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Chapter 1 ENTERING MARRIAGE Powered By Docstoc
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  Chapter 1

  Page 4–10:

                        NOTES AND QUESTIONS
    (1) See also Brian Bix, The Public and Private Ordering of Marriage, 2004
  U. CHI. LEGAL F. 295, discussing public and private ordering of marriage
  and marriage-like relationships; and Allen Parkman, The Contractual Al-
  ternatives to Marriage, 32 N. KY. L. REV. 125 (2005).
     (4) See also Anita Bernstein, For and Against Marriage: A Revision, 102
  MICH. L. REV. 129 (2003), examining the benefits and drawbacks of state-
  sponsored marriage; and Lynne D. Wardle, Is Marriage Obsolete?, 10 MICH.
  J. GENDER & LAW 189 (2003), finding no gap between traditional marriage
  and the mores of contemporary society. See also Katherine Shaw Spaht,
  The Last One Hundred Years: The Incredible Retreat of Law from the
  Regulation of Marriage, 63 LA. L. REV. 243 (2003), urging a return to
  traditional marriage laws to reinvigorate and protect “the most fundamen-
  tal of human institutions.” And see Symposium, Conference on Marriage,
  Families and Democracy, 32 HOFSTRA L. REV. 23 (2003); Symposium,
  Marriage Law: Obsolete or Cutting Edge?, 10 MICH. J. GENDER & LAW 2
  (2003); Symposium, Marriage and the Law, 18 NOTRE DAME J. L. ETHICS
  & PUB. POL’Y 1 (2004).
    (5) See also Peter Hay, The American “Covenant Marriage” in the Conflict
  of Laws, 64 LA. L. REV. 43 (2003).

  Page 12–13:

                        NOTES AND QUESTIONS
    (2) In In re Coates, 849 A.2d 254 (Pa. Super. Ct. 2004), although the
  appellant had a fundamental constitutional right to marry, there was
  nothing expressed or implied in the Pennsylvania marriage license statute
  that required a clerk of court to visit prisoners for the purpose of completing
  a marriage license application, and there was no due process or equal
  protection violation involved in this case. See also Casebook, page 43,
  Problem 2.
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  2                          ENTERING MARRIAGE                                CH. 1


       [A] Common Law Marriage
  Page 17:

                        NOTES AND QUESTIONS
    (2) Pennsylvania no longer recognizes common law marriages if contracted
  in Pennsylvania after September 13, 2003. However, common law mar-
  riages contracted in Pennsylvania prior to that time will be recognized. PNC
  Bank Corporation v. Workers Compensation Appeal Board, 831 A.2d 1269
  (Pa. Commw. Ct. 2003); Stackhouse v. Stackhouse, 862 A.2d 102 (Pa. Super.
  Ct. 2004).
    (3) In the case of In re Catapano, 794 N.Y.S.2d 401 (App. Div. 2005), the
  alleged husband and wife lived together for three and a half years in homes
  in New York and Pennsylvania. There was proof in this case that a valid
  common law marriage had been contracted under Pennsylvania law based
  on the parties’ expressed marriage vows in Pennsylvania that had been
  witnessed by friends and neighbors. See also DeMelo v. Zompa, 844 A.2d
  174 (R.I. 2004), holding that a common law marriage is valid in Rhode
  Island, but it must be established by clear and convincing evidence.
    (4) See also Rosales v. Battle, 7 Cal. Rptr. 3d 13 (Cal. Ct. App. 2003),
  holding that a Mexican concubinage is not the equivalent of a common law
  marriage to qualify as a statutory beneficiary in a wrongful death action.
  And the court in Canady v. Russell, 138 S.W.3d 412 (Tex. Ct. Civ. App.
  2004), held that evidence of the parties’ intent to live together in the future
  was not sufficient to establish a common law marriage, which requires
  present intent and agreement.

       [B] Putative Marriage
  Page 22:

                        NOTES AND QUESTIONS
    (1) In a case of first impression, the Nevada Supreme Court in Williams
  v. Williams, 97 P.3d 1124 (Nev. 2004), recognized the putative spouse
  doctrine in annulment proceedings for purposes of property division, but
  rejected the doctrine as a basis for awarding spousal support on annulment,
  since Nevada’s annulment statutes do not provide for an award of spousal
  support on annulment.
    (2) See also Monica Hof Wallace, The Pitfalls of a Putative Marriage and
  the Call for a Putative Divorce, 64 LA. L. REV. 71 (2003), discussing the
  history of putative marriage in Louisiana and other states, and advocating
  the enactment of a “putative divorce” to validate the parties’ expectations
  and prevent unjust property division.
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  § 1.06             AN INDIVIDUAL’S RIGHT TO MARRY                            3

  Page 43:

                        NOTES AND QUESTIONS
    (2) In the case of In re Coates, 849 A.2d 254 (Pa. Super. Ct. 2004), the
  court held there was no due process or equal protection violation involved
  that required a clerk of court to visit prisoners for the purpose of completing
  a marriage license application.

  Page 44: After the Notes and Questions add the following
  new case:
     The following case deals with a constitutional right to privacy of two
  persons of the same sex to engage in intimate sexual conduct. This right
  to privacy may—or may not—extend to marriage and marriage-like rela-
  tionships, and to other privacy rights involving the family. According to the
  dissenting opinion of Justice Scalia, it could also impact on the issue of
  homosexual marriage.

                         LAWRENCE v. TEXAS
                        United States Supreme Court
                            539 U.S. 558 (2003)
  Justice KENNEDY delivered the opinion of the Court.
    Liberty protects the person from unwarranted governmental intrusions
  into a dwelling or other private places. In our tradition the State is not
  omnipresent in the home. And there are other spheres of our lives and
  existence, outside the home, where the State should not be dominant
  presence. Freedom extends beyond spatial bounds. Liberty presumes an
  autonomy of self that includes freedom of thought, belief, expression, and
  certain intimate conduct. The instant case involves liberty of the person
  both in its spatial and in its more transcendent dimensions.

     The question before the Court is the validity of a Texas statute making
  it a crime for two persons of the same sex to engage in certain intimate
  sexual conduct.
    In Houston, Texas, officers of the Harris County Police Department were
  dispatched to a private residence in response to a reported weapons
  disturbance. They entered an apartment where on the petitioners, John
  Geddes Lawrence, resided. The right of the police to enter does not seem
  to have been questioned. The officers observed Lawrence and another man,
  Tyron Garner, engaging in a sexual act. The two petitioners were arrested,
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  4                          ENTERING MARRIAGE                                CH. 1

  held in custody overnight, and charged and convicted before a Justice of
  the Peace. [The petitioners were charged with violating a Texas statute
  prohibiting “sexual intercourse with another individual of the same sex.”
  On appeal, petitioners argued that the Texas statute violated the Due Pro-
  cess and Equal Protection clauses of the Fourteenth Amendment of the
  United States Constitution.]

    We conclude the case should be resolved by determining whether the
  petitioners were free as adults to engage in the private conduct in the
  exercise of their liberty under the Due Process Clause of the Fourteen
  Amendment to the Constitution. For this inquiry we deem it necessary to
  reconsider the Court’s holding in Bowers. [Bowers v. Hardwicke, 478 U.S.
  186 (1986)]
    There are broad statements of the substantive reach of liberty under the
  Due Process Clause in earlier cases . . . but the most pertinent beginning
  point is our decision in Griswold v. Connecticut, 381 U.S. 479 (1965)
  [unofficial citations are omitted].
    In Griswold the Court invalidated a state law prohibiting the use of drugs
  or devices of contraception and counseling or aiding and abetting the use
  of contraceptives. The Court described the protected interest as a right to
  privacy and placed emphasis on the marriage relation and the protected
  space of the marital bedroom. Id. at 485. . . .
     After Griswold it was established that the right to make certain decisions
  regarding sexual conduct extends beyond the marital relationship. In
  Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court invalidated a law
  prohibiting the distribution of contraceptives to unmarried persons. The
  case was decided under the Equal Protection Clause, id at 454; but with
  respect to unmarried persons, the Court went on to state the fundamental
  proposition that the law impaired the exercise of their personal rights, and
  it followed with this statement of its own: “It is true that in Griswold the
  right to privacy in question inhered in the marital relationship. . . . If the
  right of privacy means anything, it is the right of the individual, married
  or single, to be fee from unwarranted governmental intrusion into matters
  so fundamentally affecting a person as the decision whether to bear or beget
  a child” Id. at 453.
    The opinions in Griswold and Eisenstadt were part of the background
  for the decision in Roe v. Wade, 410 U.S. 113 (1973). As is well known, the
  case involved a challenge to the Texas law prohibiting abortions, but the
  laws of other States were affected as well. Although the Court held the
  woman’s rights were not absolute, her right to elect an abortion did have
  real and substantial protection as an exercise of her liberty under the Due
  Process Clause. . . .
    In Carey v. Population Services Int’l, 431 U.S. 687 (1977), the Court
  confronted a New York law forbidding sale or distribution of contraceptive
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  § 1.06             AN INDIVIDUAL’S RIGHT TO MARRY                          5

