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

Family Law
Prof. Zug, Fall 2011
What is a Family?
What constitutes a family?
Biological Relationships and Legal Relationships are well recognized in family law.
Emotional Relationships- Not recognized as a “legal” relationship.
If people provide for the child, there might be a real relationship there.
But, it would be inefficient to have to decide this on a case by case basis and there would be lots of uncertainty.  Also, we may not want to encourage certain relationships.
Adult Child Relationships
Modern families are often outside the traditional concept of the two parent nuclear family, but the state continues to use a value-based standard to frame some family structures as good and others as bad.
Exclusive Family Model
The state generally holds that there are only two parents who have exclusive control over a child.
Courts have made this exclusive concept into a fundamental right, which isn’t necessarily a good thing b/c some families don’t fit this mold and when they don’t the state tends to step in.
With the need for dual incomes and the realities of the modern world, the exclusivity model doesn’t always work.
Care-Based Standard (Proposed by Casebook Author)
Rather than looking at rights, it looks at needs and who is providing.
The standard would listen to children and see what their conception of the family is.
If an adult provides for the child, he should be legally recognized.
Different than the parents’ rights method, b/c it would only recognize those who gave for non-selfish reasons (not those that provide just to get financial compensation).
However, this approach does not offer predictability and shatters precedence.  Also, there would lots of litigation which is bad for child custody disputes b/c there isn’t a lot of time.
Parental-Rights Standard
·         Legal parents have a constitutional right to the care and custody of their children as long as there is an absence of abuse or neglect.
·         Problems with standard: not always the best interest of the children; parents do not have to be “good” parents.
Fundamental Constitutional Rights as a Parent
·         Most broad fundamental rights have caveats and exceptions.
·         For example: You have the right to have children, but you don’t have the right to keep your child if you abuse or neglect the child.
·         Another example: If faced with the decision to have a C-Section or the newborn will die, the parent cannot be forced to have a C-Section.  Essentially the parent’s rights trumps the unborn baby in this scenario.
Village of Belle Terre v. Boraas (SCOTUS 1974)
6 college students moved into a house with a local zoning ordinance that restricted the land use to one-family dwellings defined as “one or more persons related by blood, adoption, or marriage, or not exceeding two not related by blood, living and cooking together as a single housekeeping unit.”
Court held that the law did not violate a fundamental right and the zoning ordinance was valid.
J. Marshall (Dissenting) argued that the ordinance violated the students’ rights of association and privacy guaranteed by the constitution and that we should be free to live with friends, associates, or others and the state should not be able to define what a family is. 
Belle Terre demonstrates that the promotion of family values may be a legitimate government interest and that nontraditional families may end up being discriminated against in order to protect those interests.
Penobscot Area Housing Dev. v. City of Brewer (Maine 1981)
City of Brewer is zoned for single family housing. The Π sought a permit to establish a Boarding home for 6 mentally disabled adults plus two full time staff, but the city denied the permit.  Family was defined as a group in a domestic relation based upon birth, marriage, or other domestic bond.
Plaintiff argues that the group could fall under the “other domestic bond” relationship.
Court held that b/c the staff members would not necessarily live at the home and would rotate, they did not serve as the traditional central authority figures that parents do.  Also, the residents had no say on who moved in, and the average stay would only be 1 ½ years, which is not a cohesive domestic bond.
·         Two factors the court considered: (1) Existence of a central authority figure and a (2) Cohesive domestic bond.
Borough of Glassboro v. Vallorosi (NJ 1990)
10 unrelated college students challenge an ordinance restricting residents to a single non-profit housekeeping unit living together as a stable and permanent living unit being a traditional family unit or the functional equivalency.  NJ had already invalidated ordinances that restrictively defined “family” and prohibited unrelated persons to fall within the definition.  Here, “single housekeeping unit” is used and the students satisfied this requirement under the ordinance by showing stability and permanency and that they are the functional equivalent of a family.
Under NJ law, the Belle Terre ordinance would be unconstitutional.
But these two cases do not conflict b/c Belle Terre involved the US Constitution and Glassboro deals with the NJ State Constitution.
How would City of Brewer come out in NJ?  Not clear b/c we don’t know if they would view a group of mentally disabled people as a stable and permanent living unit.
The Extended Family
Moore v. City of East Cleveland (SCOTUS 1977)
City had a single family ordinance, but a very elaborate definition which included that there could not be more than one child if that child in turn had a child.  Plaintiff lives with her son and two grandsons.  City states that the purpose of the ordinance is to stem traffic and overcrowding and lower costs on public schools, and the grandmother has no right to live with her grandchildren b/c protections are limited to the nuclear family only.
Holding: The family needs protection against such arbitrary laws.  The City cannot force people to live in such a narrow definition of family, because tradition shows that families have often extended to more distant relatives.
This Case does not overrule Bell Terre.  This case says you can’t draw the line in non-traditional related families.  But, as in Bell Terre, you can still draw them for unrelated families
Dissent- It is not a constitutional right to choose who you live with- Bell Terre already decided this.
Belle Terre and says there is no fundamental right violated by zoning ordinances – so arguments about privacy of the home are disposed
Freedom of association is not violated here because that right was not designed to protect family living arrangements but for protecting the enumerated 1st amendment rights
It also doesn’t constitute invasion of the private family life because it isn’t telling them how to live- just that they can’t live there
Zug thinks the dissent has the more coherent argument but that the majority’s decision seems right.
