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

Family Law

Fall 2015


Background Information

*This information was not taught as explicit assignment

Constitutional Analysis: 3 different tests exist for scrutinizing the constitutionality of state statutes, regulations, practices, or policies.

Rational Basis Test Under the lowest level of scrutiny, the restriction merely must be “reasonably related to a legitimate state objective.”

College (Non-custodial parent)

The Intermediate Level of Scrutiny requires that the restrictions must be “substantially related to an important governmental objective.”

Gender (sex)

In contrast, the Strict Scrutiny test mandates that the restrictions be narrowly tailored and “necessary to a compelling state interest” to survive constitutional challenge.

Fundamental Rights (Marriage, Procreation, Childrearing/Parenting, Family Living Arrangements if Blood/Legal unity, Privacy)

About Family Law

Most cases that challenge a certain family law will claim a violation of substantive due process or equal protection of the law.

Due Process Clause: The due process clause is most naturally read to suggest a right to fair procedures whenever the government takes life, liberty, or property. Family law is an aspect of the liberty protected by the clauses.

Under the Doctrine of Substantive Due Process, the Constitution provides heightened protection against government interference with certain fundamental rights and liberty interests.

For a substantive due process claim, the court requires:

First, a careful description’ of the asserted fundamental liberty interest, and
Second, that the fundamental interest be objectively, deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.
Third, whenever a fundamental liberty is involved, there is “Strict Scrutiny” of any measure by the courts and the state must have a compelling state interest and the law must be narrowly tailored to serve a compelling state interest.

Family Law = State law

Equal Protection Clause: Legislation must operate equally upon all members of a group that is defined reasonably and in terms of a proper legislative purpose.

“No state shall…deny to any person within its jurisdiction the equal protection of the laws”

The equal protection clause tolerates a good deal of imprecision in governmental classifications, so long as the challenged law does not:

Discriminate against a “suspect class” (race, alienage, or illegitimacy), nor
Differentiate among people with respect to the exercise of a “fundamental right.”

States regulate Family Law: Historically, always controlled & regulated by the individual states.

Marriage is more than mere K between a man and woman. It is a status, based on K & established by law. It constitutes an institution (i.e. an established custom) involving the highest interests of society & it is subject to state regulation based upon the general welfare of its citizens.

Three Parties of Every Marriage: Husband, wife, & state.
Marriage = Fundamental Right, thus states cannot prohibit certain martial rights or obligations without demonstrating a compelling state interest in doing so.

Married Couples v. Cohabitating Couples v. Divorced Children

Cohabitating Couples:

“Break-up” a lot more than married couples

Married Couples:

Have more money, and more money means more marriage prospects
More security
Better outcomes for their children

Children of Divorce:

More likely to get divorced

Unit 1:

What is a Family?

SC § 17-55 (Columbia Code of Ordinances) – defines “Family” as: An individual; or two or more persons related by blood or marriage living together; or a group of individuals, of not more than three persons, not related by blood or marriage but living together as a single housekeeping unit.

Traditional Assumptions of Marriage:

Primary support institution & a decisive determinant of the social, economic, and legal status of the spouses & children;
Supposed to last until death of a spouse; & would be terminated during the lives of the spouses only for serious cause;
Community aspect of marriage & family was to be emphasized over the individualistic personalities of each member;
Standard pattern of authority & role allocation was that the husband – father was predominant in decision-making & was to provide for the material needs of the household & children.
Procreation & childrearing were assumed to be major purposes of marriage.

Problems with Typical Assumptions of Marriage

Failure to share the housework and childcare is a major cause of marital conflict.
Traditional gender roles after birth of child tend to destabilize modern marriages.
Men with traditional gender roles during the marriage are the ones mostly likely to have little or no contact with their children after divorce.

Law gives substantial rights to the “Nuclear Family” (i.e. Traditional) v. Non-Traditional Families

Narrow definition of family: limited to nuclear family, a group related by blood or marriage
Broad definition of family: includes nuclear & non-traditional family, meaning one of a group living in the same household.

How to Form a Legally Recognizable Family

Legally – marriage, adoption OR blood relation/genetics

Note: When someone has Blood or Legal relationship, the need to meet other qualifications is lower/less.

Emotional relationships (Cohabitants that Function as Family)? – the law typically does not recognize

No fundamental right to choose your family

Traditionally Recognized Interest

If you are arguing that something is a Fundamental Right, it is easier if you can show that it is traditionally recognized.(An example of this is marriage.)

[Belle Terre]Facts: Group of six students leased a house zoned for single-family residential. The statute said “A number of persons but not exceeding 2 living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family.” Holding: SCOTUS upheld the constitutionality of a statute that limited # of unrelated individuals who may inhabit a dwelling. No fundamental right to choose your family unless BLOOD or LEGAL unity. Court applied rational basis – the restriction

wo adults, one of which is married to another person
§ 16-15-80:Fornication: Sex—possibly also living together—between two unmarried adults
§ 16-15-60:Punishment for adultery/fornication: $100–$500 fine, or 6 mths.–1 yr. jail time, or both

Non-Marital Cohabitation

Although marriage remains a central legal and social institution in America, an increasing number of Americans are establishing family relations outside of marriage. The reasons for this are varied:

Younger Couples: Cohabitation is often a prelude to marriage.
Older Couples: Many of whom have been previously divorced and are cautious about recommitting to marriage again, long-term non-marital cohabitation is often a viable alternative to marriage.
Effect à State courts and legislatures are increasingly asked to determine the legal rights and obligations of non-marital cohabitants or domestic partners in the same manner as they would for married spouses.

Anti-Miscegenation Laws

These are laws that enforced racial segregation at the level of marriage and intimate relationships by criminalizing interracial marriage & sometimes sex between different races. In 1967, the remaining anti-miscegenation laws were held to be unconstitutional in the Loving case.

[Moore v. City of East Cleveland (Grandmother)] Facts: A zoning ordinance limited occupancy within a dwelling unit to only a narrowly defined family unit. The grandmother lived with her two grandsons who were only first cousins. Holding: Court held related individuals have a fundamental right to live with one another and a statute precluding blood relatives from living together was unconstitutional. Court technically applied a test that in between Intermediate and Strict Scrutiny.

Takeaway: An ordinance which restricts housing to a single “nuclear family” rather than including extended family (i.e. grandma) is unconstitutional and a violation of the 14th Amendment.

*****Moore v. City of Cleveland is distinguishable from Belle Terre because Bell Terres ordinance only affected unrelated individuals whereas the ordinance in Moore limits its definition of family to the nuclear family*****

[McLaughlin v. Florida – 1964] Facts: Florida was against “unmarried” sex, and the law prohibited habitual cohabitation by two unmarried people of opposite sex, if one is black, and the other, white. Holding: Court held this statute was unconstitutional because it put a heavier burden of justification on these couples – (I.e. Court said it must treat interracial couples the same), and also Florida had no justification as to why the “race specific” prohibition was necessary.