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Family Law
West Virginia University School of Law
Fershee, Kendra Huard

Family law Fall 2012

Kendra Huard Fershee

I. What is family law?

Personal concepts vs legal concepts. Previously known as nuclear, mainly consisted of blood family. Courts previously saw the family as limited.

Conjugal view vs close relationship model- two theories of marriage.

a. Conjugal view sexual union of husband and wife who promise each other sexual fidelity, mutual caretaking, and the joint parenting of any children they may have. (child centered)

b. Close relationship model primarily to satisfy the needs of adults.

Marriage doesn’t exist unless the state says it exists.

4 troubling directions marriage is headed toward.

1. Equivalence between cohabitation and marriage

2. Redefining marriage as a couple-centered bond

3. Disestablishment, or the Separation of marriage and state

4. Why just two? (challenges to definition of marriage)

Marriage cannot be about “pro-creation” because old people and people who cannot have children can get married.

Public vs private-

Public- family law has many public functions or purposes

1. Protective- protects parents and children from harm by family members and others.

2. Facilitative- helps people arrange and live their lives the way they choose.

3. Arbitral- helps people resolve conflicts

4. Expressive- “deploying the law’s power to impart ideas through words and symbols.

5. Channeling- supports institutions to serve desirable ends.

Defining the family

Moore v City of East Cleveland- grandmother was said to have violated zoning ordinance limiting occupancy within a dwelling unit to only those of her children (not grandchildren). She lived with her son, grandson (from her son living with her), and grandson from another child who had died. Rule- related individuals have a fundamental right to live with one another. Also, there is a substantive due process issue which must be looked at with strict scrutiny concerning families.

The evolution of the Right to Privacy-

Griswold v Connecticut- Yale Dr. and Prof proscribed family’s contraception, which was illegal. Ct used 1st, 4th, 3rd, 5th, 9th, 14th to reason why it was a bad law, calling it the “zone of privacy.” The association of marriage is a privacy right older than the Bill of Rights which states cant control.

Dissent- Justice Black- doesn’t think 9th amend protects this privacy and if not written in the constitution, the states have power to control.

Justice Stewart- If people don’t like the law; they should speak to their congress people to change a law that was in place for years.

Justice Stewart and Justice Black. Although the law is silly, it is not unconstitutional. The citizens of Connecticut should use their rights under the 9th and 10th Amendment to convince their elected representatives to repeal it if the law does not conform to their community standards.(casebriefs)

Concurring- Justice Goldberg- 9th amend struck law because privacy is a fundamental personally right that comes from the constitution.

Harlin- 14th amend substantive due process clause protects the Yale Dr and Prof because it takes away a fundamental right to privacy.

White-violation should be analyzed with strict scrutiny. Is it a right to have contraception? State goals of banning illicit sexual relationships, is not met by statute because its too broad. Statute banned married and unmarried alike.

Douglas- Looked at each amend because they have a privacy aspect to it.

Justice Goldberg, the Chief Justice, and Justice Brennan. The right to privacy in marriage is so basic and fundamental that to allow it to be infringed because it is not specifically addressed in the first eight amendments is to give the 9th Amendment no effect.

Justice Harlan. The relevant statute violates the Due Process Clause of the 14th Amendment because if violates the basic values implicit in the concept of ordered liberty. (Casebriefs)

Eisenstadt v Baird- Vaginal foam to college student after lecture. Dispute: married people can get contraception from Dr. to prevent pregnancy, single ppz cannot get contraception to prevent pregnancy, married and single can get contraception to prevent disease but not pregnancy.

Ct used the 14th Amend. Equal Protection. Multiple reasons the law doesn’t make sense. The dissimilar treatment of similarly situated married and unmarried persons under the Massachusetts law violates the Equal Protection Clause. First, the deterrence of premarital sex cannot be reasonably regarded as the purpose of the law, because the ban has at best a marginal relating to the proffered objective. Second, if health is the rationale of the law, it is both discriminatory and overbroad. Third, the right to obtain contraceptives must be the same for married and unmarried individuals.

Dissent. Chief Justice Burger. The law is a justified exercise of the State’s police power because of the hazards of introducing a foreign substance into the human body.

II. Ethics in Family law practice

a. Roles attorneys take- Mediator, Arbitrator , Guardian ad litem (GAL), Parent coordinator

b. Lawyers can: advise, advocate, negotiate, and evaluate.

c. Basic ethical obligations- competence, diligence, informing client, communicating with client, preventing fraud.

d. More family court cases are litigated without an attorney (pro se) than any other area of law.

