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Family Law
Wayne State University Law School
Mahoney, Joan

WHAT IS A FAMILY?

v History of the (Nuclear) Family
Ø The nuclear family is a relatively recent phenomenon.
Ø Up until the middle of the twentieth century, particularly in rural areas, the entire extended family lived together.
Ø In urban areas, wealthier families had help that raised the children.
Ø The nuclear family is a recent definition of the family and must now be modified to change with modern society.
v What is a family?
Ø If marriage is not the only way to form a family, then what other ways are there?
Ø Hypothetical Problem
§ The facts:
·         1960 – John and Mary get married.
·         1962 – David is born
·         1964 – Jennifer is born
·         1968 – John and Mary split. John basically disappears and only drops in occasionally to visit the children.
·         1968 – Mary moves herself and the children into a commune. While she’s in the commune, she meets Joe. Joe lives in the commune with his daughter Lisa, who was also born in 1964.
¨      Mary, David, Jennifer, Joe and Lisa form a family unit within the commune.
·         1972 – The family unit leaves the commune and Joe and Mary get married.
¨      Joe never adopts Jennifer and David because John drops in from time to time, but claims himself as their father.
·         1980 – David goes away to college.
·         1982 – Jennifer and Lisa go away to college.
·         1986-1990 – Jennifer lives in NY with her college roommate Megan.
·         1990 – Jennifer moves in with Jason.
·         1991 – Jennifer and Jason bought a condo together.
·         1992 – Jennifer and Jason get married. They have two children, Sophie and Tucker.
·         1994 – Lisa married Waldo.
·         1998 – Lisa has a son, Josh.
·         2000 – David moves in with his significant other, Sam. Sam has custody of his child Harrison from a prior relationship (with a woman, obviously). Harrison was born in 1998. Harrison calls Sam “daddy” and calls David “pop”.
·         2002 – Lisa gets divorced from Waldo and she and Josh move back into the family home with Mary and Joe. 
·         2003 – Joe dies. For a while, Mary stays in the family home with Lisa and Josh.
·         2006 – Mary meets Rick at the senior citizens’ center and moves in with Rick. They have no intention of getting married. We do not know if Mary and Rick are having a sexual relationship or not.
§ The question is which of these groups of people living together are families? Which of the groups that were formed earlier were families?
§ What would have happened to Jennifer and David if Mary had died in before 1972?
·         The state would have searched for John, then looked for another relative and then the children would go to Social Services.
·         These children would be taken away from the people that they relate to as family.
§ What would have happened if Mary died in 1979?
·         The state would again look for John because Joe never adopted David or Jennifer.
·         Today, we have a doctrine of de facto parenthood. Today, Joe might be able to petition for custody of David and Jennifer. This would work particularly if John did not want custody or was irresponsible. This was not possible in 1979.
·         John’s parents would have more of a right then Joe.
·         Even if Mary and Joe had a child together and Jennifer and David have a biological sister in the family, the court would not recognize Joe as having any tie to the children.
§ What if Jennifer and Jason had split up in 1992?
·         If the condo was in both names, they would have to sell it and split the cost or one would have to buy the other out of the condo.
§ What if Jennifer worked and put Jason through school so she’s put more into the condo?
·         It probably would not matter.

v Baker v. State (1999) [10] Ø Rights of marriage (examples)
§ Right to bring action for loss of consortium
§ The opportunity to be covered as a spouse under an individual health insurance policy
§ The right to claim an evidentiary privilege for marital communications
§ The presumption of joint ownership of property and the concomitant right of survivorship
§ Hospital visitation
§ The right to bring a lawsuit for wrongful death of a spouse
§ The right to receive, and the obligation to provide, spousal support, maintenance, and property division in the event of separation or divorce.
Ø What we are looking at here are legal families. There is little question as to what we see as a family morally.

v What is a family?
Ø Hypothetical (continued)
§ What if Mary and Rick move into Rick’s rent controlled apartment and they live there for over ten years and then Rick dies? Does Mary get to keep the apartment?
·         According to Braschi, Mary would get to keep the apartment. 

v Braschi v. Stahl Associates Company (1989) [15] Ø The question in this case was whether the surviving partner of a relationship who has lived with the deceased for over ten years is the family of the deceased according to NY rent control rules
Ø The court uses a functional approach.
§ The court looked at the purpose of the NYC Rent and Eviction Regulations and found that the reason was to prevent a certain class of occupants from the sudden loss of their homes.
Ø What if Mary and Rick lived in the apartment for over 10 years and then Rick died?
§ It does not really matter if they were sexual partners or not.
§ They had legitimate reasons for not getting married.
§ The court would probably also look at how financially intertwined they are in the sense of day to day living.
§ Some courts will argue that they could have gotten married (unlike Braschi and Blanchard), but others would uphold the valid reasons as to why Mary and Rick did not get married.
Ø Do we define family based on legal ties or based on some other considerations?
Ø If David and Sam split up, does David have any claim to even see Harrison again?
§ Probably not, at least not in most states.
§ It may depend on how much time has passed because Harrison was only 2 when they got together. Today, if they had been together 10 years, David may have a change of being the de facto parent.
§ Many states do not allow same sex parents to adopt each other’s children. 
Ø Kavanagh believes that we should define family, not based on blood lines, but based on “caring.” Those who care for the children on a regular basis would then be considered their family.
§ With this idea, David would have input with Harrison and Mary

ith them in a traditional parental role.

v Borough of Glassboro v. Vallorosi (1990) [34] Ø Glassboro’s ordinance defined a family as “one or more persons occupying a dwelling unit as a single non-profit housekeeping unit, who are living together as a stable and permanent living unit, being a traditional family unit or the functional equivalency thereof.”
Ø Why is this a family unit when the Belle Terre college students were not? What about the Penobscot case?
§ The court noted that the house had a common checking account that the bills were paid out of and the groceries were also purchased from this fund.
§ The kids were going to live there for three years, though they only sign the lease one semester of the time.
§ They shared the chores, ate meals together in small groups, cooked for each other and shared the yard work.
§ In Penobscot, the community seems very focused on the nuclear family. The appeal was asking the court to overrule all of the lower court. There was not enough there to overrule.
§ In this case, the students won in the trial court and so all the appellate court had to do was affirm.

v What we learn from these cases
Ø Many people tend to live in different groups.
Ø There are many different ways to define a family.
Ø Ordinances cannot define family in an overly restrictive manner.

v Communal Living
Ø There were very extreme examples in history:
§ The Shakers
§ The Oneida Colony
Ø In the Oneida Colony, they tried to create social communism and equality. They promoted sharing and help one another.
Ø Communes were very prominent during the 1960s and 1970s.
§ There was a breakdown of traditional marriage and marriage values.
§ The 1950s had been a period that emphasized the nuclear family. There was a mass exodus from the urban areas to the suburbs. 
§ There were a lot of experiments with communal living, but most of them did not last very long.
Ø Today, we have the new phenomenon of intentional communities.
§ People are creating subdivisions where every family has their own residence, but they also have communal space where they eat together on a regular basis and have social activities.
§ These groups also share some of the property in common, though they own their own homes.
Ø Assisted living facilities
§ In a sense, some of these facilities are like communes for older people. 
§ They also have meals together, activities, and excursions.
§ These places are primarily about social interaction, not medical attention. Many of the people who live in these facilities are moved there to prevent social interaction.