  devices to persons under 16 years of age. Although there was no single
  opinion for the Court, the law was invalidated. Both Eisenstadt and Carey,
  as well as the holding and rationale in Roe, confirmed that the reasoning
  of Griswold could not be confined to the protection of rights of married
  adults. This was the state of the law with respect to some of the most
  relevant cases when the Court considered Bowers v. Hardwicke.
     The facts in Bowers had some similarities to the instant case. A police
  officer, whose right to enter seems not to have been in question, observed
  Hardwicke, in his own bedroom, engaging in intimate sexual conduct with
  another adult male. The conduct was in violation of a Georgia statute
  making it a criminal offense to engage in sodomy. . . .
    The Court began its substantive discussion in Bowers as follows: “The
  issue presented is whether the Federal Constitution confers a fundamental
  right upon homosexuals to engage in sodomy and hence invalidates the laws
  of the many States that still make such conduct illegal and have done so
  for a very long time.” Id. at 190. That statement, we now conclude, discloses
  the Court’s own failure to appreciate the extent of the liberty at stake. To
  say that the issue in Bowers was simply the right to engage in certain sexual
  conduct demeans the claim the individual put forward, just as it would
  demean a married couple were it to be said marriage is simply about the
  right to have sexual intercourse. The laws involved in Bowers and here are,
  to be sure, statutes that purport to do no more that prohibit a particular
  sexual act. Their penalties and purposes, though, have more far-reaching
  consequences, touching upon the most private human conduct, sexual
  behavior, and in the most private of places, the home. The statutes do seek
  to control a personal relationship that, whether or not entitled to formal
  recognition in the law, is within the liberty of persons to choose without
  being punished as criminals
    This, as a general rule, should counsel against attempts by the State,
  or a court, to define the meaning of a relationship or to set its boundaries
  absent injury to a person or abuse of an institution the law protects. It
  suffices for us to acknowledge that adults may choose to enter upon this
  relationship in the confines of their homes and their own private lives and
  still retain their dignity as free persons. When sexuality finds overt
  expression in intimate conduct with another person, the conduct can be but
  one element in a personal bond that is more enduring. The liberty protected
  by the Constitution allows homosexual persons the right to make this
    Having misapplied the claim of liberty there presented to it, and thus
  stating the claim to be whether there is a fundamental right to engage in
  consensual sodomy, the Bowers Court said: “Proscriptions against that
  conduct have ancient roots.” In academic writings, and in many scholarly
  amicus briefs filed to assist the Court in this case, there are fundamental
  criticisms of the historical premises relied upon by the majority and
  concurring opinions in Bowers.
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  6                           ENTERING MARRIAGE                                CH. 1

    [The Court then discusses at length the history, laws, and traditions
  regarding homosexual conduct in the United States, as well as “the
  emerging awareness that liberty gives substantial protection to adult
  persons in deciding how to conduct their private lives in matters pertaining
  to sex.” Additionally, “the foundations of Bowers have sustained serious
  erosion from our recent decisions” in Planned Parenthood of Southeastern
  Pa. v. Casey, 505 U.S. 833 (1992) (reaffirming a woman’s right to an
  abortion), and Romer v. Evans, 517 U.S. 620 (1996) (striking down class-
  based legislation directed against homosexuals).]
       * * *
    The rationale of Bowers does not withstand careful analysis. In his
  dissenting opinion in Bowers Justice STEVENS came to these conclusions:
           “Our prior cases make two propositions abundantly clear. First,
        the fact that the governing majority in a State has traditionally
        viewed a particular practice as immoral is not a sufficient reason
        for upholding a law prohibiting the practice; neither history nor
        tradition could save a law prohibiting miscegenation from constitu-
        tional attack. Second, individual decisions by married persons,
        concerning the intimacies of their physical relationship, even when
        not intended to produce offspring, are a form of ‘liberty’ protected
        by the Due Process Clause of the Fourteenth Amendment. More-
        over, this protection extends to intimate choices by unmarried as
        well as married persons.” 478 U.S. at 216. (footnotes and citations
    Justice STEVENS’ analysis, in our view, should have been controlling in
  Bowers and should control here. Bowers was not correct when it was
  decided, and it is not correct today. It ought not to remain binding
  precedent. Bowers v. Hardwicke should be and now is overruled.
     The present case does not involve minors. It does not involve persons who
  might be injured or coerced or who are situated in relationships where
  consent might not easily be refused. It does not involve public conduct or
  prostitution. It does not involve whether the government must give formal
  recognition to any relationship that homosexual persons seek to enter. The
  case does involve two adults who, with full and mutual consent from each
  other, engaged in sexual practices common to a homosexual lifestyle. The
  petitioners are entitled to respect for their private lives. The State cannot
  demean their existence or control their destiny by making their private
  sexual conduct a crime. Their right to liberty under the Due Process Clause
  gives them the full right to engage in their conduct without intervention
  of the government. “It is a promise of the Constitution that there is a realm
  of personal liberty which the government may not enter.” Casey, supra, at
  847. The Texas statute furthers no legitimate state interest which can
  justify its intrusion into the personal and private life of the individual.
       * * *
    [Justice O’CONNOR concurred in the judgment, but rather than relying
  on the substantive component of the Fourteenth Amendment’s Due Process
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  § 1.06             AN INDIVIDUAL’S RIGHT TO MARRY                          7

  Clause, as the Court did, she based her conclusion on the Fourteenth
  Amendment’s Equal Protection Clause for a “more searching form of
  rational basis review” to the Texas statute].
       * * *
  Justice SCALIA, with whom THE CHIEF JUSTICE and Justice THOMAS join,
  dissenting. . . .
     Most of . . . today’s opinion has no relevance to its actual holding—that
  the Texas statute “furthers no legitimate state interest which can justify”
  its application to petitioners under the rational-basis review. . . . Though
  there is discussion of “fundamental proposition[s]” and “fundamental
  decisions,” nowhere does the Court’s opinion declare that homosexual sod-
  omy is a “fundamental right” under the Due Process Clause; nor does it
  subject the Texas law to the standard of review that would be appropriate
  (strict scrutiny) if homosexual sodomy were a “fundamental right.” Thus,
  while overruling the outcome of Bowers, the Court leaves strangely un-
  touched its central legal conclusion: [R]espondent would have us announce
  . . . a fundamental right to engage in homosexual sodomy. This we are
  quite unwilling to do.” 478 U.S. at 191. Instead, the Court simply describes
  petitioners’ conduct as “an exercise of their liberty”—which it undoubtedly
  is—and proceeds to apply an unheard-of form of rational basis review that
  will have far reaching implications beyond this case.

     I begin with the Court’s surprising readiness to reconsider a decision
  rendered a mere 17 years ago in Bowers v. Hardwicke. I do not myself
  believe in rigid adherence to stare decisis in constitutional cases; but I do
  believe that we should be consistent rather than manipulative in invoking
  the doctrine. Today’s opinions in support of reversal do not bother to
  distinguish—or indeed, even bother to mention—the paean to stare decisis
  co-authored by three Members of today’s majority in Planned Parenthood
  v. Casey. There, when stare decisis meant preservation of judicially invented
  abortion rights, the widespread criticism of Roe was strong reason to
  reaffirm it. . . .
       * * *
     Our opinions applying the doctrine known as “substantive due process”
  hold that the Due Process Clause prohibits States from infringing funda-
  mental liberty interests, unless the infringement is narrowly tailored to
  serve a compelling state interest. Washington v. Glucksberg, 521 U.S. at
  721. We have held repeatedly, in cases the Court today does not overrule,
  that only fundamental rights qualify for this so-called “heightened scrutiny”
  protection—that is, rights which are “deeply rooted in this Nation’s history
  and tradition” ibid. See Reno v. Flores, 507 U.S. 292 (1993) (fundamental
  liberty interests must be “so rooted in the traditions and conscience of our
  people as to be ranked fundamental”) [other citations omitted] All other
  liberty interests may be abridged or abrogated pursuant to a validly enacted
  state law if that law is rationally related to a legitimate state interest.
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  8                          ENTERING MARRIAGE                                CH. 1

