Family Law Outline

Family Law Outline

Kennedy

2011

Defining Family

When can the state regulate the family?

1) What is a family lawyer?

a) A psychologist, doctor/nurse/confidant/friend/lawyer, a mixture of all of these

b) No other field of law are peoples emotions so involved in what is going on

c) Family law is about a quarter of the cases in this country

d) Two prevalent themes all semester

i) 1st theme, which we will talk about this week and a couple of times during the semester, how does government define family?

(1) It can change under different circumstances, family is defined different ways for different reasons by different levels of gov’t

(i) 2nd theme–Once government has defined family how far does the government go in regulating family? Including the establishment of family units the termination of family units and on going responsibilities within a family unit

(2) Once gov’t has defined family how far does gov’t go in defining family.

Characteristics of a family

1. Cohesiveness

i. Idea that in a family you have one unit, everyone is working for the benefit of the unit or should be.

ii. Divorce rate has approached that 50 percent figure but however you look at it is happening.

iii. Cohesiveness is not exclusive to a marriage,

2. Exclusivity

i. Exclusivity, legal concept that at least adults in a legal family unit, or adults in a marriage are suppose to be sexually exclusive with each other, in adultery, which in NY, is still a crime.

ii. The idea that the two adults in the marriage are supposes to be sexually exclusive with each other.

iii. They are exclusive and not suppose to go outside the family unit

iv. Not the definition of a family

3. Close bonds

i. People form family units, people can have close bonds without being in a family

ii. Every person who has one friend who has a close bond with whom they are related

iii. We have this close bond, the bond doesn’t define family it is a consequence, people have close bonds with their family

4. Mutual responsibility

i. The law establishes responsibilities within a family unit.

ii. Legally enforceable responsibilities

iii. Spouses have a responsibility to support each other

iv. Parents have an obligation to provide services to their parents

v. If one of the parties in a marriage apply for Medicaid, the other parent has legal responsibilities to report

vi. Then there are others which are social

vii. One of the things which you should think about, family to some extent marriage to a much more considerable extent is a social construct.

viii. Society creates this being whatever it is, society has a need family is only partial a social construct bc it is not completely social some are clear identifiable factors

ix. Marriage is much more of a social construct

x. What is marriage?

1. And ask some questions what if we change this, or change that?

xi. Is it still what society sees as a marriage?

5. Blood relation

i. Blood, this IS a basic unifying point

ii. Everyone understands if u are blood related, that you are family

iii. CLEARLY IDENTIFIES A FAMILY, BLOOD RELATIONS BUT BLOOD IDENTIFIES FAMILY, ARE BY DEFINITION FAMILY IF YOU HAVE COMMON DNA.

iv. Still your family in the technical sense of the word, blood is one of those unifying themes, rather than being a consequence, blood defines family,

6. Dysfunction

i. Families are dysfunction, some families are functional some aren’t

ii. Not really a characteristic, majority of families function okay

7. Compromise

i. A consequence of any relationship, does it define family, can have compromise without being in a family unit and can have a family unit where people do not compromise, compromise is a way of getting along but does not define it either way,

ii. Caring for each other, mutual respect, understanding, hopefully it happens within a family but it is a consequence of family, not a definition, this mutual and caring does not define family, s

8. Caring for each other

9. Respect for each other

10. Expansion

11. Support

i. Financial support which is a legal obligation, emotional support, financial support.

ii. Emotional support is something you expect but there as a consequence you form a family unit firs then provide emotions support, some people get comfort with support and form family unit but gain does not define family and you can have it without the family

12. Trust

13. Dependency

14. Sacrifice

15. Mutual respect

i. Same thing as compromise

16. Extended family

i. Other generations living with you

ii. Until WWII, families had multi generations and lived in the same dwelling, aunts uncles other people

iii. The concept of extended family was very important

iv. Some societies that extended families still matter, where three generation or two generation going outward, part of the definition, extended family means a relationship by blood or marriage that goes beyond husband wife children.

17. Common dwelling

i. People related by blood or marriage, do not need a common dwelling! Cohabitation people who are family tend to cohabitate together, but sometimes not always, like in divorce or a half sister, cohabitation is not necessarily a definition of family.

18. Marriage

i. Really was a social K.

ii. another one of those that are absolute, if people are married then they are by law a family, if you are married does define a family. Marriage if you are married is a definition of family. The state and sometimes the religion have said you are legally a family and obligations and consequences, marriage does qualify in defining a family.

19. Childcare

i. Childcare does not define a family

20. Permanency

i. concept of permanence does not define family. Depends if you see it as death do you part. Even a spouse that you may get divorced from, you may still have this relationships, parameters and dynamics have changed, at least a consequence or concept of permanence but doesn’t define family.

ii. Does not guarantee that you are a family, even if you have this concept of permanence, it may not last, but permanence needs to be kept in mind

21. Reproduction

i. Children are automatically family, children are by definition a family, automatic family, parents and children, and part of our concept is that generally adults in a family relationship, are having sexual relations that may produce children, you do not need to be in a family to have sexual relations, and not everybody in the same level in the family is having sexual relations, that tie in is there, separating sexual mores from family.

ii. Parents and children or people who have blood ties bc of reproduction are definitely family but also because at least in the same level, sexual activity is permitted but again it doesn’t define family.

