FAMLY LAW OUTLINE
Mayeri
I. What is a Family?
A. Background
3 Ways to Define Family
v Status Approach– Only way law traditionally defined family
§ I.e. husband-wife, parent-child, brother-sister, etc. If don’t fit one of these statuses, not considered family
§ Pro: creates predictability b/c you always know if you’re in a specific category
§ Con: All or nothing approach (step parent may function as parent but not be biological parent and thus not proper parent).
v Functional Approach – Martha Minnow article
§ Look at how families function. If group functions as a family, should be treated as such
· “Worried about preserving a set of legal rules that have little relationship to how people actually live”
§ Looks at 1) sharing of affection, resources, and responsibilities; 2) whether the individuals think of one another as family members; 3) whether they present themselves as family
§ Pro: Flexible-can change w the times. Can define those who actually function as a family
§ Con:
· Unpredictable: Gives lots of discretion to govt./judge/decision maker.
· Risky b/c subjective evaluation: Individuals may be declared a family who do NOT want to be recognized as such
¨ Potential that Gov will assign family-like status in order to punish people or deny them benefits they’d otherwise be eligible for
Ø Difference btw expanded family chosen by its participants and expanded family use by govt to achieve its own ends
· Manipulative:
¨ Opens legal system to manipulation by people who want to take advantage of certain benefits from family status but who don’t want to take on burdens
§ Danger people will walk out and avoid responsibilities when ‘family’ is no longer fun
v Contractual Approach
§ Idea that we should allow individuals to choose the specifics of the relationship btw them through private ordering
§ Pro: Individuals can order their relationships without Gov/social policy interference
§ Con:
· May not want individuals to define themselves in relationships that are socially unacceptable.
· Opting in when it’s good and getting out when going gets tough
· unequal bargaining power
v Throughout semester we have seen the courts and legislatures sliding back and forth between the three definitional approaches to suit their needs and ability to make a decision.
Why is definition of family important?
v B/c many laws and benefits hinge on whether someone is a family member
§ Tax Law, Inheritance , Tort Immunity, Public Assistance, Medical Treatment, Property Rights, Employment Benefits, Child custody and Support , Alimony, Retirement Benefits, Immigration, Restraining Orders, Spousal /Testimonial Privilege, Social Security, Workers Comp, Wrongful death Actions, Infliction of Emotional Distress, Standing to bring lawsuit
Kavanagh, “Rewriting the Legal Family,” CB 3-10.
Traditional view: Doctrine of exclusivity- legal families have (1) only 2 parents and (2) adults can either be full legal parents to children or strangers.
Thesis: Care-based Std- the idea that parenthood bestows legal rights should be replaced by the idea that rights flow from relationships b/w caregivers and children.
Care-based standard maximizes care.
Baker v. State (1999) (short excerpt), CB 10.
Case lists a number of benefits and protections incident to marriage. (VT case)
Portion of estate when die intestate, right to bring a death in wrongful death of a spouse, action for loss of consortium, compensation survivor benefits, health insurance policies, evidentiary privilege for marital communications, presumption of joint ownership of property, hospital visitation, etc.
Smock & Manning, “Living Together Unmarried in the United States,” CB 11-15.
The majority of marriages begin as cohabiting relationships.
Decrease in marriage made up for through cohabitation.
Cohabitation more prevalent among lower SES, less educated. Good economic prospects enhance the likelihood of marriage.
Cohabitation more prevalent among people of color.
Thesis: promoting marriage will not work to alleviate poverty or improve child well-being– puts the cart before the horse. Increased economic resources will meet those two goals and also promote marriage.
Law Commission of Canada, “Beyond Conjugality,” CB 19-28.
Article explores the roles implicit in non-conjugal relationships. Supports a registration scheme (Registered Domestic Partnership) to recognize a formal commitment of individuals in any rel’ship, so property division, medical decisions, and support payments may be legally pre-determined.
Know that in gay communities, individuals are more likely to form families of friends.
State can provide orderly framework in which people can express commitment to each other and voluntarily assume a range of legal rights and obligations.
Private law model: Contracts, can seek remedies in courts on contract basis.
Ascription: default arrangement for couples who have not provided for any arrangements and who would otherwise have to resort to cumbersome traditional private law models.
Problem: treats all relationships alike.
Registration: developed as a parallel to marriage, similar set of objectives. Could provide both conjugal and non-conjugal. Formalalize raltionship through public declaration of commitment is important.
Schneider, “The Channeling Function in Family Law,” CB 47-55.
Channeling function: family law creates or supports social institutions which are thought to serve desirable ends (i.e. marriage & parenthood)
Techniques of the channeling fns (of family law):
Create social institutions and to mold and sustain them (laws regulating marriage and parenthood)
Reward participation in an institution (i.e. tax laws)
Disfavoring competing institutions (laws prohibiting bigamy, sodomy, adultery)
The channeling fns help people organize their lives.
Limitations of the channeling fn: though families/parenthood schemes seem to be changing, the channeling fn is still present and working to create new institutions to comport with these changes.
Danger of channeling fn: creates institutions that decide wha
ing upon the premises as a separate housekeeping unit, or a collective body of persons doing their own cooking and living together upon the premises as a separate housekeeping unit in a domestic relationship based on birth, marriage, or other domestic bond as distinguished from a group occupying a boarding house, lodging house, club, fraternity or hotel.” P wanted to start a retarded home in an area zoned for single-family residence. The City denied the permit, contending the arrangement was not a “family”.
Challenges: domestic bond would develop over time between the residents.
Holding: For City, Against Home for Mentally Handicapped.
Reasoning:
Relationships other than those based on blood or law, ie. birth or marriage, are included in the definition of family. Relationships based upon “other domestic bonds”.
When read in context, concept of “domestic bond” implies existence of a traditional family-like structure of household authority. Resident authority figure serving legitimate zoning interests of a community by stabilizing and coordinating household activity in a way consistent with family values and family style of life.
Arrangement lacked a permanent central authority figure—central to concept of family (staff members wouldn’t live at the home and would work on a rotating basis)
If no biological or legal relationship among residents, issue of whether there’s a relatively permanent, resident authority figure is very impt
Average stay or residents only around 1.5 years—not enough for permanent & cohesive relationship
B/c staff members did cooking, arrangement didn’t comply with statute’s req that residents cook
Outside aid relied on
Class Dissussion:
Argument that these people should be viewed as a family:
Functional rationale – Not related by blood or marriage, but would function as cohesive unit—would represent what we look for in a family
Statute’s definition of family mostly status approach; but little functional approach taken (cooking)
Borough of Glassboro v. Vallorosi (p.34-37) – Functional definition of family
Facts: 10 college students were living together when town passed ordinance defined family as “One or more persons occupying a dwelling as a single non-profit housekeeping unit, who are living together as a stable and permanent living unit, being a traditional family unit or the functional equivalency thereof”; town wanted to oust the college students as being in violation of the statute
