INTRODUCTION & DEFINING FAMILY
Introduction
– Family law has had traditionally low status. Why? Everyone walks away unhappy – no clear winner; not highest paid area of law; it rarely makes the front page – don’t get status from practicing family law; most lawyers don’t like dealing with emotion; seems like same thing over and over…but it isn’t
***Children are always what make family law very, very complicated***
– Visitation (whose needs do we look at?)
– guardian ad litem usually needed
– sometimes will have to use juvenile courts
– sometimes need psychologists, social workers, law enforcement
***If spousal abuse, you are not going to get custody of your kids (usually will be supervised visitation)***
Family law = one scholar has defined it as “a symbolic expression of certain cultural ideals; always changing
Historically, families formed for economic reasons; now, more based on romance/relationship
What has not changed over time is how you enter into marriage…
Reasons people get married
Religion/tradition
Financial reasons
Legitimatizing a relationship in the public eye – you want people to know
Security
4 Forces that have shaped modern family law:
(1): legal tradition of noninterference in family affairs
Court system would be used to solve petty family squabbles
§ Privacy issues
§ Father was head of the household
COURTS FORCED TO GET INVOLVED BECAUSE:
§ Public would no longer tolerate domestic violence
§ Abuse of children (excessive discipline)
§ Support of children/family
o (2): ideology of liberal individualism
o (3): American society’s changing moral beliefs
o (4): Rise of “psychologic man”
§ Moral grounds – who is right and who is wrong
§ Psychological grounds – based on happiness
§ Societal grounds – most times does not result in the families best interests
§ Economic and legal grounds
Enforcement problems in family law
o (1) Much of what family law seeks to regulate – from child and spouse abuse to fornication – occurs in private. The distastefulness of investigating private life has been used to justify the doctrine of constitutional privacy and to have contributed to the rise of no-fault divorce.
(2) The person enforced against it often especially able to injure the very person the law intervened to protect. The spouse who wants to resist divorce, the abused child or spouse, the pregnant woman, and her fetus are all vulnerable in this way.
(3) In many critical areas of family law, the people the law wishes to regulate live in emotional settings and under psychological pressures which make them little susceptible to the law’s persuasion.
Five grounds a court may consider in decision-making process:
(1) Moral grounds: if the court looks at an issue on moral grounds, they look at who is right and wrong.
(2) Psychological grounds: this is the way courts are most uncomfortable with. Happiness determines the decision.
(3) Social grounds: the court will look at the consequences of the decision on society as a whole.
(4) Economic grounds: these decisions are dependent upon if they promote economic efficiency.
(5) Legal grounds: the decision turns on whether the conduct is required in order to comply with the current statutes or regulations.
People think families are different than other groups that live together because
1. Stability of a family relationship
2. Easier to exit a non-family relationship
3. Families have more at stake in their community
4. There is usually a hierarchy of authority in a family – to regulate a behavior
BUT MORE AND MORE, GROUPS OF PEOPLE THAT ARE NOT TRADITIONAL FAMILIES ARE LIVING TOGETHER
Defining Family
Definition = unless the regulation specifically defines who they consider to be related or family, always fall back on blood, adoption, or marriage
Zoning Rules – there is an absolute constitutional R regarding personal choice in families & relationships & how we conduct them. whether or not a household is established b/c of personal tragedy, the choice of relatives w/such degree of kinship cannot be denied by the State. cultural differences influence this.
3 areas that have forced courts/legislature to get involved w/families
public outcry regarding domestic violence
public outcry regarding discipline of children that crosses the line & is abusive to the kids
non-support of children
Ch 1 – DEFINING FAMILY
B. Family as a Regulatory Classification
1. Zoning Rules
Moore v. City of East Cleveland (there is an absolute constitutional R regarding personal choice in families & relationships & how we conduct them) (cultural differences influence this)
F: Moore lived in an area of the City that was zoned & had an ordinance limiting its occupancy of dwelling units to members of a single family. The ordinance defined family as people related to head of household & not more than 1 more unmarried or dependent married adult or child. Moore, her son, & the grandson are fine. But, the other grandson is not. Moore lived w/her son & her 2 grandsons, who were cousins to each other & thus, violated the housing code. She was charged criminally & moved to dismiss, arguing the ordinance was invalid b/c it was unconstitutional on its face.
The City argued that Belle Terre, which imposed limits on the types of groups that could occupy a single dwelling unit, should control. In Belle Terre there were 5 college roommates who lived together in a single unit. Belle Terre only affects UNRELATED people.
The city also argued that there were good reasons for the statute – it prevents overcrowding; minimize traffic; & prevent an undue financial burden on schools.
But none of the reasons meet the objective & have no relation to the goals b/c there were no limits.
I: whether the City ordinance violates the Due Process Clause of the 14thR: whether or not a household is established b/c of personal tragedy, the choice of relatives w/such degree of kinship cannot be denied by the State. H: Yes. Reversed. The ordinance affects family members who are related to each other & is unconstitutional. Here, unlike Belle Terre, the court was deciding who was related enough to live together. Ct felt that Moore did not promote family values. There is no rational reasoning behind the ordinance, it doesn’t limit anything but the number of people related by blood relationship, there could be an family of twenty kids and it would be ok, as long as their related appropriately, therefore the limiting overcrowding argument completely fails.
