Family Law -Hartfield Summer 2003 Page 1 of 45 Family Law I. Introduction A. How do we define family? 1. Blood relationship i. Consanguinity 2. Legally created relationships – Focuses on Status i. Affinity ii. Conferred by law iii. Adoption iv. Marriage 3. Other Factors – Focuses on Function i. Exclusivity is important when the family is a couple. Would not be appropriate in looking at all family relationships. ii. Longevity or permanence of the relationships. iii. Emotional commitment of the parties. iv. Financial commitment of the parties. a. Expectation that family would care for all individuals in the family. v. Interconnectedness of daily lives. a. Not necessarily required to be daily interaction. vi. How the family members hold themselves out to the public. a. In case of blood relations, this would not be relevant. B. Marriage as a Contract 1. Not really a contract. 2. Cannot apply contract law to marriage law. 3. Marriage is more a status than a contract. C. Standards of Analysis 1. Strict Scrutiny i. Ends – Government Objective Involved a. Compelling ii. Means – Relationship Between Ends and How Ends are Accomplished a. Necessary b. Narrowly Tailored iii. Examples a. Race b. Religion c. Ethnicity 2. Intermediate Scrutiny i. Ends – Government Objective Involved a. Important ii. Means – Relationship Between Ends and How Ends are Accomplished a. Substantially Related iii. Examples Family Law -Hartfield Summer 2003 Page 2 of 45 a. Gender 3. Rational Relationship i. Ends – Government Objective Involved a. Legitimate or Permissible ii. Means – Relationship Between Ends and How Ends are Accomplished a. Rationally or Conceivably Related iii. Examples a. Familial Status b. Age c. Disability d. Sexual Orientation e. Wealth II. Marrying A. Typically, states impose restrictions on who can marry. B. State restrictions must be valid. C. Typical restrictions 1. Age i. If age is not met, parental consent is typically required. ii. Moe v. Dinkins a. States typically articulate a policy of preventing illegitimacy. b. Female was underage and mother would not consent to the marriage. c. Question is whether she should be permitted to marry despite not having consent. d. State interests include preventing unstable marriages and promoting mature decision-making. e. Consistently, the U.S. Supreme Court has held that children may be treated differently because of the state’s interest in protecting children. f. Parental role is protected by the court by allowing them responsibility for providing consent. iii. Some states have statutes that permit parents to marry regardless of age. 2. Incest i. People who are related within certain degrees cannot marry. ii. Two sets of rules a. One set leads to criminal prosecution. b. The other set leads to prohibition against marriage. iii. Typical arguments or benefits for incest restriction a. Eugenics argument is that there may be genetic abnormalities resulting from marriage within certain degrees. b. Incest prohibitions function to protect children. c. Harmony within family unit. Blurring of familial roles. Family Law -Hartfield Summer 2003 Page 3 of 45 1). Dangerous daydreaming. 2). Competition that could pull marriages apart. iv. Singh v. Singh a. Uncle and half-niece. b. Relationship of the half-blood. c. Would have been prohibited clearly if full-blood. d. Parties are trying to reverse annulment of marriage. e. Case cites Catalano v. Catalano 1). Marriage between uncle and niece took place in Italy where it was legal. f. Generally, the rule is that if the marriage is valid where it is entered into, it will be recognized as valid everywhere. 1). The exception is where the marriage is contrary to the public policy of the State g. Case cites State v. Skinner 1). Brother and half-sister. 2). Conclusion was that it was incestuous. h. Case cites State v. Moore 1). Daughter of wife’s brother and uncle. 2). No blood relationship. 3). Not incestuous. i. Case cites People v. Baker 1). Statutory construction indicated half-blood relationships were only not allowed for certain relationships. v. Back v. Back a. No blood relationship. b. This is only an affinity relationship. c. Married the daughter of his wife. d. Daughter was not related by blood. e. Cannot marry wife’s daughter is a problem because this would be bigamy unless the wife was an ex-wife or had died. f. Once affinity is terminated, the prohibition is released. 3. Polygamy i. Having more than one spouse. ii. Polyandry – woman having more than one spouse. a. Rarer than polygyny iii. Polygyny – man having more than one spouse. a. More common than polyandry iv. Arguments for restriction a. Welfare of children 1). Financial support b. Morality of polygamist relationship v. In re State in Interest of Black a. Attack was indirect. Family Law -Hartfield Summer 2003 Page 4 of 45 b. Attack on ability of parents to retain custody of children. c. Challenge is to the fitness of the parents. d. Concern was on the parents inability to be a role model to their children. vi. Sanderson v. Tryon a. Direct attack on polygamy. b. Focus of statute is no longer on moral justification for prohibiting polygamy. 4. Sexual Preference and Identity i. Jones v. Hallahan a. No statute specifically prevented same-sex marriages. b. Using a dictionary definition of marriage, the court concluded that marriage required a man and a woman and could not result from the same sexes. ii. In some jurisdictions, adult adoption has been utilized to obtain family relationship status. a. Pros of approach 1). Inheritance b. Cons of approach 1). Puts couple at risk for incest prosecution. 2). Not really the intent of adoption statutes. 3). Adoption does not confer all of the benefits that a marriage does. iii. Baehr v. Miike a. Hawaii Equal-Protection Clause of Hawaii Constitution forced state to justify distinguishing under strict scrutiny. b. Most of State testimony is related to the impact on children in a same-sex relationship. 1). Testimony indicates i). Good parenting depends upon many factors. ii). Does not seem clear that same-sex marriages hurt children. iv. State v. Baker a. Vermont Constitution’s Common Benefits Clause b. Question is whether prohibition of same-sex marriage amounts to denial of common benefits. c. Court concludes there is no relationship between state interest and regulation. d. Court does not require that Vermont allow marriage. e. Court does require that Vermont provide marriage benefits to same-sex couples. f. Vermont legislature enacted first civil union statute in U.S. 1). Allows individuals to enter into a State sanctioned relationship. 2). Confers same benefits as marriage. i). Benefits Family Law -Hartfield Summer 2003 Page 5 of 45 ii). Protections iii). Responsibilities 3). Some Requisites i). Prohibition against polygamy. ii). Must be same-sex and therefore excluded from marriage. iii). Cannot have incest relationships that are prohibited by marriage statutes. v. Defense of Marriage Acts a. Federal law indicates that States are not required to honor same-sex marriages valid in other states. 1). Normally would be required to honor under the Full Faith and Credit Clause of U.S. Constitution b. Defines “marriage” as the legal union of a man and woman. vi. MT v. JT a. Attempted marriage between an individual undergoing sexual reassignment to a female. b. Male husband knew of the situation. c. Probably would come out different if the husband had been deceived. d. In this case, challenge is brought in an effort to avoid payment. e. Court looks at two things 1). Physical anatomy 2). Psychological orientation of individual f. If there is congruence between the two, there would be a valid marriage. D. Constitutionality of Marriage Restrictions 1. Loving v. Virginia i. Two issues a. Right to marry 1). Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. b. Equal protection as it relates to racial discrimination 2. Zablocki v. Redhail i. Regulation required that a. Current in support obligations b. Satisfy State that obligation would not become State supported. ii. Court uses the intermediate analysis iii. Not hearing strict scrutiny language. iv. First step is that there has to be substantial interference with right to marry before there is heightened scrutiny of regulation. v. Restrictions that have possibility of permanently preventing marriage are typically suspect. Family Law -Hartfield Summer 2003 Page 6 of 45 3. Courts tend to cite Loving and Zablocki as indicating that the right to marry is a fundamental right. 4. Turner v. Safley i. Inmate marriages ii. Court looks at interference in right to marry and what the state’s interest in preventing the right to marry. iii. State Interests a. Security b. Rehabilitation Concerns c. Prevention of manipulation of female inmates by male inmates. iv. State is unable to satisfy the court that the regulation is based on legitimate state interests. 5. Keeney v. Heath i. Prison situation ii. Prohibition against social contact with inmates. iii. Regulation burdened but did not prohibit marriages between inmates and guards. 6. In re Walker i. Walker wants to modify bankruptcy agreement after he married. ii. Court determines that there was no intent to inhibit the right to marry while in bankruptcy. iii. The court indicates that the debtor should be able to adjust bankruptcy plan if they marry. E. Engagement 1. Heiman v. Parrish i. Engagement ring is conditional gift and the person giving ring is entitled to its return. ii. No-fault approach. F. Restrictions on Procedure for Marrying 1. Rappaport v. Katz i. Some restrictions on procedure for marrying is allowed. ii. Dress for ceremony. 2. Some other restrictions i. Blood tests ii. Fees G. State of Mind Restrictions 1. Lester v. Lester i. Husband asserted that the marriage was a secret agreement obtained by fraud. ii. Court indicates that when person receives the benefit of the marriage they cannot avoid the responsibilities of the marriage. 2. Mental Incapacity 3. Duress 4. Misrepresentations must go to something essential to the marriage. i. Johnston v. Johnston Family Law -Hartfield Summer 2003 Page 7 of 45 a. Not a basis for annulling the marriage when husband just misrepresents appearance, drinking habits, etc. b. Can divorce, however. ii. Some misrepresentations that are essential a. Religious beliefs H. Common-Law Marriage 1. Until recently, Georgia recognized common-law marriages. 