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Family Law
University of Minnesota Law School
Bix, Brian H.

Family Law Outline
I. Some Theoretical Considerations
   A. Fineman (2004)
            -Families are essentially creatures of the state, which gives them consequence
             and meaning through the law, and the state defines the nature of the preferred
             family as a political matter
    B. Schneider (1985)
            -There is a legal tradition of noninterference in the family. Courts did not
             want the burden of dealing with every trifling family problem, feared
             the complexities of the proper standards to adopt, and feared that, once
             in court, all family members would try to justify himself or herself by
             incriminating the other, and it also did not want to raise matters of family
             privacy before the public eye.
    C. Hafen (1991)
            -Bellah study demonstrates that American shave shifted view of marriage from
             relatively permanent social institution to temporary source of personal
             fulfillment, and feels that older norms are fading away
    D. Note
            -Legal, economic, moral, social, psychological, and historical grounds are
             raised to attack or support any particular regulation of the family
II. Regulating the Family
   A. Zoning Rules
       1. Moore v. City of East Cleveland (US 1977(
            -Facts: Moore lives in East Cleveland with her son, Dale Moore, and her
             two grandsons. The two boys are first cousins rather than brothers.
            -Rule: When a city undertakes such intrusive regulation of the family, neither
             Belle Terre nor Euclid governs; the usual judicial deference to the legislature is
             inappropriate. The Court has long recognized that freedom of personal choice
             in matters of marriage and family life is one of the liberties protected by the
             Due Process Clause of the Fourteenth Amendment. There is a private realm of
             family life which the state cannot enter.
            -Rationale: Minimizing traffic and parking congestion, preventing overcrowding,
             etc. are legit goals, but they are only marginally furthered through this reg.
             emphasis on Constitution protecting sanctity of the family because it is deeply
             rooted in history and tradition, and it is through family we pass down our
             cultural, moral traditions.
            -Held: The Constitution prevents East Cleaveland from standardizing its children
             and adults by forcing all to live in certainly narrowly defined family patterns.
     2. Haddock and Posby (1996)
            -Santa Barbara v. Adamson-> Court stated that city violated state’s constitution
             by pegging residential land use regulations to the subsistence of “family”
             as traditionally and legally constituted. Statue was to weed out communal
             living. The major premise of the argument was that privacy is an inalienable
             right, and the minor is that it is a private matter whether a person lies in a marital
             household, a hippie commune, or some other “alternate family.”
            -Reasons why the regulation might have been legit. Things about families that
             don’t apply to hippie communes:
                        -Families are schools of first instance
                        -Families are the molecule

family, extends DP Cl. protection to
             beyond the nuclear family
            -State courts have been split in willingness to follow Belle Terre, some adopting
             the SC’s reasoning and applying a deferential standard to zoning ordinances
             excluding unrelated persons from single-family homes. Others rely on
             state constitutional provisions to reach a contrary result.
     5. Foster Families and Group Homes
            -Children’s Home of Easton v. Easton (PA 198)-> Definition of family in
             city zoning ordinance unconst in exclusion of a foster family headed by a
             married couple who had two of their own children and custody of three
             foster children. Distinguishing from the 6 unrelated in Belle Terre, the court
             concluded that the foster family proposed is in all respects equivalent to a
             natural family.
            -Yet, Metropolitan Dev. Comm’n of Marion Cty. (Ind. 1984)-> Said that foster
             family with 10 children not constitutionally protected
            -Cleburne v. Cleburne Living Center, Inc. (US 1985)-> EP grounds. City’s
             requirement of special use permit for group of mentally-retarded residences
             while not requiring such permit for other uses was irrational in light of City’s
             stated goals.