Select Page

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

Chiu – Spring 2007

New Trends in Family Law
– Increasing federalization of law through congressional acts
– Increasing constitutionalization of family law and values
– Increasing standardization of family law

Family: What is the definition of “family”? Conceptually difficult to define: Commitment, support, blood, legal family – adoption/marriage. There is no single concept

Constitutional Rights to Privacy

Privacy vs. state intervention tension: Constitutional Sources & Rights
Law ® family = tension

Privacy (how much) should be accorded to families?
How much deference should be accorded to state intervention?


Sources of Family law: ↑ Federal sources in Constitution
↑ Efforts to ↑ uniformity in state family law.

Understanding the Case-Law Evolution:
Right to Privacy protected by the Court:

Issues to consider:

○ Where located in the Constitution? Location helps decide level of scrutiny for Constitutional interpretation (fundamental right = SS vs. non-fundamental right = rational relation.
○ What does the right to privacy entail? Children’s education ® Contraceptives / married bedroom ® right to make child bearing decisions ® right to make decisions on entering into personal relationships / consensual sex.
○ WHO has the right to privacy? Marrieds ® hetero individuals ® hetero and homosexual individuals.

Why is it important to ‘find’ the source of the right?

○ Key to asserting a right & its level of protection.

Carving out the Right to Privacy:

Meyer v. Nebraska Pg. 18: Teacher teaching German to an 8th graders. 14th Amendment DP challenge: 1) right for parents to control substance of education and 2) Right to teach. Purpose of the law? American ideals and morals. Held: unconstitutional under Rat’l Rel.

○ 1st time SDP used to create a right for families

Society of Sisters: State law required public school attendance. Schools upset b/c business lost; parents upset b/c right to choose schools; DP 14th Amendment challenge: Parents right to dictate the contents of their children’s education aff’d. See later Troxel case (grandparents have no rights to interfere over parents).

○ Neither above case mentions privacy – but carves out the concept.
○ Rational Basis used but not defined or clearly laid out

Right to Privacy in the Bedroom: Griswold v. Conn Contraception advice/info

Derived from the penumbras of Bill of Rights: 1st, 2nd, 3rd, 4th, 5th, & 9th – deriving the zone of privacy.
Concurrence likes the 9th and 14th.
Dissent: you can’t make up rights.
State’s asserted interest in:

Prevent against X-tra marital relations
Moral arg in Griswold on contraception as ‘bad’
Ct mentions that state interest could be reached by sale / manufacturing ban.
C. Roraback Pg. 8 Interprets Ct. in Griswold just updating Constitution to meet the times.

Concern for “spatial” privacy and protection of the marital bedroom

The “married unit” is the “person” whose privacy

Individuals have a right to Privacy: Eisenstadt v. Baird Statute prohibits Dr.s from giving out contraceptives to married couples. Single people get nothing.

EP challenge to the law (b/c married vs. singles).
State’s interest: 1) prevent fornication 2) health of individuals. SC says interests asserted are bunk. The relation between fornication & law are far too tenuous & health is discriminatory & overbroad.
Establishing individual right to privacy belonging to the individual to be free from fundamental decision-making infringement.

Freedom of Relationship / Individual includes sex as a part of that:

Lawrence v. Tx overruling Bowers The anti-sodomy case.
Majority takes this as a DP claim (rational basis), rather than EP claim. Fundamental right explicitly established ( “decisional privacy”)

O’Connor – sees this as purely EP issue.

Restores dignity to homosexuality & strengthens the argument
Overrules Bowers & points out its problems

Bowers: Bowers law was passed on the moral majority at the time. The only Prosecutions were issues of non-consent. History was ALL sodomy, not singling out buggering boys.
Scalia’s dissent: Opened up same-sex marriage issue if we’re now saying there’s a ‘liberty to form a relationship.’

Seems to also stand for a “moral neutrality” by the courtà don’t want to take sides on the controversial issue, so treat everyone the same.

Due Process Claims
– “Fundamental Rights”à Strict Scrutiny
– Non-Fundamental Rights à Rational Basis Review

Getting Married

Marriage – institution as a private contract vs. public contract regulated by the state?