       * * *
     Let me be clear that I have nothing against homosexuals, or any other
  group, promoting their agenda through normal democratic means. Social
  perceptions of sexual and other morality change over time, and every group
  has the right to persuade its fellow citizens that its view of such matters
  is the best. . . . What Texas has chosen to do is well within the range of
  traditional democratic action, and its hand should not be stayed through
  the invention of a brand-new “constitutional right” by a Court that is
  impatient of democratic change. It is indeed true that “later generations
  can see that laws once thought necessary and proper in fact serve only to
  oppress” . . . and when that happens, later generations can repeal those
  laws. But it is the premise of our system that those judgments are to be
  made by the people, and not imposed by a governing caste that knows bests.
     One of the benefits of leaving regulation of this matter to the people
  rather than to the courts is that the people, unlike judges, need not carry
  things to their logical conclusion. The people may feel that their disapproba-
  tion of homosexual conduct is strong enough to disallow homosexual
  marriage, but not strong enough to criminalize private homosexual acts—
  and may legislate accordingly. The Court pretends that it possesses a
  similar freedom of action, so that we need not fear judicial imposition of
  homosexual marriage, as has recently occurred in Canada. . . . At the end
  of its opinion—after having laid waste the foundations of our rational-basis
  jurisprudence—the Court says that the present case “does not involve
  whether the government must give formal recognition to any relationship
  that homosexual persons seek to enter.” Do not believe it. More illuminating
  than this bald, unreasoned disclaimer is the progression of thought dis-
  played by an earlier passage in the Court’s opinion, which notes the consti-
  tutional protections afforded to “personal decisions relating to marriage,
  procreation, contraception, family relationships, child rearing, and educa-
  tion” and then declares that “[p]ersons in a homosexual relationship may
  seek autonomy for these purposes, just as heterosexual persons do.”
  (emphasis added). Today’s opinion dismantles the structure of constitu-
  tional law that has permitted a distinction to be made between heterosexual
  and homosexual unions, insofar as formal recognition of marriage is
  concerned. If moral disapprobation of homosexual conduct is “no legitimate
  state interest” for purposes of proscribing that conduct; and if, as the Court
  coos (casting aside all pretense of neutrality), “when sexuality finds overt
  expression in intimate conduct with another person, the conduct can be but
  one element in a personal bond that is more enduring”; what justification
  could there possibly be for denying the benefits of marriage to homosexual
  couples exercising “[t]he liberty protected by the Constitution”? Surely not
  the encouragement of procreation, since the sterile and the elderly are
  allowed to marry. This case “does not involve” the issue of homosexual
  marriage only if one entertains the belief that principle and logic have
  nothing to do with the decisions of this Court. Many will hope that, as the
  Court comfortingly assures us, this is so. . . .
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  § 1.07              CAPACITY AND INTENT TO MARRY                            9

                        NOTES AND QUESTIONS
     (1) What, exactly, is the holding of Lawrence v. Texas? According to Jus-
  tice Scalia, the majority stopped short of finding any “fundamental right”
  in this case, and instead invalidated the Texas sodomy statute applying
  a “rational basis” analysis. Some courts have agreed with this assessment.
  See, e.g., Bronson v. Swensen, 394 F. Supp. 2d 1329 (D. Utah 2005)
  (rejecting a protected liberty interest argument under Lawrence in a
  polygamy case); Standhardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App.
  2003) (rejecting petitioners’ contention that Lawrence establishes a funda-
  mental right to enter into a same-sex marriage in Arizona, and upholding
  Arizona heterosexual marriage requirements by applying a rational-basis
    (2) Other commentators have argued, however, that a fundamental
  privacy right was in fact violated in Lawrence relating to family and
  intimate associations. See, e.g., Laurence Tribe, Lawrence v. Texas: The
  “Fundamental Right” That Dare Not Speak Its Name, 117 HARV. L. REV.
  1893 (2004); Carlos Ball, The Positive in the Fundamental Right to Marry:
  Same-Sex Marriage in the Aftermath of Lawrence v. Texas, 88 MINN. L. REV.
  1184 (2004); Mark Strasser, The Lawrence Reader, 24 ST. LOUIS UNIV. PUB.
  L. REV. 59 (2005).
    (3) Query: If a constitutionally protected right to privacy has evolved from
  Griswold and Eisenstadt to Roe, Casey and arguably to Lawrence, what
  should be the parameters, if any, of a fundamental privacy right?
    (4) Assuming arguendo that the Texas sodomy statute did, in fact, violate
  a fundamental privacy right, is that right “so rooted in the traditions and
  conscience of our people as to be ranked as fundamental”? See, e.g.,
  Washington v. Glucksberg, 521 U.S. at 721; Reno v. Flores, 507 U.S. at 303.
  Or has the Lawrence majority rejected this “deeply rooted tradition” test
  for a fundamental right?
    (4) Was the Lawrence case properly decided by the United States Su-
  preme Court, according to the majority opinion written by Justice Kennedy?
  Or should this particular controversy have been properly decided according
  to state statutory authority, as Justice Scalia argued? Which opinion is
  more persuasive to you? Why?


       [B] Same Sex Marriage
  Page 53–57:

                        NOTES AND QUESTIONS
    (2) In 1999, the Vermont Supreme Court held in Baker v. State, 744 A.2d
  864 (Vt. 1999), that Vermont “is constitutionally required to extend to same-
  sex couples the common benefits and protections that flow from marriage
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  10                        ENTERING MARRIAGE                                CH. 1

  under Vermont law” but whether “this takes the form of inclusion within
  the marriage laws themselves or a parallel domestic partnership system
  or some equivalent statutory alternative, rests with the Legislature.”
  Consequently, a year later, the Vermont legislature passed state legislation
  recognizing a “civil union” alternative to marriage. Under this domestic
  partnership legislation, same-sex partners in a civil union would be eligible
  for hundreds of state benefits normally given to married couples, and they
  could dissolve their civil union in a Vermont Family Court in a proceeding
  equivalent to divorce.
    Currently domestic partnership or civil union statutes are recognized in
  the following states: Hawaii, Vermont, California, Connecticut, New Jersey,
  Washington State, Oregon, and New Hampshire. Other states considering
  proposed civil union or domestic partnership legislation include Illinois and
  Rhode Island. See generally Chapter 3, § 3.04.
     (6) The federal Defense of Marriage Act [DOMA] continues to elicit
  scholarly comment, especially after Lawrence v. Texas. See, e.g., Note,
  Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex
  Marriage, 117 HARV. L. REV. 2684 (2004); Mark Strasser, Defending
  Marriage: Why DOMA Cannot Pass Muster After Lawrence, 38 CREIGHTON
  L. REV. 421 (2005); Emily Sack, The Retreat from DOMA: The Public Policy
  of Same-Sex Marriage and a Theory of Congressional Power Under the Full
  Faith and Credit Clause, 38 CREIGHTON L. REV. 507 (2005). But see Lynn
  Wardle, Nonrecognition of Same-Sex Marriage Judgments under DOMA
  and the Constitution, 38 CREIGHTON L. REV. 365 (2005); Anita Woudenberg,
  Giving DOMA Some Credit: The Validity of Applying Defense of Marriage
  Acts to Civil Unions Under the Full Faith and Credit Clause, 38 VAL. U.
  L. REV. 1509 (2004).

  Page 57: After the Notes and Questions, add the following
  new case:
    In November of 2003, the Massachusetts Supreme Judicial Court ruled
  in a 4-3 opinion in the case of Goodridge v. Department of Public Health
  that same-sex couples have the legal right to a civil marriage under
  Massachusetts’ state constitution. This decision went further than the 1993
  Hawaiian case of Baehr v. Lewin, 852 P.2d 44 (Hawaii 1993), and the 1999
  Vermont case of Baker v. State, 744 A.2d 864, 81 A.L.R. 5th 627 (Vt. 1999),
  in that the Massachusetts Supreme Judicial Court judicially redefined the
  meaning of a “civil marriage” under Massachusetts law. Thus, Massachu-
  setts became the first State in the United States to recognize same-sex
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  § 1.07              CAPACITY AND INTENT TO MARRY                            11

              Massachusetts Supreme Judicial Court
                     798 N.E.2d 941 (2003)
     Marriage is a vital social institution. The exclusive commitment of two
  individuals to each other nurtures love and mutual support; it brings
  stability to our society. For those who choose to marry, and for their
  children, marriage provides an abundance of legal, financial, and social
  benefits. In return it imposes weighty legal, financial, and social obliga-
  tions. The question before us is whether, consistent with the Massachusetts
  Constitution, the Commonwealth may deny the marriage of two individuals
  of the same sex who wish to marry. We conclude that it may not. The
  Massachusetts Constitution affirms the dignity and equality of all individu-
  als. It forbids the creation of second-class citizens. In reaching our conclu-
  sion we have given full deference to the arguments made by the Common-
  wealth. But it has failed to identify any constitutionally adequate reason
  for denying civil marriage to same-sex couples.
    We are mindful that our decision marks a change in the history of our
  marriage law. Many people hold deep-seated religious, moral, and ethical
  convictions that marriage should be limited to the union of one man and
  one woman, and that homosexual conduct is immoral. Many hold equally
  strong religious, moral, and ethical convictions that same-sex couples are
  entitled to be married, and that homosexual persons should be treated no
  differently than their heterosexual neighbors. Neither view answers the
  question before us. Our concern is with the Massachusetts Constitution as
  a charter of governance for every person properly within its reach. “Our
  obligation is to define the liberty of all, not to mandate our own moral code.”
  Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 2480 (2003) (Lawrence),
  quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833,
  850 (1992).