2. Presented challenges to courts to determine whether marriage existed. 3. Significant evidentiary problems. 4. Misconceptions about common-law marriage i. There is no time of cohabitation requirement. 5. Elements of Ceremonial Marriage i. Capacity to be married ii. Consent/Agreement to marry iii. Consummation of marriage a. Does not require cohabitation or sexual relationship. Ceremony is enough. 6. Elements of Common-Law Marriage i. Capacity to be married a. Age b. Incest c. No existing marriage or common-law marriage. d. Etc. ii. Consent a. Must be present. b. Cannot be intent to be married in future. c. If agree to marry without capacity, there must be an agreement when capacity is attained. d. Can be established by circumstantial evidence. iii. Consummation a. Cohabitation b. How the parties present themselves to the public. 7. Three-Part Test i. Elements a. Present Intent or Agreement to Marry b. Continuous Cohabitation c. General and Substantial declarations that the parties are married. ii. Must also be continuous and consistent. iii. Evidentiary standard required a. Clear and convincing evidence b. Burden of proof is borne by person claiming common-law marriage. c. Frequently, cases are those that involve the division of an estate. Family Law -Hartfield Summer 2003 Page 8 of 45 d. Courts have tended to be fairly sympathetic, particularly where the relationship was long-standing. iv. Common law marriage can be a cure for innocent defects in marriages (licenses, etc.). v. Common law marriage protects against illegitimacy of children borne to couples not actually married. vi. There is no such thing as a common-law divorce, so must get a legal divorce. vii. Putative spouse doctrine a. Protects spouses who have a good faith belief that they are married even when they are not. b. Could be both spouses as putative. c. Could be only one spouse as putative. d. What does this doctrine do? 1). Allows individuals to receive some of protections or benefits that a legal spouse would receive. i). Property division ii). Support from former spouse e. Non-putative spouse is considered the meretricious spouse. III. Marriage A. Marriage and the Law 1. Traditional Model of Marriage i. Graham v. Graham a. Wife was going to provide payment to husband for his traveling with the wife. b. Court indicates that parties do not have the ability to alter the marriage relationship by contract. 2. The Doctrine of Family Privacy i. McGuire v. McGuire a. Wife felt that husband had not supported her. b. Wife sued for support. c. There was a common-law duty of support that a husband owed to his wife. d. Issue here is whether the duty owed during an ongoing marriage relationship. e. Where there is no proceeding for termination of the relationship, is support required. f. The court holds that in order to maintain an action for support and maintenance, the parties must be separated. g. Court does not want to interfere with the marriage relationship, especially the day to day relationship. h. Court indicates that making available a cause of action for support and maintenance during the marriage will be derisive to the marriage. i. Courts will intervene when the marriage relationship is separated or terminated. Family Law -Hartfield Summer 2003 Page 9 of 45 j. It seems problematic that husband owes duty of support, yet wife cannot enforce. k. Wife might have recourse and could enforce support by 1). Doctrine of Necessaries i). Third-party who provides benefit to wife may be able to get paid by husband. 2). Uniform Marital Property Act i). Provides for one spouse to seek an accounting and seek protection of marital assets without having to file for divorce or legal separation. B. Challenges to the Traditional Model of Marriage 1. The Changing Status of Women i. Dunn v. Palermo a. Issue is whether it is necessary for a married woman to assume husband’s name. b. Court rejects claim that woman is required to use husband’s name. ii. Bradwell v. Illinois a. Constitution did not mandate that women be admitted to the bar. iii. Orr v. Orr a. Issue is constitutionality of Alabama statute that only requires husbands to pay wives, no corresponding requirement that wives pay husbands. b. Alabama’s argument was that the statute provides help for needy spouses. c. Alimony statute protects state’s interests by ensuring that needy wives are taken care of. d. Court indicates that there would not be a high burden for the state to determine relative needs of spouses. 1). Can determine through hearings that are already to take place. 2). Proxy is unnecessary to determine neediness of spouses. 3). Essentially, the state’s asserted interest of protecting needy spouses is undermined by the statute because it only protects wives. e. Legal challenge to statute is Equal Protection. f. Goal of statute is laudatory, but means a used do not properly achieve the goal. iv. Issue of gender discrimination is an important issue in Family Law. 2. Reallocation of Duties Within the Marriage i. Traditionally, the general rule was that any contract that was seen as promoting divorce was invalid as contrary to public policy. ii. Have seen over time a relaxation of this rigid rule. Family Law -Hartfield Summer 2003 Page 10 of 45 a. Began to see a relaxation of rules regarding property division. Courts were still reluctant to enforce agreements regarding support. iii. Edwardson v. Edwardson a. Parties had been married previously. b. Issue is enforceability of pre-nuptial agreements. c. Trend is to permitting enforcement of the agreements. d. Limitations on Pre-Nuptial Agreements 1). Full Disclosure i). Free of material omissions or misrepresentations. ii). Concern is that parties know what rights they are giving up by contract. iii). Obligation is an affirmative duty to provide full disclosure. 2). Not Unconscionable i). Trying to avoid an unconscionable agreement. ii). Trying to avoid an unbalanced agreement that shocks the conscious. iii). Question is as to when you test for unconscionability a). At the time of agreement, or b). The time at which enforcement is sought. iv. Simeone v. Simeone a. When one voluntarily enters into an agreement, it is presumed that terms of the contract are accurate and should be enforced. v. Even if unenforceable, contract provisions can serve to apprise spouses of potential. vi. Uniform Premarital Agreement Act a. Must be in writing b. Courts can require support to be paid, irrespective of an agreement to the contrary. vii. Generally, issues related to child support or visitation are unenforceable. a. Courts will consider what is in the best interests of the child. b. Rationale is that the child is not a party to the agreement and their interest should be protected. viii. Hierarchy of Enforceability of Provisions a. Property division b. Support c. Child support or visitation 1). Generally, courts do not enforce. ix. Parties may also contract during the marriage. Family Law -Hartfield Summer 2003 Page 11 of 45 a. Same kinds of rules apply as in prenuptial agreements. 3. Changing Mores as it Relates to the Family i. Recognition of the Unmarried Father a. Stanley v. Illinois 1). Presumption by Illinois statute was that unwed fathers are unable to care for children. 2). Two bases for challenging statute i). Due Process a). Substantive – Denial of status of parent. Primary focus of the claim by Stanley. b). Procedural – Decision-making by presumption. Court finds that Constitution recognizes values higher than speed and efficiency. ii). Equal Protection a). Distinction is married vs. unmarried. b). All women are protected. 3). Stanley had a family relationship with his children. 4). The rule of Stanley is that there is Constitutional entitlement to a hearing on their fitness before children are removed from their custody. 5). Also had an impact on adoption. Required opportunity for fathers to have an opportunity to be heard as to any adoption of their children. b. Lehr v. Robertson 1). Procedural due process claim. 2). NY had a putative father registry that allowed father the opportunity to be heard as to the adoption of his child. 3). Lehr had filed a petition to have himself determined to be the father, to obligate himself to support, and to obtain visitation rights. 4). Problem with Lehr’s case is timing – if he had done things properly, he would have had the opportunity to be heard. 5). Lehr had not established any familial relationship with his children. 6). Putative father registry is an adequate procedure to protect interest of biological father when there is not a developed relationship between the father and child. c. Michael H. v. Gerald D. 1). California statute prevented claim to challenge the paternity by a third party. Family Law -Hartfield Summer 2003 Page 12 of 45 2). Claim was that there is a liberty interest in parenting the child. 3). The father in a marriage, under California law, is presumed to be the father of children borne into the marriage. 4). Therefore, there is an interest of the family. 5). Court suggests that California can prefer to protect the marriage relationship. 6). In most states, there is no bar to a third-party attempting to assert paternity. 7). In most states, presumption is that biological father is the husband of the mother. C. Encroachments on the Doctrine of Family Privacy 1. The Constitutional Right to Privacy 2. Tort and Criminal Law i. Hoye v. Hoye a. Issue here is interference with marital relationship. b. Types of Tort Causes of Action 1). Enticement/Alienation of Affection 2). Seduction/Criminal Conversation c. Hoye court abandons these types of causes of actions. d. Divorce Implications 1). Might have an impact on divorce because it can show fault. 2). Might be a bar for alimony for adulterous spouse. ii. Oliverson v. West Valley City a. Whether an adultery statute can withstand Constitutional scrutiny. b. Traditionally, adultery has not been something that is protected as a liberty interest. c. Interest of state is protecting view of family in criminalizing conduct. iii. Romero v. Byers a. Loss of consortium cause of action. b. Spouse has suffered injury independent of the party who actually sustained physical injury. c. Concerns with COA for loss of consortium 1). Forseeability 2). Double recovery 3). Fraudulent claims iv. Shook v. Crabb a. Interspousal tort immunity is at issue. b. Trend is to abolish spousal tort immunity. c. Historically, interspousal tort immunity was seen to preserve marital harmony. d. Concerns with abolishing interspousal tort immunity. Family Law -Hartfield Summer 2003 Page 13 of 45 1). Collusion – spouses might collude to get insurance. 