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Family Law
University of Nebraska School of Law
Burkstrand-Reid, Beth A.

Professor Burkstrand-Reid
Fall 2012
Family Law
Family Law Outline
I.        Alternative Families
a.      Status v. Function v. Hybrid
                                                              i.      Status definition
i.        “A family is one man and one woman joined by marriage and their children, either natural or adopted. And the extended family consists of those who are related to them, including grandparents, aunts, uncles, and cousins.”
                                                            ii.      Function
i.        “A family is a group of individuals who share a close, intimate bond. IT doesn't have to be people who are related by blood, or through marriage, but instead it could be like minded individuals who share compassion for one another”
1.      Problem with both is that they may be both over/under inclusive and if law is over/under inclusive the law will be thrown out
                                                          iii.      Hybrid
i.        There is the traditional nuclear family. Mom dad, 2 kids. However, the fact of the matter is that this traditional image does not fit the families of most people. Extended families, aunts
b.      The extended family
                                                              i.      Moore v. City of East Cleveland
i.        State intervention:
1.      Housing ordinance “slicing deeply into family itself”
2.      DP clause of 14th amendment
                                                                                                                                      i.      Marriage and family life as protected liberty
ii.      Unusual and Complicated Family definition
1.      Court have consistently acknowledged a ‘private realm of family life which the state cannot enter’
c.       Unmarried Couples’ Rights Inter Se
                                                              i.      Marvin v. Marvin
i.        Facts: Couple lived together for 7 years w/out marrying and created contract that in event of separation the plaintiff would be entitled to half the property and to support payments
ii.      Trial court held that the agreement was unenforceable since the couple lived together
iii.    Court reversed and said that a contract between unmarried couples can create a contract to determine property rights upon separation so long as it is not made on illicit meretricious consideration
1.      In absence of express agreement the court may look to a variety of other remedies in order to protect the parties lawful expectation
d.      Familial Benefits: Housing and Inheritance
                                                              i.      Braschi v. Stah Assoc Co.
i.        Facts: Two men lived as life partners for 10+ years –  upon partner’s death appellant was threatened by apartment owners that he was going to be evicted based on the theory that he was a family member of decedent as protected by rent control law
ii.      Factors court looked at to determine if the couple was “family”
1.      Exclusivity and longevity of the relationship
2.      Level of emotional and financial commitment
3.      Manner in which the parties have conducted their everyday lives and held themselves out to society
4.      Reliance upon one another for daily family services
                                                                                                                                      i.      Factors are very functional definition of the family
                                                                                                                                    ii.      Presence or absence of one however, is not dispositive
iii.    Guy was held to be “family” and was given right to remain in the apartment
                                                            ii.      Family Law Act
i.        Property accumulated by nonmarital partners in an actual family relationship should be divided equally
ii.      Aimed to eliminate fault or guilt as a basis for dividing marital property
II.      Intimate Partner Violence
a.      Stress, poverty, abusive parents
b.      Observing abuse in the home more likely to become abusive
                                                              i.      Observing violence teaches a child 3 lessons:
i.        Those you love are those you hit, those you love are people you can hit
ii.      Becomes morally right to hit those you love
iii.    If other means don’t work to relieving stress, getting your way or expressing yourself don’t work, violence is ok
c.       Intimate violence is often a result of a controversy for power
                                                              i.      If all decision making is in power of one parent then there is more likely to be violence
d.      Random stats about violence
                                                              i.      Most likely to occur in the bedroom
                                                            ii.      Most likely to happen in the evening or weekend or after payday and around holidays
                                                          iii.      Majority of family violence were female (73%)
                                                           iv.      75% of the person committing the violence were male
e.      Reasons why violence is not reported
                                                              i.      The incident is considered a private/personal matter
                                                            ii.      To protect the offender
                                                          iii.      Don’t want more violence
                                                           iv.      Still love the person
                                                             v.      Don’t feel like they can take care of themselves outside the relationship
f.        Battered Woman Syndrome
                                                              i.      The admissibility of Battered Women Syndrome is generally accepted, to some extent, in nearly all jurisdictions
                                                            ii.      Must meet three basic criteria to be admissible:
i.        The expert is qualified to give an opinion on the subject matter
1.      This is determined by whether the doctor’s methodology for identifying and studying battered women was generally accepted
ii.      The state of the art or scientific knowledge permits a reasonable opinion to be given by the expert
iii.    The subject matter of the expert opinion is so related to some science, profession, business or occupation as to be beyond the understanding of the average layman
                                                          iii.      Court agreed with Georgia Sup. Ct. insofar that it concluded ordinary jurors don’t understand why battered women would not leave their husbands
