Professor Kearney
Family Law
Fall 2014 Semester
I. Defining a Family
a. Constitutional Challenges
i. Sometimes it matters for qualifying for benefits. (tool for inclusion)
ii. Other times it matters for tools for exclusion
iii. Reason law cares about this is b/c law can either give people certain benefits or it can take away certain privileges.
b. Moreno
i. Case dealt with a rule prohibiting food stamps to people who were unrelated and cohabitating.
ii. Originally people living together qualified as a family, related or unrelated. As long as they operated as one economic unit.
iii. The law defined this by whether they share common cooking facilities and food is purchased in common.
iv. This was amended to say that people had to be related in order to receive food stamps. Traditional legal definition of relation is: blood, marriage, adoption.
v. EP- Everyone must be treated equally. EP challenge comes in whether there is a specific group of people being treated from another group. The government can do this, it may depend on group or classification.
vi. Here, this is an unprotected group. Related vs. unrelated.
vii. Gov’t says they have legit in in denying food stamps in denying this.
viii. Gov’t argues that one of them is moral issue.
ix. Court’s response to this is that you can’t legislate against hippies just because you don’t like them. Even if they had a legitimate interest (which they don’t) the means for doing it is not connected to the end because hippies do not fall within this class.
x. Government also argues that they are trying to prevent fraud. They argue that they will avoid people living together to say they don’t make enough money. Also, say people would likely fail to report their income. If they aren’t related, people will be moving in and out.
xi. Court responds by saying these are not legitimate government interests because over inclusiveness.
c. Moore
i. This case further attempts to limit the definition of family
ii. Here, a grandmother was charged with a criminal statute for having her two grandchildren live with her because they were cousins. And cousins were not considered related. This attempts to limit it to the nuclear family.
iii. Ordinance says even tho they are related, not closely enough related to live together.
iv. Government says it does this for zoning purposes. TO prevent overcrowding, parking problems etc…
v. This time challenge to ordinance is on due process grounds
1. Substantive DP typically means an individual has a fundamental constitutional right that includes
a. Life
b. Liberty (most family law cases involve this)
c. Property
2. One of the liberty interests would be right to privacy/choose to who you want to live with.
vi. How does state get involved in someone’s liberty interest. What rights does state have to limit this? Can they?
1. There must be a compelling governmental purpose to do this.
vii. If there is a fundamental right, then the govt has to show compelling state interest
viii. If not fundamental right, then the govt has to show a legitimate state interest.
ix. Moore argues her fundamental right to live together as an extended family.
x. Government argues there is an interest in protecting the family, but the interest isn’t protected the extended family.
xi. Question often is how broadly or narrowly do we define this right. Do we define it as any family members, or nuclear family members?
xii. Question becomes where does the court go to determine how broadly or narrowly it is? They look at how deeply rooted it is in society/tradition
xiii. In history and traditions here court said it includes extended family. Talked about immigration.
xiv. Due Process- fundamental const right to decide who they want to live with. This is deeply rooted in history and traditions from immigration. Has to show compelling govt interest. City hasn’t done this. They may have shown rational.
d. Statutory Challenges
i. Braschi
1. Appellant Miguel Braschi lived with Leslie Blanchard in a rent controlled apartment form the summer of 1975 until Blanchard’s death in September of 1986. Respondent Stahl Associates Co. threatened eviction proceedings against appellant, contending that he was a mere licensee with no right to occupy the apartment since only Blanchard was tenant of record. Braschi is arguing he is a “family member”
2. Court takes the opposite approach. Court says we should find its foundation in the reality of family life. Family should not be rigidly restricted. The intended protection should not rest on legal distinctions. Court takes broader definition and breaks it into factors
a. Exclusivity and longevity of relationship
b. Level of emotional and financial commitment
c. Manner in which the parties have conducted their everyday lives and held themselves out to society and
d. Reliance placed upon one another for daily family services.
3. Lawyer for Braschi argues they lived together for 10 years, acted like partners, and held themselves out as a couple to family and friends. Shared household budget. He had power of attorney of the other partner.
4. Importance of Braschi is that 25 years ago this case was outlier. It was first case to go this far in terms of definition of family. Now it is important because it is more of a standard than an outlier.
