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

Family Law

Lewis Silverman (St. John’s/Touro)

Fall 2012

What is Family?

The best description of a family is a continuing relationship of love and care, and an assumption of responsibility for some other person. 88 A.D.2d 30 (1982).

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


· Definition of family rests on three key issues:

1) Central Authority Figure

2) Permanence/Stability

3) Cooking/Housekeeping

4) Blood – unassailable principle, if the same blood, then family members

5) Marriage – not needed, but if you are married, then you are family

6) Sex

7) Children

· Ordinances may define families in different ways

· Traditionally a family is made of people related by marriage, blood, or adoption

o Adoption creates a legal fictitious blood relationship

· A group of unrelated people can be the functional equivalent of a family – courts will investigate the nature of the relationship if a family relationship is claimed

· There is no fundamental constitutional right to live with people not related by blood, adoption, or marriage; Nor is there a fundamental right to call such people one’s family

· ALL people related by blood are constitutionally recognized as family


Penobscot Area Housing Development Corp. v. City of Brewer

(limits on group where no central authority figure, although unrelated groups are allowed)

3 Sub-Issues:

1: Who is the central authority figure?

-There were 2 staff members who acted as a central authority figure, but did not live with the residents, did not have very much authoritative power/control over the residents, and did not have financial control.

2: Permanence?

-The residents came and went, not staying longer than 1 to 1.5 years at a time.

3: Cooking?

-This requirement is not really pertinent to the definition of family.

Borough of Glassboro v. Vallorosi

(10 unrelated college students sharing a home satisfied a zoning requirement limiting occupancy to families because their occupancy was characterized by “stability” and “permanency” and could be described as the “functional equivalent of a family” as a single housekeeping unit). The central authority figure here could reasonably said to be the son of the owner of the house. HOWEVER, the NJ Supreme Court did not consider this fact to be as critical. In NJ, the stability requirement was crucial. The NJ Supreme Court said that because the students were living together, intended to remain together for the duration of their respective college careers. Thus, the length of time they were to remain for was not as crucial as their intentions to remain.

Village of Belle Terre v. Boraas, Supreme Court (1974) –StonyBrook College Kids rent home-(limits the number of unrelated individuals who may inhabit a dwelling) *******There is a fundamental difference between people who are married and/or related by blood or adoption and those who are not. The United States Supreme Court says that the state may limit the size of households for those not so related. Because unrelated people lead to more cars, congestion etc.

Bashaway v. Cheney Bros. Inc

One member of a lesbian couple injured in car accident and sues. Her partner brings a loss of consortium claim. Florida court finds that the loss of consortium claim invalid because Florida did not recognize same sex marriages and loss of consortium claim is a derivative claim dependent upon legal status of marriage.

Moore v. City of East Cleveland

(Court says can’t redefine blood relationship as not a family)

City ordinance limited number of individuals related by blood who lived in home such that woman couldn’t live with her illegitimate grandson as well as her legitimate grandchild. Court says- Cannot draw arbitrary lines in the relationships of persons related by blood, marriage, or adoption.


· If a government violates a fundamental right à reviewed under strict scrutiny

If it is not a governmental right à reviewed under rational basis

Ø Strict scrutiny = Is the regulation narrowly tailored to further a compelling state interest (least restrictive means in doing so)?

Ø Intermediate Scrutiny = Asks if a regulation involves important governmental interests that are furthered by substantially related means.

Ø Rational Basis = Is the governmental regulation rationally related to a legitimate state interest?

14th amendment = Due Process, Equal Protection and Liberty

Family is tied to Liberty and is therefore a constitutional category

Ø Parents’ right to control is rooted in the liberty aspect of 14th amendment

Ø Parents have property interest in their children, so they have liberty to control their children’s conduct

Ø Liberty Interest = interest of parents in care, custody, and control of their children

Parens Patriae – Doctrine allowing the state to control the conduct of CHILDREN; the state has a duty to protect and may intervene when a child is at risk – the state’s right will supersede the parents’ right

Ø Try to determine: The line between parents’ liberty to control their children and the state’s duty to protect children (it is not clear!)

Ø If it is a freedom of religion case, the state could only intervene in life-threatening situations

Ø The state has greater power to control the conduct of children (v. the conduct of the public i.e. through criminal laws)

Ø Any person can report a parent’s conduct to CPS (state agency) which will investigate the claim

Ø In most cases, courts WON’T allow parents to IGNORE accepted medical advice (i.e. blood transfusion)

Marital status of the parents MAY NOT affect the unmarried parent’s liberty interest in his/her child

Ø Legal Distinction Between Mother’s & Father’s Rights: Due process DOES NOT require that notice be given in all cases to a biological FATHER of the pendency of an adoption proceeding concerning the child. **A father’s liberty interest is created not just by biology, but BIOLOGY + MEANINGFUL INVOLVEMENT

o *NY – A person can be legally recognized as the Father (having Meaningful Involvement) in 3 ways:

1) By Paternity Proceeding (or DNA evidence)

2) By signing an affidavit at the time the child is born (has the same effect as a court order)

3) By being married to the mother (CL presumption of legitimacy)


Pierce v. Society of Sisters (Supreme Court, 1925)-state law required that all kids go to public school. Catholic school filed suit. Holding : Fundamental right comes from liberty interest under the 14th Amendment Due process clause. This fundamental right includes life, liberty and property and that cannot be infringed upon. Children are viewed as parents “property” à people can raise them the way they want

Meyer v. Nebraska – cited in Pierce

Facts: Passed regulation that it was a violation to teach German.

