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

Lau- Family Law Fall 2015


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. Origins of the Right to Privacy w/in the family→ Parents:

§ Meyer v. NE (US 1923)

o Fundamental Right for= Parents to make decisions about their children’s education

o Standard: Mix b/w RB and SS

o 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)

● Fundamental Right for= Parents to chose type (private, public) education of children

● Standard: Mix b/w RB and SS

● RULE: Mandatory public school education violates DPC of 14th Amend.

○ Violates right to operate a school as property interest

○ Also violates parents’ right to direct their children’s upbringing

■ Can require school but not public school

b. Sexuality:

§ Griswold v. CT (US 1965) → Defining the “Right to Marital Privacy”

o Standard: Higher than RB

o 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

o Majority Opinion: Justice Douglas

§ The Right to Privacy→ Douglas interprets a “right to privacy” as implicit in the many specific textual provisions of the Bill of Rights (First, Third, Fourth, Fifth)

§ The Bill of Rights have “penumbras” which “emanate” and protect zones of privacy

· Right to privacy is “older” than the Bill of Rights

o Looking to history and tradition protecting sacred marital privacy

· Thus→ the law banning sale of contraceptives violated the right to privacy in prohibiting married couples from using contraceptives in the bedroom.

o Justice Goldberg: Concurring→ Emphasizes the Ninth Amendment as the authority for the court to protect non-textual rights such as the right to privacy

o Justice Black: Dissenting→ NO text in the Constitution regarding a “right to privacy”

o Unelected judges are making up rights and enforcing them on the people contrary to the democratic process. Non-textual Rights can only be created by Amendment.

§ Eisenstaedt v. Baird (US 1972)→ Extending the “Right to Privacy” to Non-married couples

· Standard: R/B – Looked for rational reason state divided groups

· RULE: Extends Griswold right to privacy to unmarried consenting adults

o It violates EPC to allow married persons to use contraceptives while banning single persons from obtaining or using them.

o Law was overbroad and discriminatory – did nothing to prevent premarital sex or improve health

o “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.”

o Equal Protection Case→ Court declared unconstitutional a state law prohibiting distribution of contraceptives to unmarried persons, but allowed doctors to give them to married people.

o Holding: The court finds the law violates Equal Protection because it discriminated against non-married individuals in exercising a “fundamental right” to privacy

o If the right of privacy means anything, it is the right of the individual, married or single, to be free of government interference in decision to have a child

§ Eisenstadt is a big step→ Court extends right to privacy to non-married individuals

o No history or tradition supports this non-textual right outside of marriage!

o In Griswoldà The court rests on the “sacred” nature of marriage relationship which is entitled to privacy.

o In Eisenstadtà The court is more interested in “individual rights” and autonomy as being the basis of the right to privacy.

o However, how far this should go is unclear. Court seems to be concerned that unmarried couples are being treated differently than married couples. But, there are tons of rights given to married couples that are NOT given to unmarried couples.

2. Growth of Privacy

a. Abortion is a Private Choice:

■ Roe v. Wade (US 1973)

● Standard: SS – need compelling state interest that’s narrowly tailored

○ In determining if a statute restricting right to abortion is constitutional, apply SS unless mother’s health is at risk

● 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.

○ 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)

○ 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)

● Standard: SS

● RULE: Upholds Congress’s ban on partial-birth abortions

○ Not a substantial obstacle to abortion or undue burden

■ There are other methods besides this

○ State interest in respecting fetal life and protecting women

● UPSHOT: Gets rid of trimester system; Entrenches “undue burden” test

b. The Liberation of Privacy→ Protection for Sexual Orientation & Sexual Activity

■ Lawrence v. Texas (US 2003) → Reaffirms constitutional protection of non-textual “right to privacy” and holds that states may not prohibit private consensual sexual activity between consenting adults of the same sex. Sexuality is fundamental aspect of “personhood”

● Standard: RB with teeth→ Kennedy does NOT articulate a “level of scrutiny,” Court did NOT speak of a “fundamental right” or “strict scrutiny”

● RULE: Violation of DPC of 14th to criminalize consensual adult sodomy; the state has NO legitimate interest to enter people’s private lives and prohibit individual expressions of sexuality and personhood

○ Est

e Change?

o Changing gender roles

o Divorce/remarriage – change in influence of morality

▪ Limitations

o Prenups can’t restrict judicial discretion regarding child custody or child support b/c of state’s concern w/ child welfare

▪ Tests for Enforceability

a. Simeone-Type Tests: Apply regular K rules – Looks to procedural only. Unenforceable if fraud, duress, UDI, etc.

▪ Simeone v. Simeone (Pa. 1990)

▫ Facts: 23 y/o unemployed nurse marries 39 y/o neurosurgeon. Prenup limits her right to spousal support to $200/week, subject to maximum of $25K

▫ RULE: Court upholds agreement

● Despite unfairness, no longer validity in the implicit assumption that spouses are of unequal stats and women aren’t knowledgeable enough to understand nature of Ks

▪ Uniform Premarital Agreement Act (UPAA)

▫ Unenforceable if the party against 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, in writing, and

o Did not, or reasonably could not have had, adequate knowledge of property/financial obligations of other party.

○ 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

▫ Parties’ respective wealth

▫ Age

▫ Intelligence, literacy, business sense

▫ Prior family ties

▪ In re Marriage of Shanks (Iowa 2008)

▫ 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.

▫ 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


▫ Prenups must meet both procedural and substantive fairness

● Look both at time of execution and time of enforcement

o Easier to show unfairness unless there was foreseeability

o Have to argue material changed circumstances

▫ Rebuttable presumption arises that the agreement satisfies the informed consent requirement 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 about the parties’ rights and the adverse nature of their interests

▪ Casebook Problem on page 132.