2). Will lead to a deluge of cases. 3). Promotion of disharmony in marital relationship. e. Some insurance policies exclude injuries due to negligence of parties within household. 1). Some states do not allow these clauses. v. Trammel v. United States a. Issue is whether privilege is owned by witness-spouse or by defendant-spouse. b. Confidential communication does apply, no matter what. c. However, testimony privilege is placed within the control of the witness-spouse. d. This can subject the witness-spouse to control by the government. e. Can be seen as an erosion of family privacy. 3. Domestic Violence i. Warren v. State a. Issue is marital rape. b. Whether state can intervene in the ongoing marriage relationship. c. One argument is that there is ongoing consent as a result of the marital relationship. 1). Stronger argument if parties are living together. 2). Weaker if parties are living together because it would appear that consent has been withdrawn. d. Court indicates that saying “I do” does not amount to consent for any unwanted sexual contact between spouses. e. Historical arguments against allowing cause of action for marital rape 1). Unity of person 2). Property arguments f. Court indicates that there never has been an exemption for rape by spouse. ii. State v. Kelly a. Issue is battered women’s syndrome and the admissibility of the evidence. b. Spouse stabbed husband and claimed self-defense. c. Spouse attempted to use battered women’s syndrome to bolster claim of self-defense. d. Could also attempt to use syndrome to bolster a temporary insanity claim. e. Phases of battered women’s syndrome 1). Tension-building stage 2). Acute battering incident Family Law -Hartfield Summer 2003 Page 14 of 45 3). Extreme contrition and loving behavior on part of batterer f. Response to domestic violence has been belated because it has been viewed as a private matter between spouses. iii. Raucci v. Town of Rotterdam a. Issue is whether a special relationship existed between victim and police and their failure to protect the victim. b. Elements of Special Relationship 1). An assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; 2). Knowledge on the part of municipality’s agents and the injured party; 3). Some form of direct contact between the municipality’s agents and the injured party; 4). That party’s justifiable reliance on the municipality’s affirmative undertaking. iv. State ex rel. Williams v. Marsh a. Three possibilities of ex parte relief for victims of domestic violence 1). Restraining the actor from further acts of abuse; 2). Restraining the actor from entering the family dwelling unit; 3). Granting temporary custody of minor children. b. Court upheld temporary intrusion into the rights of the perpetrator when there is subsequent opportunity to be heard. 4. Property Law i. Historical View a. Traditionally, on marriage, husband became the only entity capable of owning property. b. Also, wife would not be allowed to contract. c. Until enactment of Married Women’s Property Acts, women were not allowed to control property. ii. Community Property a. Property acquired during marriage, except by gift or inheritance. b. Only nine states are community property states. c. During the marriage, money earned becomes property of the marriage. d. Prototypical example is an undivided ½ interest in community property. e. Despite the fact that the property was community property, man had control over the property. f. Evolution of control over property 1). Joint management and control. Family Law -Hartfield Summer 2003 Page 15 of 45 i). Spouses make joint property decisions. ii). Somewhat impractical for all decisions. 2). Equal management and control i). Each spouse is equally empowered to manage and control community property. ii). Can exclude other spouse. iii. In non-community property states, title controls which party has the control over the property. a. Title can be problematic iv. Doctrine of Necessaries a. Cheshire Medical Center v. Holbrook 1). Gender specific i). Required husbands to pay for necessaries of wives. ii). No corresponding requirement for wives. 2). Court adopts gender-neutral rule 3). Court also requires that assets of spouse who used the necessaries to be taken first. IV. Procreation A. Problems Posed by New Reproductive Techniques 1. General i. Artificial Insemination a. AIH – Artificial Insemination Husband b. AID – Artificial Insemination Donor ii. With virtually all of the alternatives, it is only when something goes wrong that legal system gets involved. iii. Most states have statute that indicates that a child born to a woman who is inseminated with consent of husband, the child is considered the husband’s child. iv. Surrogacy a. Kinds 1). Traditional – surrogate is genetic mother of child. 2). Gestational – surrogate is the rented womb. b. In some cases, there is absolutely no genetic ties to the parents. c. California approach is to determine legal parenthood by intended parenthood. 1). Drawback is that surrogacy becomes contractual and courts sometimes have difficulty with contractual agreements to essentially sell a child. 2. Cases i. In re Adoption of Anonymous a. Child born by AID. b. Parents separated and when mother remarried, new husband tried to adopt child. Family Law -Hartfield Summer 2003 Page 16 of 45 c. Court held that first husband is to be considered child’s parent for purposes of blocking adoption, even though child was born through AI. d. Court focused on the legal relationship as the determining factor, as opposed to the biological relationship. ii. Jhordan C. v. Mary K. a. Two women wanted to raise a child in California and enlisted a man to provide sperm. Woman got pregnant. Dispute arose as to biological father’s status and visitation rights. b. Court indicated that California statute provides that a man who donates semen to a physician for AI, does not have paternity or visitation rights as to a child born from AI. c. Since woman did not use a doctor, the statute did not apply. d. Also, the record did not indicate clearly that there was any agreement to exclude the biological father from the life of the child. e. Court indicates that under these circumstances, paternity rests with biological father and he is allowed visitation rights. iii. Dunkin v. Boskey – In Supplement a. An agreement between parties to grant paternity rights to a child conceived by artificial insemination is binding. b. Question is whether party can collect damages when agreement is breached. c. Cannot recover damages under breach of contract. d. Can recover damages under an unjust enrichment theory, requiring other party to give up any monetary benefit received. iv. In re Baby M. a. New Jersey case. b. Surrogacy contract where man pays woman $10,000 to be inseminated with his sperm and deliver a baby. Contract specifies that natural mother and husband terminate claims to child. c. Supreme Court of New Jersey holds surrogacy contracts invalid because 1). Conflict with statutory provisions i). Statutes prevented paying or accepting money in connection with placement of children for adoption. ii). Termination of parental rights had to go through Division of Youth and Family Services in order to be valid. 2). Public policy considerations Family Law -Hartfield Summer 2003 Page 17 of 45 i). Violative of public policy because rights of natural mother are equal to that of natural father, irrespective of contract. ii). Surrogacy contract potentially disregards the best interests of the child. d. General rule is that custody should be awarded in the best interests of the child. e. Visitation touchstone is that it is desirable for the child to have contact with both natural parents, but best interests of the child are paramount. f. States have followed this lead and hold surrogacy contracts unenforceable. g. Some states have passes statutes that bar enforcement of a surrogacy agreement. v. In re Marriage of Buzzanca a. California case. b. Husband and wife agreed to have embryo genetically unrelated to either implanted in another woman who would carry and give birth to their child. Husband and wife split up and husband did not want to be parent, wife did. c. Court indicates that when husband and wife agreed to have a fertilized egg implanted, they became parents of the child born subsequently. d. By consenting to a medical procedure which results in the birth of a child, a husband incurs the legal status and responsibility of fatherhood. e. Intent to parent is the ultimate basis of holding. vi. Smith v. Hartigan a. Illinois case. b. Constitutionality of an abortion law which makes “any person who intentionally causes the fertilization of a human ovum by a human sperm outside the body of a living human female, shall...be deemed to have the care and custody of the child...” c. Plaintiffs challenged the law because they were afraid of prosecution and ultimately liability for death of embryo by in vitro fertilization. d. Defendants are the Illinois attorney general. e. Attorney general concluded that “care and custody” is terminated upon reimplantation of the embryo and if the embryo was not implanted for medical reasons, the plaintiffs would not be subject to liability. vii. Report of the Committee of Inquiry Into Human Fertilisation and Embryology a. Review of the pertinent arguments for and against human fertilization and embryology. Family Law -Hartfield Summer 2003 Page 18 of 45 viii. Davis v. Davis a. Tennessee case. b. Husband and wife were unable to conceive a child naturally. Had eggs harvested from wife and fertilized with sperm from man – in vitro fertilization. Resulting embryos were frozen and stored for later use. Husband and wife divorced. Wife wanted to donate embryos to childless couple. Husband did not want to be a father. c. Tennessee court held that custody of frozen embryos rests with 1). The wishes of both parties, or if they are not the same, 2). The wishes as expressed by any prior agreement between the parties, and if none 3). By weighing the relative interests of the parties. d. Court held that normally, a party that does not desire parenthood should prevail, however, if the party desiring parenthood can prove that it is the only means available for procreation, it might be permissible to use the embryos. V. Adoption A. Background 1. Massachusetts adoption statute of 1851 was the first modern adoption law in history. 