Reasoning: Establishes importance of family, liberty interest under the 14th Amendment.

v BOTTOM LINE FOR THESE CASES: Courts cannot deprive parents of the liberty of controlling their children without due process

Prince v. Massachusetts (Supreme Court, 1944)-Jehovah Witness-(Constitutional Law: Child labor case–This decision struck an important balance between the people’s freedom to instruct and raise their kids in their religion and the state’s obligation to protect children from harm, abuse and exploitation. The interest of religious liberty is not without limits – if actions can cause harm to children, they might be restricted).

Holding: The government has broad authority to regulate the actions and treatment of children. Parental authority is not absolute and can be permissibly restricted if doing so is in the interests of a child’s welfare.

This case established the doctrine, at least in the Family Law realm, of Parens Patraie, which says that parents’ liberty interested as established in Meyer and in Pierce not absolute. The State (government) will retain some authority for general welfare of all children.

Stanley v. Illinois-A father has a liberty interest in raising his children but this case says he only gets to exercise that right if he has some kind of meaningful involvement Father in this case was entitled to a hearing on his fitness as a parent before his children were taken from him. Father has rebuttable presumption of fitness-thus state has to prove he is unfit.

Lehr v. Robertson -This case says the same as Stanley v. Illinois, however it needs to be BIOLOGY + MEANINGFUL INVOLVEMENT

Exception: For a mother, it is biology alone

Troxel v. Granville-Grandparents petition for right to see grandchild- Liberty interest is the fundamental right of parents to make decisions regarding care, custody and control of children. Not absolute but for State to intervene it must show a compelling interest, which is subject to strict scrutiny.

U.S. Supreme Court found statute unconstitutional b/c it allowed anyone to petition a court for child visitation rights over parental objections and therefore unconstitutionally infringed on parents’ fundamental right to rear their children

as from a marriage that was previously terminated (stepfather and ex-stepdaughter seeking to marry). Since mother and step dad had divorced, marriage between step dad and ex-step daughter valid

Restrictions on Age

In re JMN-Noncustodial mother takes 14 year old daughter to marry 18 year old man. Court holds that under state law a marriage between a minor and adult is voidable not void. Thus even though mother did not have right to consent to her minor daughter’s marriage, the marriage was not automatically void and thus remains valid until a court annuls the marriage before the minor daughter reaches the age of consent

Restrictions on the Right to Marry: Polygamy

Ø Polygamy: state or practice of having more than 1 spouse at a time

o The crime of this is called bigamy

o When a woman has more than 1 spouse at a time, its called polyandry

o Mormons and Muslims practice polygamy

o Utah: Enabling Act allowed Utah to become a state so long as it outlawed polygamy forever

Ø Valid reasons under the 14th amendment why polygamy is PROHIBITED:

1) Morals (state has a right to choose certain moral codes)

2) Economic (many wind up on welfare because there are too many people in the family to support)

3) Protecting Women’s Rights-Exploits Women

4) Pluralism (combining new cultures; polygamist communities are insulated)

v NOTE: Consecutive polygamy is commonplace in society; Concurrent is looked down upon and in most places, outlawed.


In re Steed-Children of purported cult that included polygamy removed from their parents when ranch raided. Court held that removing children from their homes absent evidence that the children’s health or physical safety was in danger was an extreme measure and that the parents should have been afforded right to litigate issue of whether their children could continue to be removed from their parents.

Common-Law Marriage – “Having contracted a marriage by common law”

Ø ONLY difference from marriage certificate is how it starts (same legal rights & obligations and can end only with death or divorce)

Ø Requirements/Elements:

1. Capacity

2. Mutual Intent to be married

3. Cohabitation/Joint Finances

4. Publication/Holding Selves out as married

5. State allows it

§ SOME JURISDICTIONS – statutory or common law period of time

§ *NY – CL marriages CANNOT START HERE, but under lex loci, NY will recognize one which began in a state which allows it (i.e. PA), and will grant a divorce to CL married parties


Hargrave v. Duval-If state that does not allow common law marriage but recognizes common law marriages of other states, citizens of that state are able to become common law spouses of another state even if they are not domiciled there. There must however be CLEAR assent of both parties.

Restrictions on the Right to Marry: Homosexuality

Ø Currently, Connecticut, Massachusetts, Vermont, Iowa, Rhode Island, New Hampshire, Washington, District of Columbia New York allow same-sex marriage. New Jersey has Civil Unions. There is a current trend toward states either allowing marriages, having some form of domestic partnership, or recognizing marriages performed in another state.

o Massachusetts allows homosexual marriages because its constitution forbids the creation of 2nd class citizens and therefore may not deny the protections, benefits, and obligations of civil marriage

Ø Views on Marriage

o Traditional View of Marriage – One man, one woman.

o Contemporary View – Any two people who wish to unite should be able to marry.

o Main Issue in the Debate – Marriage is for procreation and the nurturing of children.