in Mexico. They came back to TX and lived together in Laredo. The girl had disappeared from her parents. Was she now emancipated? She and her ‘husband’ were cohabiting, declaring themselves as married, and presenting themselves as husband and wife. The girl’s parents sought her return and the annulment of the marriage. The court says that underage marriage is voidABLE, not necessarily void. Additionally, marriage in Texas an underage person acts as de facto emancipation from parents and the marriage was upheld (?).
·         The Texas legislature decided to fix things by passing an amendment stating that any marriage to a person under 16 years of age is automatically void.
·         Each party to a common law marriage must be 18.
·         HOWEVER, judges do still have the authority to allow minors younger than 16 to marry.
·         Misrepresenting your age to get married does NOT change your status. Still void if you’re younger than 16.
·         The parents of the underage spouse have standing to seek annulment, as does the underage spouse.
C. Disqualification of Prisoners
·         Rule: Marriage only w/permission based on compelling circumstances (e.g., pregnant inmate).
·         Standard of review: Prisoners retain their Constitutional rights subject to prison rules reasonably related to “penological interests.”
·         In this case, “civilians” are also often affected.
·         Ultimately, now prisoners retain the right to marry, though it’s probably subject to the approval of certain authorities with a presumption towards ‘yes.’
D. Benefits of Marriage
·         Income taxes: Joint return, pooling of deductions.
·         Potential gift and estate taxes.
·         Surrogate decision-making

concurrent marriage, which of the two same gendered spouses are actually married?
The first undissolved marriage is considered valid and any subsequent ones are void. However, Texas law provides a presumption stating that the MOST RECENT valid marriage is presumed to be valid unless rebutted by proof of –non-dissolution of a prior one (see putative spouse doctrine as well).
“Springing” marriage in Texas.
2.      Is such a ban a violation of due process?
The first amendment DOES protect freedom of religion, but it’s one thing say that your religion says polygamy is OK and quite another to claim that it’s mandated.
Our country (and the constitution) is heavily based on Western Christian values, so that may contribute to our disfavor of polygamy.
The state has a myriad of issues to disfavor polygamy:
·         Inequality between the spouses and ensuring the proper treatment of women.
·         Monogamy “spreads the wealth” – this way ugly dudes can still get women.
·         Reduces the risk of under-supported kids
·         Property complications – what if one of 4 spouses wants a divorce? How would you even begin to handle a just and right division of community property?
·         Gender inequality.
3.      What about pseudo-polygamy? One legal marriage with several “spiritual” ones?
Are they married if they don’t hold themselves out as married?
State v. Holm – Holm was charged with statutory rape of his 16 and 17 year old  “wives” as well as bigamy. Legal marriage would be a defense to the first charge, as a married minor is considered emancipated and has the same rights as an adult. Two of his wives were sisters, so he was really creating sisters and brothers who were also cousins when he sired kids. Utah actually had to ban polygamy to gain state status. Utah statute also includes a provision that states that it’s illegal to “purport” to marry multiple wives. So what constitutes “purporting?” Ceremony, cohabiting, presentation, kids. The court holds that marriage includes such acts that create a relationship that would constitute a void marriage and Holm is found guilt.
Freedom of religion issues in Holm – The Utah constitution is less protective than the U.S. constitution for bigamy. Utah is the LAST place in the U.S. you want to be a bigamist. The dissent says that there IS a constitutional right to bigamy until the government produces legit proof of a strong government interest.
·         Texas Polygamy statute – Penal Code § 25.01(a): “[H]e is legally married and he (A) purports to marry or does marry a person other than his spouse in this state [or anywhere else], under circumstances that would, but for the actor’s prior marriage, constitute a marriage; or (B) lives with a person other than his spouse in this state under the appearance of being married.
·         Penal Code § 25.01(b): “Appearance” means holding out, cohabitation, and intent to be married.
E. Procedural Rules – What makes a wedding ceremony?
1.      The Agreement to Marry
Moore v. Bramlett – Man was already married with 2 kids. He had a child with a woman in Panama and promised to marry her. She sues him for breach of promise to marry and child support. She didn’t, however, know that he was already married and there was a chance the kid was actually someone else’s. Assuming the kid actually is his, she wouldn’t be entitled to child support because of the bastardy laws in existence at the time. Today – a promise to marry is STILL an enforceable contract (though, as we learned in KI, it’s subject to the statute of frauds).
Curtiss v. Andersson – Man breaks off his engagement and he wants the ring back. He claims that she promised to return it if the engagement ended. Two main aspects of his claim: 1) the oral agreement to give it back. The court says this is barred the SoF. 2) Implied condition for the gift. If no wedding, ring should be returned. The court decides instead to take fault v. no fault approach. The man broke off the engagement, so he’s at fault and she gets to keep the ring. GENERALLY, the conditional gift rule only applies to rings.