Basic Contracts differ: offer acceptance & consideration

Need to involve the state to dissolve / modify the K (i.e. divorce)
Relationship between the parties
General terms of K decided by the state (but can be K’d around through prenups, separation agreements (now)).
Only heterosexual & only 2 people can form the contract.

Case-Law Evolution: The State ‘interfering’ with right to Contract?

Is Divorce OK? Constitutional challenge of state interference with a private contract fails. Maynard v. Hill (1887).

Once married it’s not just an ordinary K b/c state allows marriage and therefore it is an “institution”
Duality of K + private & public aspects of marriage

Breach of Promise – does it still exist? NO

BPM: a hybrid of Contract & tort actions (allows for punitive ‘maliciousness’ & aggravated damages for ‘seduction under promise to marry’
DEFENSES: 1) lack of love 2) mutuality of ending, 3) unchastity of the P, 4) Defects
Today’s Alternative remedies available:

Intentional infliction of emotional distress

Really striking traditional accommodation of marriage – idea that something more gone & reduced to K & tort law.

Who keeps the RING?

Engagement ring = Conditional gift & without the condition fulfilled DONOR gets the ring back. (see chart pg. 132.)
Traditional ‘fault’ approach is minority approach.
Majority of districts follow this no-fault / conditional K / gift approach when it comes to rings.
NY follows combined conditional gift/unjust enrichment rule

Will the original recipient be unjustly enriched if they are allowed to keep it?

If yesà must return to person who paid.
If Noà they can keep it.

order to get a marriage license. DP analysis – citing Griswold (privacy), Loving (marriage).
Strict Scrutiny analysis:

Interest: state wants to use as an opportunity to counsel person in debt – BUT Less invidious ways & statute doesn’t require the counseling
2nd interest: Welfare of unsupported kids – Ct says ® more illegitimate kids.

Fails SS
Butà doesn’t mean state cannot regulate marriageà are allowed to hinder, but not substantially interfere with the right to get married.

Califano FN: SS won’t always be used so long as don’t significantly interfere with right to marriage; only then will you be subjected to SS (pg. 158) (social sec removed when get married case).Pg. 166 Note 2.

State Regulation of Entry into Marriage:

Void Marriage: was never good / doesn’t exist & anyone can show its invalidity
Voidable: CAN dissolve at some point, but was valid to start. Only the 2 parties to the marriage can dissolve.

Regulations in NY statute itself:
– Only opposite sex

Substantive regulations on who can marry:
· DRL § 5: Incestuous & Void: A marriage is incestuous and void whether the relatives are legit or illigit between: ancestor/decendent, whole or half bro/sis, uncle/niece etc. NOTE: 1st cousins may marry.
o NOTE: Incest provisions still refer ONLY to opposite sex.
· DRL § 6: Void Marriages: New marriage is absolutely void if your former spouse is living, unless the prior marriage was annulled or you have divorced.
o § 255.15 – criminalization of bigamy.
· DRL § 7: Voidable: Under age of consent (18 – but court can modify given right circ), incapable of consent (mental), inability to have sexual relations, incapable of consent b/c of physical limitation(impotent), consent through force, duress, or fraud, Incurable mental illness for 5+ years.
· DRL § 8: After divorce, you may remarry.
· DRL § 10 Marriage is a civil K. Must be capable of consent to K to marry.

DRL §15: 14-16 needs parental & judicial consent to marry, 16-18 both parental consent to marry, in writing.
DRL § 15-a: Minimum age is 14 years in NY state.

Procedural Requirements in NY:

DRL § 11: Solemnization requirements (clergy, mayor, judge, written K with 2 witnesses acknowledged by a judge… if under 18, a K is no good.)

No common law marriage but we do recognize common law marriage from other states

DRL § 12: No particular ceremony endorsed by the state but, you MUST have 1 officient & 1 witness
DRL § 13: Marriage license required (+24 hours) No blood test / health form requirement.

Case-Law Evolution:

Both DP & EP claims being brought under Federal & State Constitution in right to marry claims.