2. Notable for two reasons i. It contradicted fundamental principles of existing law by allowing the absolute, permanent, and voluntary transfer of parental power to third persons, and ii. The traditional status of adoption allocated benefits between the giver and taker, while the Massachusetts statute distinguished the adoptee as the prime beneficiary. 3. Adoption for a long time sought to match children with “ideal” adoptive parents. i. Common to try to match physical characteristics. 4. Also, secrecy of adoption was of very high importance. 5. Evolution of Adoption i. Trend is away from such a high degree of secrecy – adoptive parents are encouraged to answer child’s questions at an appropriate age. Use of registries of adopted children and natural parents has increased. 6. Termination of Parental Rights i. Voluntary – consent of parent. a. At what point does the parent lose the right to change their mind about an adoption. b. Generally, cannot give up rights prior to the birth of the child. c. Some states have a minimum period of time during which parent can change their mind. Family Law -Hartfield Summer 2003 Page 19 of 45 ii. Involuntary – court orders the termination of parental rights. B. Adoption Triad 1. Rights of child. 2. Rights of adoptive parents. 3. Rights of natural parents. C. Standards for Approving Adoptive Parents 1. In re Adoption of Michelle T. i. California case. ii. Michelle T. was born and given up for adoption. iii. Mr. (70 YO) and Mrs. (54 YO) B. obtained consent from natural mother for adoption of Michelle T. and filed a petition to adopt the child. iv. Because of age, the State Department of Health denied the petition to adopt. v. Court held that age is only one factor that should be looked at. Fitness as parents overall combined with maintaining a stable and consistent home life are also factors for consideration. Future events are not certainties and deference should be given to providing a stable, loving home at present time. vi. Court reversed the denial of petition of adoption. 2. Petition of R.M.G. i. D.C. Court of Appeals ii. Competing petitions for the adoption of a black child. White foster parents versus black grandparents. iii. Trial court found both sets of potential parents equal but determined that race was deciding factor. iv. Court of Appeals reviewed Constitutionality under strict scrutiny test a. Race is necessary to advance compelling state interest in the welfare of the child. b. Narrowly tailored because race is but one factor for consideration in adoptions. v. Court develops three-step evaluation in cases of interracial adoption a. First, how each family’s race is likely to affect the child’s development of sense of identity, including racial identity; b. Second, how the families compare in this regard; and c. Third, how significant the racial differences between the families are when all the factors relevant to adoption are considered together. vi. Reversed and remanded to the trial court to determine using the threestte evaluation of the potential adoptive parents. 3. In re M.M.D. i. D.C. Court of Appeals case ii. Black/Hispanic child born to single mother. Mother consented to adoption by a homosexual male. Later, male’s partner petitioned for joint adoption of the child. iii. Court held Family Law -Hartfield Summer 2003 Page 20 of 45 a. Unmarried couples living together in a committed personal relationship, whether of the same sex or of opposite sexes, are eligible to petition the court for a decree of adoption; and b. When one of the natural parents (by birth or adoption) is living in a committed personal relationship with the prospective adoptive parent, then the rights and relation as between adoptee, that natural parent, and his/her parents and collateral relations, including natural rights of inheritance and succession, are in no ways altered. D. Procedure 1. Parental Consent i. Scarpetta v. Spence-Chapin Adoption Service a. New York case b. Child born to mother out of wedlock. Mother decided to give up for adoption and then had second thoughts. Requested her child back 5 days after the child was placed for adoption with another family by adoption service. There had been no formal adoption petition granted to adoptive parents. Trial court found for mother and adoption service appealed. c. Court indicates that best interests of the child should be the determinative factor. d. The court indicates that the status of the natural parent is so important that it may outweigh superior material and cultural advantages afforded by the adoptive parents. e. Court found for mother, indicating that she would be an appropriate mother for her child. f. Court also does not allow adoptive parents to intervene in suit because of disclosure concerns. Court indicates that this does not raise due process concerns. ii. All states require the consent of a child’s natural mother for adoption, several permit an adoption to proceed without consent if the court finds that consent is being withheld contrary to the best interests of the child or if the biological parents fail to communicate with, or assume parental responsibilities for, the child. iii. Most states hold that the parent’s failure to provide support, child neglect or abuse, mental disability, abandonment, habitual drunkenness, or extended imprisonment obviates the need for consent. In these situations, the court will determine the parent is unfit and terminate the parent’s rights to the child. iv. Lehr v. Robertson a. Procedural due process claim. b. NY had a putative father registry that allowed father the opportunity to be heard as to the adoption of his child. Family Law -Hartfield Summer 2003 Page 21 of 45 c. Lehr had filed a petition to have himself determined to be the father, to obligate himself to support, and to obtain visitation rights. d. Problem with Lehr’s case is timing – if he had done things properly, he would have had the opportunity to be heard. e. Lehr had not established any familial relationship with his children. f. Putative father registry is an adequate procedure to protect interest of biological father when there is not a developed relationship between the father and child. v. In re Clausen (DeBoer v. Schmidt) a. Michigan case. b. “Baby Jessica” case. c. Competing claims of natural parents and prospective adoptive parents. d. Mother gave birth to child, indicating that father was one man; however, the father was actually another man. Released custody to prospective adoptive parents. Mother filed to revoke release of custody. e. Release of custody is void if consent was not given and there is no indication of abandonment by natural parents. vi. Ex parte C.V. – In Supplement a. Alabama case. b. Father was abusive to mother and unborn child in months proceeding birth. Mother told father that child had died at birth. Father did not believe her and sought custody of the child. c. Trial court ruled that pre-birth conduct demonstrated abandonment and terminated father’s parental rights, awarding custody to adoptive parents. d. Alabama Supreme Court held that pre-birth conduct could not be used as evidence that he had abandoned the child. The court ordered the adoptive parents to surrender the child to the father. e. Subsequently, Alabama law was changed to indicate that pre-birth abandonment by a father served as implied consent to adoption and terminated his parental rights. VI. Divorce A. Traditional Fault Grounds and Defenses 1. Background/History of Divorce i. Originally, only the innocent spouse could seek a divorce. ii. Must have come to court with clean hands. iii. Innocent spouse had burden of proof in divorce cases. iv. Lawrence Friedman, A History of American Law 2. Often, determination of some fault may disqualify the guilty spouse financially (alimony, property division, etc.). Family Law -Hartfield Summer 2003 Page 22 of 45 3. Fault-Based Grounds for Divorce i. Still have some significance, even in no-fault jurisdictions. ii. Cruelty a. One of the most popular grounds for divorce in fault-based systems of divorce. b. Can be either physical or mental/psychological. c. Single act of physical may be enough. However, for mental cruelty, may have to establish a pattern of cruelty. d. Benscoter v. Benscoter 1). H seeking divorce from W. 2). Court notes that W had underlying physical condition (multiple sclerosis). 3). H also was committing adultery – he is not coming to the court with clean hands. 4). Court denies the divorce. e. Hughes v. Hughes 1). W filed for separation from bed and board. 2). H and W had reconciled – this could act as condonation or forgiveness and can operate as a defense. 3). This could serve as a disincentive to reconciliation. 4). Courts would typically look to see if the conduct simply resumed after the reconciliation. iii. Adultery a. Typically viewed as sexual intercourse with someone other than one’s spouse. b. Adultery was a common basis for divorce in fault jurisdictions. c. Also, was often staged to satisfy fault requirements. d. Arnoult v. Arnoult 1). Until marriage is terminated, adultery can be committed. 2). H and W separated. W began seeing someone prior to divorce. iv. Desertion a. Crosby v. Crosby 1). Collision between desertion and wife’s freedom from having to relocate. 2). Court determined that statute is unconstitutional that required wife to follow husband. v. Other Fault Grounds a. Incurable impotence. b. Conviction of a felony or imprisonment. c. Habitual drunkenness. d. Drug addiction. Family Law -Hartfield Summer 2003 Page 23 of 45 e. Non-support or neglect. f. Insanity. 