Select Page

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

What is a Family?:
1) Traditional Approach
a) Families related by blood, marriage, or adoption and having a domestic bond
b) Domestic Bond
i) Resident authority figure (not paid)
ii) Permanence and cohesion (one year is not enough)
iii) Self-sufficiency and independence (e.g., cooking)
c) Policy: Administrable rule for courts to apply—encourages self sufficient families
2) Functional Approach
a) Families that are the functional equivalent of a traditional family based on their appearance and conduct
b) The test is totality of the circumstances
3) Analysis
a) Statutory analysis to determine “family”
b) Constitutional analysis to determine if the definition of “family” infringes upon constitutional rights
§ Due Process – protects people from the deprivation of “traditional” rights; constitution provides heightened protection for substantive due process claims
Fundamental interest
Deeply rooted in history
Implicit in order/liberty
o    Equal protection – used to protect discrimination between people even if such discrimination is of long standing practice
§  “Older Women Team Up to Face Future Together”, Jane Gross, NT Times
·         Facts: older widowed women banding together to live out their old age together as family.
·         Q: Should these women be considered a family?
·         Pros:non-legally recognized family willing to care and act as a family
o    legal family doesn’t want the responsibility of care
§ Kavanaugh Article re: family:
o    Argues that instead of basing legal “family” on legal relationship, it should be based on care giving
§ Current American Predominance: Legal relationship
·         Doctrine of Exclusivity: defines family as:
o    2 married parents, opposite sex
o    Adults – either full legal parents or strangers (no in between)
§ Kavanaugh wants:
·         Care Based Standard:
o    Level of legal protection should reflect needs of care giving relationship
o    2. Moving from biology to care-based system; based on needs rather than interests or rights.
o    Cons: Difficult to form legally, difficult to generalize, depends on the cooperation of the adults involved; less predictability; increase in litigation
o    Pros: Support system
·         Village of Belle Terre v. Boraas (p. 28)
§ Facts: small town ordinance that restricted single family dwellings to “one or more persons related by blood, adoption, or marriage, OR no more than 2 unrelated persons.”  6 students moved in and were evicted for violating the ordinance
§ “A quiet place where yards are wide, people are few, and motor vehicles restricted are legitimate guidelines”
§ The ordinance doesn’t involve any fundamental right given by Const.
§ “It involves no procedural disparity inflicted on some but not on others. It involves no ‘fundamental’ right guaranteed by the Constitution.”
§ NOTE: This case shows that the promotion of family values may be legitimate government interest and thus non-traditional families can end up being discriminated against.   This case stands for the following proposition: There is no fundamental right of unrelated persons to live together (although you could make an argument that there is a fundamental right of unrelated people to live together by saying that the sup. ct. didn’t directly address whether it was a fundamental right).
§ RULE: State Police power is not limited to health issues, but can create zones where ‘family and youth values’ can grow.
o    Penobscot Areas Housing Corp. v. City of Brewer
§ Ordinance: defined ‘family’ as – “persons living together upon the premises as a separate housekeeping unit in a domestic relationship based upon birth, marriage, or other domestic bond”
§ Facts: Penobscot (private non-profit) seeks to create a house for 6 retarded persons in a single family zoned area. They would share a home with rotated supervision for about 1 and ½ yrs each. 
§ RULE: A family group not based on a blood relationship requires a central authority figure, cooking and cleaning sharing, and a certain amount of permanence for the required domestic bond to be significant.
§ Middle case in Zug’s opinion: more of a willingness to recognize unrelated people but they certainly have significant caveats
o    Borough of Glassboro v. Vallorosi (p. 34)
§ Facts: 10 students living together. They lived, ate, paid bills etc together. The Borough wants them to move, claiming that they don’t meet the criteria for a family which their ordinance defines as “a single housekeeping unit” or its functional equivalent
§ RULE: An ordinance that uses a ‘single housekeeping unit’ standard to define a family is constitutional (under the NJ constitution); while defining family solely as persons “related by blood, marriage or adoption” is too narrow under the New Jersey constitution and cannot satisfy the requirements of due process (p. 36).
§ Under the NJ constitution, the Belle Terre statute would not be constitutional (however, this case doesn’t conflict with Belle Terre because Belle Terre deals with the U.S. Constitution)
o    Moore v. City of East Cleveland (p. 1118)
§ Facts: Grandmother supporting 2 grandchildren, who were cousins instead of brothers, was found to violate an ordinance that very narrowly defines family by certain marital and blood relationships.
§ Grandmother claimed the ordinance was constitutionally invalid on its face.
§ RULE: Unconstitutional for ordinance to force related people into narrowly defined family groups.
Some Benefits of Marriage
o    Preference in being appointed dead spouses representative
o    Right to receive portion of estate of dead spouse
o    Right to bring wrongful death suit
o    Right to workers compensation
o    Tort action for loss of consortium
o    Homestead protections
o    Presumption of joint ownership of property and right of survivorship
o    Covered under insurance policies of spouse
o    Evidentiary privilege of spousal communications
o    Homestead rights and protections
o    Presumption of joint ownership of property
o    Hospital visitation and other medical rights regarding family member
o    Right to receive spousal support
§ Immunity from prosecution for harboring fugitive family member
§ Noninterference in crime involving intrafamily violence (ex. heat of passion)
§ Tax benefits
§ Immigration benefits
§ Equitable division of property
§ Burdens of Marriage
§ Higher taxes
§ Lesser punishments for violence
§ Spousal support
§ Prosecutions for:
§ Incest
§ Bigamy
§ Adultery
§ Property division
Same Sex Marriage
o    SC Statutes:
o    Gay Marriage: (SC Code Ann § 20-1-15): Prohibition of Same Sex Marriage: A marriage between persons of the same sex is void ab initio and against the public policy of this State.
§ SC has no hate-crime statute, so there is no protection for gay citizens.
§ The domestic violence protection in SC only applies to opposite sex couples.
·         Baker v. State (p. 10)
§ In Vermont, 3 same-sex couples sought marriage licenses and were denied. They appeal arguing: that refusal violates both the state and federal constitution.
§ RULE: Vermont’s Supreme Court found that a ban on same-sex marriage violated a provision in the State Constitution.
o    Braschi v. Stahl Ass. Co. (p. 15)
§ Gay couple had been living in an apt together for 20 or so years.  One lover died and the other wanted to keep living there.  The apt was rent controlled.  Landlord wanted to kick him out. Brashchi sought a permanent injunction
§ “We conclude that the term family as used in [the statute] should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order.
§ RULE: The term “family” will be interpreted to include all those who reside in households having all normal familial characteristics.
§ Factors considered: exclusivity and longevity of relationship, level of emotional and financial commitment, manner in which the parties have conducted their everyday lives and held themselves out to society, reliance placed upon one another for daily family services.
o    Goodridge v. Department of Public Health
§ Facts: 7 same-sex couples seek marriage licenses in MA.
§ RULE: MA CONST. forbids the creation of second class citizens and thus cannot deny the benefits of marriage to same-sex couples.
§ Note 1 on p. 119 in book says that Mass. legislature tried to pass a law that said same sex couples could get a civil union instead of getting married. The Mass. court struck that law down because it relegates same sex couples to second class status.
o    Wilson v. Ake (p. 121)
§ Facts: Same-sex couple married in MA and want to have their marriage acknowledged in FL.  FL says their CONST. does not require it.
§ RULE: The US CONST. does not protect a person’s right to have a same-sex marriage.
o    “For Some Gays, a Right They Can Forsake” Anemona Hartocollis, NY Times
§ Fought against the idea of gay

