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

A. Article: “Older Women Team Up to Face Future Together”, Jane Gross, NT Times
1. Facts: older widowed women banning together to live out their old age together as family.
2. Q: Should these women be considered a family?
3. Pros:
a. non-legally recognized family willing to care and act as a family
b. legal family doesn’t want the responsibility of care
B. Kavanaugh Article re: family: (p. 3)
1. Argues that instead of basing legal “family” on legal relationship, it should be based on care giving.
a. Current American Predominance: Legal relationship
i. Doctrine of Exclusivity: defines family as:
(1) 2 married parents, opposite sex
(2) Adults – either full legal parents or strangers (no in between)
b. Kavanaugh wants:
i. Care Based Standard:
(1) Level of legal protection should reflect needs of care giving relationship
2. Cons: Difficult to form legally, difficult to generalize, depends on the cooperation of the adults involved.
3. Pros: Support system
C. Village of Belle Terre v. Boraas: (p 28) 1974– zoning statutes – how they define family
1. Village had an ordinance restricting land use to one-family dwellings.
a. The word “family” meant one or more related persons or a number of persons but not exceeding two that were not related.
2. House owners leased a house to tenants, university students who were not related. When village served house owners with an order to remedy violations of the ordinance, house owners and three tenants brought an action under 42 U.S.C.S. § 1983 for an injunction and a judgment declaring the ordinance unconstitutional.
a. The district court held the ordinance constitutional
b. Appellate court reversed.
3. Supreme Court reversed the judgment from the appellate court.
a. The ordinance was not aimed at transients, it involved no procedural disparity inflicted on some but not on others, and it involved no fundamental right guaranteed by the United States Constitution.
i. Because no fundamental right is involved, rational basis is appropriate, and the law will be upheld if it is
(1) Reasonable, not arbitrary
(2) Rationally related to a permissible state objective
b. The court found that a quiet place where yards were wide, people few, and motor vehicles restricted were legitimate guidelines in a land-use project addressed to family needs.
c. The legislature properly exercised its discretion in defining “family” to include no more than two unrelated persons.
i. Legislation often draws lines, excluding some people that could be included, but that is in the discretion of the legislature, not the judiciary
4. In order for strict scrutiny to apply the court requires
a. Description of the fundamental interest
b. History of the importance of a fundamental interest
5. It comes down to how questions are framed and answered
6. ***DISSENT***:
a. Would apply strict scrutiny
b. This zoning violates fundamental rights of privacy and association guaranteed by the 1st and 14th
i. Right to establish a home is an essential part of the liberty guaranteed by the 14th amendment (Meyer v. NE)
c. This ordinance discriminates on the basis of such a personal lifestyle choice as to household companions
i. It permits any number of people related by blood, etc. to live together, but limits to two the number of unrelated people bound by profession, love, religious affiliation, etc.
d. Justifications of the desire to control population density, noise, traffic, etc. are legitimate interests, but the means chosen to accomplish them are both under and over inclusive
i. There are other ways to accomplish these goals that would not discriminate on the basis of constitutionally protected lifestyle choices
7. NOTES: teacher seemed to agree with dissent’s reasoning
D. Penobscot Areas Housing Corp. v. City of Brewer: (p. 32) 1981
1. Facts:
a. Ordinance defined ‘family’ as “a single individual doing his own cooking and living upon the premises as a separate housekeeping unit, or a collective body of persons doing their own cooking and living together upon the premises as a separate housekeeping unit in a domestic relationship based upon birth, marriage or other domestic bond as distinguished from a group occupying a boarding house, lodging house, club, fraternity or hotel.
b. 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.
c. Penobscot argues domestic bond would have been met by the relationship formed among the residents themselves as they lived and worked together. Also, the purpose of the home was to create a family environment
d. City denied the permit: this wasn’t a ‘family’; Zoning Board and Trial Court affirmed
2. Supreme Court affirmed: boarding home did not meet requirements of “family”
a. Court says that the concept of a domestic bond implies the existence of a traditional family-like structure of household authority, which would include one or more resident authority figures
i. Here, there would be a staff employed to establish a home, but they wouldn’t necessarily reside at the home; they would be on a rotating basesà not permanent
ii. court says a permanent authority figure is more important where people aren’t related by blood
iii. the staff here are also paid – which puts a weird spin on definition of family
b. You need more permanence than the 11/2 yr limit allows
c. Residents don’t have a control over who comes in and out
d. Residents would not do their own cooking and cleaning
i. non-self sustaining
e. Court says that this is an issue for the legislature rather than judiciary
i. But, it is unlikely that legislature will get involved since the party affected is not one with strong political power
3. Teacher Comments:
a. Central Authority Figure: is this really necessary to constitute a family
i. Not really (think husband and wife – independent partners – still a family)
4. RULE: A family group not based on a blood relationship requires a central authority figure, choice of who comes in and out, cooking and cleaning sharing, and a certain amount of cohesiveness and permanence for the required domestic bond to be significant.
E. Borough of Glassboro v. Vallorosi: (p. 34) – zoning
1. Facts: 10 students living together. They lived, eat, pay 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.
2. All courts deny Borough’s injunction
a. The ordinance here is valid because is defines family as a “single housekeeping unit,”
i. The court noted that the standard for determining whether a use qualified as a single housekeeping unit could not be based on blood, marriage or adoption, but had be functional and capable of being met by either related or unrelated persons
b. The students, b/c they share housekeeping responsibilities qualify under this standard as a ‘single housekeeping unit’ and as such they do not violate the ordinance.
i. they have the stability and permanence of family unit
3. the majority seems to accept the principles Marshall set out in his dissent of Belle Terre
F. The Extended Family:
1. Moore v. City of East Cleveland: (p. 1118) – UNCONSTITUTIONAL – too narrow a definition of family
a. 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. G ma argued that municipality’s housing ordinance, which categorized a second grandchild living in appellant’s home as an illegal occupant, violated the Due Process Clause of 14th amendment.
b. The court agreed, saying that the ordinance bore no rational relationship to permissible state objectives.
i. This ordinance did not distinguish between related and unrelated individuals, but sliced into the family and regulated what categories of relatives might live together.
ii. Such intrusion into family life was not constitutionally protected.
c. Court rejected arguments that the ordinance served to prevent overcrowding, minimize traffic, and avoid burdening the public school system,
i. the court held that the provision had but a tenuous relation to the alleviation of these objectives.
ii. Also, the constitutional right to live together as a family is not limited to the nuclear family as the extended family traditionally played a role in providing sustenance and security.
iii. Cutting off protection of family rights at the first convenient boundary, the nuclear family, was arbitrary and could not be justified.
2. Effectively, court is willing to extend privacy rights to extended/blood-related families, but not unrelated families.
a. Difference between Moore and Belle Terre is family
3. 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.