     The plaintiffs are fourteen individuals from five Massachusetts counties
  [who were denied marriage licenses to marry a partner of the same sex].
  The plaintiffs include business executives, lawyers, an investment banker,
  educators, therapists, and a computer engineer. Many are active in church,
  community, and school groups. They have employed such legal means as
  are available to them-for example, joint adoption, powers of attorney, and
  joint ownership of real property-to secure aspects of their relationships.
  Each plaintiff attests a desire to marry his or her partner in order to affirm
  publicly their commitment to each other and to secure the legal protections
  and benefits afforded to married couples and their children.
       * * *
    [The plaintiffs filed a lawsuit challenging the denial of marriage licenses
  to them under Massachusetts law. A Massachusetts Superior Court judge
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  12                         ENTERING MARRIAGE                                CH. 1

  ruled for the Commonwealth.] In a memorandum decision and order dated
  May 7, 2002, he dismissed the plaintiffs’ claim that the marriage statutes
  should be construed to permit marriage between persons of the same sex,
  holding that the plain wording of [the Massachusetts marriage statutes],
  as well as the wording of other marriage statutes, precluded that interpre-
  tation. Turning to the constitutional claims, he held that the marriage
  exclusion does not offend the liberty, freedom, equality, or due process
  provisions of the Massachusetts Constitution, and that the Massachusetts
  Declaration of Rights does not guarantee “the fundamental right to marry
  a person of the same sex.” He concluded that prohibiting same-sex marriage
  rationally furthers the Legislature’s legitimate interest in safeguarding the
  “primary purpose” of marriage, “procreation”. . . .
    After the complaint was dismissed and summary judgment entered for
  the defendants, the plaintiffs appealed. Both parties requested direct
  appellate review, which we granted.


    The larger question is whether, as the [Massachusetts Department of
  Public Health] claims, government action that bars same-sex couples from
  civil marriage constitutes a legitimate exercise of the State’s authority to
  regulate conduct, or whether, as the plaintiffs claim, this categorical
  marriage exclusion violates the Massachusetts Constitution. We have
  recognized the long-standing statutory understanding, derived from the
  common law, that “marriage” means the lawful union of a woman and a
  man. But that history cannot and does not foreclose the constitutional
    The plaintiff’s claim that the marriage restriction violated the Massachu-
  setts Constitution can be analyzed in two ways. Does it offend the Constitu-
  tion’s guarantees of equality before the law? Or do the liberty and due
  process provisions of the Massachusetts Constitution secure the plaintiffs’
  right to marry their chosen partner? In matters implicating marriage,
  family life, and the upbringing of children, the two constitutional concepts
  frequently overlap, as they do here. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102,
  120 (1996) (noting convergence of due process and equal protection princi-
  ples in cases concerning parent-child relationships) [other citations
    We begin by considering the nature of civil marriage itself. Simply put,
  the government creates civil marriage. In Massachusetts, civil marriage is,
  and since pre-Colonial days has been, precisely what its name implies: a
  wholly secular institution. . . . No religious ceremony has ever been
  required to validate a Massachusetts marriage. In a real sense, there are
  three partners to every civil marriage: two willing spouses and an approving
  State. . . . While only the parties can mutually assent to marriage, the
  terms of marriage—who may marry and what obligations, benefits, and
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  § 1.07              CAPACITY AND INTENT TO MARRY                             13

  liabilities attach to civil marriage—are set by the Commonwealth. Con-
  versely, while only the parties can agree to end the marriage (absent the
  death of one of them or a marriage void ab initio), the Commonwealth
  defines the exit terms.
       * * *
    Without question, civil marriage enhances the “welfare of the communi-
  ty.” It is a “social institution of the highest importance.” . . . It is central
  to the way the Commonwealth identifies individuals, provides for the
  orderly distribution of property, ensures that children and adults are cared
  for and supported whenever possible from private rather than public funds,
  and tracks important epidemiological and demographic data.
     Marriage also bestows enormous private and social advantages on those
  who choose to marry. . . . “It is an association that promotes a way of life,
  not causes; a harmony in living, not political faiths; a bilateral loyalty, not
  commercial or social projects.” Griswold v. Connecticut, 381 U.S. 479, 486
  (1965). Because it fulfils yearnings for security, safe haven, and connection
  that express our common humanity, civil marriage is an esteemed institu-
  tion, and the decision whether and whom to marry is among life’s momen-
  tous acts of self-definition.
       * * *
    The benefits accessible only by way of a marriage license are enormous,
  touching nearly every aspect of life and death. The department states that
  “hundreds of statutes” are related to marriage and to marital benefits.
       * * *
     It is undoubtedly for these concrete reasons, as well as for its personal
  significance, that civil marriage has long been termed a “civil right.” See,
  e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (“Marriage is one of the “basic
  civil rights of man,” fundamental to our very existence and survival”). . . .
  The United States Supreme Court has described the right to marry as “of
  fundamental importance for all individuals” and as “part of the fundamen-
  tal right of privacy implicit in the Fourteenth Amendment’s Due Process
  Clause.” Zablocki v. Redhail, 434 U.S. 374, 384 (1978).
    Without the right to marry—or more properly, the right to choose to
  marry—one is excluded from the full range of human experience and denied
  full protection of the laws for one’s “avowed commitment to an intimate
  and lasting human relationship.” Baker v. State [744 A.2d 864, 889 (Vt.
  1999)]. Because civil marriage is central to the lives of individuals and the
  welfare of the community, our laws assiduously protect the individual’s
  right to marry against undue government incursion. Laws may not “inter-
  fere directly and substantially with the right to marry.” Zablocki v. Redhail,
  supra at 387.

    The Massachusetts Constitution protects matters of personal liberty
  against government incursion as zealously, and often more so, than does
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  14                        ENTERING MARRIAGE                                CH. 1

  the Federal Constitution, even where both Constitutions employ essentially
  the same language. . . . That the Massachusetts Constitution is in some
  instances more protective of individual liberty interests than is the Federal
  Constitution is not surprising. Fundamental to the vigor of our Federal
  system of government is that “state courts are absolutely free to interpret
  state constitutional provisions to accord greater protection to individual
  rights than do similar provisions of the United States Constitution.”
  Arizona v. Evans, 514 U.S. 1, 8 (1995).
     The individual liberty and equality safeguards of the Massachusetts
  Constitution protect both “freedom from” unwarranted government intru-
  sion into protected spheres of life and “freedom to” partake in benefits
  created by the State for the common good. See Bachrach v. Secretary of the
  Commonwealth, 382 Mass. 268, 2734, 415 N.E.2d 832 (1981). . . . Both
  freedoms are involved here. Whether and whom to marry, how to express
  sexual intimacy, and whether and how to establish a family—these are
  among the most basic of every individual’s liberty and due process rights.
  See, e.g., Lawrence, supra at 2481; Planned Parenthood of Southeastern Pa.
  v. Casey, 505 U.S. 833, 851 (1992); Zablocki v. Redhail, 434 U.S. 374, 384
  (1978); Roe v. Wade, 410 U.S. 113, 152-153 (1973); Eisenstadt v. Baird, 405
  U.S. 438, 453; Loving v. Virginia, supra. . . . The liberty interest in
  choosing whether and whom to marry would be hollow if the Common-
  wealth could, without sufficient justification, foreclose an individual from
  freely choosing the person with whom to share an exclusive commitment
  in the unique institution of civil marriage.
       * * *
    The plaintiffs challenge the marriage statute on both equal protection
  and due process grounds. With respect to each such claim, we must first
  determine the appropriate standard of review. Where a statute implicates
  a fundamental right or uses a suspect classification, we employ “strict judi-
  cial scrutiny” [citations omitted]. For all other statutes, we employ the
  “rational basis” test. . . . For due process claims, rational basis analysis
  requires that statutes “bear a real and substantial relation to the public
  health, safety, morals, or some other phase of the general welfare”. . . .
  For equal protection challenges, the rational basis test requires that “an
  impartial lawmaker could logically believe that the classification would
  serve a legitimate public purpose that transcends the harm to members
  of the disadvantaged class.”. . .
    The department argues that no fundamental right or “suspect” class is
  at issue here, and rational basis is the appropriate standard of review. For
  the reasons explained below, we conclude that the marriage ban does not
  meet the rational basis test for either due process or equal protection.
  Because the statute does not survive rational basis review, we do not
  consider the plaintiff’s arguments that this case merits strict judicial
    The department posits three legislative rationales for prohibiting same-
  sex couples from marrying: (1) providing a “favorable setting for
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  § 1.07             CAPACITY AND INTENT TO MARRY                            15

