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

FAMILY LAW FALL 2017-ZUG
 
WHAT IS A FAMILY
Average Family
2 married parents (husband and wife); kids; no one else
“Nuclear Family” – law gives you lots of protection
Average doesn’t fit many familiesàparticularly inapplicable to minorities, poor
How do you define families?
Biologically and genetically related to
Legal recognized
Name-a child’s last name is a legal question
If married: presumption kid has father’s last name
Not married: ??
Non estranged- a bond
Living together
What about when you add kids to unmarried and living together?
Biological and adopted
What about married man, mistress and child?
Man does not have legal relationship to mistress, but he does to child
Benefit of traditional family:
Traditional parent has lot of protection (biological + legal relationship)
Law has default rules to protect you
i.e. child abuse-slapping kid by parent does not constitute child abuse (w/o more aggravating circs)
Nontraditional families have less protection
If person slapping kid is not parentàlittle protection
No default rules to protect you
Must actively find a way to be protected
Psychological parents
Nanny
Does not have legal relationship w/ child = no rights
SC has a law
Gives rights to very very small group to unrelated individuals
Exception: if paid then no rights
 
Termination of Parental Rights
SC: SC Responsible Father Registry “Putative father registry”-
Sex is notice that you might have gotten someone pregnant
i.e. one night standàprobably don’t know she is pregnant
if sign up then when babies are put up for adoptionàyou will be notified
PROBLEM: no national registry
 
Fundamental Rights:
Substantive Due Process–cxn provides heightened protections against gov. interference of certain rights and interests
Must be careful description of fundamental interests
Interests need to be deeply rooted in tradition
i.e. marriage
If find it is FRàhigher level of scrutiny
May not be strict, but not RB
Easier to show if traditionally recognized
Fundamental right to marry
Must wait 24 hours (or however long state decides)
Fundamental right to have children
FR  procreate, but state can step in at some point after creation (maybe)
Fundament right to raise children
Parental rights are strong, BUT this can be limited
Cannot abuse
Right to name kids
But limits (cannot name Adolph Hitler)
Fundamental right to have your baby??
Can refuse C section if baby in distress?
Yes in some states
No (must have it) in others
 
Village of Belle Terre v. Borras (U.S. 1974)(No FR for unrelated persons)
Facts: Belle Terre ordinance stated, Family” as used in the ordinance meant “one or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. 
A number of persons but not exceeding two (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.”  In this case, six students occupied a house together in Belle Terre.
Students are committed to living together in the house throughout school
Share cooking, cleaning, housekeeping duties
Students don’t meet definition bcà they are 6 unrelated people
Argue their 14A and 1A rights are violated
Issue: Is there a fundamental right to choose your family?
Rule: There is no fundamental right of unrelated people to live together. 
Holding: The ordinance doesn’t involve any fundamental right given by Constitution.
Only violates the Constitution if it:
is unreasonable
doesn’t bear a rational relationship to a legitimate state objective
This Case: these requirements are not unreasonable
This is a legitimate assumption of the State’s police power. 
It is economic and social legislation.
Rational Basis: a regulation is upheld under the EPC “if the law be ‘reasonable, not arbitrary’ and bears a rational relationship to a [permissible] state objective.”
City’s legitimate objective: reduce traffic, limit noise, reduce no. of moving and parked cars.
Marshall Dissent: Believes it violates right of association and right of privacy
Should be subject to strict scrutiny    
Believes objectives are legitimate/substantial govt interestsàBUT thinks means are overinclusive
Could be achieved by an ordinance that does not discriminate on basis of cxnlly protected choices of lifestyle
Ok to discriminate against nontraditional families, ok to uphold the traditional family definition
No constitutional right to DEFINE your family (aka choose who your family is)
Do you have a fundamental right to decide who your family is? 
If the right is fundamental, the court must apply strict scrutiny and the city must offer a compelling interest that is narrowly tailored.
Belle Terre means that there is no fundamental right for unrelated persons to live together.  Belle Terre actually supports finding the ordinance unconstitutional.  Belle Terre allowed persons related by blood, adoption or marriage to live together, which upheld family values.  In contrast, the East Cleveland statute would tear these families apart.
 
Penobscot Area Housing Development Corp. v. City of Brewer (Me. 1981)
Plaintiff Corporation is organized to provide housing for mentally-challenged adults, to be supervised by 2 full-time employees who would not live in the house.  Excluded group home from a neighborhood b/c its use did not qualify for “single-family use” under the zoning laws.
Family (def. in ordinance): single housekeeping unit, based on “domestic relationship such as birth, marriage or other domestic bond as distinguished from a group occupying a boarding house, lodging house, club, fraternity or hotel.”
Here, more than two unrelated persons can live together if based on a domestic bond. 
Holding: Upheld ordinance under rational basis. 
Rational Basis Standard: “unlawful, arbitrary, capricious or unreasonable.”
The group home does not meet the definition of family: 
A family requires :
a ‘permanent authority figure’
here there was a live in individual  –  but this person was rotated  –  not enough
Courts says a permanent authority figure is more important where people aren’t related by blood
the staff here are also paid  –  which p

ng traditional institution of marriage
Dissent: says traditional notions of sexual morality satisfy RB for EPC purposes
Thinks over time democratic processes will change the view on homosexuality, but this court should not at this time.
 
Extended Family
 Moore v. City of East Cleveland (U.S. 1977)
NOTE: FR for extended family to live together under 14A DPC—not overruling Belle Terre)
Appellant grandmother was living with her son and two grandchildren (cousins, not brothers).  One grandchild is seen as an illegal occupant.  She does not evict him and is criminally indicted.
City’s Goals:  preventing overcrowding, minimizing traffic and parking congestion, and avoiding undue financial burden on East Cleveland’s school system.
Holding: The constitutional right to live together as a family extends beyond the nuclear family to include grandparents. (Protect blood)
*Recognizes constitutional right of related people to live together.  Does not overrule Belle Terre.
Constitutional right of DP protects rights of family life (to control life and upbringing of family): Family unity (for biological family) is held to be a fundamental right
Illegal immigrants come into country and have children.  Children are citizens and allowed to stay.  Parents can be deported.  If have a fundamental right to unity, can parents be deported?  Congress’s plenary power over immigration makes this a different questionàfundamental right is overridden.  Can take kids with you.
Yes the child has cxnl FR, but even those can be limited
Say you still have right to family unity, but you have to go back w/ them
What if children cannot go home (subject to genital mutilation), but parents are deported.  We are splitting up the family here.  These kinds of families are split up all the time. 
Moore is high water mark.  Fundamental right to family unity argument doesn’t work in immigration cases. 
Moore demonstrates that line is drawn at nonrelated families (extended families are protected, while unrelated people aren’t)
Dissent: Says it makes no sense to draw the line at related persons.  Who you live with, however, is not a constitutionally protected right.  He felt that Belle Terre had settled this issue.
 “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”  *HEIGHTENED, BUT NOT STRICT*
The court does not say “compelling” state interest.  We see this again in Troxell.