Select Page

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

Aug 23, 2010
Family Law
Spring 2010
Professor Marcia Zug

Fundamental rights – constitution provides heightened protection of these rights
Careful description of interest asserted
Interest must be deeply rooted in this nation’s history and tradition and implicit in concept of liberty
Infringement of fundamental right requires strict scrutiny
Examples – right to marry, right to have children, right to direct education/upbringing of kids, right to privacy, right to use contraception, and right to abortion

[What is a family?] Village of Beltaire v Borass (1974)
Ø Has an ordinance w/ zoning limits limiting occupancy of residence to a “family”
– “Family” – must be related by blood or marriage or through adoption; exclusion of household servants even if not related,
– Exception – if just 2 people; do not have to be married or related
Ø Family in question – non-related college kids
Ø Law aimed at keeping out college kids, because Stony Brook College nearby

HOLDING – Court upholds Constitutionality of this description of family, and state may discriminate on the basis of family
o Therefore – Utilized rational basis scrutiny for equal protection claim (distinguished between related people and non-related people because); STUDENTS LOST CLAIM
Ø Students also lost privacy claim;
Ø IF FUNDAMENTAL RIGHT WAS FOUND BELLE TERRE WOULD HAVE LOST – Although means were rational to reduce noise and traffic; law not narrowly tailored to securing less sound and traffic

Dissent – Discrimination by life-style choice should require strict scrutiny

Penobscot Area Housing Development Corp. v. City of Brewer (1981)

Ø Corp is trying to start a house for a group of 6 mentally disabled people and 2 supervisors
– Temp residency, management by outside forces, staff doesn’t reside there
Ø Zoning law requires – “Relation by blood, marriage, or other domestic bond”

ISSUE – Does the Penobscot House constitute a “domestic bond”?

HOLDING – No; Residents of house do not meet definition of “family”
Ø Domestic bond – Must have member who keeps living condition consistent with traditional life
o Penobscot House lacks central authority figure, permanent placement, and lack of cohesiveness

Borough of Glassboro v Vallorosi (1990)
Ø Borough seeks injunction to prohibit students from living in area because do not meet definition of family
o Ordinance defines “family” – “________________ permanent and stable unit or equivalent”
Ø Students planned to live together for entire term of school, share bank account
Ø NJ Precedent – NJ Supreme Ct previously held distinctions limiting “family” to blood and marriage to be unconstitutional

HOLDING – Students living together does fit terms of “famil” as written in the Ordinance.
Ø Ordinance is Constitutional: Doesn’t discriminate because allows functional equivalent of “family”

August 24, 2010

Moore v. City of East Cleveland (1977)
Ø City has ordinance defining “family” very specifically describing how the parties of the home must be related
Ø Resident has 2 grand sons (born to different one of he children)
Ø City started criminal charges against women; told her to move or remove one of those kids
RULING – Ruled for City of Cleveland on the basis of Beltaire precedent

HOLDING – REVERSED. City acted improperly; Residents of Moore’s home do form a “family”
Ø Ct claims Beltaire confirms State improper to destroy family unity of related individuals.
Ø Ct utilized ________ scrutiny
– Claims Beltaire said only no Constitutional right of unrelated persons to live together
– Since these parties are blood-relatives Case has been understood to say that there is a Constitutional right to family unity


Braschi v Stahl Assoc Company (1989)

Ø Provision in NY Code allows spouses who were left widows after one party died to continue paying same rent as when spouse was alive
Ø 2 men living together in rent-controlled apartment, but 1 passed away
Ø Remaining person wants to stay and pay same rent as was paying prior to death
o Factors indicating marriage – Had joint checking accounts, and lived together for a long time

Ø NY Supreme Ct ruled for Brasche
Ø NY Appellate Ct Reversed on appeal

HOLDING (NY Ct of Appeals) – Reinstated ruling for Brasche; Found that gay couple can be ruled as a family
Ø Family based on the realities of family life
Ø To find out if cohabitants are family a ct must verify are genuinely in a relationship
Ø Ct utilized factors that prove long-term exclusive relationship
– Examples: – sharing of obligations – length of relationship – joint checking acct – one partner had power of appt over other

Aug 26, 2010
[c] Incest
What’s wrong with incest?
Its icky
Increased risk of genetic problems
Sexual relations among family members can be exploitative

Familial relationship can be:
Incestuous marriages are not void; instead are voidable

Isreal v Allen (1978) – Colorado Supreme Ct overturned a statute that forbade a marriage between 2 adopted siblings not related by blood

SINGH v. SINGH ( 1990)

Ø Singh’s were married (in Conn) but while married found out where ½-uncle and ½-niece so marriage was annulled
Ø Mrs. Sing’s vis expired
Ø Attempted to

hild support, and father counterclaimed, seeking custody.

Ø District Court awarded custody to father, and mother appealed.

HOLDING (The Supreme Court, Hall, C.J.) – VACATED AND REMANDED
Ø Finding that parent practices polygamy is, alone, insufficient to support custody award or to permit meaningful review of award on appeal
– Morality can be used as a factor, but very rarely can it be used as the only factor.


Ø Loving’s were married in DC because VA did not allow inter-racial marriages
Ø Upon enterring into VA were arrested (VA law also does not allow those of different races who are married to reside there
Ø Loving’s were convicted of violating marriage law
Ø Loving’s began proceedings on motion to vacate sentences for violating state ban on interracial marriages.

Ø The Circuit Ct denied motion to vacate sentences, and writ of error was granted.
Ø VA Supreme Ct of Appeals, affirmed the convictions, and probable jurisdiction was noted.

HOLDING (Supreme Court, Chief Justice Warren) – Convictions reversed
Ø Miscegenation statutes adopted by Virginia to prevent marriages between persons solely on basis of racial classification violate Equal Protection and Due Process Clauses of 14th Amendment.

ZABLOCKI v. Roger C. REDHAIL, (1978)

Ø Class action was brought challenging Wisconsin statute,
Ø Statute it question: Provides that any resident having minor issue not in his custody that he is under obligation to support by any court order or judgment may not marry without court approval)

Ø District Ct held the statute unconstitutional under the Equal Protection clause and enjoined its enforcement, and probable jurisdiction was noted.

HOLDING (Supreme Court, Justice Marshall) – AFFIRMED; Unconstitutional interference with the fundamental right to marriage
Ø Right to marry = Fundamental right; therefore
§ Fundamental importance
§ Necessary means
1. Ensuring children receive support = Funmademental importance
2. Impingement on right to marry DOES NOT EQUAL Necessary means