  procreation”; (2) ensuring the optimal setting for child rearing, which the
  department defines as “a two-parent family with one parent of each sex”;
  and (3) preserving scarce State and private financial resources. . . .
    The judge in the Superior Court endorsed the first rationale, holding that
  “the state’s interest in regulating marriage is based on the traditional con-
  cept that marriage’s primary purpose is procreation.” This is incorrect. Our
  laws of civil marriage do not privilege procreative heterosexual intercourse
  between married people above every other form of adult intimacy and every
  other means of creating a family. General Laws c. 207 contains no require-
  ments that the applicants for a marriage license attest to their ability or
  intention to conceive children by coitus. Fertility is not a condition of
  marriage, nor is it grounds for divorce. People who have never consum-
  mated their marriage, and never plan to, may be and stay married. . . .
  While it is certainly true that many, perhaps most, married couples have
  children together (assisted or unassisted), it is the exclusive and permanent
  commitment of the marriage partners to one another, not the begetting of
  children, that is the sine qua non of civil marriage.
     Moreover, the Commonwealth affirmatively facilitates bringing children
  into a family regardless of whether the intended parent is married or
  unmarried, whether the child is adopted or born into a family, whether
  assistive technology was used to conceive the child, and whether the parent
  or her partner is heterosexual, homosexual, or bisexual. If procreation were
  a necessary component of civil marriage, our statutes would draw a tighter
  circle around the permissible bounds of nonmarital child bearing and the
  creation of families by noncoital means. The attempt to isolate procreation
  as “the source of a fundamental right to marry” . . . overlooks the inte-
  grated way in which courts have examined the complex and overlapping
  realms of personal autonomy, marriage, family life, and child rearing. Our
  jurisprudence recognizes that, in these nuanced and fundamentally private
  areas of life, such a narrow focus is inappropriate.
       * * *
    The department has offered no evidence that forbidding marriage to
  people of the same sex will increase the number of couples choosing to enter
  into opposite-sex marriages in order to have and raise children. There is
  thus no rational relationship between the marriage statute and the Com-
  monwealth’s proffered goal of protecting the “optimal” child rearing unit.
  Moreover, the department readily concedes that people in same-sex couples
  may be “excellent” parents. These couples (including four of the plaintiff
  couples) have children for reasons others do—to love them, to care for them,
  to nurture them. But the task of child rearing for same-sex couples is made
  infinitely harder by their status as outliers to the marriage laws. . . .
       * * *
    The third rationale advanced by the department is that limiting marriage
  to opposite-sex couples furthers the Legislature’s interest in conserving
  scarce State and private financial resources. The marriage restriction is
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  16                         ENTERING MARRIAGE                                CH. 1

  rational, it argues, because the General Court logically could assume that
  same-sex couples are more financially independent than married couples
  and thus less needy of public marital benefits, such as tax advantages, or
  private marital benefits, such as employer-financed health plans that in-
  clude spouses in their coverage.
     An absolute statutory ban on same-sex marriage bears no rational
  relationship to the goal of economy. First, the department’s generaliza-
  tion—that same-sex couples are less financially dependent on each other
  than opposite-sex couples—ignores that many same-sex couples, such as
  many of the plaintiffs in this case, have children and other dependents
  (here, aged parents) in their care. . . . Second, Massachusetts marriage
  laws do not condition receipt of public and private financial benefits to
  married individuals on a demonstration of financial dependence on each
  other; the benefits are available to married couples regardless of whether
  they mingle their finances or actually depend on each other for support.
       * * *
     The department has had more than ample opportunity to articulate a
  constitutionally adequate justification for limiting civil marriage to oppo-
  site-sex unions. It has failed to do so. The department has offered purported
  justifications for the civil marriage restriction that are starkly at odds with
  the comprehensive network of vigorous, gender-neutral laws promoting
  stable families and the best interests of children. It has failed to identify
  any relevant characteristic that would justify shutting the door to civil
  marriage to a person who wishes to marry someone of the same sex.
    The marriage ban works a deep and scarring hardship on a very real
  segment of the community for no rational reason. . . . Limiting the protec-
  tions, benefits, and obligations of civil marriage to opposite-sex couples
  violates the basic premises of individual liberty and equality under law
  protected by the Massachusetts Constitution.

     We consider next the plaintiffs’ request for relief. We preserve as much
  of the statute as may be preserved in the face of the successful constitu-
  tional challenge. . . .
    Here, no one argues that striking down the marriage laws is an appropri-
  ate form of relief. Eliminating civil marriage would be wholly inconsistent
  with the Legislature’s deep commitment to fostering stable families and
  would dismantle a vital organizing principle of our society. We face a
  problem similar to one that recently confronted the Court of Appeal for
  Ontario, the highest court of that Canadian province, when it considered
  the constitutionality of the same-sex marriage ban under Canada’s Federal
  Constitution, the Charter of Rights and Freedoms. . . . In holding that the
  limitation of civil marriage to opposite-sex couples violated the Charter, the
  Court of Appeal refined the common-law meaning of marriage. We concur
  with this remedy, which is entirely consonant with established principles
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  § 1.07             CAPACITY AND INTENT TO MARRY                            17

  of jurisprudence empowering a court to refine a common-law principle in
  light of evolving constitutional standards. . . .
    We construe civil marriage to mean the voluntary union of two persons
  as spouses, to the exclusion of all others. This reformulation redresses the
  plaintiffs’ constitutional injury and furthers the aim of marriage to promote
  stable, exclusive relationships. It advances the two legitimate State inter-
  ests the department has identified: providing a stable setting for child
  rearing and conserving State resources. It leaves intact the Legislature’s
  broad discretion to regulate marriage. . . .
       * * *
  GREANY, J. (concurring)
     I agree with the result reached by the court, the remedy ordered, and
  much of the reasoning in the court’s opinion. In my view, however, the case
  is more directly resolved by using traditional equal protection analysis.
       * * *
    The equal protection infirmity at work here is strikingly similar to
  (although, perhaps, more subtle than) the invidious discrimination perpetu-
  ated by Virginia’s antimiscegenation laws and unveiled in the decision of
  Loving v. Virginia. . . . That our marriage laws, unlike antimiscegenation
  laws, were not enacted purposely to discriminate in no may neutralizes
  their present discriminatory character. . . .
  SPINA, J. (dissenting, with whom SOSMAN and CORDY, JJ., join)
    What is at stake in this case is not the unequal treatment of individuals,
  or whether individual rights have been impermissibly burdened, but the
  power of the Legislature to effectuate social change without interference
  from the courts, pursuant to art. 30 of the Massachusetts Declaration of
  Rights. The power to regulate marriage lies with the Legislature, not with
  the judiciary. See Commonwealth v. Stowell, 389 Mass. 171, 175, 449
  N.E.2d 357 (1983). Today, the court has transformed its role as protector
  of individual rights into the role of creator of rights, and I respectfully
  dissent. . . .
  SOSMAN, J. (dissenting, with whom SPINA and CORDY, JJ., join)
     In applying the rational basis test to any challenged statutory scheme,
  the issue is not whether the Legislature’s rationale behind that scheme is
  persuasive to us, but only whether it satisfies a minimal threshold of
  rationality. Today, rather than apply that test, the court announces that,
  because it is persuaded that there are no differences between same-sex and
  opposite-sex couples, the Legislature has no rational basis for treating them
  differently with respect to the granting of marriage licenses. Reduced to
  its essence, the court’s opinion concludes that, because same-sex couples
  are now raising children, and withholding the benefits of civil marriage
  from their union makes it harder for them to raise those children, the State
  must therefore provide the benefits of civil marriage to same-sex couples
  just as it does to opposite-sex couples. Of course, many people are raising
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  18                          ENTERING MARRIAGE                                CH. 1

  children outside the confines of traditional marriage, and, by definition,
  those children are being deprived of the various benefits that would flow
  if they were being raised in a household with married parents. That does
  not mean that the Legislature must accord the full benefits of marital status
  on every household raising children. Rather, the Legislature need only have
  some rational basis for concluding that, at present, those alternate family
  structures have not yet been conclusively shown to be the equivalent of the
  marital family structure that has established itself as a successful one over
  a period of centuries. People are of course at liberty to raise their children
  in various family structures, as long as they are not literally harming their
  children by doing so. . . . That does not mean that the State is required
  to provide identical forms of encouragement, endorsement, and support to
  all of the infinite variety of household structures that a free society
  permits. . . .
    . . . It is understandable that the court might view the traditional defini-
  tion of marriage as an unnecessary anachronism, rooted in historical
  prejudices that modern society has in large measure rejected and biological
  limitations that modern society has overcome. It is not, however, our
  assessment that matters. Conspicuously absent from the court’s opinion
  today is any acknowledgement that the attempts at scientific study of the
  ramifications of raising children in same-sex couple households are them-
  selves in their infancy and have so far produced inconclusive and conflicting
  results. . . . Interpretation of the data gathered by those studies . . .
  becomes clouded by the personal and political beliefs of the investigators,
  both as to whether the differences identified are positive or negative, and
  as to the untested explanations of what might account for those differences.
  (This is hardly the first time in history that the ostensible steel of scientific
  method has melted and buckled under the intense heat of political and
  religious passions). . . . The Legislature can rationally view the state of
  scientific evidence as unsettled on the critical question it now faces: Are
  families headed by same-sex parents equally successful in rearing children
  from infancy to adulthood as families headed by parents of opposite sexes?
  Our belief that children raised by same-sex couples should fare the same
  as children raised in traditional families is just that: a passionately held
  but utterly untested belief. The Legislature is not required to share that
  belief but may, as the creator of the institution of civil marriage, wish to
  see the proof before making a fundamental alteration to that institution.
    Although ostensibly applying the rational basis test to the civil marriage
  statutes, it is abundantly apparent that the court is in fact applying some
  undefined stricter standard to assess the constitutionality of the marriage
  statutes’ exclusion of same-sex couples. While avoiding any express conclu-
  sion as to any of the proffered routes by which that exclusion would be
  subjected to a test of strict scrutiny—infringement of a fundamental right,
  discrimination based on gender, or discrimination against gays and lesbians
  as a suspect classification—the opinion repeatedly alludes to those concepts
  in a prolonged and eloquent prelude before articulating its view that the
  exclusion lacks even a rational basis. . . .
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  § 1.07                 CAPACITY AND INTENT TO MARRY                               19

