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Family Law
Temple University School of Law
Glennon, Theresa


Theresa Glennon

Appleton & Weisberg, Modern Family Law, 5th. Ed. (Aspen Law & Business, 2013)


A. Is a commune a family?

1. Food Stamp Case – Moreno (73) – unconstitutional to define a household only as related individuals.

a. Excludes the people that are so desperately in need of aid, that they are grouping together to fight poverty.

b. Freedom of association is a 1st amendment right. No rational basis to classify otherwise.

2. FRAT Case (74) – unrelated people living together can be distinguished. Diff values, diff considerations.

3. NJ Student Case – (15 years later) allowed 10 college students to be defined as a family.

4. Group home case (85) – invalidated zoning ordinance because it rested on irrational prejudice (but the FRAT CASE)

B. Extended Family

1. Moore (77) – can a law bar a child from living with grandparents or cousins? YES, but it deserves close scrutiny

a. In this case – NO – extended family gets protection under the 14th amendment (Due Process Clause)

b. When intruding on choices concerning family living arrangements, must examine govt. interests and how they are served by the regulation. (deep rooted tradition to pass family values down through extended family)

c. Similar reasoning to Moreno – times of need people bond together to secure a household (want to allow that)

2. Belle Terre (Frat case) v. Moore – Frat case was about zoning, Moore was about family needs/values

C. Familial Benefits: housing and inheritance

1. Braschi – two men in a rent controlled apartment – definition of a family for eviction purposes. Progressive NY court gives a more realistic definition – “two adult lifetime partners, whose relationship is characterized by an emotional and financial commitment and interdependence.”

a. Totality of the relationship – Should have a chance to show that the relationship exists.

2. Peterson – Peterson refused to rent to an unmarried couple seeking to cohabit. (NOT UNLAWFUL – ND 2001)

a. Conflict between cohabitation statute and human rights act (which didn’t repeal it)

3. Federal Fair Housing act failed to prohibit marital status discrimination – people have to resort to state law.

4. 2012 – Dept of Housing issued regulations and changed the definition of family, to include families regardless of sexual orientation, marital status or gender identity.

D. Aspects of Sharing a Household

1. Relationship among members

2. Financial Pooling

3. Biological, emotional and caregiving relationship

4. How they hold themselves out to the outside world

E. Reasons for Defining Household / Family

1. Having enough money

2. Dependency

a. Young / old / Illnesses / disability

b. Stay at home spouse

c. Making decisions

3. Government efficiency (benefits & regulations)

F. Right to Privacy (Supreme Court privacy doctrine) – State’s right to impose on familial decision making

1. Griswold (65) – Doctor’s right to give married couple advice related to conception is protected by the constitution


b. Right of privacy – freedom of association / due process

c. Concurrences – suggest 9th amendment, due process clause / Dissents – say no such right in constitution

2. Eisenstadt (72) – in trouble for distribution of contraceptives to unmarried people. Don’t touch on rights to access contraceptives but say whatever the rights are, they should be the same regardless if married or unmarried (EPC)

3. Lawrence v. Texas (03) – constitution allows people to engage in whatever private sexual behavior they want

a. Private life of two consenting adults is protected by the DPC. (no legit state interest in invading the privacy)

b. Concurrence argues for EPC – homosexual sodomy is banned, but regular sodomy is not (unfairly targets class)

c. Dissent argues for countless decisions which call certain behavior immoral / unacceptable (bestiality / incest)

II) WEEK 2 & 3

A. Breach of Promise to marry

1. Rivkin (01 Tenn) – Is breach of promise to marry a legitimate cause of action? YES, but need written proof.

2. Very few jurisdictions still recognize a claim for breach (with many limitations and limited damages)

3. PA – § 1901 et al – no causes of action for breach of contract to marry. (contracts are void, no enforcement)

a. Ferraro (PA 85) – reliance damages are also barred (act prohibits ANY cause of action)

b. Lindh (PA 99) – Engagement ring is a conditional gift. No fault, have to return the ring even donor broke off.

· Opinion defends the certainty of no-fault approach. Dissents disagree with the approach.

B. Gifts in contemplation of marriage

1. Campbell (12 SC) – ownership of engagement ring after canceled marriage – gift conditioned on marriage.

a. Burden to show that ring is conditioned is on the person challenging the assertion (fault irrelevant)

b. (can tell her to keep it, then not conditioned) — Up to the fact finder to determine conditioned or not.

C. Barriers to Marriage

1. Loving v. VA (67) – VA ban on interracial marriage violates the central meaning of the EPC – must withstand the most rigid scrutiny and necessary to a permissible state objective, independent of racial discrimination. IT DOESN’T.

a. Deprive couple of liberty without due process. No purpose to justify the classification.

