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Family Law
Wayne State University Law School
Faupel, Marian

1. Family Models
A. Exclusive Family Model
1. Exclusive Family – two parents of opposite sex have the only rights under many current laws
a. Children have two and only two parents
b. Adults stand in relation as full legal parents or as strangers
c. States often use value-based standard of family to frame some forms of family as right and others as wrong
2. States justify this in some ways with need for orderly child care, otherwise could overburden state with arbitration and make it difficult to identify the legal authority
B. Care Based Family Model (Kavanaugh, p. 7)
1. Individuals should be required to show relationships based on acts they perform and given privileges and rights based on those actions
2. Mutual caregiving relationships, in which an adult provides for the needs of a childe
3. Requires relationship to be mutual, and caregiver does so for non-selfish needs (i.e. no paid help)
C. Terms: Affinity (i.e. stepfather) Sanguinity…blood relative Family of origin…family you’re born into

2. Adult Relationships
A. Conjugal rights…spousal rights…are numerous (estate rights, worker’s comp benefits, insurance)
B. Cohabitation – Unmarried cohabitation has increasedCohabitation is an increasingly experienced form of family for many children
C. Braschi v. Stahl Associates (1989, NY State court case, p. 15) Gay couple considered family in rent control context
1. Rent control statute says can’t evict “some other member of the deceased tenant’s family who has been living with the tenant”….what did the legislature mean by family in this context
2. Lower court found that he was a “family member”, appellate court overturned. SC of New York determined he had enough to show cause and remanded to lower court to grant injunction and proceed with the case.
3. Legislative intent behind rent control was a means of protecting a certain class of occupants from a sudden loss of their home.
a. Court defined family for this purpose in lessee/landlord context/rent control as “family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence”.
b. Factors: exclusivity, longevity, emotional and financial commitment, manner they conduct their everyday lives, how they hold themselves out to others, reliance on one another for daily family services
4. Two issues….what is a couple/family as viewed by the landlord/lease laws

3. Groups
A. Village of Belle Terre v. Boraas (USSC, 1974) p. 28….village zoning ordinance limiting # of unrelated adults from living together found constitutional
1. Group of student renters challenging a statute which restricted land use to single family dwellings….family was defined to include a maximum of (2) unrelated adults living and cooking together.
2. Court found that ordinance was constitutional. Not aimed at transients, no procedural disparity applied to some but not others, not fundamental right guaranteed by constitution.
3. Dissent said it burdens students fundamental rights to association and privacy, and freedom of association. “Belle Terre imposed upon those who deviate from the community norm in their choice of living companions significantly greater restrictions”…than those groups related by blood or marriage
4. Euclid case…supreme court determined that localities had police power to provide and enforce zoning laws. Not a fundamental right…legitimate governmental interest (safety, noise, quality of life, etc)

B. Penobscot Area Housing v. City of Brewer (Maine Supreme Court, 1981) P. 32….group home for retarded persons determined not to be a family as defined by local zoning ordinance
1. Development group tried to create supervised living home for the retarded but were turned down for their Occupancy Certificate by the inspector. The City Board of Appeals also turned them down.
2. Family was defined in the statute…”collective body of persons….upon birth, marriage, or other domestic bond…”
3. Group’s purpose was to create a family environment for the residents, supervisors did not stay overnight and did most of the cooking and some of the cleaning
4. Central figure of authority similar to a parent was lacking which distinguished this case from other’s previously decided. Length of stay was around 1 ½ years….short in view of the court
5. Appeals board decision was reasonable and adequately supported by factual findings, therefore it was upheld.

C. Onedian’s (p. 39)
1. Group of Perfectionists living together in upstate New York dedicated to communal living. No personal property, “complex” marriage, and eugenics program (candidates “bred” children, raised them for 18months then the group raised them as common children).
2. Eugenics
a. Positive eugenics – encourage persons to have children
b. Negative eugenics – discouraging from having children (sterilization, killing, otherwise)