4. Traditional Defenses i. Moving party has burden to prove that fault exists. The other spouse can come up with defenses to the fault-based grounds. ii. Recrimination a. “Yes, I did, but you did too.” b. Recrimination would serve as a bar because spouse is not innocent. c. Rankin v. Rankin iii. Connivance a. Spouse participates and sets up the other spouse for fault. b. Sargent v. Sargent iv. Condonation a. Essentially, permission for the conduct of the parties. b. Willan v. Willan v. Collusion a. Spouses come together to make up fault grounds for the divorce. b. Fuchs v. Fuchs 1). W wants to come back and relitigate the merits of the case. 2). Court determines interest in not allowing collusion outweighs upholding judgments. vi. Insanity a. Anonymous v. Anonymous 1). As used in this case, insanity is a defense. 2). W argues that her adulterous conduct is due to mental illness. B. No-Fault Divorce 1. Latter half of 20th Century 2. California Takes the Initiative i. The 1966 Report by the Governor’s Commission on the Family a. Major reasons for change to no-fault system. 1). Difficulty in determining which party is truly “at fault” for the breakup of the marriage. Perhaps the adultery is merely a symptom of the larger cause of the deterioration of the relationship. 2). No-Fault is a simpler process and focuses judicial time on determining more important issues such as support, child custody, etc. 3). Reduce adversarial nature of divorce proceedings to help the healing process. 4). Reduce “shams” upon the court. b. If fault determination is eliminated, does it mean that the guilty and innocent spouses are both entitled to support, Family Law -Hartfield Summer 2003 Page 24 of 45 child custody, or property division that goes along with the divorce proceeding. ii. The California Statute a. Two grounds for divorce 1). Irreconcilable differences which have caused the irremediable breakdown of the marriage. 2). Incurable insanity 3. The Uniform Marriage and Divorce Act i. As originally drafted, criticism was that the Act led to divorce on demand. Was subsequently amended. ii. Evidence that marriage must be irretrievably broken must be evidenced by a. Requirement that parties have lived separate and apart for a period of more than 180 days, OR b. There is serious marital discord adversely affecting the attitude of one or both of the parties toward the marriage. 4. Some states have simply appended the no-fault basis to the fault bases for divorce. (Georgia is included in these states.) 5. The Problems of Partial Reform i. One of the major problems is whether there is a defense to no-fault grounds for divorce. ii. There is really no defense that can be mounted when one party wants out, absent some kind of separation requirement. iii. Traditional defenses are inapplicable to no-fault divorce. iv. Massar v. Massar a. Agreement to seek no-fault divorce is enforceable. v. Hanger v. Hanger a. Agreement to act as if H and W were single. b. W had committed adultery. c. H committed adultery after the agreement. d. Agreement did not allow the H to not be accused of adultery based on the agreement. vi. Flora v. Flora a. vii. Ellam v. Ellam a. Presenting themselves to the world as if they were still married. b. Denied divorce because they did not live separate and apart. c. Spouse who wants out of marriage must act like they want the marriage to be over. viii. Twyman v. Twyman a. Question is whether party to divorce can maintain a cause of action for IIED. b. Court holds that IIED can be brought in divorce proceeding. Family Law -Hartfield Summer 2003 Page 25 of 45 c. Problem is that allowing IIED claims injects element of fault into the proceedings. d. This court indicates that IIED claim is permissive, not compulsory. C. Covenant Marriage and Divorce 1. Louisiana and Arizona 2. Covenant marriage is more difficult to terminate than traditional marriage. 3. Might require counseling or a longer term for separation. 4. Agreement between parties that is entered into prior to marriage. 5. Limits ability to terminate the marriage. D. Religious Limits on Civil Divorce 1. Aflalo v. Aflalo i. Jewish “Get” ii. Issue is whether a court can order a husband to provide wife with ability to remarry. iii. Two opposing views a. Court lacks authority because it is violative of the Constitution. b. Statutory provision that requires parties agree to do what is necessary for religion to allow spouse to remarry or civil divorce court system is not available. E. Annulments and Separations 1. Another method of termination of the marriage. 2. Kinds of things that entitle one to annulment. i. Bigamous marriages ii. Incestuous marriages 3. Judicial determination that the marriage was invalid. 4. Annulments indicate that the marriage never occurred. 5. State v. Cone i. H underage at time of marriage. ii. If marriage was void, he would not have to do anything. iii. If marriage was voidable, he must do something. iv. There are some instances when void marriages cannot be annulled – must be divorced. a. Child born of the void marriage. 6. Typically, alimony is available either for annulment or divorce. F. The Role of Counsel 1. Typically, there are two theories of the role of counsel. i. Hired Gun ii. Counselor 2. Raoul Felder, Divorce 2-7 (1971) i. Hired gun approach. ii. Get what client wants at any cost. 3. Harriet F. Pilpel, The Job the Lawyers Shirk (1960) i. Counseling approach. Family Law -Hartfield Summer 2003 Page 26 of 45 4. Ed Goldman, Counseling the Divorce Client (1977) i. Counseling approach. 5. Harrop A. Freeman and Henry Weihofen, A Case Study (1972) 6. Murray Bown, Emotional Problems Encountered in Divorce Cases (1963) 7. Representing Both Spouses in Divorce Proceeding i. This is a red-flag area. ii. In re Braun a. Ethical canons are violated when the conduct of an attorney raises the possibility that confidences of one client will be used for benefit of another. iii. Klemm v. Superior Court of Fresno County a. Joint representation only appropriate when 1). Full disclosure 2). Agreement of parties 3). No “actual” conflict between parties iv. Board of Overseers of the Bar v. Dineen a. Spouse not being represented by attorney has consented to the other spouse being represented. 8. Screwing Your Clients i. Matter of Berg a. Don’t Screw Your Clients G. Jurisdiction 1. Types of Jurisdiction i. Subject-Matter Jurisdiction a. For Divorce, subject-matter jurisdiction is where the moving party resides, provided that statutory provisions for residency have been met. b. Domicile vs. Residence -Domicile is where one lives with the intent to remain. ii. Personal Jurisdiction 2. Over the Plaintiff i. Fink v. Fink a. H “moved” to NV to supposedly seek employment. b. Did not terminate ties with Illinois. c. Evidence strongly suggests that H was in NV solely for purpose of availing himself to liberal divorce laws. d. Issue is whether NV had SMJ over the divorce. e. In previous Case (Williams I), Supreme Court held that there was SMJ to grant divorce if a person is domiciled within the state. In Williams II, Supreme Court held that state that considers validity of another state’s divorce to make an independent judgment as to whether the granting jurisdiction had SMJ. f. W was served with process in Illinois but did not appear and a default judgment was entered in H’s favor. Family Law -Hartfield Summer 2003 Page 27 of 45 g. W then challenged the validity of the divorce. h. H/W considered married in Illinois while considered divorced in Nevada. i. Court indicates that there is a presumption that person establishes a domicile but this can be rebutted by evidence to the contrary. j. If there is bilateral agreement to the divorce, courts will assert estoppel against a subsequent challenge to jurisdiction. k. Migratory or Divisibility of Divorces ii. Sosna v. Iowa a. Issue is durational requirements for divorce. b. W filed for divorce immediately upon moving to state and did not fulfill the durational requirement for residency. c. Justifications for durational requirement 1). Prevents using state as a divorce mill. d. Court views the durational requirement as a relatively insignificant burden to carry. iii. Ankenbrandt v. Richards a. Issue is whether Federal diversity jurisdiction is allowed. b. Domestic Relations Exception to diversity jurisdiction. c. This case was a torts case, so Domestic Relations Exception does not require. d. Supreme Court asserts that State Court is better suited for adjudicating domestic relations issues. e. Supreme Court indicates that this is a judge-made exception that the Congress has not limited. f. In some respects, Family Law has become Federalized but not with regard to divorce. iv. Yoder v. Yoder a. H & W agreed to divorce. b. Divorce granted in a foreign jurisdiction – Mexico. c. Full Faith and Credit is inapplicable in terms of giving effect to foreign judgments. d. Doctrine of Comity allows U.S. jurisdictions to treat foreign judgments favorably. e. Requirements for Comity 1). Foreign country’s judicial system is fair to both parties. f. Foreign decrees should be enforced unless repugnant. g. Court indicates that Connecticut courts can decide whether foreign decree is proper or not. v. Clagett v. King a. Parties have taken advantage of the opportunity to adjudicate divorce in Mexico. b. Consent of divorcing couple cannot confer jurisdiction. Family Law -Hartfield Summer 2003 Page 28 of 45 c. Moving party in foreign divorce is estopped from claiming foreign decree is invalid. vi. In re Disciplinary Proceedings Against Donnelly a. Disciplinary proceedings against an attorney. b. Attorney did not make efforts to ascertain whether jurisdictions of potential clients would recognize Dominican divorces. 3. Over the Defendant i. Obtaining PJ over the defendant. ii. Providing adequate notice of proceedings. iii. Burnham v. Superior Court of California a. H served with process while on business trip in California. b. Supreme Court indicates that personal service of process within jurisdiction is sufficient to give the court PJ over the defendant. c. H argues that California does not have the minimum contacts with the State to justify exercise of PJ. iv. Baggett v. Baggett a. Issue here is whether notice that is reasonably calculated to inform the other party is required. b. Court holds that notice by publication was not the best method under the circumstances. H. Evidentiary Problems 1. Pritchard v. Pritchard i. Whether wiretapping of a spousal conversation is violative of Federal Wiretapping statutes. ii. Split in jurisdictions as to whether this is permitted. I. Access to Divorce 1. Boddie v. Connecticut i. Welfare recipients claimed fees for divorce prevented them from access to the courts. ii. Court is receptive to this challenge. iii. Fees operate to foreclose a poor party’s opportunity to be heard. iv. Since divorce is exclusively within power of the State, the State cannot preclude poor individuals from access to the court. 