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

Family Law
Fall 2016
Chapter 1: What is Family Law?
Changes in Marriage:
structure of the family has changed drastically: people live longer, marry later, and have fewer children
family law shows us how the state interacts with with families
Functions of Family Law:
provide protection to individuals from harm by others
helps people to arrange and live their lives in ways they choose
law helps people solve their conflicts
develops and supports social institutions thought to have desirable ends
Defining the Family:
Moore v. City of East Cleveland: East Cleveland housing ordinance limited occupancy of a dwelling unit to members of a single family which was limited to a few categories of related individuals
grandmother owned home and lived with her two sons and two grandsons, who were first cousins (grandson was also son’s nephew) – not allowed by the ordinance
government argues ordinance was to prevent overcrowding
SCOTUS held the ordinance was a violation of the Due Process Clause of the 14th Amendment
families have a fundamental right to make decisions about how they live
State gets the power to regulate families through the 10th Amendment of the Constitution – Police Powers
rational basis review: importance of the governmental interest and the extent to which they are served by the challenged regulation
here, ordinance had a weak relationship to overcrowding
Due process protects substantive rights concerning the structure of a family
SCOTUS holds that family rights are fundamental rights
fundamental rights cannot be taken away
Tiers of scrutiny:
rational basis – government must have a reasonable rationale for creating the law; must be related to a legitimate goal; used for state’s police powers
intermediate scrutiny – government must have an important interest that is substantially related to the goal; generally reserved for rules dealing with gender difference
strict scrutiny – must be a compelling government interest that is reached by a narrowly tailored means; i.e.: regulations on basis of race
Right to Privacy:
right to privacy is not explicitly state din the Constitution
Meyer v. Nebraska: struck down a statute barring teaching German language to children in school
14th Amendment interests of parents to control and raise their children as they see fit
infringing upon the rights of the parents to direct and control the upbringing of their children
Pierce v. Society of the Sisters: struck down Oregon statute forcing children to go to public schools
constitution does not permit states to get in the way of parents right to direct and control the upbringing of their children
Prince v. Massachusetts: aunt and nice out selling brochures for Jehovah’s witness late at night; violated child labor laws
SCOTUS upheld the Massachusetts law
states have power to intervene if parent is behaving in a way that is unsafe for the child
state can intervene for the protection of the child – state has a compelling interest to protect
Right to Contraception:
Griswold v. Connecticut: struck d

room, found the two men, and arrested them
court uses a rational basis scrutiny test: furthers no legitimate state interest
ban could be seen as a health concern  – not rational to bar only one small group of individuals at risk
textualist argument: no constitutional right to engage in gay sex
Court frames the issue more broadly and focuses on the individual’s privacy right to freely engage in sexual relations
expressly overturned Bowers v. Hardwick (upholding a Georgia law criminalizing sodomy between same-sex consenting adults)
Chapter 2: Entering Marriage
Marriage Requirements:
Substantive requirements: prospective spouse must be:
unmarried (void)
specified minimum age (voidable)
consenting to the marriage (voidable)
have no close familial relationship with the intended partner (void)
procedural requirements:
parties must obtain a marriages license (voidable)
must exchange vows in a civil or religious ceremony (voidable)
if a couple enters into an improper marriage, the state can annul the marriage – state recognized annulment
marriage is treated as though it never existed; nullifies the marriage
no property dissolution necessary for an annulment – treated as if the marriage never existed