tionable about what would happen to couples already married if amendment passes- either they would stay married or the law would apply retroactively. FL and AZ already prohibit same sex marriage and (FL will not recognize civil unions or domestic partnerships from other jurisdictions) but now they’re trying to add a constitutional amendment.
Restrictions on Marriage
Void and Voidable Marriages
a) Incest is a void marriage
i) Marriage between blood-related people
ii) Half-blood uncles and nieces are prohibited
b) Polygamy is a void marriage
i) Marriage of one man and many wives
ii) Immorality View: state cannot condone immoral practices
iii) Illegality View: whether moral or not, state cannot condone polygamy because the state has declared it an illegal practice
c) Same Sex Marriage is a void marriage
i) Marriage of two people of the same sex is void
ii) Marriage is limited to union between one man and one woman
iii) History and tradition recognize only unions between people of the opposite sex
d) Marriage between minors is voidable
i) State statutes requiring parental consent for minors to marry must be rationally related to a legitimate state interest
ii) The legitimate state interest is protecting minors and preventing unstable marriages
iii) Age restrictions are rationally related to protecting minors and preventing unstable marriages
iv) Age restrictions are not complete bars to marriage but are merely limitations to marriage
§ Incest
o    SC Code: §20-1-10: Incest
o    All persons, except mentally incompetent persons and persons whose marriage is prohibited by this section, may lawfully contract matrimony.
o    No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather’s wife, son’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister, mother’s sister, or another man.
o    No woman shall marry her father, grandfather, son, grandson, stepfather, brother, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s father, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother, mother’s brother, or another woman.
§ So….marrying your first cousin is not considered incestuous  
·         and therefore is not illegal in SC
o    SC Code § 16-15-20: Criminal Incest:
o    Any persons who shall have carnal intercourse with each other within the following degrees of relationship, to wit:
o    A man with his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather’s wife, son’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister or mother’s sister; or
o    A woman with her father, grandfather, son, grandson, stepfather, brother, grandmother’s husband, daughter’s husband, granddaughter’s husband, husband’s father, husband’s grandfather, husband’s son, husband’s grandson, brother’s son, sister’s son, father’s brother or mother’s brother
o    Shall be guilty of incest and shall be punished by a fine of not less than five hundred dollars or imprisonment not less than one year in the Penitentiary, or both such fine and imprisonment.
o    20-1-10 à who may marry
§ Voidable marriages = marriage that the statute prohibits
§ They can only be annulled or ended during the course of the marriage. Once one party dies, the marriage is valid.
o    §16-6-20: Any sexual relationship b/w people listed in §20-1-10 is a crime.