                                                           iv.      Defendant argued that the doctor’s testimony should not be admissible because it goes to the mental state of the defendant and that is only allowed when the person pleas not guilty by reason of insanity
i.        Court disagreed and held that this was not offered as a defense in that matter but rather a self-defense argument
1.      Criteria self-defense
                                                                                                                                      i.      Requires a showing that the accused reasonably believed it was necessary to use deadly force to prevent imminent (on the brink of not necessarily immediate) death or great bodily harm to herself or her children
i.        Testimony was not given to show that the abuse affected her mental state so that she could no longer be responsible for her actions – but instead to show why she remained in the home and believed she was in imminent danger
                                                             v.      Criticisms of Battered Woman Syndrome
i.        Stereotypes women as helpless
ii.      Portrays women as mentally ill and hysterical
iii.    Fails to explain why victims respond differently
iv.     Disadvantages minorities
v.       Provides special treatment to defendant in violation of equal treatment and antidiscrimination ideals
vi.     Subject to sexist applications by judges and juries
                                                           vi.      Difficulties in using self-defense argument
i.        A person can only use proportional force against unlawful armed force
1.      Issue of proportionality 
ii.      Victim must reasonably fear that she is imminent danger of death or great bodily harm (established off of bar room fights, not intimate partners)
1.      Issue of immediacy
iii.    Victim can’t be the aggressor
iv.     Victim must seek to retreat first (castle doctrine)
                                                         vii.      Difficulties in BWS defense
i.        Women appears to be the aggressor
ii.      Woman may use lethal force to a man with only his hands
iii.    Victim may not pose an immediate threat (he is asleep/drunk)
iv.     BWS is accepted today and can be used as sign of ineffective assistance of counsel if it is not raised
                                                       viii.      Admissibility of Novel scientific evidence
i.        Requirements
1.      Must be helpful to the trier of fact
2.      Methodology is scientifically valid
                                                           ix.      Forfeiture by Wrongdoing doctrine
i.        Defendant who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation
ii.      Defendant must act with specific intent
                                                             x.      Cycle theory of violence
i.        (1) tension building phase

rriage access (same and opposite sex)
iii.    Medical decision making and privacy
                                                            ii.      Divorce
i.        Access
                                                          iii.      Child Rearing and Custody
i.        Education
ii.      Barriers to custody and rights to custody
c.       What are we looking for?
                                                              i.      Overview
i.        5th amendment (federal action)
ii.      14th amendment (state action)
iii.    Penumbra
                                                            ii.      Most important concepts
i.        Substantive due process
1.      “… nor be deprived of life, liberty or property without due process of law”
2.      Procedural v. substantive due process
                                                                                                                                      i.      Procedural – paperwork/process
                                                                                                                                    ii.      Substantive – “fundamental rights”
3.      Identifying a Fundamental Right
                                                                                                                                      i.      Discuss historical underpinnings and importance to founding and functioning of the state
                                                                                                                                    ii.      Substantial burden
                                                                                                                                  iii.      Generally are looking for:
i.        Marriage
ii.      Child bearing (care, custody, and control) including religion
iii.    Sex
4.      Due Process Standard
                                                                                                                                      i.      Strict(er) Scrutiny
i.        Necessary for a compelling governmental interest and narrowly tailored overriding government interest (strict scrutiny)
ii.      Sometimes courts will use synonyms to necessary and compelling language
5.      Sub. Due Process Flow Chart
                                                                                                                                      i.      Start
i.        Are we talking about state or federal action?
a.      State (14th) or federal (5th)
ii.      Is a fundamental right involved that is substantially being infringed upon?
a.      If yes apply strict scrutiny
6.      3 levels of scrutiny
                                                                                                                                      i.      Strict (compelling government interest narrowly tailored)
                                                                                                                                    ii.      Intermediate (substantial governmental to an important governmental interest)
                                                                                                                                  iii.      Rational (legit governmental interest rationally related)
ii.      Equal protection
1.      14th amendment or 5th amendment (implied by incorporation doctrine)
2.      Have to think about classifications
                                                                                                                                      i.      Examples
i.        Men and women
ii.      Race
iii.    Opposite sex/same sex
3.      Looking at suspect classes:
                                                                                                                                      i.      Factors to look at
i.        History of discrimination
ii.      Stigma
iii.    Immutable characteristic
iv.     Political disempowerment