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Family Law
St. Johns University School of Law
Chiu, Elaine M.

Family Law
Professor Chiu
Fall 2010

THE CONSTITUTIONAL RIGHT TO PRIVACY
Equal Protection/ Standard of Review
o Strict scrutiny – closely related and narrowly tailored to a compelling state interest
§ Race, pregnancy leave, regulation on marriage and suspect class
o Intermediate Scrutiny – Substantially relate to an important gov objective
o Rational Basis – rationally related to a legitimate gov interest ( martial status )
Due process analysis:
o Id interest at stake and weigh it against state interest
The right to privacy belongs to: parents, married couples, individuals, gay couples
The Right to Privacy Entails
o Parents can control children’s education Pierce v. Society of Sisters
o Use of contraceptives (protection of martial bedroom) Griswold v. Connecticut
o Make decision about child bearing Eisenstadt v. Baird
o Decisions about consensual sexual relationships

GETTING MARRIED
Getting Engaged=offer, acceptance and consideration (ring)
Breach of promise to marry lawsuits (combined tort and breach of K)
o NY – cannot sue for breach of promise to marry
o If the person moves, quits job or gets pregnant and the engagement gets broken their legal remedy is sue for unjust enrichment, promissory estoppel and IIED
Gifts in Contemplation of Marriage
o Unless otherwise expressed an engagement ring is a conditional gift
o Who gets it? – Fault based approach: men gets it if mutual or not his fault and woman gets it if men breaks it off
o Minority of Ct’s have a no fault approach (modern trend) – goes to the donor regardless of fault bc engagement period is testing time
Constitutional Limits on State Regulation of Entry into Marriage
o Whites marrying non whites: Loving- this violates a DP/EP – the law treats ppl differently by classification of race
o Getting married with outstanding child support: The right to marry is fundamental +Significant Interference= SS, This is a direct and substantial interference bc many simply lack money and not might not be able to prove child will not be on welfare -> they can never get married
o Gay marriage – civil unions, state constitutional amendment, mini domas ( defensive marriage act – only bwn man and woman- permits states not to recognize gay marriage that was contracted in another state)
NY regulation on entering Marriage
o Void Marriages –never had a legal existence, either party or 3rd party can challenge at any time
§ DRL 5: Incest: ( ancestor decendent, brother and sister( whole/ half blood), uncle/ neice; aunt nephew but not first cousins ( can face criminal charges)
§ DRL 6: Bigamy no one with a living spouse can get married
o Voidable Marriages: – valid until declared invalid; can only be brought by either party in the marriage –DRL 7:
§Underage ( 14/15= parental and judicial consent, 16/17 – written parental consent only)
§Lack of understanding
§Inability to have sex
§Force, duress, fraud
§Incurably mentally ill for more then 5 years
o DRL 15 a: no one under 14 can get married
o Procedural Requirements in NYS ( does not recognize a common law marriage)
§ DRL 12:
· Witness ceremony
· Need a license
· Must wait 24 hours after getting license
· No physical exams
§ DRL 10: M is a K so need to have mental capacity to K- physical capacity is not required