2. In re Smiley i. Whether indigent parties have a right to counsel in divorce proceedings. ii. Court indicates an attorney is not absolutely necessary for divorce. iii. Some states have attempted to make divorce more accessible by simplifying divorce in some instances. iv. Some states are much more tolerant of commercial enterprises such as paralegals doing the divorce work. v. Other states are very strict. J. Discrimination on the Basis of Divorce 1. Littlejohn v. Rose Family Law -Hartfield Summer 2003 Page 29 of 45 i. Discrimination in employment against a person who obtained divorce. ii. Not covered. VII. Custody of Children A. Applying the Best Interests Standard 1. Hartfield thinks Best Interests Standard is terrible – very unworkable. i. Judicial bias can overcome the actual best interests of the child. 2. At English common law, children were chattel and husband obtained custody. 3. Which Parental Traits are Relevant i. In initial custody determination, the standard is “best interests” of child. ii. In change in custody, there must be a showing of a change in circumstances. iii. Gender and the Tender Years Presumption a. Presumption is that young children are better served by custody of mother. b. Jurisdictions varied on definition of “tender years.” c. Ex Parte Devine 1). Issue is whether gender-based discrimination can pass Constitutional muster. 2). For tender years doctrine, gender is a proxy not for fitness, but is for the “best interests” of the child – welfare of child best served by custody of mother. 3). Any parent seeking custody must meet fitness. 4). There are some areas that a presumption is helpful i). Discourages fathers with a so-so case from pursuing custody. Encourages working out a settlement with other party. 5). Most states have determined tender years presumption is unconstitutional. 6). Gender as a bright-line rule appears to be not allowed. iv. Parental Unfitness a. Section looks at how much weight should be given to characteristics of parents. b. Hassenstab v. Hassenstab 1). Sexual orientation is the issue in this case. 2). Issue is whether sexual orientation be part of the determination of custody of children. 3). Arguments for using sexual orientation in determining best interests of child. i). Role model argument. ii). Stigma Family Law -Hartfield Summer 2003 Page 30 of 45 4). Nexis test is to determine if there is a relationship between the parental characteristic and the best interests of the child. i). Judge has to make findings that indicate the relationship. ii). Not perfect, but at least it is some objective basis requirement for judicial award of custody. 5). There is a range of approaches used by the judiciary – depends on jurisdiction. Some use more rules, some are simply subjective. 6). Timeliness of evidence is also important. i). Evidence of past characteristics is not as relevant as what is happening currently. c. Allen v. Farrow 1). Question here is whether we can look at relationship with sibling to determine custody/visitation of other children. 2). Raises issues of appropriate boundaries and role confusion. d. Guardianship of Simpson 1). Raises questions of domestic violence and evidence admission. 2). Trial court refused to admit evidence of murder. 3). Appellate court determined that this evidence was relevant. 4). Some courts mandate that courts consider domestic violence in custody proceedings. e. In re Marriage of Carney 1). Case raises questions of disability. 2). Father had custody for many years and mother had little contact. 3). Father became disabled and mother sought to gain custody. 4). Court deals with this as a change in custody. 5). The main issue of this case is determining what being a parent means. 6). Physical handicap is but one factor to be weighed by the court in determining custody. v. Race a. Palmore v. Sidoti 1). Issue is race of mother’s new husband. 2). Mother had custody of children from previous marriage. 3). Biological father sought custody based on race. Family Law -Hartfield Summer 2003 Page 31 of 45 4). Supreme Court holds that race cannot be used to justify removing a child from a fit parent. 5). Trial court made no effort to justify decision other than on race. b. Farmer v. Farmer 1). Child is the product of an interracial marriage. 2). Issue is whether a child perceived as African-American should be placed with AA father. 3). Court indicates that you can’t use race as the determinative factor. 4). Evidence of what is in the best interests of the child as a whole. vi. Religion a. Quiner v. Quiner 1). Wife had some weirdo religion. 2). This case was decided under a tender years presumption. 3). Court says that father can show that best interests of child are being affected. b. Kendall v. Kendall 1). Restrictions placed on father’s visitation of children. 2). Father has been exposing children to his religious beliefs and mother claims this is harming children. 3). Issue here is the extent to which parents can decide religious upbringing of child. 4). Typically, custodial parent is allowed to decide religious upbringing of child. However, some jurisdictions allow conditions. 5). Guardian Ad Litem – officer of the court who is brought into proceeding to advise court as to the best interests of the child. i). How should GAL be chosen? ii). How should report of GAL be used? iii). To what extent should party adverse to findings of GAL be able to examine GAL? 6). In this case, GAL finds substantial harm in allowing father to expose children to his religious views. 4. The Role of the Child’s Preference i. McMillen v. McMillen a. GAL can be used to determine what the child’s preference is as to custody. b. In GA, 11 y/o are allowed to give input, 14 y/o is allowed to choose the custodial parent as long as they are fit. Family Law -Hartfield Summer 2003 Page 32 of 45 c. There is a view that, at no age, should a child’s wishes be dispositive. d. Courts typically look at how child arrived at the preference. e. Child is not a party and there is debate as to whether child has a right to a day in court. f. There is a great deal of concern as to the stress and strain this puts on the child. g. In this case, court determines that where child’s wishes were sufficient, they could tip the scales in favor of one parent or another. 5. The Use of Psychiatric and Psychological Experts i. DiStefano v. DiStefano a. Increasingly, attorneys are recognizing that divorce and custody require multiple disciplines. b. There is concern that “experts” are hired guns and the battle becomes a dual of experts. c. In some jurisdictions, there are staff psychologists that can evaluate. d. In general, the use of expert testimony is permitted. e. In general, one is entitled to have access to any reports submitted to court that could be basis for decision to be made. f. In general, courts can order parties to undergo psychological testing. B. Visitation 1. Essentially, visitation is similar to custody determination. 2. Ordinarily, the parent that does not have custody is entitled to visitation with the child. 3. Typically, harm must be demonstrated in order to deny visitation to the non-custodial parent. 4. Imposing Limits on Parental Conduct i. Chicoine v. Chicoine a. H and W divorced and H given custody of children. b. W engaged in lesbian activities. c. W granted unsupervised visitation rights. d. H objected to unsupervised visitation. e. Court indicated that best interests of the child were best served by not allowing unsupervised visitation. f. The court indicates that where evidence establishes exercise of visitation is harmful, visitation can be altered. g. Harm in this case may not be simply the homosexual activities, it was how the child was exposed to sexual behavior of mother. h. For the most part, courts that use a “harm” approach look at actual harm, not simply harm that may occur. ii. Schutz v. Schutz Family Law -Hartfield Summer 2003 Page 33 of 45 a. Issue is whether court can require custodial parent to create positive view of other parent in the eyes of the children. b. Court holds that there is no requirement that mother say something to children, but CANNOT do things to harm the other parent’s relationship with the children. c. Court indicates that this is an incidental burden and when compared to the state’s interest in good relationships between parents and children, it is not significant. 5. Enforcement of Visitation Rights i. Options a. Contempt -Court can hold parties in contempt for not following visitation or custody orders. b. Modification or Change in Custody ii. Smith v. Smith a. Criminal contempt is about punishment. b. Civil contempt is about compliance. c. Court construed this case as civil contempt and the problem was that there was an inability to purge the contempt charge. d. Court finds that the custodial parent must do more than just encourage children to visit. iii. Egle v. Egle a. H and W divorced with custody of children to mother. b. Father’s visitation of children substantially frustrated by mother. c. Court changed custody because mother failed to cooperate with visitation. d. When custodial parent has demonstrated unwillingness to protect rights of other parent, children’s best interests are with the parent will honor those rights. iv. Gleiss v. Newman a. Father given custody of child. b. Mother filed suit alleging that father intentionally inflicted emotional distress through this interference with visitation. c. Court had allowed this cause of action with regard to custody. d. Reasons for NOT adopting cause of action 1). Recovery comes from custodial parent and there would be less $ for child. 2). Litigation and costs of tort trial could be harmful for child. 3). Difficulty in proving damages or showing that emotional distress actually occurred. 4). Judicial economy. 5). There are other options to address visitation issues. Family Law -Hartfield Summer 2003 Page 34 of 45 e. Court holds that tort should not be applicable with regard to visitation. 