Some lawyer “unbundle legal services” which is to get paid to perform a small part of the service like writing a brief or pleading, arguing a motion.

a. Middle class benefits the most because they can pay for part they aren’t trained to do

b. Lower class doesn’t really rely on it because organization that funds unbundling service appeal to higher agenda (stakeholders, donators)

Ghostwriting- attorney writes a pleading for pro se litigant. Sometimes creates an unfair advantage to un-represented litigant. Problem also because courts don’t know who to give sanctions to for frivolous documents.

Conflicts of interest- depends on state, but you may be able to represent both parties in a divorce but it has been said to be a very bad idea. (cannot in WV).

Barrett v Virginia State Bar- lawyer charged with sending intimidating emails to his wife during divorce. Email argued to be legal advice and cannot give legal advice to person who isn’t your client but Ct saw emails a pissed of husband emailing spouse and not legal advice.

III. Entering into a marriage- long described as a contract. Griswold v. Conn. –special expectation of privacy attached to marriage relationship.

Gov’t regulating marriage- determining who may marry, how they shall marry, which obligations and entitlements are required, and whether conditions permit marriage. Factors reinforced by foundational social values relating to citizenship, moratlity, childrearing, gender, and race.

i. Elements:

1. Consent

2. Minimum age

3. Not currently married

4. Not of certain family relation

ii. Marriage types- informal (common law) vs formal

1. Common law- express mutual intention to be married, establish community reputation as married

2. Formal- obtain marriage license, participate in religious or civil ceremony and exchange vows

History- marriage primary value to provide important social and communicable benefits provided kinship, economic security for women, stable place to express sexual desire and rearing children.

Modern reasons- liked for its ability to facilitate the bonding of intimate partners.

Gov’t has limited its power in dealing with marriage and family life in the past half of century.


Morality, majority, best interest of kids, separate v equal.

d. Polygamy- does it involve state legal or religious or both?

Polyandry- having more than one husband.

State v Holm- (Utah) D was legally married to Suzie Stubbs in 1986. Subsequent to this marriage, D participated in a religious marriage ceremony with Wendy Holm. D also participated in another religious marriage ceremony with then-sixteen-year-old Ruth Stubbs, Suzie Stubbs’s sister.

Rule- Bigamy laws do not violate free exercise or due process under the law. A party purports to marry and thus violates bigamy law by participation in a private religious ceremony because the form of that ceremony-though not its intent-resembled what we think of as a wedding. An intent to marry for purposes of bigamy does not require an application for a marriage license.

Lawrence v Texas did not create right to polygamy.

e. Incestuous marriage

Smith v State- (Tenn) woman having a relationship with her uncle. Woman was criminally convicted. Due process- not a suspect class. Woman says she has a fundamental right ot have relationship with uncle. Ct uses Grisworld and traditional notion of society.

Case caused some confusion because if court wanted to protect children why did they not prosecute the uncle and not the younger woman.

Reasons to bar incest- moral, “ick” factor, traditional (always barred), protects children, genetic issues

f. Minimum Age at marriage

People can legally be married but commit rape as per some state laws. Age based marriage is not a fundamental right. A rational basis test. No right to marry under age 18.

Most states 18 legal age to get married but 16 or 17 with parental consent, and under 16 with the Cts and parent consent (usually due to pregnancy).

Age based discrimination is permitted by Equal Protection clause if state can prove rational reason.

Consent to marry

Marriage needs

1. Mutual consent

2. Mental Capacity to consent

3. Consent must be voluntary and free from fraud or duress

In Re Estate of Santolino- 81 year old lung cancer. Man married 46 year old tenant and one month later he dies with no will. Sister of man takes wife to court to cancel the wedding (marriage) die to 1) impotence 2) usable to consent 3) fraud 4) equitable reason to void marriage. Rule- a void marriage may be annulled after the death of one of the parties in the absence of a statute to the contrary.

Lack of consent factors- 1) inability to consent 2) lack of mutual assent 3) duress 4) fraud

Void vs voidable marriages- void offend strong public policies (does not need an annulment to be void). Voidable- offend less stringent public policies (need to go to court to have voided).

Mental capacity- understanding of right, duties, and responsibilities of marriage

Mutual assent- must agree to be married

Fraudulent inducement- marriage is ineffective if induced by fraud (must relate to the “essence of marriage”. Difficult to prove.