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Family Law
University of North Carolina School of Law
Lau, Holning S.

A. Functions of Family Law
1.       Protective à Protect citizens a/g harms done them by other citizens
2.       Facilitative à Help people organize their lives and affairs in the ways they prefer
3.       Arbitral à Help people resolve disputes
4.       Expressive à Provides citizens w/ a voice and ability to alter the behavior of people the law addresses
5.       Channeling à Creates and supports social institutions which are thought to serve desirable ends
·         Promotes marriage – monogamous, heterosexual, permanent, based on love
·         Promotes parenthood – parents are married & biological parents of child; authority over children; support and nurture children thru stable home
B. Evolution of the Right to Privacy
1.       Birth of Privacy
a.       Parents:
                                           a.      Meyer v. NE (US 1923)
§ Standard: Mix b/w RB and SS
§ RULE: Violation of DPC to bar teaching of foreign languages (German) to children who hadn’t yet completed 8th grade
·         Substantive DP à Parent’s rights to control the education of their children
·         No rational state interest – doesn’t promote assimilation or civic development
·         Pierce v. Society of Sisters (US 1925)
a.       Standard: Mix b/w RB and SS
b.       RULE: Mandatory public school education violates DPC of 14th Amend.
ú   Violates right to operate a school as property interest
ú   Also violates parents’ right to direct their children’s upbringing
·         Can require school but not public school
b.       Sexuality:
                                           a.      Griswold v. CT (US 1965)
c.        Standard: Higher than RB
§ RULE: Right of married couple to use contraceptives is protected by the DPC of the 14th Amend. under right to privacy
·         Family relations fall w/in the penumbras of Bill of Rights
·         Difference b/w economic regulations and the regulation of INTIMATE affairs of people, marital privacy
                                           b.      Eisenstaedt v. Baird (US 1972)
§ Standard: R/B – Looked for rational reason state divided groups
§ RULE: Extends Griswold right to privacy to unmarried consenting adults
·         It violates EPC to allow married persons to use contraceptives while banning single persons from obtaining or using them.
·         Law was overbroad and discriminatory – did nothing to prevent premarital sex or improve health
d.       “If the right to privacy means anything, it’s the right to the individual, married or single, to be free from govt’l intrusion into matters so fundamentally affecting a person as the decision whether or not to bear children.”
2.       Growth of Privacy
a.       Abortion is a Private Choice:
·         Roe v. Wade (US 1973)
a.       Standard: SS – need compelling state interest that’s narrowly tailored
ú   In determining if a statute restricting right to abortion is constitutional, apply SS unless mother’s health is at risk
b.       RULE: Right to privacy to make a decision in child bearing but it’s qualified. Okay unless it places an undue burden on obtaining abortion.
ú   14th Amend. à DPC rights to marriage, procreation, contraception, child rearing and education
·         Are broad enough to include right to terminate a pregnancy (but this right is NOT absolute)
ú   Statutes regulating abortion must allow:
·         DR’s to make decision on abortion until the end of 1st trimester
·         State regulation of abortion in ways related to maternal health after end of 1st trimester (state interest in mother’s life)
·         States to ban abortions after viability except when necessary to protect life or health of mother (state interest in child’s life)
·         Gonzales v. Carhart (US 2007)
a.       Standard: SS
b.       RULE: Upholds Congress’s ban on partial-birth abortions
ú   Not a substantial obstacle to abortion or undue burden
·         There are other methods besides this
ú   State interest in respecting fetal life and protecting women
c.        UPSHOT: Gets rid of trimester system; Entrenches “undue burden” test
2.       The Liberation of Privacy
·         Lawrence v. Texas (US 2003)
a.       Standard: RB with teeth
b.       RULE: Violation of DPC of 14th to criminalize consensual adult sodomy.
ú   Establishes right to private, consensual adult sexual conduct
·         Important how the Court framed the right
·         Right for adults in own home, to make adult decisions
ú   Moral disapproval alone ≠ rational purpose for state regulation
·         Maybe more than just that – moral disapproval + discrimination is the problem
c.        O’Connor Concurring: Finds the same but on EPC grounds
d.       Scalia Dissenting: Thinks majoritarian morality is a legitimate state

gainst whom enforcement is sought proves that:
·         Prenup was signed involuntarily – OR —
·         Prenup was unconscionable @ the time of execution, and:
o    Problem w/ disclosure of property or financial obligations of other party, and
o    Right to disclosure wasn’t waived, and
o    Couldn’t have reasonably known a/b the property or financial obligations of the other party
ú   NC has adopted UPAA and reads these terms narrowly (difficult to challenge a prenup)
b.       Shanks-Type Tests: Requires substantive and procedural unfairness to invalidate
§ Factors in assessing substantive reasonableness
ú   Parties’ respective wealth
ú   Age
ú   Intelligence, literacy, business sense
ú   Prior family ties
§ In re Marriage of Shanks (Iowa 2008)
ú   Facts: 2nd marriage for both, before marriage discussed goal of preserving husband’s assets for his children. Prenup wrote her out of property. She consulted attorney once, but not for subsequent drafts.
ú   RULE: Agreement was voluntarily executed, conscionable, and enforceable.
·         Agreement was not substantively or procedurally unconscionable b/c all of the provisions were mutual in scope, wife assented and voluntarily declined to seek legal counsel on subsequent drafts
ú   Prenups must meet both procedural and substantive fairness
·         Look bothat time of execution and time of enforcement
o    Easier to show unfairness unless there was foreseeability
o    Have to argue material changed circumstances
ú   Rebuttable presumption arises that the agreement satisfies the informed consent req if:
·         it was executed at least 30 days prior to marriage
·         both parties had, or were advised to obtain, counsel and had opportunity to do so
·         if one of the parties didn’t have counsel, the agreement contained understandable info a/b the parties’ rights and the adverse nature of their interests