2. Zablocki (78) – constitutionality of Wisconsin statute that doesn’t let people marry until child is not ward of state

a. State interfering with a fundamental right. The goals are good, but the means isn’t the best way to accomplish. There are criminal statutes and other laws. Unequal application to the poor vs the rich.

b. Diff levels of scrutiny for regs on right to marry – rigorous for a significant interference, minimal for reasonable regulations which don’t significantly interfere with decisions to enter into a martial relationship.

c. Will cause people to forgo the right to marry, children won’t be any better off.

3. Pa barriers to marriage – marriage license not issued if:

a. Under 18 & no parents approval; under 16 no parents and judicial approval

b. Incompetent

c. Under the influence of drugs / alcohol

d. Marrying parent or offspring, aunts, uncles, nieces, nephews first cousing

e. Still married to another (BIGAMY)

4. Prop 8 – Same sex – are they exercising a right to marry, or a new right? RIGHT TO MARRY. (Prop 8 fails EPC & DPC)

5. Windsor (13) – DOMA tries to federally redefine marriage and spouse – writing inequality into the whole code

a. Marriage up to states to regulate, this would overstep that (See NY). Imposes disadvantage/negative stigma.

D. Void vs. Voidable Marriages (§§ 3303-3305 in PA)

1. Void – invalid from inception, it never had legal existence.

a. Either party or a third party may challenge the validity of the marriage at any time and in any proceeding.

b. IN PA – if Bigamy, Polygamy, Incest, if incapable of consent (insanity)

2. Voidable – valid until subsequently declared invalid.

a. Invalidity can only be asserted by one of the parties and only during the marriage (not after death)

b. Cannot be collaterally attacked (ie in a related proceeding)

c. IN PA – if too young (under 18 no parental consent, under 16 no parental and judicial approval), under the influence, impotence, fraud/duress/coercion. (TIME = 60 days for age/influence, consent for impotence/fraud)

E. Void / Voidable Marriages

1. Bigamy – State v. Holm (Utah 06) – Mormon married multiple women – Is bigamy statute is constitutional? YES

a. Reason – To protect minors. Marriage is not private activity. Does not violate EPC because it is facially neutral.

b. State can regulate marital relationships that it deems harmful (this goes to the same sex marriage issues)

2. Age – Kirkpatrick (Nev. 03) – 15 year old wanted to m

§ 3401 – at least one spouse has to be a resident of the commonwealth for at least 6 months prior to filing

IV) WEEK 5 – Domestic Violence

A. Battered Woman Syndrome – Hawthorne (Fla. 82) – woman killed her husband. Defense of Self-defense requires a showing that the accused reasonably believed it was necessary to use deadly force to prevent imminent harm.

1. BWS – “learned helplessness” – repeated battering makes women lose the motivation to respond. Not a mental disorder but a psychological reaction to traumatic events. Like PTSD (or a component of PTSD)

2. Self-Defense is difficult because: response is not always proportional and not always posing an immediate threat (asleep or drunk) and the woman is the aggressor.

3. Hawthorne established that BWS is an appropriate subject of expert testimony and history of relationship is relevant

4. Crawford (04) – limited admission of victims’ and witnesses’ out of court statements if they are not at trial (6th Am)

B. Duties of Law Enforcement – Castle Rock v. Gonzales (05) – cops refused to enforce restraining order. Dad killed kids.

1. Can cops be held accountable? NO. They have discretion. (dissent argues court missed legislative intent)

2. Restraining order is not a property interest for the purposes of DPC

3. DeShaney (89) – absent a special relationship, the state has no constitutional duty to protect citizens against private acts of violence. (exceptions – special relationship, procedural violation, violation of EPC, tort theories)

a. Danger doctrine – allows victims to seek redress from state actors who INCREASE the harm.

C. Marital Rape – SD v. MJR (NJ 10) – Arranged marriage, husband tortured wife. Should restraining order be issued? YES

1. Common law – marital rape exemption (lasted until 1984) – many states still treat it differently than regular rape.

D. Stalking – Weiner (NY 10) – can issue restraining order without fear or intent to cause harm (4th degree)

E. Three Types of Restraining Orders

1. Emergency protection orders – issued ex parte – cop responding to domestic violence can request by phone

2. Temporary restraining order – family court ex parte – by victim’s petition and affidavit demonstrating proof of acts

3. Permanent (not really) orders – issued after an adversarial hearing

F. PA § 6101 et al – Protection from Abuse

1. Abuse – injury, rape, assault, reasonable fear of imminent serious bodily injury, false imprisonment, abuse of minors

2. Safety Relief – protection order, prohibit contact (restraint from job site / school), relinquish guns, stop stalking

3. Financial Relief – to people D has to support: financial, health coverage, med expenses, rent/mtg, reasonable losses

4. Custody Relief – may award temporary custody & supervised access. No custody to D only if he abused children

5. Residence – only if duty to support, can be awarded to P (possession at least) or D has to find alternate housing

6. Duration – up to 3 years. Extendable if abuse after order or pattern indicates risk of harm to P or child

7. Enforcement – violations subject D to arrest or contempt of court. Resumption of co-residency doesn’t nullify order

G. Mary’s Story – Revisit class work