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Family Law
St. Johns University School of Law
Silverman, Lewis A.


Silverman – Fall 2012

Family lawyer – part lawyer, part psychologist, part friend, part partner, part nurse etc.

1) How does the government define family? Gov’t defines family in many different ways.

2) How far does government go into regulation of family (law of divorce, marriage, of custody etc.)

I. Defining Family and Marriage

1) What is a Family?

Best description of a family – continuing relationship of love and care, and an assumption of responsibility for another.

Characteristics of a Family (distinguished from consequences of a familial relationship) that help define whether a group of individuals is a family?

1) Marriage or Marriage-Like relationship – didn’t exist before, either was married or not. Most of the time what label we give does not affect whether it is a family or not but sometimes it does affect. But if married – then a family.

Braschi: same-sex relationship- most people would say they are not related. The court of Appeals said they were. Normally labels do not matter – people can call themselves whatever they want (Ex: in the process of divorce but already call another fiancée – in the past fiancée meant only when engaged), Braschi – more like an exception.

2) Central Authority Figure – rarely more than 2 people in the family in this position. Typically 2 people on the same level of authority (mother and father) – someone in charge. When 3 generations – typically not the 1st generation central authority figure

3) Blood – if you share blood it is a universal definition of family

4) Sex – children are product of sexual relations

Nuclear Family – concept developed in the 50’s – the idea of a husband + wife +2.3 children all sharing a common dwelling with a central authoritative figure.

Social Construct – something recognized by society; something that society makes to help society run better, either tangible or just an idea. Family is essentially a social construct.

Penobscot Area Housing Development Corp. v. City of Brewer: Home for mentally challenged. 3 central issues: 1) Central Authority Figure: 2 staff members did not live with the residents at all times, they rotated – not enough control. 2) Permanence: there was intent to stay indefinitely but residents left after 1 year. 3) Cooking: did not cook their own meals.

Rule: Because staff members rotated – no authority figure since there was not a cohesive and permanent relationship b/w staff members and residents.

Borough of Glassboro v. Vallorosi: 10 unrelated students share home satisfied zoning requirement limiting occupancy to families only because their occupancy was stable and permanent – they had intent to remain in the house for the duration of their college – they were considered as a single housekeeping unit (shared kitchen, bank account, etc.) There was no central authority figure, but the father who bought the house and the son who lived in the house could have been considered central authority figure. The court said that even though they were there for 3 years only:

Rule: It was a functional equivalent of permanency – there was stability!

Village of Belle Terre v. Boraas: zoning ordiance required that a single housekeeping unit have one/more persons related by blood, marriage, or adoption OR no more than 2 unrelated persons living together. Purpose of ordinance was to prevent disturbing noises, increased traffic, depriving kids of quiet and open spaces to play. SCOTUS held that the ordinance was constitutional because it bore a rational relationship to the accomplishment of legitimate governmental objectives.

Rule: The state could limit the size of households for those who are not married, related by blood or adoption. Fundamental right is attached to those that are married, related by blood/adoption.

Braschi v. Stahl Associates Company: Court of Appeals of NY had to dig into the emotional and sexual aspects of their relationship. In married couples – it never happens, don’t have to talk details.

Rule: Marriage is defined as a family by legal doctrines, while unmarried couples need to prove things to get benefits.

Moore v. City of East Cleveland: Cannot redefine blood relationships as not family.

Blood creates family, and where is blood – you have much more strong constitutional protection.

(Oneida Community – can be considered a family?

– had an authority figure, household together/ shared kitchen, no blood relations

– Oneida ended up allowing to have children; they paired up in more conventional units (2 people) and stopped being “married “to everybody; – after Noyes.)

2) When Can the State Regulate the Family?

Regulation of a (Nuclear) Family

Constitutional Law/ 14th Amendment:

1) Due Process Clause – “government must respect all of the legal rights of a person”

2) Equal Protection Clause – “no state shall deny to any person the equal protection of the laws”

Due Process Clause:

1) Procedural Due Process (Civ. Pro. Mullane – notice case – basic court procedures: one has a right to notice and right to be heard).

2) Substantive Due Process – One can’t be deprived of life, liberty, or property without given Due Process of law.

