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Family Law
University of Kentucky School of Law
Dennis, Andrea L.

Family Law—Fall 2009 Dennis
I. Chapter 1—Introduction
“Nuclear” families comprised of married couples living with their children now constitute less than a quarter of all American households.
“Non-family” households consisting of single adults living alone or with others not related by marriage, birth or adoption already comprise nearly 1/3 of all households.
A. The American Family Today
Family law is headed in many directions. Here are a few of those directions:
         1. Equivalence Between Cohabitation and Marriage: many argue that marriage         and cohabitation should be treated equally under the law.
         2. Redefining Marriage as a Couple-Centered Bond: this approach redefines marriage as a gender-neutral union of two persons. (used to accommodate same-            sex couples)
         3. The Separation of Marriage and State: this approach denies the state’s      legitimate and serious interest in marriage as our most important child-protecting        social institution and as an institution that helps protect and sustain liberal democracy.
         4. Challenges to “2-person” definition of marriage is only a matter of time as the      gender definition of marriage has been challenged and defeated in some places in           the U.S. and Canada.
B. Clashing Models of Marriage
1. Conjugal view: sexual union of husband and wife who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have. (fundamentally child-centered).
2. The Close Relationship Model: marriage is a private relationship between two people created primarily to satisfy the needs of adults. If children arise from the union, so be it, but marriage and children are not seen as intrinsically connected.
Notes: p. 8—The family exists as a legal entity, yet the individuals within the family also have rights. Balancing these legal rights, of families and of individual family members creates a significant tension throughout family law.
C. The Relationship Between Families and The Law
1. Public Law—By deciding what groups constitute a family, the law has a significant impact on the benefits of different familial structures.
            a. “Moore v. City of East Cleveland”—Held: “The Constitution prevents East                     Cleveland from standardizing it’s children and adults by forcing all to live in           certain narrowly defined family patterns.”
                        i. The Court has to figure out the appropriate definition of family.
                        ii. Very important to ask yourself “what right is being implicated here?”
                        iii. Court says that historically the definition of “family” involved the                                 “extended” family—“deeply rooted tradition.” (SC usage.)
                        iv. States can interfere with constitutional rights as long as the state can                              satisfy the appropriate constitutional level of review.
            b. Intoduction of 3 Levels of Constitutional Review: Substantive Due Process
·         Rational Basis: State has to have a legitimate interest and the law must be rationally related to that state interest.
      (1) what right is being implicated?( privacy, marriage, procreate…)  
      (2) if it is merely economic or social, then the state only needs a legitimate state interest.
      (3) is the state’s interest rationally related to the state’s execution of the      law?
      *presumption of constitutionality
Intermediate Scrutiny: State has to have an important objective and the law must be substantially related to that objective or interest.         
      (1) what right is being implicated?    
      (2) is the state’s interest IMPORTANT?
      (3) Is the state’s law substantially related to the state’s important interest?
      *presumption of unconstitutionality—hard to tell cases.
·         Strict Scrutiny: The State has to have a compelling state interest and the law must be narrowly tailored to meet that state interest.
      (1) what right is being implicated?
      (2) Is the State’s interest compelling?
      (3) Is the State’s law narrowly tailored to fit the state’s compelling interest?
      *presumption of unconstitutionality
D. The Evolution of the Right to Privacy
I. Meyer and Pierce are the origins of the right to privacy within the family. These decisions both frequently cite dicta concerning a parent’s 14th amendment substantive due process liberty interest in the “care, custody, and control” of children.
      A. Griswold v. Connecticut—held: the Constitution does not permit a state to forbid a married couple to use contraceptives. Court also held that although the word “liberty” is not defined in the Constitution, it includes at least the fundamental rights “retained by the people” under the 9th amendment.
      B. Eisenstadt v. Baird—(right of privacy explicitly recognized): held: the “right of privacy” established in Griswold is extended to all individuals, regardless of marital status and explicitly recognizes a constitutional right to privacy. Granted individuals the right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
      C. 14th amendment Equal Protection Clause: does it affect the level of scrutiny the Court must apply or the terms of the analysis? (if no distinction made shouldn’t be subject to EP analysis.)