       * * *
     Shorn of these emotion-laden invocations, the opinion ultimately opines
  that the Legislature is acting irrationally when it grants benefits to a
  proven successful family structure while denying the same benefits to a
  recent, perhaps promising, but essentially untested alternate family struc-
  ture. Placed in a more neutral context, the court would never find any
  irrationality in such an approach.
       * * *
     As a matter of social history, today’s opinion may represent a great turn-
  ing point that many will hail as a tremendous step toward a more just
  society. As a matter of constitutional jurisprudence, however, the case
  stands as an aberration. To reach the result it does, the court has tortured
  the rational basis test beyond recognition. I fully appreciate the strength
  of the temptation to find this particular law unconstitutional-there is much
  to be said for the argument that excluding gay and lesbian couples from
  the benefits of civil marriage is cruelly unfair and hopelessly outdated; the
  inability to marry has a profound impact on the personal lives of committed
  gay and lesbian couples (and their children) to whom we are personally close
  (our friends, neighbors, family members, classmates, and co-workers); and
  our resolution of this issue takes place under the intense glare of national
  and international publicity. Speaking metaphorically, these factors have
  combined to turn the case before us into a “perfect storm” of a constitutional
  question. In my view, however, such factors make it all the more imperative
  that we adhere precisely and scrupulously to the established guideposts of
  our constitutional jurisprudence, a jurisprudence that makes the rational
  basis test an extremely deferential one that focuses on the rationality, not
  the persuasiveness, of the potential justifications for the classifications in
  the legislative scheme. I trust that, once this particular “storm” clears, we
  will return to the rational basis test as it has always been understood and
  applied. . . .
       I respectfully dissent.
  CORDY, J. (dissenting, with whom SPINA and SOSMAN, JJ., join)
    The court’s opinion concludes that the Department of Public Health has
  failed to identify any “constitutionally adequate reason” for limiting civil
  marriage to opposite-sex unions, and that there is no “reasonable relation-
  ship” between a disqualification of same-sex couples who wish to enter into
  a civil marriage and the protection of public health, safety, or general
  welfare. Consequently, it holds that the marriage statute cannot withstand
  scrutiny under the Massachusetts Constitution. Because I find these
  conclusions to be unsupportable in light of the nature of the rights and
  regulations at issue, the presumption of constitutional validity and signifi-
  cant deference afforded to legislative enactments, and the “undesirability
  of the judiciary substituting its notions of correct policy for that of a
  popularly elected Legislature” responsible for making such policy, Zayre
  Corp. v. Attorney General, 372 Mass. 423, 433, 362 N.E.2d 878 (1977), I
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  20                         ENTERING MARRIAGE                                CH. 1

  respectfully dissent. Although it may be desirable for many reasons to
  extend same-sex couples the benefits and burdens of civil marriage (and
  the plaintiffs have made a powerfully reasoned case for that extension), that
  decision must be made by the Legislature, not the court.
       * * *
    The Massachusetts marriage statute does not impair the exercise of a
  recognized fundamental right, or discriminate on the basis of sex in
  violation of the equal rights amendment to the Massachusetts Constitution.
  Consequently, it is subject to review only to determine whether it satisfies
  the rational basis test. Because a conceivable rational basis exists upon
  which the Legislature could conclude that the marriage statute furthers
  the legitimate State purpose of ensuring, promoting, and supporting an
  optimal social structure for the bearing and raising of children, it is a valid
  exercise of the State’s police power.
       * * *
    In considering whether such a rational basis exists, we defer to the
  decision-making process of the Legislature, and must make deferential as-
  sumptions about the information that it might consider and on which it
  might rely [citations omitted].
    We must assume that the Legislature (1) might conclude that the
  institution of civil marriage has successfully and continually provided this
  structure over several centuries; (2) might consider and credit studies that
  document negative consequences that too often follow children either born
  outside of marriage or raised in households lacking either a father or
  mother figure, and scholarly commentary contending that children and
  families develop best when mothers and fathers are partners in their
  parenting; and (3) would be familiar with many recent studies that vari-
  ously support the propositions that children raised in intact families headed
  by same-sex couples fare as well on many measures as children raised in
  similar families headed by opposite-sex couples; support the proposition
  that children of same-sex couples fare worse on some measures; or reveal
  notable differences between the two groups of children that warrant further
  study [citing to numerous footnoted studies].
    We must also assume that the Legislature would be aware of the critiques
  of the methodologies used in virtually all of the comparative studies of
  children raised in these different environments, cautioning that the sam-
  pling populations are not representative, that the observation periods are
  too limited in time, that the empirical data are unreliable, and that the
  hypotheses are too infused with political or agenda driven bias.
     Taking all of this available information into account, the Legislature
  could rationally conclude that a family environment with married opposite-
  sex parents remains the optimal social structure in which to bear children
  . . . [and] the Legislature could conceivably conclude that declining to
  recognize same-sex marriage remains prudent until empirical questions
  about its impact on the upbringing of children are resolved.
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  § 1.07              CAPACITY AND INTENT TO MARRY                            21

       * * *
    In addition, the Legislature could conclude that redefining the institution
  of marriage to permit same-sex couples to marry would impair the State’s
  interest in promoting and supporting heterosexual marriage as the social
  institution that it has determined base normalizes, stabilizes, and links the
  acts of procreation and child rearing. . . . As long as marriage is limited
  to opposite-sex couples who can at least theoretically procreate, society is
  able to communicate a consistent message to its citizens that marriage is
  a (normatively} necessary part of their procreative endeavor; that if they
  are to procreate, then society has endorsed the institution of marriage as
  the environment for it and for the subsequent rearing of their children; and
  that benefits are available explicitly to create a supportive and conducive
  atmosphere for these purposes. If society proceeds similarly to recognize
  marriages between same-sex couples who cannot procreate, it could be per-
  ceived as an abandonment of this claim, and might result in the mistaken
  view that civil marriage has little to do with procreation. . . .
       * * *
    . . . [T]his case is not about government intrusions into matters of
  personal liberty. It is not about the rights of same-sex couples to choose
  to live together, or to be intimate with each other, or to adopt and raise
  children together. It is about whether the State must endorse and support
  their choices by changing the institution of civil marriage to make its
  benefits, obligations, and responsibilities applicable to them. While the cou-
  rageous efforts of many have resulted in increased dignity, rights, and
  respect for gay and lesbian members of our community, the issue presented
  here is a profound one, deeply rooted in social policy, that must, for now,
  be the subject of legislative, not judicial action.

                        NOTES AND QUESTIONS
     (1) Both the majority and dissenting opinions in Goodridge agreed that
  the appropriate standard of review in this case was the “rational basis” test,
  rather than a “fundamental rights” analysis, although Chief Justice Mar-
  shall prefaced her decision with various constitutional right to privacy cases,
  citing Lawrence, Casey, Eisenstadt, and Roe, as well as Zablocki v. Redhail
  and Loving v. Virginia.
    Query: Did the Goodridge majority apply a “stricter standard” of this
  “rational basis” test to determine the constitutionality of Massachusetts’
  same-sex marriage exclusion? Or should such a “rational basis” test only
  require a “minimal threshold of rationality” by the Legislature?
     (2) The dissenting judges in Goodridge argued that the power to regulate
  marriage should lie with the legislature, and not with the judiciary. Chief
  Justice Marshall replied: “The Massachusetts Constitution requires that
  legislation meet certain criteria and not extend beyond certain limits. It
  is the function of the courts to determine whether these criteria are met
  and whether these limits are exceeded. In most instances, these limits are
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  22                         ENTERING MARRIAGE                                CH. 1