The Fundamental Right to Marry
Baker v. State (Vermont 1999)
Marriage transfers a private agreement into significant public benefits and protections, including:
Intestate share
Elective share
Priority as being personal rep
Right to bring lawsuit for wrongful death
COA for loss of consortium
Workers Comp. survivor benefits
Spousal benefits for public employees – insurance
Coverage as spouse under group insurance policies
Evidentiary privilege for marital communications
Homestead rights
Right to receive and obligation to provide spousal support
Today, fewer people are getting married, but this list shows the numerous legal advantages.
Some Historical reasons for marriage have changed:
Women no longer always need support.
Reproductive technology and acceptance- You don’t always need a partner to have a child.
Use to be the only way to legally have sex, but in SC marriage is the only way to legally have sex.
There are over 1,100 Federal benefits for marriage.
Ÿ  Historical Reasons for Marriage:
o   $
o   Family Connections
o   Religion
o   Legitimate Children
o   Freedom for Women
o   Sex
·         Still has an unenforced law against fornication between unmarried people (16-15-60).  However, Lawrence v. Texas is a recent Supreme Court decision that upheld consensual sex between unmarried adults.
Ÿ  SC is a common law marriage state.
Brashci v. Stahl Associates Co. (NY 1989)
NY rent and eviction Regulation says when a tenant dies you cannot evict spouse or other family member who has been living with the tenant.  Regulation does not define “family.”  Purpose of rent control laws is to cope with housing shortage and prevent rates from drastically increasing and to prevent hardship and displacement.
Plaintiff was in a 10 year relationship with his deceased partner (gay couple) and had lived in in the apartment together for over a year before his partner’s death. 
Holding: The law is meant to protect a certain class of people from losing their homes.  Family in this sense should not be limited to just blood and marriage, but instead to the reality of family life.  The adult lifetime partners had a long term relationship characterized by an emotional and financial commitment and interdependence.
This holding could exclude mere roommates and also distant family members who were not close to the deceased.
·         Objective examination of the parties is needed:
Exclusivity and longevity of the relationship; 
Level of emotional and financial c

ationship is only 1 factor in determining the children’s best interest.
·         There are many laws that make presumption against polygamy.  DC law says that if you enter into a new marriage without divorcing your first wife, the most recent marriage is presumed the valid one.
Restrictions on Who May Marry
(Constitutional Restrictions, Procedural Restrictions, State of Mind Restrictions, and Same-Sex Marriage)
Constitutional Restrictions
Loving v. Virginia (SCOTUS 1967)
Black female and white male marry in D.C. which allowed interracial marriage and returned to VA.  They were charged and sentenced for violating VA’s ban on interracial marriages.  Court applied strict scrutiny and found that there was no compelling state interest for the racial classification.  The court also found that it deprived them of liberty without DP.  “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
Loving is the beginning of substantive DP cases
SC looks at both EP and DP. In family law, we focus more on the DP analysis
Zablocki v. Redhail (SCOTUS 1978)
WI law prohibited marriage to parents who had children that they were required to support but were not in their custody without first obtaining a court order granting them permission to marry. 
Holding: The law was found to be unconstitutional because (citing Loving) the right to marry is a fundamental importance to all individuals.  However, the court specifically notes that not all marriage restrictions are unconstitutional.
Zug says the majority decision works but it should be more cut and dry, meaning, if it’s a complete bar to marriage, then strict scrutiny applies, and if not, then you go with a lower level of scrutiny.
Loving & Zablocki- Two cases above show that marriage is a fundamental right, but there can be some state regulation as long as it isn’t a complete bar to marriage or make other unreasonable restrictions.
Turner v. Safley (SCOTUS 1987)
MO law prohibited inmates from getting married without the warden’s permission.  Court held that they can limit the marriage within the prison, but they cannot outright deny the right to marry because prison inmates retain constitutional rights that are not inconsistent with their status as a prisoner or the legitimate penological objectives of the prison.
Other Restrictions on Marriage
Consent Required- Valid marriages require consent.  Others cannot force you (no “shotgun weddings”).
Heartbalm Actions Torts:
Seduction- Brought by woman’s father saying you slept with his daughter and now she can’t be married off, so he deserves compensation.
Breach of Promise to Marry- Action to compensate non-breaching party.
Criminal Conversation- Historic term for adultery.
Alienation of Affliction
Criminal Conversation and Alienation of Affection have been done away with.
Seduction hasn’t been dealt with legislatively, but is no longer around.
Breach of Promise could still be valid but hasn’t been recognized since the 1980s.  It is now a K action.
Typical Examples:
Cost of Wedding
Engagement Ring- Most jurisdictions allow the giver of the ring to recover it if the receiver does not go through with the marriage.  So, in order for the male to get it back:
She must call off the wedding and
You must show that it was a conditional gift given in contemplation of marriage.
Fault may factor in, but not exactly sure what SC case law requires.  Don’t propose on her birthday or other holidays or she will get to keep it.
Private Contracts (such as wills)- have been found to be illegal if they forbid marriage.  Partial restraints are usually ok, however.
Shotgun Weddings are void for lack of consent.