City of Belle Terre – excluded are lodging houses, boarding houses, frats, multiple dwelling houses. Difference b/t Moore & Belle Terre was that Moore was trying to regulate family living situations where the members are related to each other.
Definition of family under Belle Terre – one or more persons related by blood, adoption, or marriage, living or cooking together as single housekeeping unit, exclusive of housing units.
**In Belle Terre, the purpose of the ordinance was to promote family relationships. But, in Moore, the ordinance was preventing the promotion of family relationships as the language promoted separation of families.
Problem 1-1 (p33)
Unlike Moore, the two married couples do not share any level of relation. Therefore, one could argue the violation of the ordinance should be upheld. Their decision to move in together was for financial reasons only & not like the reasons in Baker where the defendant & another woman & her children moved in together b/c they wanted to live together as a family for religious reasons.
Having four adults who all have DL’s would be no different than having 2 parents & 2 children over the age of 16, w/DL’s, live together as there would be no great decrease in resources
Court said NO – didn’t meet the family friendly or the family unfriendly
***Definition of Family – unless the regulation specifically defines who they consider to be related or family, always fall back on blood, adoption, or marriage
Problem 1-3 (p33)
Alice & Tom have chosen to live together as a family, & under the reasoning from Moore, it would seem that their living situation should be allowed even though Alice & Tom are not yet married & there exists no “relation” b/t the kids.
Under Belle Terre, they would likely be considered a family – they are intending to act as a family unit.
What if they were married & had step-children?
Even if you could get the court to believe that step-parents, step children are a family, will still run into problems w/the step-children. (But most courts bend over backwards to recognize the step-relationship as a related scenario – even though in this case the court did not follow this stating that the children would not be related unless they were adopted by the step-parents.)
2. Rent Control Regulation
Braschi v. Stahl Associates (abandoned trad’tl definition of family) (definition of family shouldn’t be confined to a legal definition or those who have formally declared their relationship) (functional approach test, on case by case basis)
F: P & another man lived together in an apartment for 10 years. After P’s partner died, the D (landlord) tried to evict P arguing that the P did not fall w/in the definition of a family member. The lower court concluded P was a family member & issued a pr
ly harmony
Void v. Voidable Marriages
§ Void – marriage was illegal & never existed in the first place – statutory, no excuses
o if void on face, you don’t need an annulment or a divorce – it never happened!
o anyone can attack a void marriage
o common – under age, incestuous, bigamy
o violating a regulatory requirement does NOT make a marriage void
§ Voidable – there is a violation, but it can be cured. The marriage did exist, but something was wrong. Regulatory, not mandatory
o If marriage is voidable, only parties to the marriage can attack the marriage
o Usually voidable marriage can be ratified (cured)
**All marriages are presumed to be valid, until shown otherwise & the only entity that can declare a marriage invalid is the court
Annulment
**if invalid, one way to cure the marriage is an annulment. An annulment is as if the marriage never existed, unlike a divorce. 2 types of annulments:
1) Religious annulment
2) Legal annulment
ND: Grounds for Legal Annulment
if person was under the legal age when married
bigamy – already married so partner has R to annulment
*marriages that occur b/c of fraud, deception, duress
lack of consent – either forcing someone to get married or individual is not capable of giving an informed decision
at time of marriage either party is physically incapable of entering into marriage & it’s incurable
marriage is incestuous
What happens if there are children from an annulled marriage?
Courts consider the children legitimate for inheritance purposes
Common Law Marriage: Legal Exception to Formality Requirements
If you’re state recognizes common law marriage, you don’t need the license or ceremony – that’s the whole purpose of a common law marriage – this is the exception, but the state you are in has to expressly allow and recognize common law marriages
Elements you have to show to prove common law marriage, but clear & convincing evidence
Absolute agreement there is a marriage
Cohabitation
In re Estate of Hall (NOT recognized by the court as a common law marriage)
F: The decedent was separated from his wife & began living w/Denise. Both the decedent’s & Denise’s divorces were finalized & they cont’d living together & had a close relationship. Shortly thereafter, the decedent drowned. Denise & decedent shared some expenses, were together a lot, purchased a condo, but when they signed the agreement they signed separately & didn’t indicate they were married. Taxes were also filed as single. But, did hold themselves out to be married. Denise named decedent as beneficiary but decedent didn’t name her. An administrator was appointed to his estate & the application did not set forth a surviving spouse. Denise filed an application to remove the individual appointed & appoint her since she was a common law spouse. Ct denied the application R: requirements for a common law marriage are when parties are competent to contract a marriage, followed by cohabitation as husband & wife (public declaration), & the proponent has the burden to prove all elements by clear & convincing evidence. Case by case basis centering on the question of “how married are they”H: It was not an error to appoint the original administrator.
2 Elements of Common Law Marriage (both need to be there, & proven by clear & convincing evidence) (exception to formal requirements of marriage of licensure & solemnization)
1. agreement of marriage (not just agreement of commitment). *both individuals have to have the intent – Meeting of the Minds!
2. cohabitation
To prove these 2 things, look to see if there was a witness, conduct of the parties, do they hold themselves out to be husband & wife, are they recognized in the community as married,