1. Previous MI case ruled that long-term monogamous relationship is not “morally corrupt” or basis on its own for reason to lose rights/case
2. Parental rights….care, custody, and control of the child
3. Bowdie v. Arter…1992 MI supreme court case where Vietnamese couple fought to get their children back…court relied on many secondary materials that claimed psychological bond to caregivers was most important to welfare of the child… said that biological parents should get the children back.
4. Uniform Child Custody Jurisdiction Act… four part test to determine which state be the forum.
5. Lesson: consider constitutional tests when considering family law
Ch. 2 Marrying
1. Loving v. Virginia (USSC, 1967) p. 58 Statute prohibiting interracial marriage unconstitutional
A. Loving (white) marries 17yo Mildred Jeter (black) in Washington D.C.
B. Supreme Court ruled
1. Equal application of a statute to everyone doesn’t make it constitutional…State argued that they were not violating Equal Protection Clause because it applied to everyone
2. Equal Protection clauses requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination…which the 14th amendment was clearly drawn to eliminate
3. Racial classifications are subject to the most rigid scrutiny
4. Statute also deprived them of due process of law…freedom of marriage is one of the vital personal rights essential to the ordinary pursuit of happiness by free men
C. State interest in creating statute….corruption of blood (white race preservation); marriage was subject to state regulation
D. Beginning of supreme court listing a fundamental right….FUNDAMENTAL RIGHT TO MARRIAGE
E. If it’s a fundamental right, then why can’t gays marry?….societal homophobia, rational basis test may support “harms” resulting from a gay lifestyle until society decides it isn’t social harm.

2. Zablocki v. Redhail (USSC, 1978) p. 62 WI statute requiring deadbeat dads to get permission to marry was unconstitutional
A. Challenge to Wisconsin statute requiring residents who either owed child support or has children likely to become public charges, to get a court order granting them permission to get married.
B. Redhail had a child out of wedlock as a teenager and was $3700 behind on child support and his child was receiving state aid. He desired to get married so his pregnant girlfriend wouldn’t bear their child out of wedlock
C. Court affirmed lower court decision that the statute was unconstitutional
1. Reasonable regulations that do not significantly interfere with decisions to enter into the martial relationship may legitimately be imposed…statute imposed here interferes directly and substantially with the right to marry.
2. Will absolutely prevent some from getting married.
3. Interference with a fundamental right (like marriage) cannot be upheld unless it is supported sufficiently by important state in

ldren, inability of children to make critical decisions, importance of parental role in child rearing
2. Strict scrutiny test: required whenever a state statute burdens the exercise of a fundamental liberty protected by Constitution – requires showing of compelling state interest and a closely tailored statute.
3. Unique position of minors/marriage led court to apply Rational Relation test – does a rational relation exists between the state interest and the means chosen by the state to protect that interest
a. State interests: protection of minors from immature decision making and prevention of unstable marriages….both contained within state paternalistic powers
4. Simple criterion of age was reasonable instead of requiring maturity on a court ordered, case-by-case basis
5. Burden not a bar…therefore rational basis test applied

8. Bronson v. Swensen (Utah, 2005, p. 99) – statute outlawing polygamy was upheld as constitutional based on earlier circuit court precedent

9. Sanderson v. Tryon ( SC of UT, 1987) p. 105 Polygamist lifestyle of wife not sufficient by itself to establish she was unfit to have custody of her kids
A. Appeals court determined that “best interests” of child should have been considered and there were not adequate findings to establish the mother was unfit.
B. Statutory scheme had been revised to delete references to moral character in custody disputes
C. Public policy reasons to prevent polygamy (children need full time parents – that many children may make it difficult to support them)
D. Best interest test will balance many factors – not just one as illustrated here

10. Goodwin v. Dept. of Public Health ( SC of MA, 2003) p. 109 Gay marriage allowed MA
A. Fourteen gay couples attempt to get married, are denied, and file suit alleging the constitutional rights are being violated
B. MA supreme court agrees:
1. 14th amendment precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one’s choice of intimate partner
2. Does not constitute a legitimate exercise of state authority to regulate conduct
3. Civil marriage enhances welfare of community, encourages stable relationships, ensures children and other dependent care is provided for
4. Numerous benefits for married citizens
a. Tenants in common…divisible common interest as opposed to tenant in entirety
5. “laws may not interfere directly and substantially with the right to marry
6. Marriage restriction impermissibly identifies persons by a single trait and then denies them protection across the board
7. Fertility is not a condition of marriage (old folks, gays, etc.)
C. State’s argument for prohibition
1. Provide favorable setting for procreation, ensure optimal setting for child rearing, preserve scarce state and private financial resources
D. On heals of Lawrence v. Texas….sodomy statute ruled unconstitutional by USSC
E. Negative pregnant – saying one thing proves another…i.e. prohibiting male-female consanguinity does not say that male-male is prohibited, therefore is allowed
F. Referendum – peoples’ power to repeal what legislature has done