  defined by whether a rational basis exists to conclude that legislation will
  bring about a rational result. . . . To label the court’s role as usurping that
  of the Legislature is to misunderstand the nature and the purpose of
  judicial review. We owe great deference to the Legislature to decide social
  and political issues, but it is the traditional and settled role of the courts
  to decide constitutional issues.”
    Query: Is it the proper role and function of the judiciary to redefine what
  a “civil marriage” remedy should be, or should that function be left to the
  state legislature? See also Baker v. State, 744 A.2d 864 (Vt. 1999) (finding
  a state prohibition against same-sex marriage to be unconstitutional under
  Vermont law, but leaving the appropriate remedy to the state legislature
  to decide).
    (3) This continuing legislative versus judicial debate in a family law
  context is not new to American jurisprudence, and may be influenced by
  whether a judge is characterized as a “legal formalist” or a “legal
     Under the theory of legal formalism, also known as legal positivism,
  correct legal decisions are determined by pre-existing legislative and
  judicial precedents, and the court must reach its decision based upon a
  logical application of the facts to these pre-existing rules. The formalist
  judge, embracing the principle of judicial restraint, interprets the law and
  remains (in theory) socially neutral. Judging under this formalist theory
  is thus a matter of logical necessity, rather than a matter of choice. See,
  e.g., Frederick Schauer, Formalism, 97 YALE L.J. 509 (1988) (discussing
  how legal formalism still serves a legitimate function today in limiting
  judicial discretion and judicial activism).
     Under the countervailing theory of legal functionalism, also known as
  legal realism or legal activism, the formalistic view of legal certainty and
  uniformity is viewed as rarely attainable, and perhaps even undesirable,
  in a changing society. Thus, the paramount concern of the legal functional-
  ists is not logical and legal consistency, as the formalists believe, but
  socially desirable consequences. See, e.g., Gary Aichele, Legal Realism and
  Twentieth Century American Jurisprudence (1990).
    It remains open to debate whether state legislatures should remain
  preeminent in determining current family law needs and goals, as the
  formalists generally believe, or whether the judiciary should take a more
  active role in determining current family law goals and needs, as the
  functionalists generally believe. See Gregory, Swisher & Wolf, Understand-
  ing Family Law 2-5 (3d ed. 2005).
    (4) The political reaction to the Goodridge case, which came five months
  after Lawrence v. Texas, has resulted in 27 states to date passing state
  constitutional amendments banning same-sex marriage, in an apparent
  attempt to thwart such “activist” judicial opinions. For example, in Novem-
  ber of 2006, 57% of Virginia voters approved a state constitutional amend-
  ment providing that: “Only a union between one man and one woman may
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  § 1.07              CAPACITY AND INTENT TO MARRY                            23

  be a marriage valid in or recognized by this Commonwealth and its political
  subdivisions.” Va. Constitution Article I § 15-A. See also Joshua Baker,
  Status, Substance, and Structure: An Interpretive Framework for Under-
  standing the State Marriage Amendments, 17 REGENT U. L. REV. 221
     Proponents and critics have also debated a proposed Federal constitu-
  tional amendment banning same-sex marriage. See, e.g., Scott Dodson, The
  Peculiar Federal Marriage Amendment, 36 ARIZ. ST. L. J. 783 (2004); Dale
  Carpenter, Four Arguments Against a Marriage Amendment That Even an
  Opponent of Gay Marriage Should Accept, 2 U. ST. THOMAS L. J. 71 (2004);
  William Castro, Our Unwritten Constitution and Proposals for a Same-Sex
  Marriage Amendment, 38 CREIGHTON L. REV. 271 (2005); Sarah Courtman,
  Sweet Land of Liberty: The Case Against the Federal Marriage Amendment,
  24 PACE L. REV. 301 (2003).
    Query: What role, if any, should the federal government play in family
  law issues? See, e.g., Simms v. Simms, 175 U.S. 162, 167 (1899) (“The whole
  subject of domestic relations of husband and wife, parent and child, belongs
  to the laws of the State, and not the laws of the United States”). But see
  also federal child support enforcement remedies (42 U.S.C. §§ 651-677), as
  well as federal child custody and domestic violence legislation.
    (5) Other recent state appellate court decisions involving same-sex
  marriage have rejected the Goodridge rationale, and instead have held that
  state statutes prohibiting same-sex marriage are not unconstitutional, also
  utilizing a rational basis standard of review. See, e.g., Hernandez v. Robles,
  821 N.Y.S.2d 770, 855 N.E.2d 1 (2006) (holding that a New York statute
  limiting marriage to opposite-sex couples did not violate the New York
  Constitution’s Due Process and Equal Protection Clauses, and the New
  York legislature could have rationally decided: (1) that, for the welfare of
  children, it was more important to promote stability, and that same-sex
  relationships were more unstable than opposite-sex ones; and (2) that it
  was better for children to grow up with both a mother and a father.
  Moreover, the restriction of marriage to opposite-sex couples was subject
  only to rational basis scrutiny, and the definition of marriage to exclude
  same-sex couples was not irrationally underinclusive or overinclusive);
  Anderson v. State of Washington, 138 P.3d 963 (Wash. 2006) (holding that
  there was no fundamental right to marry a person of the same sex, and
  the appropriate standard of review was a rational basis review; and
  encouraging procreation between opposite-sex individuals within the frame-
  work of marriage was a legitimate government interest); see also Stand-
  hardt v. Superior Court, 77 P.3d 451 (Ariz. Ct. App. 2003) (similar holding);
  Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) (similar holding);
  Li v. State, 110 P.3d 91 (Or. 2005) (similar holding).
    In 2006, the Massachusetts Supreme Judicial Court allowed a citizen
  initiative to amend the Massachusetts constitution to ban future same-sex
  marriages in Massachusetts. See Schulman v. Attorney General, 850 N.E.2d
  505 (Mass. 2006). However, on June 14, 2007, the Massachusetts state
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  24                          ENTERING MARRIAGE                                CH. 1

  legislature defeated this proposed state constitutional amendment to ban
  same-sex marriage in Massachusetts by a vote of 151-45. To date, there
  have been over 9,000 same-sex marriages contracted in Massachusetts
  since Goodridge.
    (6) Since Lawrence v. Texas and Goodridge v. Department of Public
  Health, there have been a number of articles written on same-sex marriage
  in America. See, e.g., Carlos Ball, The Positive in the Fundamental Right
  to Marry: Same-Sex Marriage in the Aftermath of Lawrence v. Texas, 88
  MINN. L. REV. 1184 (2004); Brenda Feigen, Same-Sex Marriage: An Issue
  of Constitutional Rights Not Moral Opinions, 27 HARV. WOMEN’S L. J. 345
  (2004); Phyllis Bossin, Same-Sex Unions: The New Civil Rights Struggle
  or an Assault on Traditional Marriage?, 40 TULSA L. REV. 381 (2005); Julie
  Greenberg, When is a Same-Sex Marriage Legal?, 38 CREIGHTON L. REV.
  289 (2005); Charles Kindregan, Jr., Same-Sex Marriage: The Culture Wars
  and the Lessons of Legal History, 38 FAM. L. Q. 427 (2004); Larry Ribstein,
  A Standard Form Approach to Same-Sex Marriage, 38 CREIGHTON L. REV.
  309 (2005); Stephen Newman, The Use and Abuse of Social Science in the
  Same-Sex Marriage Debate, 49 N.Y. L. SCH. L. REV. 537 (2004-2005); see
  also Symposium, Same-Sex Marriage, 18 B.Y.U. J. PUB. L. 273 (2004); and
  Symposium, Can Anyone Show Just Cause Why These Two Should Not Be
  Lawfully Joined Together?, 38 NEW ENG. L. REV. 487 (2004).
    (7) Transsexual Marriage. See Briana Lynn Morgan, The Use of Rules
  and Standards to Define a Transsexual’s Sex for the Purpose of Marriage:
  An Argument for a Hybrid Approach, 55 HASTINGS L. J. 1329 (2004), where
  the author argues for a hybrid standard based on current legal, social, and
  scientific approaches that defines sex according to many interrelated
  factors, including genital, chromosomal, and gender identity.
    See also Mark Strasser, Marriage, Transsexuals, and the Meaning of Sex:
  On DOMA, Full Faith and Credit, and Statutory Interpretation, 3 HOUS.
  J. HEALTH L. & POL’Y 301 (2003); Laura Grenfell, Embracing Law’s
  Categories: Anti-Discrimination Laws and Transgenderism, 15 YALE J. L.
  & FEMINISM 51 (2003).