5. The court determined that based on the purpose of the statute a more expansive definition of family should be applicable. The court also provides a useful list of factors to determine family.
ii. Scenario
1. City of Carlisle has concerns about college students living in family neighborhoods. They pass a zoning ordinance and their zoning ordinance allows related and unrelated people to live together, if they are unrelated it’s up to 4 of them. They must be a “family”. A family is a single non-profit housekeeping unit in a stable and permanent living situation. A group of 6 students (one of whose parents want to rent to 5 others) challenge ordinance. Analyze what ways would you challenge that ordinance and how would you make arguments on either side. Constitutional issues.
a. Due Process
i. fundamental const right to decide who they want to live with. This is deeply rooted in history and traditions from immigration. Has to show compelling govt interest. City hasn’t done this. They may have shown rational.
b. Equal Protection
i. Rational basis scrutiny. Political unpopular minority (analogize to Moreno). State has to establish that there is a legitimate government interest in restricting related vs. unrelated people. Need to ask is ordinance narrowly tailored to serve that interest? Can attack the a courts finding of legitimate interest by arguing it’s a pretext for discrimination.
c. Statutory Challenges
i. broad interpretation. Stable and permanent is very broad and general. Emotional interdepence- more likely to qualify as family. Analogize this to Mental illness home.
II. Marriage
i. Currently, many issues arise dealing with non-traditional scenarios with unmarried couples
ii. Notion of who is “in or out” will come up in many different scenarios
iii. Tort Context
1. Graves
a. Couple living together for 7 years and are engaged. There is a car accident and a wife witnesses her fiancé killed. She is seeking to recover for NIED. The court has to figure out this issue of a NIED.
b. In old statute, they used to have to be “closely related”. This old statute focused more on legal status rather than conduct.
c. Focuses more on legal status rather than conduct.
d. This Court takes broader approach and concludes that she can recover.
iv. Entering into a marriage
1. 2 ways of looking at marriage
a. Marriage gives you some sort of legal status (law recognizes you as legally married).
b. Marriage as a contract (privately negotiated)
2. Marvin
a. Long term cohabitation. Arose while Lee Marvin was married to someone else.
b. Michelle says that she was to give up her career as a singer to be a homemaker. He would share his assets with her. He made an offer, she accepts by performance, the consideration is that she gives up her employment and career.
c. He breaches contract. She sues
d. He argues that the alleged contract is so closely related to the supposed “immoral” character of the relationship. (void for public policy reasons); That it interrupts the legal status of his first wife; Civil code says all contracts for marriage must be i
never formally get divorced. Can he use the fact that he was not 18 as defense against bigamy charge? It will matter whether jurisdiction says marriage is void or voidable. If its void, he can probably use it as defense because he can say it never existed. If voidable, its going to be more difficult for him to use the defense.
2. Fraud
a. Blair
i. Here, husband alleges that he married wife because she fraudulently encourages him to marry her by telling him that her son was actually his (when it wasn’t)
ii. The overall gist of the husband’s testimony appeared to have been that he would never have seen the wife again after their one-night-stand if it had not been for her calling and telling him that he had a child and that the marriage was, therefore, the result of that representation.
iii. -Such testimony did not establish that the husband relied upon the representations regarding the son’s paternity in deciding whether to marry the wife, only that it played a part in his decision to begin a relationship with her.
iv. Court held there was sufficient evidence supported the trial court’s determination that the husband would have married the wife regardless of the representation as to the son’s paternity.
vii. Procedural Restrictions on Marriage
1. Marriage Consists of 2 parts
a. licensure
b. solemnization.
2. What if one of these goes missing?
a. Goes beyond letter of law. Depends on reality of relationship and intent to be married.
b. If parties have good faith intent/belief to be married, if there is glitch in procedure, the court usually treats it as a marriage. Courts rarely allow glitches to overcome sense that they are married. Especially if one side is using it to get out of paying alimony etc…
3. Carabetta
a. In 1955 Plaintiff and Defendant exchanged marital vows before a priest according to Roman Catholic custom. They proceeded to live together as husband and wife and raise four children bearing the father’s surname. Defendant in the present action denies that plaintiff and defendant are married because a marriage certificate was never issued.
b. The marriage is not void due to the legislature’s failure to expressly characterize a properly celebrated marriage as void for lack of a marriage license.
c. No substantive requirement that determines marriage eligibility has been claimed. The other regulations consist of formalities: a marriage license and solemnization.
viii. Gifts in Contemplation of Marriage
1. 2 opposing positions on this. Man gives engagement ring. During engagement marriage is called off and wants ring back. Woman wants to keep the ring.
a. Woman argues it’s a gift. If it’s a gift she is entitled to keep any gift she receives.
b. Why doesn’t law treat it as a gift? Because it’s based on the assumption that it is given as a condition of marriage. Most jurisdictions do not consider it to be a pure gift, rather a conditional gift. THIS IS THE LAW IN PA.
2. If something is a condition, then it must be fulfilled in order for the gift to be successfully completed.
3. Most courts don’t treat it as pure gift because then it would be necessary to determine fault. Question of fault is nowhere where courts want to be.
4. Other gifts are treated more as gifts than engagement ring.
5. Other property can receive this treatment if donative intent is a condition of marriage. If this is not the donative intent, it will not fall under this category.
