FAMILY LAW 2007
1) DEFINING THE FAMILY
a) Definition of Family: Currently only 1 in 4 families fit the traditional model.
i) Traditional: limited to ceremonially initiated marriage, blood, and/or adoption
(1) Village of Belle Terre: holds zoning for single family only included those related by blood, adoption or marriage.
(2) Degree: May limit by degree or type of blood relation.
(3) Basis: on tradition (or perceived tradition), religion, & custom
ii) Modern: recognizes extended families, cohabitation, consanguinity, adoptions
(1) Extended Families: grandparents, aunts, uncles
(a)Moore v. E. Cleveland: Enjoy limited constitutional protection to live as extended families. [restriction violated the due process clause].
b) Polygamy & Communal Living: Constitutional protection is not extended to polygamy or communal living. – Village of Belle Terre.
Ø Equal Protection usually used when Due Process does not work
Ø Due Process: (Substantive) Fundamental Right at issue use strict scrutiny.
Ø Equal Protection: fundamental right at issued regardless of category gets you strict scrutiny
Based on: |Race, |Gender, |Economic
Interest must be: |Compelling |Important |Legitimate
Connection must be: |Necessary |Substantially Related |Rational Basis
If there is not a significant interference with a fundamental right Equal Protection and DP is not triggered.
2) MARRIAGE
a) Statutes
i) ORC § 3101.01: Marriage
ii) ORC § 3103.01: Mutual Obligations of Husband and Wife
b) Theories of Marriage
i) Contract: regarded as a civil contract, involved parties legally capable of consent, consideration of mutual promises, imposes rights and obligations.
ii) Status: also regarded as civil status marriage is something more than mere K, a relation is created which cannot be changed and holds to obligations. [similar to Partnership]
(1) Maynard v. Hill: a social relation like that of parent child, not from mutual consent but by creation of the law itself, purest ties of social life, true basis of human progression.
iii) Covenant: binds other people.
iv) Coveture: common-law, husband and wife became one person. Husband dominated. Wife unable to sue/be sued, enter into Ks, alienate real property, make a will, or retain/control earnings w/o husband’s consent.
c) Requirements for Marriage: defined by legislature.
i) Constitutionality of Restrictions on Marriage
(1) Zablocki v. Redhail: Reasonable regulations that do not significantly interfere w/ decisions to enter into the marital relationship may be legitimately imposed.
(a)Right to marry is a fundamental right.
(b) Regulations that substantially and directly interfere w/ right to marry get heightened scrutiny.
(c)Still must subst
in some states but repealed due to invasion of privacy, erroneous results, and cost/benefit analysis.
iv) Solemnization: require that authorized individual solemnize the marriage.
(1) Religious: Clergy (“minister” in Universal Life Church was invalid b/c not covered in statute.)
(2) Secular: judges
(3) Statute prohibiting solemnization by mail/internet did not violate substantive due process or Free Exercise clause, but did violate equal protection b/c excluded phone/fax/in-person.
v) Incestuous Marriage:
(1) In Re Adoption of M: Dad and Adopted Daughter have kid, want to set aside adoption. “truly exception circumstances” favor allowing it: age of majority, impedes right to marry, sheds dual-status of father as natural father/adoptive grandfather, legitimize the child.
(2) Zablocki Goals?
(a)Protect from Consequences of Inbreeding
(b) Protection of parties from exploitation (abuse of parental relationship)
(c)Protection of the family from assuming incompatible roles
(d) Protection of Decency
(3) Criminal Sanctions: possible against Clerk issuing certificate and the parties to the marriage.
vi) Lex Loci: Recognition by another state: usually the jurisdiction of the marriage determines its validity – Unless it offends the public policy of the state.
