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Family Law
University of Toledo School of Law
Kennedy, Robin M.

Family Law

Prof. R. kennedy

Spring 2012

Defining a Family

a) Standards

Traditional Approach

(1) Families related by blood, marriage, or adoption and having a domestic bond

(2) Domestic Bond

(a) Resident authority figure (not a paid resident authority figure)

(b) Permanence and cohesion (one year not enough)

(c) Self-sufficiency and independence (e.g., cooking)

(d) Policy: Administrable rule for courts to apply—encourages self-sufficient families

ii) Functional Approach

(1) Families that are the functional equivalent of a traditional family based on their appearance and conduct under the totality of the circumstances

(2) Factors

(a) Exclusivity and longevity of the relationship.

(b) Level of emotional and financial commitment.

(c) Manner in which the parties conduct themselves in everyday life.

(d) Manner in which they hold themselves out to society

(e) Reliance on each other for daily family services

(f) Degree of self-sufficiency of residents

(g) Public/commercial enterprise vs. a private home

(3) Policy: Fairness: fact-intensive analysis that follows intent of the “family” members. Totality of the relationship as evidenced by dedication, caring, and self-sacrifice

iii) Analysis: Defining Family Members

(1) Statutory

(a) Language of the Statute

(i) Definition of family

(ii) Look to other sections

(b) Legislative History

(c) Judicial Opinions

(2) Constitutional

(a) Infringement on a fundamental right gets strict scrutiny. Must be narrowly tailored to achieve a compelling government interest

(i) Right to Privacy

(ii) Right to associate with whomever one pleases

(b) Mere economic or social legislation gets rational basis review. Need only be rationally related to a legitimate government interest.

(i) State police powers

b) Cases

i) Penobscot

(1) P was denied an occupancy permit for a house to be used as a residential facility for 6 retarded adults in an area zoned for single families.

(2) Family was defined as an individual or collective body living as a single housekeeping unit, doing their own cooking, in a domestic relationship based on birth, marriage, or a domestic bond.

(3) HOLDING: Family based on a domestic bond implies the existence of a traditional family-like structure with a central authority figure.

(4) Here, the residents were only there temporarily, they were not completely self-sufficient, and the supervising employees rotated shifts and did not live at the house.

ii) Glassboro

(1) D and 10 friends were college students who lived in a house zoned for families.

(2) HOLDING: Ds are the functional equivalent of a family.

(3) Ds had a common checking account, ate together, shared chores and cooking, and planned to stay there for at least 4 years.

iii) Braschi

(1) P’s gay partner and roommate died, leaving him as the tenant in a rent-controlled apartment from which D attempted to evict him.

(2) HOLDING: P is the functional equivalent of a family member who had been living w/ the tenant.

(3) P demonstrated that he and P were lifetime partners and shared an emotional and financial commitment w/ each other.

(4) Letting P keep the apartment furthers the goal of the rent-control statue; to keep people in the apartments and not be unfairly evicted.

iv) Belle Terre

(1) Village’s zoning ordinance restricted land use to single families and no more than 2 unrelated persons could live together.

(2) Ps, 5 unrelated college students, leased a house in violation of the ordinance.

(3) HOLDING: Village may prohibit more than 2 unrelated persons from living together.

(4) The purpose of the ordinance was to prevent loud noise, traffic, and provide children w/ places to play

(5) DISSENT: (Marshall) Ps have a fundamental right to privacy and association. It is under and over inclusive b/c any # of related persons can live in a home but only 2 unrelated persons.

Getting & Being Married

c) Marriage Restrictions

i) Standard: Void Marriages

(1) When a marriage is declared void, it never existed. On its face the marriage is illegal. Examples:

(a) Incest—marriage between blood-related person (statutory definition)

(i) State’s Arguments

1. History and tradition forbid this type of marriage

2. State wants to criminalize incest to protect children’s health (i.e., birth defects)

(ii) Couple’s Argument

1. Look to the (a) plain language of the statute and (b) legislative intent.

2. A silent statute is not meant to exclude incestuous marriages

(b) Polygamy—marriage of one man and many wives

(i) State’s Argument

1. Parens patrie argument: prevent polygamy to protect children

2. Polygamy teaches immoral and illegal behavior to children

3. Sins of the farther are visited on the children

4. Religious belief is not prohibited, but religious acts can be prohibited

(ii) Couple’s Argument

1. Polygamy is intertwined with religion

2. polygamy is not abusive or neglectful

3. no nexus between neglect and polygamy

4. nothing to show that parents were unfit parents

(iii) Immorality view

1. police powers

2. parens patrie

3. problem: who decides what is moral?

(iv) Illegality view

1. A crime is a crime

2. One cannot commit any crimes

3. polygamy is a crime, whether it is moral or not

(c) Same Sex Marriage—marriage of two people of the same sex

(i) State’s Argument

1. Marriage is one man and one woman (common meaning)

2. History and tradition prohib

ted to a man and a woman

(4) Loving

(a) White man and black woman were married in D.C. and moved to Virginia

(b) VA made it a felony to be married interracially

(c) Held: SS applies to suspect classifications (race) and the statute was unconstitutional

(5) Zablocki

(a) Statute prohibited person from marrying if he or she did not satisfy child support

(b) Purpose was to prevent kids from becoming public charges

(c) Rule: Intermediate Scrutiny applies when marriage is not entirely prohibited; SS applies when marriage is entirely prohibited

(6) Keeney

(a) Prison guard and prisoner became romantically involved

(b) Guard was told to quit her job or stop seeing inmate

(c) Guard quit and married prisoner

(d) Guard sued, arguing that the choice of marrying or quitting violated constitutional rights

(e) Held: prison can impose burdens on the ability of guards and inmates to marry without infringing on constitutional rights—Here, guard was not totally prohibited from marrying

(7) Moe

(a) State reg. Required parental consent and judicial approval before marriage between minors

(b) Minors challenged

(c) Held: Rational basis applies and reg. upheld

(8) Heiman

(a)  purchased ring contemplating marriage and gave to .

(b)  ended relationship and wanted ring back

(c) Held: engagement ring is a conditional gift; if marriage doesn’t occur, ring returns to donor

d) Common Law Marriage

i) Standards

(1) Most JDs have abolished common law marriage

(2) PA recognizes common law marriages. Elements:

(a) Cohabitation (no set length)

(b) Representing to community to be married

(c) Showing of intent between parties to be married

(d) Ability to enter into a legal relationship (legal capacity)

(3) Both parties must be single

(4) Full faith and credit applies

(5) Arguments for Common Law Marriage

(a) Benefits the elderly

(b) Fairness to parties

(c) Legitimizes children

(6) Arguments against Common Law Marriage

(a) Difficult to prove

(b) Easier to show a marriage license

(c) Undermines state’s ability to regulate marriage

(d) No need for common law marriage

(e) Potential for fraud