6. Denial of Visitation i. Circumstances for Denial of Visitation a. Bases for denial of custody might also serve as bases for denial of visitation. b. Abuse c. Abandonment or Failure to Exercise Visitation 1). One view is that when non-custodial parent does not exercise visitation, there should be compensation to custodial parent. 2). Another aspect is failure to provide support as required. d. Endangerment e. Incarceration ii. Kemp v. Kemp a. Court holds that absent extraordinary circumstances, visitation cannot be absolutely prevented. b. Visitation and Support have traditionally been kept separate – even if one is entitled to visitation and is not being allowed visitation, support is still owed. 7. Interference with Visitation i. By Government a. Franz v. United States 1). Father is denied contact with children because mother, stepfather, and children are in witnessproteectio program. 2). Father sought to establish visitation rights. 3). Question here is whether the interference is justifiable under the Constitution. 4). State’s interest would be in the safety of the parties involved. 5). Court finds that state should find way to establish visitation, as well as protecting family. 6). Court emphasizes that just because one is the noncusttodia parent does not limit Constitutional protections over the parent-child relationship. ii. By Stepparents a. Bevis v. Bevis 1). Father and stepmother seeking to exclude mother from children by pursuing adoption. 2). Ordinarily, adoption requires agreement or finding of unfitness. However, in a minority of jurisdictions, best interests of child standard is used for step-parent adoption. Family Law -Hartfield Summer 2003 Page 35 of 45 i). If parent unreasonably withholds consent to adoption by stepparent and adoption is in best interests of child, court can grant adoption – MINORITY view. b. Paul Bohannan -Divorce Chains, Households of Remarriage, and Multiple Divorces C. Alternative Approaches to Deciding Custody Matters 1. Joint Custody i. Originated in California. ii. Joint custody has retrenched somewhat over the last 10 years. iii. Ideal candidates would a. Live closely b. Get along well c. Wish to constructively participate in the development of the child. iv. Joint custody entailed two components a. Joint Legal Custody 1). Each parent has the right to make decisions as to how the child will live. 2). Primarily, revolves around joint legal custody. b. Joint Physical Custody 1). Each parent has right to have child live with them. 2). Amount of time does not have to be equal but typically varies between parents. v. Could have joint legal custody without joint physical custody. vi. Would be difficult to have joint physical custody without joint legal custody. a. Sometimes, court vests certain decisions in one parent or the other. vii. Joint custody effort was directed at helping the best interests of the child. viii. Options for Joint Custody a. Joint custody as an option only where the parties petition or agree; b. Joint custody as an option; c. Joint custody as a presumption or preference; d. Joint custody split into joint legal custody and joint physical custody. ix. Friendly-Parent Provisions for Joint Custody a. If a parent who proposes joint custody is opposed by the other parent, court may choose to award sole custody to parent who is seen to be most friendly toward maintaining both parental relationships. b. Criticized as pushing parents who do not believe joint custody is best option into joint custody. x. Georgia Joint Custody Family Law -Hartfield Summer 2003 Page 36 of 45 a. Effort to get presumption for joint custody has thus far been unsuccessful. b. Reasoning is that joint custody can be used as a bargaining chip. xi. Thronson v. Thronson a. Court indicates that Utah statute for joint custody required both parent’s agreement to the joint custody. b. Many courts articulate a policy to facilitate access to both parents to the greatest extent possible. xii. Susan Steinman – Joint Custody: What We Know, What We Have Yet to Learn, and the Judicial and Legislative Implications xiii. Joan B. Kelly – Further Observations on Joint Custody xiv. Birnbaum v. Birnbaum a. Originally, parents were granted joint legal and physical custody. b. Mother moved and sought sole custody. c. Father countered for sole custody. d. Court modified joint custody among parents so that time was split differently between parents. e. Father proved that education offered by living with him would better serve children’s interests. 2. Counsel for the Child i. Schult v. Schult a. Issue is whether attorney representing child may advocate a position contrary to guardian ad litem. b. GAL appointed to represent best interests of child. Charged with investigating and reporting to court their findings. c. Typically, attorney for child takes direction from child or guardian ad litem. d. Court holds that this is not always the case – attorney can advocate a position different from GAL. 3. Presumption for Primary Caretaker i. Garska v. McCoy a. Used as gender-neutral b. Questions Surrounding Primary Caretaker 1). What facts are necessary for presumption to arise? i). Physical care of child 2). Is presumption inapplicable when both parents have been primary caretaker? 3). How is presumption rebutted? ii. Young v. Hector a. Father’s involvement with children seemed to coincide with mother’s asking for divorce. 4. A Flip of a Coin Family Law -Hartfield Summer 2003 Page 37 of 45 i. Robert Mnoonkin – Child-Custody Adjudications: Judicial Functions in the Face of Indeterminancy D. Standards for Modifying Custody 1. Perreault v. Cook i. Issue is whether subsequent divorce of parent that should warrant a change in custody? ii. Court finds this sufficient for changed circumstances. 2. King v. King i. Male child living with mother became an adolescent and father wanted to get custody. ii. Child wanted to live with father. iii. Court looks at wishes as being admissible. 3. Lazarevic v. Fogelquist i. Mother with custody wanted to move with children to Saudi Arabia. ii. Court allowed this to occur but provided several limitations. iii. A number of states have adopted approach that looks at motivation for move. First question is whether the move is in good faith. Second question is whether best interests of child are served. iv. Court tailors several limitations to ensure that relationship with father will continue. E. Procedure 1. Jurisdiction i. Custody issue is generally governed by Uniform Child Custody Jurisdiction Act (UCCJA) or Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). a. These acts attempt to prevent forum shopping. b. State statute. c. UCCJEA provides for jurisdiction over parties if 1). State is “home” state of child (6 months residence); 2). If there is no state that meets the above, other provisions made confer jurisdiction. d. There are procedural safeguards to help with harshness of litigating in far-flung jurisdictions. ii. Parental Kidnapping Prevention Act (PKPA) a. Federal statute. b. Full Faith and Credit Statute c. Provisions are very similar to UCCJA. d. One difference is that PKPA did articulate rule of continuing jurisdiction. e. Priority under PKPA for jurisdiction over parties is for State which is home state of the child. iii. The PKPA as a full faith and credit statute only comes into play when one state has to make a determination as to whether to honor the decision of a sister state. iv. Chaddick v. Monopoli Family Law -Hartfield Summer 2003 Page 38 of 45 a. F and M divorced in MA. b. M granted custody. c. M moves to FL. d. F moves to VA. e. F seeks custody in VA and wins. f. M litigated. v. Thompson v. Thompson a. Issue is whether there is a federal cause of action under PKPA. b. Court holds that legislative intent was not to have federal court determine disputes between states. c. Thompson argued that the PKPA gave rise to federal question jurisdiction. d. It would be possible (but not very likely) for U.S. Supreme Court to hear this type of case if all State appeals have been exhausted. VIII. Property, Alimony, and Child Support Awards A. Standards for Awarding Property, Alimony, and Child Support 1. Principles i. The Fault Principle a. Using allocation of assets to punish the wrongdoer. b. One of the oldest guiding principles; today, it is alive and well. c. If fault is used in allocation, it may discourage improper conduct. d. However, fault used for allocation tends to produce acrimony and is somewhat incongruent to no-fault divorce. e. Georgia has option of fault or no-fault divorce; however, at property settlement, fault can be considered in division of property. f. One of the traditional ways fault has been used is in alimony – the party guilty of some conduct disqualified spouse from obtaining alimony. g. Some courts hold that fault is irrelevant with regard to whether spouse is eligible for alimony. h. Generally, fault is not part of child support determination. ii. The Need Principle a. A spouse is entitled to be supported by the ex-spouse to the extent sufficient to stay off of welfare roles. iii. The Status Principle a. This is the principle that one is entitled to live as prior to divorce. b. There is a concern that allowing status to determine property division perpetuates problems with people entering marriage for monetary gain. c. Status may be more relevant with regard to child support. Family Law -Hartfield Summer 2003 Page 39 of 45 iv. The Rehabilitation Principle a. Principle that the needy spouse should be given enough to rehabilitate themselves. b. Rehabilitation tends to fit in alimony category better than in the property division category. c. No relevance of rehabilitation to child support. v. The Contribution Principle a. What one spouse contributes determines what is received when the parties divorce. b. Approaches to Computation 1). The Partnership Approach i). All assets acquired during the marriage are divided equally. 2). Market Value of Services Approach i). Difficult to measure value of certain services to the marriage. 3). The Foregone Opportunities Approach i). Computation of what has been given up to make the family work. 4). The Enhanced Earning Capacity Approach i). Computation of enhanced earning capacity attributable as a result of the marriage. 2. Division of Property i. Systems of Property Division a. Separate Property 1). Property is awarded to title holder. 