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Family Law
Wayne State University Law School
Faupel, Marian

Family Law Outline—Summer 2011—Faupel
Focus of the Class
1.       What marriage means.  Who is eligible to marry?
2.       Role of women in society—how that is affected by the fact that they have children.
3.       Child custody issues.
4.       Traditional divorces
a.       Legal custody
b.       Parenting time
c.       Child support
d.       Spousal support
e.       Property distribution
5.       The government’s interest in family life.
I.  What Is A Family?
A.     Adult—Child Relationships
·         Should society recognize families based on formal relationships (form), or how intimately connected the parties are (function)? 
·         The nuclear family is a recent invention.  In the past, upper and middle class families had servants help raise their children.  Recently, the nuclear family (2 married spouses with biological children of both parents living in the same household) has become the dominant family model, even though it may not represent the majority of families in the population. 
·         The Family Medical Leave Act—gives up to 12 weeks of unpaid time off if the person or someone in his/her family needs care, generally because of health issues.
o   The state’s recognition of a “family” is important so that the family members can get benefits under this statute and others.  There are 1300 rights that arise from marriage.
·         Defense of Marriage Act—the federal government does not have to recognize a marriage that a state endorses or grants.  Some states have permitted same-sex couples to marry, but the federal government does not recognize those marriages.  Obama has said that he will not enforce DOMA. 
o   This is an exception to the Full Faith and Credit Clause.
“Rewriting the Legal Family” by Michael M. Kavanagh, page 3
·         The author has a complex family relationship—divorced parents, two “step-parents” (one same-sex relationship), and many other non-blood relatives that helped raise him. 
o   He criticizes the American legal system because it would only give his biological parents legal standing in a custody dispute. 
o   He argues that the legal system is based on a model (the nuclear family—married, biological parents) that is not the reality for most of the population. 
·         Suggested model: based on care-giving relationships and does not automatically bestow rights to biological parents.  He suggests that a family relationship should not be assumed, but should be proven based on acts they perform. 
o   Mutuality—the care-giving adult and the child see the relationship as a familial one.
B.     Adult Relationships
a.       Conjugal
Baker v. State, page 10
·         The benefits and protections incident to a marriage license (in VT) include:
1.       Right to receive a portion of the estate of a spouse who dies intestate and protection against disinheritance through elective share provisions
2.       Preference in being appointed the personal representative of a spouse who dies intestate
3.       The right to bring an action for loss of consortium
4.       The right to workers’ compensation survivor benefits
5.       The right to spousal benefits statutorily guaranteed to public employees, including health, life, disability, and accident insurance
6.       The opportunity to be covered as a spouse under group life insurance policies issued to an employee
7.       The opportunity to be covered as the insured’s spouse under an individual health insurance policy
8.       The right to claim an evidentiary privilege for marital communications
9.       Homestead rights and protections
10.   The presumption of joint ownership of property and the concomitant right of survivorship
11.   Hospital visitation and other rights incident to the medical treatment of a family member
12.   The right to receive, and the obligation to provide, spousal support, maintenance, and property division in the event of separation or divorce.
“Living Together Unmarried in the United States” by Pamela Smock & Wendy Manning, page 11
·         Unmarried cohabitation is increasing in the U.S. and has become a more prevalent arrangement for child rearing. 
Braschi v. Stahl Associates Co., page 15
·         Facts: NYC realized a long time ago that people without money were leaving the city.  To protect people from slum lords, the government issued rent control rules about how much the rent could increase and the types of people who are subject to these protections.  The protection applies to spouses and children, but doesn’t go on forever. 
o   Beginning in 1975, Braschi and Blanchard (homosexual) were living together in a rent-controlled apartment.  Blanchard died in 1986.  Blanchard was the only tenant of record, so the apartment owners served notice to evict on Braschi. 
·         Holding: under New York’s rent-control regulation, family is not limited to those that may take under intestacy, but is instead determined by the relationship of the parties.  Looking at the totality of the circumstances, the men were entitled to the protections of rent control. 
o   Relevant factors include:
1.       The exclusivity and longevity of the relationship.
2.       The level of emotional and financial commitment.
3.       The manner in which the parties have conducted their everyday lives and held themselves out to society. 
4.       The reliance placed upon one another for daily family services. 
·         The outcome of this case might be different had the couple been heterosexual because they have the right and ability to marry.  Other courts may not have been so lenient toward homosexuals.  
o   However, the court is not focusing on whether or not the men can marry.  The court looks at the purpose behind the rent-control protections and determines that the protection applies to these men.
b.       Non-Conjugal
·         Models for regulating personal relationships:
o   Private law—people choose to be regulated privately through contracts, but not a sufficient remedy because contract law is too complex and too burdensome to expect people to use it.
o   Ascription—treating unmarried cohabitants as if they were married, without having taken any positive action to do so (common law marriage). 