2 Standards of Review Due Process:

1) Rational Basis – Government has to offer Rational basis only

2) Strict Scrutiny – Triggered when there is a person’s fundamental right or liberty interest involved – State’s restriction has to be compelling state’s interest narrowly tailored.

Equal Protection Clause – when government makes distinction among similarly situated people.

3 Standards of review of Equal Protection:

1) Rational Basis

2) Intermediate Scrutiny

3) Strict Scrutiny – triggered by: class that involved are a suspect class (politically powerless, history of discrimination, etc.) + some fundamental or constitutional right involved.

– If no Suspect class – can be Heightened Scrutiny, if nothing – can be Rational Basis.

How Can State Regulate Family Under Constitution?

-Series of cases describing when state can or can’t regulate family.

Rule: The legislature has only a Limited right to regulate family when the members are bound by ties of Blood or Consanguinity.

Meyer v. Nebraska: Parents want kids to learn German in School. State during WWI said that until 8th grade kids aren’t supposed to be instructed in a foreign language. Court: liberty interest of an individual to marry, establish a home and kid’s upbringing. The court found liberty in the Due Process Clause – 1st time liberty interest was identified by the court.

Rule: Courts cannot deprive parents of the liberty of controlling their children without Due Process.

Pierce v. Society of Sisters: Statute requiring kids to go to public schools in Oregon – anti-Catholic legislation. It was challenged – the right to choose what schools kids go to. Under 14th Am, Due Process includes life, liberty and property and that cannot be infringed without Due Process.

Rule: Under 14th Am. Due Process, parents have a right to control their children – direct their education and upbringing.

Infringements on the Doctrine of Family Privacy

Prince v. Massachusetts: Betty, a 9 y.o. child, handing out Watchtower. There wasn’t any actual harm posed to the girl – the court said she girl was endangered that’s why the court interfered. The court: th

State’s interests aren’t narrowly tailored. There are people who can get better financially after marriage – statute over inclusive. The statute is also under inclusive – doesn’t talk about mothers and doesn’t limit other financial obligations. It is relevant that the statute is under inclusive because it doesn’t solve all of the problems. If solves problems even if under inclusive – then could be ok.

Ex: Ordinance prohibits prisoners to marry. One can argue that the statute doesn’t supersede the constitutional right. Other side – incarceration won’t allow to raise a child if there is a child.

Ex: Daily sessions, dormitory. Chemical dependency – allowed home only on Fridays. Court ordered the program. R wants to marry. Program’s director has to approve before he can marry. He doesn’t approve.

– Redhail had no access. R has access, there is just a delay. He is not being completely denied.

Rule: Access to marriage is a fundamental right protected by DP of 14th Am.

Moe v. Dinkins: Parents didn’t want to sign off on permission for children to get married. The court said it is not denying access to marriage – it is delaying – it is ok!

Rule: Not denying marriage, just delaying – is ok. Statutes denying access will require compelling state interest.

Turner v. Saftey: Adds fundamental right of privacy. Marriage is a fundamental right not just access to marriage – court based it not only in liberty but in privacy. No Supreme Court case after this case on marriage.

Rule: Restrictions that can be made on marriage – capacity to marry: old enough and not married to anybody else.

Rule: Regulations delaying marriage are more likely to be found constitutionally permissible while statutes that deny marriage will require a compelling state interest narrowly tailored!

Restrictions on Marriage

Consanguinity – related by blood

Affinity – related by marriage (in laws, step siblings)

Evasion statute: If you go to a different state to evade your state’s law, the court may annul your marriage because a state has control over its domiciliaries

Singh: Marriage to half-uncle or half-niece is void – prohibition.

Back: Stepfather was allowed to marry a stepdaughter after divorced mother. The relationship of affinity between the decedent and the plaintiff ended when they divorced –the marriage between them was valid.

1) Incest: in NY, Domestic Relations Law 1st Cousins are allowed to get married.

– Some states allow first cousins to marry, some – do not.

Reasons we don’t allow Family Members to marry:

(1) Closely related humans are more likely to have genetic defects

(2) A community that is insular on itself will ultimately cave in on each other; need new blood to come in and need outside influences “familiarity breeds contempt”.

(3) Could destroy harmony within family

(4) No new property – could cause economic crisis