BEING MARRIED
o Doctrine of non intervention ( McGuire v. McGuire) – the state will rarely intervene in an ongoing M– respect for family privacy
o Doctrine of Necessaries – cl duty to support spouse
o FCA 412: a married person has a duty to support their spouse (gender neutral) pay a fair and reasonable sum (many states have adopted this)
o FDRL 50:property that a woman brings in and the profits that come from that property continue to be her sole property and not subject to H’s control (married woman property act)
o Property acquired during M goes to the titleholder – owned by a person whose name is on the title; but they can decide to own it jointly – has to have both names in title ( this is the rule in NY )
o Community Property: everything is owned jointly
§Join control – need consent of both
§Equal Control – either can manage wot consent
o The duty to support is to care and you cannot give it to someone to do for you – this is personal just like the duty to be faithful Borelli:
o Pregnancy Discrimination Act of 1978
§ Sex discrimination includes discrimination on the basis of pregnancy – it must be treated like other medical conditions in terms of leave and benefits
§ Exception: Bonafide Occupational Qualification – if you really cannot do your job bc of pregnancy you can get fired
§ States can write their own goals – as long as they are consistent and guarantee women who are pregnant equal rights
o Balancing Work and Family
§ Family and Medical Leave Act – gender neutral, does not mandate paid leave
· Serious Health Conditions: illness, injury physical or mental that involves
– Impatient care or
– Continuing treatment more then 3 consecutive calendar days and the receives subsequent treatment or experiences further incapacity relating to same conditions
§ Subsequent treatment –must include treatment of two or more times by the health care provider or treatment which results in regiment and continuing treatment
§ Incapacity – inability to work, attend school or perform regular daily duties
· Son or Daughter: biological adoptive, foster, stepchild, legal ward
· Spouse: H or W
· Leave required:
– can take leave you have available and whatever else just take unpaid or you can get state disability and then unpaid leave to care for child/ spouse/parent
· also reqs maternity leave ( but not paid)
Domestic Violence
Battered Woman Syndrome
§ stay bc dominated, scared, too depressed to leave, express threats on life/children, defeated
§ Learned helplessness – no control and terrified all the time
§ Alternate Theories on Why Women Stay:
o Survivor Theory = V is doing everything she can to survive during and after abuse; actively trying to survive; sheer physical survival (most serious abuse happens when woman tries to leave)- always do whatever they can to prevent an act of violence
o Separation Assault Theory = more dangerous when woman leaves (spending night w/ mom, seek out divorce atty) if all you want to do is survive, maybe the best thing to do stay- supports the conclusion that separation is not an option bc it is dangerous might bring on an act of violence
o Out of Love –they don’t leave bc they love the batterer
Domestic Violence Reforms
§ BWS& self defense
o We need to show that there was a threat of reasonable belief that she was about to die
o Proportionality and imminence
· Imminence: battered woman knows the “look” and the “cues” before battery, always scared, fear of death
· Proportionality: deadly force against non-deadly force
§ Restraining orders
§ Mandatory arrest and prosecution policies – investigation is mandatory – DA has discretion to do what they think is right

luntarily performed by D with person other then spouse while you are married
§ DRL- 171 g defenses –SOL, they cheated too, permission, and connivance, we are separated
§ Evidentiary Rules for Adultery Actions in NY
o Clear and convincing evidence
o Can prove through circumstantial evidence
o Need to show:
§ Opportunity, Inclination, Intent
o Use of confessions:
§ Children ( 3rd party – ny does not have parent children confidential privileges ) – can testify if he told them he was cheating
§ Confession not enough have to have corroboration
§ Cannot testify against the other spouse in adultery action except to prove existence of the M, to disprove the adultery or to disprove a defense
§ Can plead the 5th self incrimination bc in NY, adultery is still a crime

Cruel and Inhuman Treatment: (In NY most popular divorce grounds Bc easiest to fall in this category and not as many defenses to it)
§ One incident will usually not be enough (maybe if its really brutal)
§ Benscoter: Clean hands- Cant be guilty of your own offense and file for D on this ground (ex: cheating)- he came with dirty hands
§ Injury results (mental or physical) – more then just unkindness/rudeness/want of affection –mental harm/verbal/emotional abuse can be sufficient
§ Breckinridge: (NY) For a M of long duration there is a sliding standard based on the length of the M High degree of proof of serious misconduct req’d
§ Muhammad: cult constituted habitual cruel and inhuman treatment Standard: the intolerableness of the plight created for the nonoffending spouse – Made a pt to say mental harm/verbal/emotional abuse can be sufficient (broadening of the standard)
NY Understanding of Cruel and Inhuman: DRL 170(1)
Conduct of the D that so endangers the physical OR mental well being of the P that renders it unsafe for the P to cohabitate w/ the D
o Physical AND mental harm
o Fault of the D (not another explanation for the D)

Desertion/Abandonment
· Physically left and wants to never return, has to be away for a year, did not mutually agree on the separation, and H did not cause her to leave- must be unjustified
Abandonment in NY: DRL 170(2)
· Actual Abandonment = 1) voluntary 2) no consent of spouse 3) unjust 4) unjustified 5) no intent to return 6) 1 yr —what happens if she offers to reconcile before one year is over – if he accepted her and she was making a good effort try if he does that time stops, if it does nto work you have to start time from the beginning – or he could turn her away time continues – but the problem – her intent change – she wanted to come back – for the last two month he caused her to leave and now she has justification and he consented to it)
· Lock Out Abandonment = same requirements but you’ve literally been locked out
· Constructive Abandonment =