A. Who May Marry Incest restrictions
1. SC Code: §20-1-10:
a. (a) All persons, except mentally incompetent persons and persons whose marriage is prohibited by this section, may lawfully contract matrimony.
b. (b) 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.
c. (c) 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

b. Issues: May a man validly marry the daughter of his ex-wife?
c. Holding: YES
i. once he is validly divorced, the relationship of affinity between him and the step-daughter has been terminated, and they are able to marry
d. RULE: A man may validly marry the daughter of his wife, provided he is legally divorced from the wife.
C. Benefits of Marriage:
1. Benefits of Marriage:
a. Right to receive portion of estate of dead spouse who dies intestate and protection from disinheritance
b. Preference in being appointed dead spouses representative
c. Right to bring wrongful death suit
d. Right to workers compensation
e. Tort action for loss of consortium
f. Right to worker’s compensation survivor benefits
g. Spousal benefits guaranteed to public employees ( health, life, disability, and accident insurance)
h. Covered under insurance policies of spouse
i. Evidentiary privilege of spousal communications
j. Homestead rights and protections
k. Presumption of joint ownership of property
l. Hospital visitation and other rights incident to the medical treatment of a family member
m. Right to receive, and the obligation to provide, spousal support, maintenance, and property division in the event of separation or divorce
2. Baker v. State: (p. 10) (Vermont) – same sex marriage
a. Facts: 3 same-sex couples sought marriage licenses and were denied. They appeal arguing: that refusal violates both the state and federal constitution
b. Holding: State is constitutionally required to extend to same-sex couples the common benefits and protections that flowed from marriage under Vermont law.
i. State of Vermont:
(1) has a State constitution that:
(a) Includes a common Benefits Clause:
(b) Expresses a vision that affords every state citizen its benefits and denies none
ii. Federal constitution:
(1) the State court specifically refrained from tying to the federal constitution
(2) The federal Equal Protection Clause disallows the denial of rights – not sure if there is a right to same sex marriage
iii. Benefits of Marriage:
(1) see above (listed in this case)
3. Braschi v. Stahl Ass. Co.: (p. 15) – Same-sex Couple and Def. of Family
a. Facts: 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.
b. Issues: Is a gay partner considered a member of a ‘family’ within rent control and eviction regulations?
c. Holding: YES
i. “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.
ii. Intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history but instead should find its foundation in the reality of family life
(1) More realistic and equally valid view of family includes two adult lifetime partners whose relationship is long term and characterized by and emotional and financial commitment and interdependence.
iii. Factors to consider:
(1) exclusivity
(2) longevity of relationship
(3) level of emotional and financial commitment
(4) manner in which the parties conducted their everyday lives
(5) how they held themselves out to society
(6) reliance upon one another for daily services
iv. These factors serve as a “proxy” for legal marriage.
d. RULE: The term “family” will be interpreted to include all those who reside in households having all normal familial characteristics.
D. Age Restrictions:
1. SC – History of Age of Consent:
a.Civil: age of consent used to be 14 – women; 16 –men
b. C/L: 12 – women, 14 – men: and these marriages weren’t void unless the person was under 7 years old, only voidable.
2. Moe v. Dinkins: – underage marriage
a. Statute Requires: