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Family Law
University of Illinois School of Law
Meyer, David D.

1.      The American Family and the Law
a)      Themes of the Course
i)        Transformative change: structure of family has changed dramatically over the past century as individuals live longer, marry at a later age, and have fewer children
i)        Changes in response to the way people live
(a)   Changing role of marriage
–          BEFORE it was gateway to family life and ONLY approved way to enter into family life as an adult (now cohabitation is)
(i)     Competing models of marriage that are at odds in today’s family law debates:
1.      The conjugal view (older view)
a.      Marriage in this view is a sexual union of husband and wife who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have
i.        Fundamentally child-centered
2.      The close relationship model (more recent view)
a.      Marriage is a private relationship btw two people created primarily to satisfy the needs of adults
i.        If children arise, so be it, but marriage and children are NOT seen as intrinsically connected
(ii)   People wait longer to get married
(iii)Divorce is more frequent
(iv) Relationships outside of marriage common (cohabitation)
(v)   Educational attainment is big factor
1.      It plays an EXCEPTION to general trend: People with 4-yr degrees have less divorce rates, cohabitate less, and have less out of wed-lock childbirth than those less educated
(b)   Changes in childbearing/parenthood
(i)     Increased childbearing outside of marriage
(ii)   Reproduction revolution:
1.      People who could not become parents before can now do so in many ways:
a.      Sperm donor, egg donor, birth mother, social father, the mother who raise the child
(iii)Move from biological presumption of parenthood or formal adoption (which were the only bright-line markers of parenting) to de facto parenthood
1.      Ie can become legal parent with legal rights by assuming the role, without  any formal adoption
(iv)Legalizing same sex adoption rights
(c)    Gender roles
–          Movement away from gender roles defining family law
(i)     Whereas BEFORE, EVEN UP UNTIL 1979,  husband was considered head of family and decided all matters determining the manner and mode of living===allocation of authority was given to husbands per statutes, TODAY this is unthinkable and unconstitutional
ii)      How is this transformative change playing out in family law? GROUND OF FAM LAW ARE SHIFTING!
i)        Move from state law to federal law
(a)   Traditional assumption that family law should be state law
(i)     Family law traditionally is state law, fed law has traditionally played a very small role in fam law
(ii)   EXCEPTION to diversity jurisdiction
1.      Cannot bring domestic relations case to federal court even if there is diversity of citizenship (USSC implied domestic relations exception to diversity jurisdiction)
a.      Ie, divorce cases cannot be tried in fed courts if people life in diff states
(b)   Assumption is changing – Federal encroachment through Congress and Fed Regulatory agencies on family law
(i)     DOMA – Defense of Marriage Act
(ii)   ASFA – Adoption Safe Families Act
(iii)Child Support – Federal rules control interstate child support enforcement
ii)      Balance between discretion and rules in family law: started off with rules, switched to judicial discretion, now push back toward rules
(a)   Eg of bright-line rules: child custody rule in 1800s was that DAD would get custody unless extraordinary circumstances where it could be proven father was unfit. THEN, later 1800s, this rule flipped and gave mothers custody and dad was second-choice.
(b)   Evolution from clear rules like above that were sometimes inequitable to discretionary and mushy rules – led to indeterminacy
(i)     Shift occurred from rules to free-willing discretion: judge would decide custody whatever was in the BEST INTEREST of the CHILD
(c)    Now we are seeing a push back again towards more clear rules to bring back determinacy
(i)     “best interest” standard remains dominant legal test for custody, BUT there is a serious movement to constrain judicial discretion and move back to rules to limit unpredictably, bias, etc
iii)    Shift from public ordering to private ordering of family
(a)   BEFORE: Morality-based regulation
(i)     State sought to define and reinforce foundational social values
(ii)   Family law was heavily built around sexual morality (sex happens in marriage, not outside, with strong penalties violating that norm, sex is only btw men and women) and parental morality
1.      Moral notions on what is right and how people ought to live their lives
(iii)Former state control of family through marriage – controlled whether you could marry, whether you could divorce based on social judgments about what is fair and moral
(b)   TODAY: Shift to private control of family life—the “constitutionalism” of family law
(i)     Deregulation of marriage is trend
1.      Fundamental transformation about understanding purpose of it
a.      Now moreso focused on adult bonding, not childrearing
(ii)   No longer a social consensus that government can make these social judgments about what is fair and moral
1.      Consenus for long-established social values have eroded
2.      Old-age assumption about traditional marriage are scrutinized and reconsidered
(iii)Significant constitutional limitation on govt power over family (with SC cases like Moore, Loving, etc
1.      Constitutional law limits state power to regulate families, giving more power to individual and private ordering under the realm of the fundamental right of privacy/ indiv interest of liberty.
