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Family Law
University of South Carolina School of Law
Yablon - Zug, Marcia A.

Family Law

Professor Zug

Fall 2011

I. What is a Family?

A. Criteria:

1. Groups of people who are connected through their life and activities (“love relationships”)

a. Should the law recognize “love” relationships?

b. Normative factor:

i. Not recognizing certain relationships because people don’t approve them

ii. Do we want the law to decide what is acceptable?

iii. Should we allow the law to encourage or discourage relationships?

iv. Does the law continue to embrace the majority form of the family?

2. Biological relations

3. Legal relations

B. Kavanagh Article (p. 4) a care-based standard

1. Many problems with “exclusivity” standard the law currently uses

a. 2 and only 2 parents

b. Adults either have full legal parents or strangers (all or nothing)

2. Fundamental interest translated into an exclusive status

3. “The assumption that parenthood per se bestows legal rights regarding their children should be replaced with the idea that rights flow from relationships between caregivers and children.”

4. “Individuals should be required to show relationships based on the acts they perform and given privileges and rights based on those actions.”

C. Absent significant showing of harm, the law doesn’t disturb parental upbringing of their biological children, even if some other person is/has been caring for the kid

1. The parents are deemed to have a CXN fundamental right to raise their kids

2. Fundamental Right = under SDP, the CXN provides heightened protection against interference with certain rights. Requirements:

a. Careful description of the fundamental interest at stake

b. Fundamental interest be deeply rooted in H&T & implicit in the concept of ordered liberty

c. Infringement requires strict scrutiny review

i. The law must be narrowly tailored AND

ii. There must be a compelling govn’t interest

d. EX: the fundamental right to marry…but not anyone you want (no same sex, no one in your family, no children, no mentally impaired)

e. EX: to have children…but it, too, is qualified (as long as you have the means to support them?)

f. EX: to raise your children (you can spank, but you can’t seriously injure…the gray area in between depends on what state you’re in)

D. Care based standard- trying to determine the child’s best interest


1. This prevents parents from losing their child b/c they aren’t the BEST parent at a given time

2. Absent abuse or neglect a parent has a CXN right to their child

3. This means you don’t have to be a great parent, you just have to get by

F. LEGAL AND BIOLOGICAL STDS simplify the decisions and make things easier


A. Village of Belle Terre v. Boraas (1974) (p. 28) stands for proposition that there is not fundamental right to family unity outisde traditional boundaries

1. 6 students wanted to live together; village wants to limit the # of people in its tight little community by passing an ordinance that won’t allow more than 2 unrelated people to live together; an unlimited number of blood relatives were allowed to live together, though

2. The ordinance was supposedly passed under the guise of preserving the quiet nature of the surrounding neighborhood, but is this a good proxy for accomplishing this goal?

3. US Sup Ct concludes that there is no fundamental right infringed, the legislature must inevitably draw lines, and concludes the statute is CXN

a. Rational Basis (RB) scrutiny used

b. Found a reasonable relationship b/w the ordinance and its goal (social legislation was reasonable and not arbitrary)

4. Marshall’s dissent: thinks the ordinance violated 1st Amendment (right of association) & the 14th (Due Process (DP) and Equal Protection (EP); a right to privacy argument)

a. Would have applied strict scrutiny

b. Found the goals of the ordinance were valid but the statute was both over- and under-inclusive

c. The means employed must be narrowly tailored if there’s a fundamental right. Marshall suggested limit adults, cars, how many people in one bedroom, etc.

B. Penobscot v. City of Brewer (1981) (p. 32)

1. 6 retarded people & 2 staff members wish to establish group home à violates ordinance for “family”

2. Different from Belle Terre: “domestic bond” defined so much more broadly in the ordinance. Court says no domestic bond b/c the term implies a traditional family-like structure of household authority

a. Π’s argue that a “domestic bond” is created by living together, but court says no.

b. Court responds that the people don’t have to have blood/legal relationship, but the definition is something that looks like a traditional family

3. No “authority figure”

a. People there weren’t permanent, staff didn’t live there, & the special tenants didn’t cook for themselves

b. Do you need a central authority figure for a family? Court said yes; explained that an authority figure was important when dealing with people outside of a group with blood or legal ties

c. Is this necessary in the example of an unrelated group of people?

i. No b/c they chose to live together, so they’ll likely police themselves

4. What about the lack of cohesiveness or permanence?

a. Appears to be a stronger argument; people would only be there for a year and had no decision-making power as to who was able to enter the “home”

b. In addition, they really only had minimal control over the operations within the home

C. Borough of Glassboro v. Vallorosi (1990) (p. 34) PROPOSITION THAT IN NJ, THERE IS A RIGHT TO FAMILY UNITY FOR ANYONE.

1. Δ’s purchased a home for their family members going to school; 9 friends would live along w/ them; everyone moved in; did group activities like cooking and cleaning; paid bills from a common account; Borough sought an injunction against the use of the premises by the friends

2. Ordinance says the “family” = “one or more persons who are living together as a stable and permanent living unit, being a traditional family unit or the functional equivalency thereof”

3. NJ SC mentions that an ordinance can’t be simply limited to blood relatives (it prefers single family statutes); this is NJ SC’s interpretation of its own CXN

a. However, “the standard for determining whether a use qualifies as a single housekeeping unit must be functional, and hence capable of being met by either related or unrelated persons”

b. Zoning restrictions must be able to be satisfied by both related and unrelated people

4. So, the Q is whether the 10 students constituted a single housekeeping unit

a. The students planned to be a stable and permanent living unit

b. Court ultimately decided this was a valid arrangement

5. NJ SC also says that curbing noise and social unrest is best curbed in other ways

6. How do these 3 cases come out so differently?

a. NJ is a pretty liberal jurisdiction perhaps? Belle Terre ordinance would have been unCXN here?

b. Penobscot court’s emphasis on the lack of permanent residence; lack of central authority figure

c. Should factors such as a single “head” of household or a common purpose matter?

