Family Law, Spring – 2011
Hopkins
I. Chapter 1: Marriage, Family and Privacy in Contemporary America
a. Moore v. City of East Cleveland
i. Supreme Court held that housing ordinance that limited occupancy of a dwelling unit to members of a single family and only recognizes a family as a nuclear family and not including extended, violated the due process clause of the 14th amendment.
ii. When the government intrudes on choices concerning family living arrangements, the usual deference to the legislature is inappropriate, and the Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.
iii. The ordinance had a weak relationship to the objectives cited by the city such as avoiding overcrowding, traffic congestion, and an undue financial burden on the school system because a nuclear family could still have a much larger impact on these than a small group of extended family living together.
b. Meyer v. Nebraska
i. SC struck down a state statute that barred teaching in the German language to children who had not yet reached the eighth grade.
ii. The court found that parents had a liberty interest in how they raise their children.
c. Pierce v. Society of the Sisters
i. Overturned a statute that stated that parents could only satisfy the state’s compulsory education law by enrolling their children in public schools.
ii. The court finds that parents have a constitutional right as to how their children are taught.
d. Prince v. Massachusetts
i. 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.
e. Griswold v. Connecticut
i. Facts: Appellants gave married persons information, instruction and medical advice to prevent conception. A statute outlaws the use of any drug, medicinal article, or instrument for the purpose of preventing conception and from assisting in the offense.
ii. Application: The relationship lies within the zone of privacy created by several fundamental constitutional guarantees. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
iii. Concurring: They do not agree that “due process” in the 14th amendment includes all of the first eight amendments. In determining what rights are fundamental the court must look at “traditions and collective conscience of our people” to determine whether a principle is “so rooted there as to be ranked as fundamental”
iv. Dissenting: There is no “right to privacy” stated in the constitution.
f. Eisenstadt v. Baird
i. Facts: At a lecture he used contraceptive devices as visual aids and passed them around. He was arrested for giving contraceptives away which was against the law. Single persons were not allowed to use contraceptives unless they wanted to use it to prevent disease and not to prevent getting pregnant.
ii. Holding: If the right to privacy it is the right of an individual to have the right to chose whether they want to bear a child or not and they are not allowed to treat married and unmarried people differently.
II. Chapter 2: Practicing Contemporary Family Law
a. Family Lawyers and contemporary roles
i. Mediator: third-party neutral who meets with parties with or without counsel, seeking to facilitate voluntary settlement.
ii. Arbitrator: a third-party decision-maker appointed by the parties to reaching a binding resolution.
iii. Collaborative Lawyer: an attorney who negotiates on behalf of one party, with the understanding that if the negotiation fails and the cas proceeds to court, the attorney will withdraw and e replaced by litigation cousel.
iv. Guardian Ad Litem (GAL): an advisor appointed by the court to speak on behalf of the child’s best interests.
v. Parent Educator: an attorney instructing divorcing parents in a classroom setting about post-divorce matters involving child custody and visitation.
vi. Parent Coordinator: an attorney providing intensive case managements for high-conflict families with children.
b. Ethical Obligations
i. Competence
1. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
ii. Diligence
1. A lawyer shall act with reasonable diligence and promptness in representing a client.
iii. Informing the client
1. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
iv. Communicating with the client
1. Reasonable communication between the lawyer and the client is necessary for the client to effectively participate in the representation. The lawyer must keep the client reasonably informed about the matter and must promptly comply with a client’s reasonable requests for information.
v. Fraud
1. A lawyer may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Fraud is conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
2. A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences fo any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
vi. Contingent fees
1. Prohibited in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.
a. Policy: would encourage practitioners to ignore the possibility of reconciliation and to press, for personal gain, the dissolution of a marriage.
2. This prohibition has generally not been interpreted to preclude contingent-fee arrangements in actions between unmarried cohabitants or in paternity proceedings since the rules specify marriage.
vii. Client Confidences
1. A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation.
a. A lawyer may reveal information relating to the representation of a client to the extent that the lawyer reasonably believe necessary to prevent reasonably certain death or substantial bodily harm.
2. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is basis in law and fact for doing so that is not frivolous, which include a good faith argument for an extension, modification or reversal of existing law.
a. Where the client insists on making claims that the lawyer believes are baseless, the lawyer may consider withdrawing from representation because the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.
viii. Conflict of interest
1. In representing a client, a lawyer shall exercise independent an professional judgment and render candid advice.
2. A lawyer is prohibited from representing a client if the representation involves a concurrent conflict of interest, that is, if the representation or one client will be directly adverse to another client, or if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyers.
3. Exceptions to concurrent conflict of interest:
a. The lawyer reasonably believes that the lawyer will be able to provide competen
i. Loving v. Virginia
1. Facts: black woman and white man got married and were charged with violating Virginia’s statute that people could only marry within their race.
2. Application:
a. Virginia argued that the purpose was to “preserve the racial integrity of its citizens” and to prevent “the corruption of blood”. They also argued that the regulation of marriage has been left up to the state and the federal govt should not interfere. Also since both parties are punished the same it is not a violation of the Equal protection clause.
b. The court finds that the most rigid scrutiny must subjected in cases like this where there are criminal charges. There must be a purpose that can be accomplished no other way than using racial discrimination. The court found it violated the equal protection clause.
3. Interracial couple that married even though there was a law against it. They challenged the law saying it was unconstitutional.
4. Equal Protection Clause:
a. Statute’s dealing with race must go under strict scrutiny.
b. Virginia argued that because it applied equally to both white and black people so no discrimination.
i. The court sees it as white supremacy.
5. Due Process
a. The right to marry is a fundamental right
b. Fundamental rights are subjected to strict scrutiny under the due process clause as well.
ii. Zablocki v. Redhail
1. Facts: Redhail was not allowed to marry because he had failed to pay child support for a child he had fathered years earlier.
2. Rule: a statute denying a fundamental right (here, the right to marry), must be supported by a compelling state interest and closely tailored to effectuate such interest in order to withstand strict scrutiny review.
3. Application:
a. Some people will never be able to marry because they either lack the financial means or unable to prove their children will not be public charges. This is to burdensome for an area that has been found to be a fundamental right.
b. There must be an important state interest:
i. This gives an opportunity to counsel the person on fulfilling his support obligations and the welfare of the children is protected.
c. Even though those interests are legitimate the means selected by the state unnecessarily impinge on the right to marry so therefore the statute cannot be sustained.
4. Holding: the state interest in enforcing c.s. orders is important, but depriving the fundamental right of marriage is not narrowly tailored to achieve this interest (in fact might only hurt enforcement) fails to meet strict scrutiny and is thus unconstitutional.
b. Same-Sex Marriage
i. Bowers v. Hardwick (Overruled by Lawrence v. Texas)
1. rule of law: There is no constitutionally conferred fundamental right within the 14th amendment to engage in consensual homosexual sodomy {states may recognize the right if within state constitutional guidelines}
2. Fact Summary: Bowers contended a Georgia statute proscribing sodomy was unconstitutional as applied to consensual homosexual conduct
3. Holding:
a. such activity has been proscribed since ancient times and no constitutional language exists prohibiting state regulation in this area;
b. the complaint was properly dismissed
4. dissent:
the sole basis for upholding this statute, which so clearly abrogates an individual’s right of personal freedom, is that anti-sodomy laws have
