Select Page

Family Law
University of North Carolina School of Law
Eichner, Maxine

I. Definition of Family
            -generally, two models: traditional and functional
                        -traditional – bound by blood, marriage or adoption
                        -functional – bound by blood, law or common agreement
            -rights and responsibilities are determined by how the state views the family
                        1) status – determined by state law and public policy
                        2) contract – determined by the parties
            A. Traditional View of Family
                        1. Belle Terre (zoning ordinance)
-group of unrelated college students living together is not a family; no fundamental rights are impacted (dissent: right of association)
            -since no fundamental rights were violated, rational basis review applies
-SC says that state can privilege a particular vision of a family
                        2. Moore (zoning)
-statute forbids grandchildren who are cousins rather than siblings from living together
-statute preferences nuclear family over extended family
                                    -however, traditional view of family includes extended family
-court here found that a fundamental right was being impinged – liberty interest in making your own family
            -strict scrutiny applies
-states should particularly protect extended families as well as nuclear families
            B. Functional View of Family
                        1. Braschi
                                    -same-sex couple living together; issue of statutory interpretation of “family”
-court defines family as household that shares normal familial characteristics for the purpose of the particular statute – functional/objective definition
-list of factors to define this type of family:
                                                -exclusivity and longevity of relationship
                                                -level of emotional and financial commitment
                                                -manner in which parties conducted their everyday lives
                                                -manner in which they held themselves out to society
                                                -reliance placed on one another for daily family services
            -state has a strong interest in promoting marriage – traditional, more stable for child
            C. Family and the Constitution
                        -Constitution guarantees rights of individuals
                        -families are protected under Due Process clause of 14th Amdmt and privacy penumbras
                        -Meyer – right to marry, establish a home and bring up children is included in liberty
-Pierce – parents can direct the upbringing and education of their children
-Prince – parents have autonomy in childrearing – “private realm of family life which the state cannot enter”
1. Griswold
            -married couples have a fundamental right to practice contraception
            -the privacy right is inhered in the couple and tied to the privacy of the home
-Harlan’s concurrence: does enactment of statutes violate basic values implicit in the concept of ordered liberty?
                        -if so, then higher scrutiny
2. Eisenstadt
            -expands privacy rights to cover individuals rather than just couples
                        -based on equal protection claim – unmarried vs. married
-court’s reasoning: marriage is an association of individuals with separate intellectual and emotional makeups
-individual has right to be free from gov’t intrusion into fundamental decisions about his own body and person
-only fundamental rights are included in guarantee of personal privacy:
-marriage, procreation, contraception, family relationships, childrearing and education
-leading up to Lawrence:
            -Bowers v. Hardwick
                        -constitutionality of statute criminalizing sodomy
-SC defined the issue very narrowly – do gays have fundamental right to engage in sodomy? NO, so rational basis only, statute upheld
                                    -Romer v. Evans
-discriminating against a group on animus only lacks a rational relationship to legitimate state interests
-statute was overturned on rational basis review
                        3. Lawrence v. Texas
-SC says that all adults have a right to consensual sexual intimacy
-explicitly overturns Bowers
-immorality/against tradition is not a sufficient state interest (can be a starting point only)
-standard of review: rational basis plus?? SC isn’t clear
                        4. Troxel v. Granville
-can state override the decision of a custodially fit parent and make its own determination as to what’s in the child’s best interests? NO
-statute impacts the fundamental right to childrearing
            -there must be a preference in favor of a fit parent’s decision
-SC presumes that a fit parent is acting in the child’s best interests and state shouldn’t get involved
-standard of review isn’t clear – strict scrutiny?
II. Marriage
            A. Entering Marriage
                        -requirements to enter into marriage:
                                    1) formal requirements
                                                -obtain marriage license
                                                -solemnization (ceremony) and proof of solemnization
                                    2) substantive requirements
                                                -proper age, ability to consent, capacity to contract
                                    3) valid agreement to marry
-generally, if there’s a mistake in the formalities and the couple honestly believes that they’re married, the law usually deems them to be married
            B. Formal Requirements
-parties have to agree to marry, be eligible to marry each other, and must follow the procedure in their state
-generally, two parts:
            1) getting marriage license
                        -proof of age (all states), medical exam (not NC), waiting period (not NC)
            2) having a ceremony (solemnizing)
                        -form of ceremony is rarely specified
                                    -some states may require specific words
                        -all states specify who can perform the marriage
                                    -both civil and religious figures (in NC, no Universal Life ministers)
                                    -consummation is NOT a requirement
                        -these are regulatory requirements – not mandatory
-failure to meet formal requirements doesn’t necessarily invalidate marriage as long as couple intended to marry
            C. Annulments vs. Divorces
                        -annulment – marriage was never valid at any time
                        -result of annulment: kids are illegitimate; no equitable distribution of assets
                        -an annulled marriage can

s have some restriction based on age
                                                            -minimum age to marry without parent’s consent (18)
                                                            -minimum age to marry with parent’s consent (16 or 17)
-statutes regulating age are valid b/c age isn’t a suspect class for EP claim; also not a substantial burden on the right to marry (although it is direct)
                                    b. Incest
-every state forbids marriage between members of nuclear family (also aunt/nephew, uncle/niece, grandparent/grandchild)
            -split on whether first cousins are allowed to marry
-courts generally treat persons related by half blood the same as those related by whole blood – half-brother can’t marry half-sister
-ban also applies to marriage by affinity, e.g. adoption or marriage
            -if by marriage, and the marriage ends, then the ban doesn’t apply
            -courts are split on whether a stepbrother and stepsister can marry
                                    c. Polygamy
                                                -Reynolds made polygamous marriages illegal; states codified it
-this is a direct bar to marriage, but may not be substantial depending on the wording of the statute
                                    d. Same Sex: 
1. Littleton v. Prange
-can there be a legal marriage between a man and a male transsexual (now a woman)?
-DOMA: marriage is between one man and one woman
-holding: this is a matter for the legislature to decide, not courts
-legislative guidelines as to legality of transsexual marriage are required
-possible factors: chromosomal factors, gonadal factors, genital factors, psychological factors
-court gives most weight to chromosomal factors in determining a person’s gender
-P’s amending her birth certificate to change her gender to female is not binding and the statute allowing the change was misconstrued – “inaccurate” refers to at the time of birth, not later
                                                2. Later Cases
-Baehr (HI) – SC found that there was a possible EP claim based on sex discrimination
            -courts never ruled on it b/c legislature acted first
-Romer v. Evans – can’t legislate on animus or morality alone
-Baker v. VT – statute denied common benefits to same-sex partner
-held that partners are entitled to same benefits as married couples but can’t call it marriage
-Goodridge v. Dept. Public Health – under rational basis review, MA court finds that gays should have right to marry
-court does not agree w/ primary purpose of marriage given by state
-overinclusive b/c not preventing people past procreative age from marrying
-underinclusive b/c same-sex couple can procreate but not with each other