Family Law
Prof. Witte
Fall 2010
1) WHAT IS A FAMILY?
a) Three Distinct Constructs:
i) There is a social construct of a family.
(1) In society, there are rough notions of expectations that go with the idea of having family.
(2) There is also a legal construct of a family.
ii) Title 23 Pa. C.S. à Pennsylvania’s control of a family
(1) Creates a complex set of rights, privileges, duties for entering into certain relationships
iii) There is also a religious construct of a family.
(1) Theological implications
(2) Regulated differently than legal rules
b) Family is the building block of our social structure.
i) Old Notion of Family – Law had an idea of a “strong” sense of marital and familial privacy.
(a) It could only be breached by the state in very specific and difficult circumstances.
(i) i.e. Parents had the right to discipline their children as they see fit.
(b) Husbands were usually granted immunity to perpetrate domestic assault.
(c) Questions of family support could not be taken to court unless the family unit was completely dissolved.
ii) Currently à The state is much more involved in these areas that were considered “private.”
(1) There is no longer a strong notion of family privacy.
(2) However, there still exists a notion that the family does govern itself as long as it does so within the bounds of society (i.e. avoiding neglect, avoiding violence).
c) Definition of Family
i) Title 23 Pa. C.S. – Sections that describe the procedural devices for formation and dissolution of family units.
(1) Section 1501 – Solemnization of Marriages in Pennsylvania
(2) Section 2301 – Termination of Parental Rights by Law/ By Adoption – Formation and Creation of New Family
(3) Section 1704 – It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction between persons of the same sex, even if valid where entered into, shall be void in this Commonwealth.
ii) Courts look at the objective standard in determining what family has families determined by looking at the totality of the relationship, and the normal family characteristics:
(1) Longevity
(2) Exclusivity
(a) Sexual relationship
(3) Emotional and financial commitment
(4) The manner in which the parties have conducted their everyday lives and held themselves out to society as a family
(5) Reliance placed upon one another for daily family services
(a) This kind of test is very difficult to administer
iii) Braschi v. Stahl
(1) There were two adult males that had lived together for 11 years in a rent-controlled apartment in New York. One of the males, the listed tenant, died and the landlord tried to evict the other male on the basis that Braschi was not a member of the deceased’s family
(a) Issue: Whether Braschi was a member of the deceased’s family?
(i) The court determines that Braschi was a member of the deceased’s family based on the above factors
1. No factor alone is dispositive, but trier of fact should consider the totality of the relationship
iv) In re Cummings
(1) Cummings is an inmate. Prison regulations allow for long-term, extended visitation for family. The inmate has a long-term girlfriend and would like her and her daughter to be allowed to visit him.
(a) Purpose of prison regulation – to promote and maintain the family unit
(i) Here the court found that family meant legal spouses and natural or adoptive children as well as grandparents, parents, grandchildren, brothers and sisters
1. Blood related–genetically related
a. This test is easier to administer
v) Fundamental difference between Braschiand Cummings
(1) Braschi court
(a) In the absence of a definition, the court applies the social construct to family because it fits
(i) There is no law in New York prohibiting two men from becoming a family.
(2) Cummings court
(a) There was a strong legal impediment because both Cummings and his girlfriend were both married to other people.
(i) They were not allowed to marry each other and were not allowed to become a family by marriage because all state laws stop one person married to another to get married again.
1. There was a law in California prohibiting two adults married to another from marrying each other.
(3) Both courts deal with the practicalities.
(a) Braschi– Practical to apply “social” definition of family to rent control law
(b) Cummings– Not practical to allow common law marriages to be recognized because it would create a prison procedural nightmare
(i) If Cummings were in a relationship with another adult male similar to the relationship in Braschi, the result might be different
vi) Example
(1) Two people just got married through ceremonial marriage. What if they had children, both biological but not with one another?
(a) Yes, they would be a family as per the court’s ruling in Braschi
(i) However, under Cummings it would be more likely that the court would find this unit a family had the parents had biological children together.
1. Should each parent adopt the other’s child, then both Braschi and Cummings would agree that they are family
d) Perry v. Schwarzeneger (Proposition 8)
i) In 2000, California “Defense of Marriage Act” (Marriage is between one man and one woman) was passed in legislature.
(1) This was invalidated in 2008.
(a) For the next few months, 18,000 gay couples were married in California.
(i) Proposition 8 is passed by popular vote as a constitutional amendment.
(2) Issue: Whether Proposition 8 is unconstitutional because it violates the equal protection clause.
(3) Standard of Review – Rationale Basis
(a) Court does talk about “Strict Scrutiny”, but does not decide on that basis.
(i) Judge is very careful in three ways:
1. By using only the rational basis review (not strict scrutiny)
2. By separating the “Findings of Fact” (which are reviewed for clearly erroneous facts) and the “Findings of Law” (which are reviewed by a de novo standard)
3. By making an intensive credibility section which is reviewed for abuse of discretion standard
(ii) Judge attempts to make the case “irreversible”!
1. Proponents of Prop 8 – Need to show that Proposition 8 was rationally related to a legitimate state purpose
ii) Arguments advanced by Proponents of Prop. 8:
(1) Protecting Children (obviously a legitimate state purpose)
(a) However, the proponents couldn’t show that Prop 8 was not rationally related to that because the studies showed no potential harm to children.
(2) Protecting Opposite Sex Couples
(a) Idea – Harms the “position” of same-sex marriage and deludes the religious aspects
(i) Not issue because we
return for the use of his income/property
(i) gain during relationship is shared.
(b) Then husband kicks wife out; and wife want husband to pay alimony.
(i) husband says express K not valid b/c:
1. violates public policy as it is founded on an immoral relationship.
a. Held- can’t have an agreement founded on consideration of sexual services
i. Court said no, even if that was part of it, more to relationship here than sex.
(6) Basically: If you’re going to move in with someone; don’t make promises like these.
(a) While may not be able to recover under common law marriage, if you can prove an agreement (for something other than solely sexual services) then you are entitled to recover under contract law
3) COMMON LAW MARRIAGE
a) Definition
i) A common law marriage is usually defined as a marriage created by the express agreement of parties without ceremony, and often without a witness.
(1) It is an agreement in words uttered with a view and for the purpose of establishing the relationship of husband and wife
(a) is a form of words is needed, and all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time
(i) Like ceremonial marriage capacity and mutual consent are also essential to the common law marriage
ii) General elements of a common law marriage
(1) Exchange of vows of present content to be married (present intent)
(2) Each hold themselves out to be a married couple (as husband and wife) to the public
(3) Cohabitation
iii) Abolished in most places
(1) Only nine states currently recognize common-law marriages (along with the District of Columbia)
(a) Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas
(2) Five states have “grandfathered” common-law marriages established before a certain date (Pennsylvania falls here)
(a) Georgia, Idaho, Ohio, Oklahoma, Pennsylvania
(i) Further, New Hampshire recognizes a common law marriage only for the purposes of probate in Utah recognizes common-law marriages if they had been validated by a court or an administrative order
(b) So until all common law marriages have been dissolved by divorce or death and they will still exist in a way
b) Elements of common law marriage in PA
i) Exchange of vows (agreement) of present intent to be married
(1) Common-law marriage can only be created by exchange of words in the present tense (not future), spoken with the specific purpose of the legal relationship of husband and wife is to be created by doing so
(a) However, no specific words need to be said
(i) All that is needed is proof of an agreement to enter into the legal relationship of marriage at the present time