7. There’s nothing wrong with the ordinance itself, the problem is with the way it is being applied

8. *This case doesn’t conflict with Bell Terre b/c it was brought under the NJ state constitution


1. Moore v. City of East Cleveland (1977) (p. 1118) stands for proposition that family unity is a fundament right for related individuals

a. Grandma lived with her son (& his son) & her deceased daughter’s son as well; ordinance in East Cleveland won’t allow the 2nd grandchild to live there; in response to this atrocious act by Mrs. Moore, the city tossed in jail and fined her

b. City argued that Belle Terre applied but Supreme Court said “misguided conclusion” b/c Belle Terre only applied to situations of unrelated inhabitants of a household; “slicing deeply into the family itself”

c. US Sup Ct recognized that freedom of personal choice in matters of marriage and family life is protected by the DPC and when such an intrusion occurs, the Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. Basically, the ordinance did a poor job, according to the Court.

d. City tried to argue that DP grants no rights to grandmothers with respect to grandsons. They say that Belle Terre says that you can’t choose who your family is by choosing who you live with.

i. US Sup Ct ultimately said you can’t make an arbitrary distinction at the line of the nuclear family because “the institution of the family is deeply rooted in this Nation’s history and tradition.”

ii. Protections of Yoder, Meyer, Pierce, and others have long been shared with grandparents

e. Fundamental Right regarding blood relatives (but not immigrants—see class HYPO below)

i. City argued Belle Terre (no FR) but this ca

annulment set aside

a. Knew each other; knew they were related; thought they were more related than they really are

b. Got remarried in CA; marriage was legal/valid in CA

2. Under Full Faith & Credit Clause, CT must recognize CA marriage BUT there is a Public Policy Exception to such recognition.

3. Why shouldn’t CT recognize the CA marriage?

a. Not the issue, Singh’s trying to get CT ct to recognize earlier marriage for immigration purposes

b. Only if ♀ was legally married in CT initially can she stay in the country.

c. If only the CA marriage is valid, she has to leave US for 2 years.

4. Impact of historical English law: – be suspect about the fact that the court hangs its hat on such old law and precedent and want to avoid modernity → probably not a strong argument

a. Incest against the law in England

b. No distinctions b/w affinity and consanguinity

c. US has criminalized the practice; in Europe it was punished in the ecclesiastical courts

d. Moral opinions often go back to the history to justify the court’s decision; deeply held beliefs

i. Is it so clear, though, if CA recognizes the marriage?

ii. Recognize the court’s struggle: what about the “generally accepted rule”? (at bottom of 86)

5. RULE: Marriage b/w a half-uncle and half-niece is void as incestuous in CT.

6. How was Moore v. State distinguished?

a. The parties weren’t blood relatives in Moore but the Singhs are related by blood.

b. Cut and dry answer given but isn’t it more complicated?

c. Aren’t the facts in Moore (guy banging his wife’s brother’s daughter) more disturbing than in Singh? (more likely to lead to exploitation and he knows what he’s doing)

7. Compare with Baker: didn’t mean “half bloods” with regard to uncles and nieces, only brother/sister

8. Concern that the laws vary state-by-state? (PPE to FF&C Clause invoked more than necessary?)

a. May have to recognize another state’s marriage but still able to criminally prosecute the parties?

b. Intra-state competition?

B. Back v. Back (1910) (p. 89)

1. Back & his ♀ got a divorce after Back got tired of this starter marriage; post-divorce, Back decided to marry the daughter of his ex-wife (daughter from a previous marriage); had 4 children; Back died

2. Δ (1 of the greedy children?), says the marriage was incestuous, void, & shouldn’t result in the widow (daughter of Back’s 1st wife) getting some property

3. IASC said that the statute in question was designed to prohibit the carnal knowledge of those in specified relationships; then it noted that any relationship of affinity between Back and the daughter he married was terminated by Back’s divorce to the daughter’s mother

C. Notes:

1. Terminology:

a. Affinity: legal relationship (related by marriage)

b. Consanguinity: Blood relationship

2. Why do we have incest statutes?

a. Theoretically to broaden the gene pool; but what if there wasn’t a genetic effect?

b. Sexual relations among family members can be exploitative

c. Seems like there’s still a big moral push behind the laws—it’s icky

3. Why does incest freak everyone out?

a. Would make for some pretty awkward family gatherings

b. Maybe there are some relationships that should stay nonsexual

c. States that were original colonies are ones that have not outlawed 1st cousin marriage

i. More European influences

ii. 26 states presently allow it

iii. Prohibitions pre-date modern genetics—the concern couldn’t have originally been genetics

iv. 20% of all couples worldwide are 1st cousins