2). No state continues to adhere to this system. b. Community Property 1). Property acquired during the marriage except by gift or inheritance. 2). Undivided ½ interest in property during marriage. 3). At divorce, jurisdictions may treat differently. Some might require an “equitable distribution.” c. Equitable Distribution/Equitable Division 1). System that classifies property as marital or separate. 2). Can be indistinguishable from Community Property. i). Significance is that Community Property governs ongoing marriage AND divorce. 3). Some states will look at “hotchpot” – all property goes into one pot and court can divide according to factors including where it came from. 4). Some states may have a presumption of equal distribution but party may rebut presumption. 5). Georgia is an equitable division jurisdiction. Family Law -Hartfield Summer 2003 Page 40 of 45 ii. Recognition of Homemaker Services a. Ferguson v. Ferguson 1). Mississippi abandoned title theory of distribution. 2). Court identifies factors for equitable division of marital property. i). Substantial contribution to accumulation of property. ii). Financial conduct of parties. iii). Market value and emotional value of the assets subject to distribution. iv). Need v). Finality vi). Any other factor which in equity should be considered. 3). Court indicates that non-economic contributions must be considered. 4). Court also indicates that the approach is holistic – may factors must be considered in arriving at an equitable distribution of property. 5). Problem with holistic approach is that looks at total award and tends to blend alimony, child support, and property division. iii. Financial Misconduct a. Siegel v. Siegel 1). Husband incurred gambling debts. 2). Typically, gambling debts are attributed to individual and does not reduce assets available for distribution. 3). Court holds that party that incurs debt pre-divorce but while marriage is in trouble is solely responsible. iv. Marital Property: A Step Toward Community Property? a. Gaulrapp v. Gaulrapp 1). Hotchpot system. 2). The trial court must consider all of the real and personal property accumulated as part of the marital estate, regardless of the source. v. Brief Marriages a. Rose v. Rose 1). Where there is a short marriage and there has been little commingling of assets, the court can attempt to put parties in position had there been no marriage. 2). Extensive commingling or longer marriages may necessitate court division of property. Family Law -Hartfield Summer 2003 Page 41 of 45 3). Tracing of property is typically available and even presumed, but where extensive commingling has occurred, the property may lose separate property character – this can be rebutted. 3. Alimony i. Duration a. Mills v. Mills 1). 22 year marriage 2). Court considers factors in determining alimony i). Age ii). Health iii). Employment Skills iv). Employment Experience v). Limitations on Earning Capacity ii. Role of the Marital Standard of Living a. Simmons v. Simmons 1). Court suggests that focus should be on need of spouse to be supported and how much of that need the other spouse should be required to provide. 2). Reasonableness of budgets come into play in this determination. 4. What Constitutes Property? i. Educational Degrees a. Postema v. Postema 1). Issue is whether a degree or license is marital property. 2). Argument is that it is not truly property and cannot be divided upon divorce. 3). The opposite argument is that it is an asset and should be subject to division. 4). Typically, this situation is seen when the marriage terminates suddenly after educational degree is attained. 5). Court indicates that where an advanced degree is the end product of a concerted family effort, there arises a marital asset subject to distribution through an equitable claim by non-student spouse. 6). Some courts might use as a basis for alimony. 7). Methods of Valuation i). Award a percentage of present value of future earnings. a). Problem is that this is often speculative. b). Another problem is that there is the possibility of under-employment. ii). Restitution or Reimbursement Family Law -Hartfield Summer 2003 Page 42 of 45 a). Difficult to value contribution by supporting spouse. b). Offers lower award but some courts use to compensate. 8). Georgia courts have not bought into argument that degree is property. 9). Majority view is that degree is not property. ii. Pensions a. Types of Pensions 1). Vested and Matured i). Courts hold these are marital property. 2). Vested and Not Matured i). Most courts hold these are marital property. 3). Non-Vested i). Argument for construing as marital property is that effort occurred during marriage. ii). Some courts have taken the view that it is property that can be divided at divorce. b. Laing v. Laing 1). Non-vested pension benefits. 2). Court goes with an alternative that when pension actually vests, the court re-opens the case to divide property. 3). Court also indicates that REACT program allows direct payment of pension benefits to be made directly to the non-employee spouse. c. Mansell v. Mansell 1). Military retirement pay is at issue in this case. 2). Supreme Court had previously held that it could not be part of property division. 3). Congress amended the Statute to overcome this decision. 4). Court holds that the Former Spouses Protection Act does not grant states the power to treat, as property divisible upon divorce, military retirement pay that has been waived to receive disability benefits. 5). Awards that compensate for pain and suffering are typically the property of the individual. Awards for lost earnings might be marital property. Goal is to compensate the source of award. 5. Steps in Property Division i. Characterization of property ii. Valuation iii. Division of Property 6. Child Support Family Law -Hartfield Summer 2003 Page 43 of 45 i. Child Support Guidelines a. Vary by jurisdiction. b. Can focus on gross income of parent who will pay support. c. Statutes set forth percentages d. OCGA 19-6-15 ii. Schmidt v. Schmidt a. Court holds that guidelines must be followed, but court has discretion to modify guidelines under specific circumstances. iii. In re Marriage of Bush a. Extremely high income. b. Issue is whether it is appropriate to utilize guidelines when it would result in more than adequate support. c. Court holds that where incomes of both parents are sufficient to meet child’s needs, the courts may set support below Illinois guidelines. iv. Post-Majority Support a. Issue is whether parent can be compelled to pay for support post-majority. b. Most courts indicate that there is no power to compel support post-majority. c. Some states have enacted statutes that allow for payment of support post-majority. v. Murray v. Murray vi. Solomon v. Findley a. Issue is whether post-majority support agreement is enforceable. b. Court indicates that agreement can be enforced in contract. B. Modification of Alimony and Child Support Awards 1. Changes in Income i. Graham v. Graham a. Court holds that increase in income is a material change that can be basis for change in support obligation. b. Typical base for modification. 2. Cohabitation and Remarriage i. D’Ascanio v. D’Ascanio a. Typically, remarriage terminates right to receive alimony. b. Many states include cohabitation as a grounds for termination or a changed circumstance that would allow court to modify support obligation. 3. Subsequent Families i. Ainsworth v. Ainsworth a. Issue is whether there can be a downward modification to pre-existing child support when subsequent family is involved. b. In this case, subsequent family children were step-children. Family Law -Hartfield Summer 2003 Page 44 of 45 c. In this jurisdiction, support of step-children was prescribed by statute. C. Jurisdiction Over and Enforcement of Property, Alimony, and Child Support Awards 1. Jurisdiction i. Divisible Divorce a. Vanderbilt v. Vanderbilt 1). Where there is no personal jurisdiction, FF&C is not required for support obligation adjudication. ii. Long-Arm Jurisdiction a. Hines v. Clendenning iii. Uniform Interstate Family Support Act a. Uniform Interstate Family Support Act (UIFSA) allows one to initiate proceeding in their state and occurring in state where defendant is located. 1). Forwarded to court in defendant’s state so that PJ can be obtained over defendant. 2). Plaintiff’s state has continuing jurisdiction over subsequent adjudications, including modifications. 3). Allows register of decree in another state and seek enforcement as if it was a decree of that state. b. Child Support Enforcement v. Brenckle D. The Separation Agreement 1. There are problems inherent in bargaining for custody AND financial determinations. i. Custody might be used as a bargaining chip in financial negotiations. ii. A possible way of policing this is for court to closely scrutinize for appropriateness. 2. Modification and Merger i. If agreement is merged, court can enforce agreement as part of the decree. Otherwise, might have to enforce in contract. ii. Davis v. Davis a. In the absence of fraud, duress, concealment, or overreaching, parties may enter into a valid separation agreement which finally settles all property rights and claims between them and constitutes a further bar. b. Child support can ALWAYS be reviewed at any time by the court. iii. Oedekoven v. Oedekoven a. Agreements that have NOT been incorporated and merged into the decree are not enforceable by the court. b. Agreements that are simply approved by the court would not be enforceable. iv. Portlock v. Portlock Family Law -Hartfield Summer 2003 Page 45 of 45 a. Court can ALWAYS modify agreements related to child support. b. If the agreement does adequately provide for the child, court can modify. v. Griffin v. Griffin a. “Agreement to agree” provisions in separation agreements are generally unenforceable. b. However, it does give parties opportunity to avoid problems when issues do come up. 3. Tax Considerations i. Ordinarily, alimony payments are includible in income of payee spouse and deductible for payor spouse. ii. Child support are neither deductible or includible. iii. Property division generally is not a taxable event for the parties. iv. Alimony payments are subject to a front-loading recapture rule. v. Characterization by court is key to determining tax consequences.