·         Does the government or law make a classification? If no, may be valid.
·         If yes, What is the nature of the classification?
      a. suspect class
      b. quasi-suspect class
      c. economic or social class
·         Analyze level according to classification.
II. Creating Families and Legal Obligations
A. Chapter 3—Entering Marriage—this chapter examines the origins of the constitutional “right to marry” and its impact on the traditional legal restrictions on access to marriage.
·         Who may marry?
·         How might people marry?
·         How do we deal with a defect in marriage?
B. People marry, both historically and in modern times, for: love, companionship, monogamy, legitimacy, tradition, children and family, personal growth, decision-making capacity, tax breaks and financial incentives, private benefits, religion, citizenship, and sex.
C. Loving v. Virginia—held: Statutes barring marriage between the races violated the 14th amendment Equal Protection and Due Process Clause and constituted invidious discrimination. 
            1. The equal protection ruling was based on restricting the freedom to marry           solely because of racial classification.
            2. The due process ruling was based on the proposition that the right to marry is a fundamental right, and one could not suppress the right to marry based on racial            classification.
            3. This case established that the right to marry was a constitutionally protected       fundamental right.
D. Zablocki v. Redhail—held: The Statute violated equal protection clause of 14th amendment. The court found the state interest in providing counseling before marriage and protecting a child’s welfare legitimate and substantial; however, on close examination, the statute did not require or provide counseling, and it barred an applicant from marrying without providing funds (child support) to the applicant’s children. The Court felt that there were other reasonable avenues open to the state to obtain support for the children.
            1. The Court has established varying degrees of scrutiny when examining state regulations that infringe on the right to marry.
·         When there is a significant interference with the right to marry, the statute is subjected to strict scrutiny.
·         When the statutory provisions reasonably interfere with the right to marry, they are subject to minimal

cess into judicial policy preferences rather than principles born of public debate and legislative action.
§3: Polygamy
Polygamy: having more than one spouse at a time
Polyandry: having more than one husband.
Polygyny: having more than one wife.
A. State v. Holm–held: Bigamy is a statutory crime and is commonly defined as “the act of marrying one person while legally married to another.” Further, the concept of marriage includes both legally recognized marriages and those that are not state-sanctioned.
§5: Minimum Age At Marriage
A. To marry, each spouse must be of sufficient age. Most states have statutes prescribing the minimum age for marriage. Although the question remains a matter of common law in a few.
            1. Most jurisdictions follow a graduated approach to defining the minimum age     for marriage, setting the minimum age at 18 years, while allowing minors to  marry with parental or judicial consent.
                        a. KY. KRS 402.020 sets 16-18 void unless consent obtained from mother                                     or father.
                        b. Parents are acting in the best interest of their child and we want to                                  promote that relationship. Parent gets to affirm or make the child’s choice.
                        c. Want to encourage parents to work together to make decisions.
o   Where no joint custody, only require consent of one parent.
o   If joint custody, have to have consent of both parents.
o   If married, only need consent of one parent
§6: Consent to Marry
A. A valid marriage has always required mutual consent of the spouses. Each party must have the mental capacity to consent, and any expression of consent must be voluntary and free from duress or fraud.
            1. “Void” marriages are those that offend very strong public policies (same-sex,      bigamous, and incestuous marriages). “Voidable” marriages are considered      legally valid unless and until one party goes to court to have it annulled (one party     is underage, lacks physical capacity, or was induced by fraud or duress).
            2. Mental Capacity: courts have held that to give valid consent to marriage, a         party must be capable of “understanding the rights, duties, and responsibilities of       marriage at the time of the marriage contract.
                        a. A party who enters marriage without capacity to consent but later                                   regains mental competence can then validate the marriage by ratifying the                           decision to marry.
            3. Mutual assent: To effect a valid marriage, competent parties must demonstrate  their mutual assent to be married.
                        a. With mixed success, parties sometimes seek to avoid an attempted                                  marriage by claiming that it was undertaken in jest or without serious                              thought.
            4. Fraudulent Inducement: A party’s consent to marriage is legally ineffective if     induced by fraud. In most jurisdictions, however, the fraud must relate to “the
            essence of the marriage.”