22. Similarities

23. Financial support

i. Consequence of being in a family not part of definition

24. Protection

i. Consequence

25. Indefinite love

26. Reliance

27. Understanding

28. Divorce

i. Defining family, people who are divorced are a family or have been a family so it is a consequence bc divorce doesn’t define it is a consequence

29. Joint accounts

i. do not need it

30. Fear

i. Emotional support, people in families provide emotional support

31. Emotional support

i. Emotional support, people in families provide emotional support

32. Problem solving—ties into emotional support

33. Fighting—ties into emotional support

34. Drama—ties into emotional support

35. Caregiver

i. Consequence and required to give care to a family member especially a child. Laws required to take care of an elderly parent, bc u signed a K u may be on the book,

36. Adoption

i. Creates a fictional blood relationship, you do not need the blood relationship for family, if someone is adopted, or if someone has adopted someone else, they are by definition family, the act of adopting creates a family, it does define family but adoption is rare, only about 100K adoptions and only half are stepparent adoptions, adoption creates a fictional blood relationship

37. No def/open ended

38. Unification

i. People friendship,

39. People

40. Friendship

41. Children

i. Automatically defines family if someone ahs a child that person and their child are family, automatic it is definitional but are children required for a family? No requirement for a family to have children

42. Sex

43. Identity

44. Religion

i. Share religion, not a requirement, it may be nice. Shared religion, shared culture, but again it is not in the civil sense a requirement.

45. Expensive

i. Cheaper than not family

ii. A married couple and a couple cannot marry but have children pay a lot more in taxes.

Child support

Percentage of income isn’t the same for children. Cheaper for a family of 4.

The law protects families

46. Tradition

i. Families create tradition; families follow tradition, and can do that with nonfamily people.

ii. Can have friends from grade school college, there is this tradition, they have this tradition does not mean they are a family.

47. Central authority figure

48. Siblings

i. By definition if you have a sibling you have a family, either you share half or full blood or you do not share blood,

49. Love– Love among family members but it does happen,

How much do these characteristics have to do with what defining what a family is?

Definitions of a family:

1) A definition is that a family is a family unit is for the purpose of acknowledging an emotional and unifies property rights;

2) the best description of a family is a continuing relationship of love and care and an assumption of responsibility for some other persons.

3) Can also look to:

a) Group of individuals living under one head

b) Group of persons of common ancestry

c) United by a group of common convictions.

d) The basic unit in society having as its nucleus two or more adults living together and cooperating in the care or rearing of their own or adopted children.

4) Who decides if it is a family? Why does society have an interest in defining family?

a) Example: until about 4 years ago, in NY an OP against someone if you are related by blood marriage or had a child in common. That was definition of family for family court order of protection. Definition was changed to include dating relationships and other kinds of relationships,

b) Law expanded to include nontraditional families, especially in NY; society changed the definition in case the society changed the definition of family. And said if you have or had a relationship with someone or considered family or former family and can seek protection for family violence.

i) Use to be same sex couples were not considered families but now they could adopt and marry. Getting rights of family more traditional, the definition of family is changing, how will it continue to change. Until a few months ago, you needed grounds for divorce, society is embodies by NYS legislature. NY finally went to no fault, society evolved to redefine ur family in a different way to terminate a marital relationship it is an evolving definition. Social construct, law tends to follow society, in terms of family. Society changes and the law catch up with it. When we do change these definitions, tends to be more universal acceptance, and society has recognized it and the law is catching up

Penoboscot Area Housing Development Corp. v. City of Brewer

1) Facts: Housing development corp is a private nonprofit main corp organized to provide housing for down syndrome citizens. For that purpose, it has negotiated a purchase and sale agreement to acquire a house and lot in a district of the city of brewer, which is zoned for low density single family residential use under the city’s zoning ordinance. The corp intended to use the property and have it supervised by two full time employees. The brewer code officer denied the occupancy permit bc he concluded the corp’s proposed use did not meet the terms of the city of brewer’s zoning ordinance as a single family.

2) Seeking an occupancy certificate, this was a group home, but the back ground of the case is important as well.

a) Kings park, congress was deinstitutionalizing mentally challenged persons, and they would not hold them.

b) All these people were being sent into the community and so organizations were looking to develop group homes.

c) People were looking for these group homes and under the rules of the municipality there were rules on who could and who couldn’t live in a certain areas, and most areas were zoned in such a way to prevent these kinds of group homes. Saw in 70s, 80s, and whether a group home could be cited and based on statute, NY solved the problem very quickly by passing the law if a neighborhood opposes a group home they must come up with a suitable replacement, so NY is you cannot have legal opposition to group homes because if you do you have to come up