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

Constitutional Concerns in Family Law
1)     What is a Family
a)     Freedom of choice in family matters is a liberty protected by the due process clause
b)    Family can be regulated but the constitution protects sanctity of family
i)      Court weighs state’s interest vs. the interest of the family
ii)     so Texas cannot limit ability of family members to live together
c)     Family is not defined to the nuclear family
i)      could define family as a supportive head of household over members related by blood, adoption or marriage
d)    Texas – family or household for homestead purposes is a relationship of status
i)      not necessarily husband or wife
ii)     requires a legal or moral obligation on the head of the family to support the others – must be a corresponding dependence
iii)    no need for a blood relationship
2)     Parental Rights
a)     Parent – mother or adopted mother and a man presumed to be father, man legally determined to be father, man who has acknowledged paternity or adoptive father
b)    Parents are constitutionally entitled to a hearing on their fitness before children are removed from their custody
i)      Right to conceive and raise one’s children is a basic essential right
ii)     Custody, care, and nurture of the child resides first in parents
c)     By denying this, there is denial of equal protection under 14th amendment
d)    Texas is only state that allows a jury of 12 to decide custody
3)     Religious Freedom does not Protect Polygamy
a)     Polygamy is barred by the constitution
i)      Limiting religious practices Is not necessarily unconstitutional – balance state interest the person’s free exercise right
b)    Ignorance of fact may show lack of criminal intent but not ignorance of the law – if plaintiff knows what he is doing, then religious belief is not a defense
c)     Religious belief can be challenged if it violates social duties and good order
i)      If religious beliefs exempt people from having to follow the law, would put religion above the law
4)     Interracial Marriage Is Constitutionally Protected
a)     Sole basis of a statutory scheme cannot be racial classification
i)      not a legitimate state purpose that survives strict scrutiny
ii)     violates fundamental right to marriage
b)    No restrictions on the right to marry based on race under the Equal Protection Clause because it is a fundamental right
5)     Marriage cannot be barred by support obligation
a)     Cannot deny a marriage license just because have outstanding child support
b)    Marriage is protected by the fundamental right of privacy
c)     A statute interfering with a fundamental right will only be upheld when the state’s interests are overwhelming in comparison to infringement of fundamental right
i)      Look for less restrictive way to accomplish the state’s goals (ex. criminal charges)
ii)     Civil contempt – garnish wages, pull license (DL, law, hunting) if do not pay child support
6)     Religious Freedom, Parental Rights and States’ Interests
a)     The religious belief must be well-grounded to warrant an exception from an applicable law
b)    Fundamental right to child-rearing
c)     Only an interest of the highest order and not otherwise served can overbalance legitimate claims to free exercise of religion
i)      state’s interest in educating kids through police power is not a sufficient of enough interest to so seriously interfere with the exercise of religion
d)    Interest must outweigh whatever fundamental right is at issue
7)     Constitutional Rights of Grandparents
a)     Presumption that fit parents act in the best interest of their child – this should not be ignored because judge thinks there is a better option
i)      To get past this burden, must show:
(1)   parents are unfit or
(2)   grandparent’s removal of visitation will be harmful to the child
ii)     Fundamental right for a parent to have care, control, nurture and rear their children (Due Process Clause of 14th amendment)
b)    A state can interfere in child rearing:
i)      to prevent potential or actual harm to the child
ii)     when it can be shown that the parent is unfit in that situation or  that the denial of visitation would seriously impact or harm the child
8)     Homosexuality protected from criminal prosecution
a)     State cannot make private consensual sexual conduct a crime between adults, regardless of sex
b)    Violation of due process (not equal protection) because deals with private conduct within a relationship
 
Marriage Relationship
1)     Intro
a)     Suit for Dissolution of Marriage – 3 ways: divorce, annulment, or declaring marriage void
b)    Every marriage presumed valid
c)     Most recent marriage presumed valid until first spouse proves validity of the marriage
d)    Person lawfully married, regardless of age, has the capacity and power of and adult including the right to contract
e)     A promise or agreement made on consideration of marriage or nonmarital cohabitation is not enforceable unless it or a memorandum of it is in writing and signed by the person obligated by the promise or agreement
f)     If 16-18, must have parental consent, court order or documents showing prior divorce
g)    If under 16, must have court order for marriage license
h)     72 hour waiting period after issuance of license – can be waived if judge finds good cause that it take place during that period, member of military and on active duty, work for DOD, or completes premarital course
i

an improper judgment
d)    SOL to prove up is 2 years – must prove up the marriage within 2 years after the date when the parties:
i)      separated (with intent to separate) and
ii)     ceased living together (from end of relationship)
iii)    it is rebuttably presumed that the parties did not agree to enter the marriage
e)     No common law marriage if under 18 – would need parental consent and a formal ceremony
f)     Cannot be married formally and then enter into a common law marriage
5)     Prior divorce does not bar current common law marriage
a)     A prior divorce does not bar a common law marriage between the same couple later
b)    Evidence will support jury’s finding that a common law marriage existed if there is legally sufficient evidence
i)      Legal sufficiency – whether evidence would enable reasonable people to differ in their opinions
ii)     Legal insufficiency regarding evidence – look at supporting evidence to see if there is enough to support an element
(1)   Court looks at evidence in light favorable to party that won the original case based on evidence supporting the jury verdict and discount the rest of the other evidence
(2)   other party has the burden of proof – if there is a scintilla of evidence, will lose the no evidence claim
iii)    Factually insufficient evidence – evidence did not meet the claims requirement
(1)   weigh the factual evidence – includes direct and circumstantial evidence of common law marriage
c)     Other points:
i)      Common law marriage only applies to people 18 and over
ii)     Parental consent – must have parent permission for ceremonial marriage for 16 to 18 years old (Prior to age 16 requires a court order)
(1)   Parental consent must be given at time of application or no earlier than 30 days before submission of application
(a)   Must have proof that parent has authority to give legal consent
(b)   Minor (anyone under 18) can petition court for permission to marry
iii)    Can only have one common law marriage at a time
iv)    Can get a license by proxy under absent applicants
v)     Premarital counselling courses may waive marriage licensing fee
vi)    Each spouse has duty to support the other spouse