Family Law
Professor Peck
Spring, 2007
1) Defining a Family
a) Standards
i) Traditional Approach
(1) Families related by blood, marriage, or adoption and having a domestic bond
(2) Domestic Bond
(a) Resident authority figure (not a paid resident authority figure)
(b) Permanence and cohesion (one year not enough)
(c) Self-sufficiency and independence (e.g., cooking)
(d) Policy: Administrable rule for courts to apply—encourages self-sufficient families
ii) Functional Approach
(1) Families that are the functional equivalent of a traditional family based on their appearance and conduct under the totality of the circumstances
(2) Factors
(a) Exclusivity and longevity of the relationship.
(b) Level of emotional and financial commitment.
(c) Manner in which the parties conduct themselves in everyday life.
(d) Manner in which they hold themselves out to society
(e) Reliance on each other for daily family services
(f) Degree of self-sufficiency of residents
(g) Public/commercial enterprise vs. a private home
(3) Policy: Fairness: fact-intensive analysis that follows intent of the “family” members. Totality of the relationship as evidenced by dedication, caring, and self-sacrifice
iii) Analysis: Defining Family Members
(1) Statutory
(a) Language of the Statute
(i) Definition of family
(ii) Look to other sections
(b) Legislative History
(c) Judicial Opinions
(2) Constitutional
(a) Infringement on a fundamental right gets strict scrutiny. Must be narrowly tailored to achieve a compelling government interest
(i) Right to Privacy
(ii) Right to associate with whomever one pleases
(b) Mere economic or social legislation gets rational basis review. Need only be rationally related to a legitimate government interest.
(i) State police powers
b) Cases
i) Penobscot
(1) P was denied an occupancy permit for a house to be used as a residential facility for 6 retarded adults in an area zoned for single families.
(2) Family was defined as an individual or collective body living as a single housekeeping unit, doing their own cooking, in a domestic relationship based on birth, marriage, or a domestic bond.
(3) HOLDING: Family based on a domestic bond implies the existence of a traditional family-like structure with a central authority figure.
(4) Here, the residents were only there temporarily, they were not completely self-sufficient, and the supervising employees rotated shifts and did not live at the house.
ii) Glassboro
(1) D and 10 friends were college students who lived in a house zoned for families.
(2) HOLDING: Ds are the functional equivalent of a family.
(3) Ds had a common checking account, ate together, shared chores and cooking, and planned to stay t
e of the statute and (b) legislative intent.
2. A silent statute is not meant to exclude incestuous marriages
(b) Polygamy—marriage of one man and many wives
(i) State’s Argument
1. Parens patrie argument: prevent polygamy to protect children
2. Polygamy teaches immoral and illegal behavior to children
3. Sins of the farther are visited on the children
4. Religious belief is not prohibited, but religious acts can be prohibited
(ii) Couple’s Argument
1. Polygamy is intertwined with religion
2. polygamy is not abusive or neglectful
3. no nexus between neglect and polygamy
4. nothing to show that parents were unfit parents
(iii) Immorality view
1. police powers
2. parens patrie
3. problem: who decides what is moral?
(iv) Illegality view
1. A crime is a crime
2. One cannot commit any crimes
3. polygamy is a crime, whether it is moral or not
(c) Same Sex Marriage—marriage of two people of the same sex
(i) State’s Argument
1. Marriage is one man and one woman (common meaning)
2. History and tradition prohibit this type of marriage
(ii) Couple’s argument