§  Down side—this does not look to the individual level of emotional connectiveness and does not allow individuals to opt out, even if they are unaware of the consequences.
o   Registrations—individuals register their relationships to obtain a range of rights and responsibilities (gives rights, but preserves autonomy and is less invasive to individual privacy than ascription).
C.      Groups
Village of Belle Terre v. Boraas, page 28
·         Facts: The Village is a small area; there is a single-family zoning ordinance.  Six students not related by blood or marriage were all living together within this area.  The π and the five other students challenged the ordinance that limited residents to persons related by blood, marriage or adoption, and not more than two unrelated persons.
o   The πs challenged the ordinance on the following grounds: interfered with a person’s right to travel, interfered with the right to immigrate to and settle within a State, it barred people who are uncongenial to the present residents, it expresses social preference of the residents for groups that will be congenial to them, etc. (see all on page 29). 
·         Issue: does this situation violate the zoning ordinance?
·         Holding: the state police power, through zoning ordinances, is not limited to the elimination of unhealthy conditions; it can create zones where family values and quiet neighborhoods can grow and prosper. 
o   The court finds none of the proffered challenges to the ordinance valid.  
o   An ordinance passes constitutional muster if it is reasonable and bears a rational relationship to a legitimate state interest. 
o   The purpose of the ordinance was to prevent students from living together.  The Village was concerned with traffic problems, overcrowding, etc.  There is no constitutional right to live with who you want.
Penobscot Area Housing Development Corp. v. City of Brewer, page 32
·         Facts: The City of Brewer refused to grant a permit for a home for retarded individuals in an area zoned for single-family units.  The City defined “family” as a domestic relationship based on birth, marriage, or other domestic bond. 
·         Holding: a group of retarded individuals living in the same quarters is not a “family” for zoning purposes.
o   “Domestic bond” does not require blood or marriage, but it requires something more than the arrangement at issue in this case.  Here, there was no permanent authority figure and the individuals would only be at the residence for about 1 year, so there was a lack of stability.
Borough of Glassboro v. Vallorosi, page 34
·         Facts:  π and 10 unrelated college students lived togethe

t’s interest in imposing this restriction is security-related.  However, the scope of the statute is much to wide to meet this interest (it is not narrowly tailored).
·         Generally, prison regulations are upheld.  The Courts generally defer to prisons, military and schools. 
In re Clausen (Baby Jessica case)
·         Facts: The Schmidts (lived in Iowa) had a baby.  The DeBoers (lived in Michigan) adopted the child.  Cara Schmidt signed a release of her child 40 hours after it was born (IA law required the mother to wait 72 hours before signing such a release).  The birth father never signed the release because Cara Schmidt lied about who the biological father was. 
·         PH: The biological father filed an affidavit in Iowa claiming to be the father.  Iowa tried to terminate his rights, claiming he was unfit.  The Schmidts appealed to the Iowa Supreme Court, but lost.  They then filed an action to get custody of the child in Michigan. 
·         The case turned on the issue of standing.  Standing is whether you have a right to bring a lawsuit.
o   Faupel argued that the DeBoers did not have standing to argue that the birth parents (the Schmidts) should not have custody.  To allow the DeBoers to argue such is equivalent to social engineering.
o   There was also an issue of jurisdiction that became important in this lawsuit–
·         Holding: the birth parents got their child back.  Preview of Chapter Five: when the dispute is between the biological parents and a third party, the question of custody depends on the fitness of the biological parents. 
Michael H. v. Gerald D., page 74
·         Facts: Carol and Gerald were married.  Gerald was listed as the father of their baby Victoria and held himself out to the world as her father.  After Victoria was born, Carol told Michael that he might be the father.  DNA tests indicated that there was a 98.07% chance that Michael was the father.  Michael had a relationship w/ Victoria and held himself out as her father.
·         PH: 18 months after the child’s birth, Michael filed a filiation action to establish his paternity and visitation rights.  Gerald intervened. 
·         Issue: whether the legislative presumption that the husband of a woman who gives birth is the father of that child is constitutional. 
·         ***Ways a man becomes a legal father***:
1.      Lord Mansfield’s Rule: Man and Woman are married, they have a child. 
2.      Woman puts Man’s name on birth certificate.
3.      Affidavit of Parentage (equivalent to a birth certificate, filed after the parents leave the hospital).
4.      Order of filiation
5.      Adoption
·         Putative father: biological father, claiming that he should be the legal father.  A putative father has significantly fewer rights than a legal father (i.e., no standing).
o   To have legal rights that result in standing in a custody action, a man must (1) be the legal father and (2) have a relationship with the child. 
o   To have constitutional rights, the father (1) must be the legal father, (2) must have a relationship with the child and (3) he must be fit. 
·         Holding: the biological father had no protected liberty interest in the parental relationship and the State’s interest in preserving the marital union as sufficient to support termination of his relationship w/ the child.
o   Balanced non-marital father’s rights against the rights of the married father.
o   Legislative presumptions were established to prevent the incidence of illegitimates and promote family tranquility. 
b.       Traditional Restrictions