(iv) Legislatures have scaled back restrictions on entry into marriage AND liberalized exit through divorce
1.      Ex – no fault divorce, covenant marriage, domestic partnerships, agreements
b)      Constitutionality Tests – Fourteenth Amendment (SDP/EPC)
i)        SC gives special kind of const. protection to personal interests related to family in a way that significantly limits the ability of govt to regulate family, based on notions of right to privacy.
ii)      Boundaries or nature of this protection remains murky esp because there is nothing in the text of the const that specifies this const protection
n Substantive Due Process: deprivation of a fundamental right
i)        The government cannot deprive any person of “life, liberty, or property, without due process of law” – some substantive limitations on government power no matter how much process is provided
ii)      Nothing in the text of the constitution says anything about families but there are imbedded in notions of due process that are IMPLIED as part of the constitution
(a)   Not written down, but family rights are implied rights of substantive due process since they are anchored in history and tradition (which is one source for defining fundamental rights as seen in Moore)
(b)   Moore v. City of East Cleveland:
(i)     The court has long recognized that freedom in personal choices in matters of FAMILY LIFE and MARRIAGE is one on the liberties protected by the DPC of the 14th Amend
(ii)   Recognized constitutional limitations on the ability of govt to regulate , define a family and living arrangements
(iii)Ordinance that did not distinguish btw related and unrelated individuals, unlike in Belle Terre which held college students living together violated the zoning laws which passed RATIONAL BASIS TEST, but slices in

o   Rationale: Look to precedent that deals with right of privacy (family choices, abortion) and says thematically connected because they are central for defining one’s own concept for life, self-identity, and what you define as most imp of your existence
(ii)   Murky decision, though, since uses RBT.
1.      J. Scalia:  (dissent)
a.       If fund right, should fall under SS, but RBT used
b.      Says this case does NOT have broader implications because Court used RBT, the court NEVER says it’s a fund right explicitly, doesn’t explicitly overrule other precedent
c.       Morality is a legit state interest and since this doesn’t pass RBT, it is NOT unconstitutional
d.      Many lower courts have taken this view that no fund right was recognized and has no further implication
2.      Is the holding confined to the fact then or will its formula/reasoning of using contemp social consensus or moral philosophy affect future cases?
a.       Family law is all about defining the meaning of relationships and setting boundries:
i.        If the court is meaning to say govt cant regulate private lives absent proof of injury or coercion or some other form of harm to individuals or society==radical implications on family law
·         Ie: same-sex marriage bans uncon, possible polygamy or incenstous relationships as well
ii.      If we go with J. Scalia—modest implication
iii.    Or can be in the middle—not all intimate life is protected against govt regulation, but may be certain kinds are—significant implication but NOT radical
(c)    Loving: “fundamental freedom” to marry
(i)     justify the recognition of a fundamental liberty based on an assessment of the profoundly significant individual interests implicated by government action
1.      VA convicted people violating state statute of being in an interracial marriage
2.      Why statute was unconstitutional?
a.      No extraordinary proof of compelling need, so unconst.
b.      Violates EPC: Discriminated against people on the basis of race— suspect class===: strict scrutiny applied
i.        Court says equal application to whites and blacks of this statute does NOT immunize the statute form heavy burden of strict scrutiny===suspect and presumed invalid.
c.       Violates DP- deprivation of a liberty
i.        Govt deprived people of a fundamental liberty to marry —strict scrutiny
d.      Where do you know MARRIAGE is a FUNDAMENTAL RIGHT?
i.        American people have long and wide agreed that it should be free from govt interference
ii.      BUT, history and tradition doesn’t agree that way about interracial marriage
e.       Loving left unresolved for future cases whether thecourt defined the right broadly (just as a general right to marriage) or was it on some basis other than history and tradition (suggests a broader possibility)
(d)   Zablocki: illustrates precise standard of const. review is sometimes ambigious
(i)     WI limited the ability of noncustodial parent to marry