       [C] Plural Marriage
  Page 61:

                         NOTES AND QUESTIONS
     (1) In Bronson v. Swensen, 394 F. Supp. 2d 1329 (D. Utah 2005), the court
  reaffirmed the holding in Potter v. Murray City, 760 F.2d 1065 (10th Cir.
  1985), prohibiting a polygamous or plural marriage. Plaintiffs in Bronson
  cited the U.S. Supreme Court decision of Lawrence v. Texas, 539 U.S. 558
  (2003), in support of their plural marriage, but the court held that
        Lawrence cannot be read to require the State of Utah to give formal
        recognition to a public relationship of a polygamous marriage.
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  § 1.07               CAPACITY AND INTENT TO MARRY                            25

        Contrary to Plaintiffs’ assertion, the laws in question here do not
        preclude their private sexual conduct. They do preclude the State
        of Utah from recognizing the marriage of Plaintiff G. Lee Cook to
        Plaintiff J. Bronson as a valid marriage under the laws of the State
        of Utah.
    (4) The federal Defense of Marriage Act [DOMA], and various state
  constitutional amendments prohibiting same-sex marriage, arguably ad-
  dress plural or polygamous marriages as well, by defining marriage as a
  union of “one man and one woman” to the exclusion of all others.
    Nevertheless, since Lawrence v. Texas, a number articles have addressed
  the legality and legitimacy of plural or polygamous marriage. See, e.g.,
  Alyssa Rower, The Legality of Polygamy: Using the Due Process Clause of
  the Fourteenth Amendment, 38 FAM. L. Q. 711 (2004); Maura I. Strassberg,
  The Challenge of Post-Modern Polygamy, 31 CAP. U. L. REV. 439 (2003).
    (7) Royston Potter in Potter v. Murray City lost his job with the Murray
  City, Utah police department after appearing with his two wives on the
  Donahue television talk show. More recently, Thomas Green, an avowed
  polygamist, was found guilty of violating Utah’s bigamy statutes, after
  appearing on various television talk shows between 1988 and 2001. See
  State v. Green, 99 P.3d 820 (Utah 2004). Notoriety from television talk show
  appearances may have some unanticipated legal consequences.

       [D] Prohibited Degrees of Kinship
  Page 68:

                         NOTES AND QUESTIONS
    (3) But see Cook v. Cook, 104 P.3d 857 (Ariz. Ct. App. 2005). In this case,
  husband and wife were first cousins, and married in Virginia, where first
  cousin marriages are valid. They then moved to Arizona, where first cousin
  marriages are prohibited. Arizona ordered their marriage dissolved, and
  refused to recognize this first cousin marriage. Query: How can the Cook
  case be distinguished from the Etheridge case, supra?
    (4) See also Brett McDonnell, Privacy Rights in a Post Lawrence World:
  Responses to Lawrence v. Texas: Is Incest Next?, 10 CARDOZO WOMEN’S L.
  J. 337 (2004).
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  Chapter 2


       [B] The Modern Theory—Marriage as a Partnership
           of Equals
  Page 111:
    See also Alicia Brokars Kelly, Rehabilitating Partnership Marriage as a
  Theory of Wealth Distribution on Divorce: In Recognition of a Shared Life,
  19 WIS. WOMEN’S L. J. 141 (2004), where the author describes the martial
  partnership theory, and traces its historical origins and evolution in
  contemporary American family law. She concludes that the marital partner-
  ship theory has been rejected, distorted, and or only partially applied in
  many states.


       [B] Pregnancy, Childbearing, and Employment
  Page 167–71:

                       NOTES AND QUESTIONS
    (1) See also Michael Selmi & Naomi Cahn, New Perspectives on Work/
  Family Conflict: Caretaking and the Contradictions of Contemporary Policy,
  55 MAINE L. REV. 289 (2003), urging the recognition of the value of
  caretaking that can be achieved while also promoting women’s role in the
  workplace; and Lynne Marie Kohm, Does Marriage Make Good Business?
  Examining the Notion of Employer Endorsement of Marriage, 25 WHITTIER
  L. REV. 563 (2004), examining and identifying reasons why marriage should
  be promoted and endorsed by employers, rather than penalized or

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  28       LEGAL AND ECONOMIC CONSEQUENCES OF MARRIAGE                      CH. 2

       [C] Working and Caring for Children
  Page 177–80:

                      NOTES AND QUESTIONS
    (8) See also Kimberly Menache Glassman, Balancing the Demands of the
  Workplace With the Needs of the Modern Family: Expanding Family and
  Medical Leave to Protect Domestic Partners, 37 U. MICH. J. L. REFORM 837
  (2004); Chuck Halverson, From Here to Paternity,: Why Men Are Not Taking
  Paternity Leave Under the Family and Medical Leave Act, 18 WIS. WOMEN’S
  L.J. 257 (2003); Nikolas Johnson, Erroneously Conferred Eligibility Under
  the Family and Medical Leave Act, 26 N.C. CENT. L.J. 88 (2004).
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  Chapter 3

    See generally Kohm & Groen, Cohabitation and the Future of Marriage,
  17 REGENT U. L. REV. 261 (2004-2005), exploring the relationship between
  cohabitation and the changing definition of marriage. See also Symposium,
  Regulating Marriage and Cohabitation, 26 LAW & POL’Y 1 (2004).

       [A] The Role of Contract
  Page 200–06:

                       NOTES AND QUESTIONS
    (4) In Carney v. Hansell, 831 A.2d 128 (N.J. Super. 2003), an unmarried
  woman sought compensation for services rendered to the owner of a towing
  business with whom she had cohabited for more than sixteen years. The
  court held the woman was not entitled to compensation for services
  rendered as a homemaker, mother, and housemate, and she was not
  entitled to the distribution of real property acquired by the towing business
  owner during the period of cohabitation. She was, however, entitled to
  compensation under the doctrine of quantum meruit for services rendered
  as a “key employee” of his business.

       [B] Property and Partnership Theories
  Page 213:

                       NOTES AND QUESTIONS
    (2) In Gormley v. Robertson, 83 P.3d 1042 (Wash. Ct. App. 2004), two
  women lived together and pooled their resources for almost ten years. After
  their separation, they disputed the settlement of their property. The court
  held that the meretricious relationship doctrine was applicable to same-sex
  relationships as well as opposite-sex relationships, but matters of equity
  were within the purview of the trial court, and it acted properly in dividing
  up the parties’ property rights.
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  30              CONSENSUAL ALTERNATIVES TO MARRIAGE                           CH. 3

                AND CIVIL UNIONS
  Page 229: Add the following new information:
    Currently, civil union or domestic partnership legislation is recognized
  on a state-wide basis in the following states: Hawaii, Vermont, California,
  Connecticut, New Jersey, Washington State, Oregon, and New Hampshire.
  Proposed civil union or domestic partnership legislation is also being
  considered in Illinois and Rhode Island.
    In 1999, the Vermont Supreme Court held in Baker v. Nelson, 744 A.2d
  864 (Vt. 1999), that Vermont “is constitutionally required to extend to same-
  sex couples the common benefits and protections that flow from marriage
  under Vermont law” but whether “this takes the form of inclusion within
  the marriage laws themselves or a parallel domestic partnership system
  or some equivalent statutory alternative, rests with the [Vermont]
    Accordingly, a year later, the Vermont Legislature passed a Civil Union
  statutory alternative to marriage, 15 Vt. Stat. Ann. §§ 1201-1207, with the
  relevant provisions cited below:
  § 1202. Requisites of a valid civil union
         For a civil union to be established in Vermont, it shall be neces-
       sary that the parties to a civil union satisfy all the following criteria:
           (1) Not be a party to another civil union or a marriage.
           (2) Be of the same sex and therefore excluded from the marriage
         laws of this state. . . .

  § 1203. Person shall not enter a civil union with a relative
         (a) A woman shall not enter a civil union with her mother,
       grandmother, daughter, granddaughter, sister, brother’s daughter,
       sister’s daughter, father’s sister or mother’s sister.
         (b) A man shall not enter a civil union with his father, grandfa-
       ther, son, grandson, brother, brother’s son, sister’s son, father’s
       brother or mother’s brother.
         (c) A civil union between persons prohibited from entering a civil
       union in subsection (a) or (b) of this section is void.

  § 1204. Benefits, protections, and responsibilities of parties to a
  civil union
         (a) Parties to a civil union shall have all the same benefits,
       protections, and responsibilities under law; whether they derive
       from statute, administrative, or court rule, policy, common law or
       any other source of civil law, as are granted to spouses in a
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         (b) A party to a civil union shall be included in any definition or
       use of the terms “spouse”, “family”, “immediate family”, “depen-
       dent”, “next of kin”, and other terms that denote the spousal
       relationship, as those terms are used throughout the law.
         (c) Parties to a civil union shall be responsible for the support
       of one another to the same degree and in the same manner as
       prescribed under law for married persons.
          (d) The law of domestic relations, including annulment, separa-
       tion and divorce, child custody and support, and property division
       and maintenance shall apply to parties to a civil union.
          (e) [A nonexclusive list of legal benefits, protections, and responsi-
       bilities of spouses, which apply in a like manner to parties to a civil
       union are listed, including descent, distribution, and intestate
       succession laws; transfers of real and personal property; causes of
       action relating to a dependent or spousal status, such as wrongful
       death actions, emotional distress, loss of consortium, and other
       torts; probate law and procedure; adoption law and procedure;
       insurance for state employees; spousal abuse programs; prohibi-
       tions against discrimination; victim’s compensation rights; workers’
       compensation benefits; laws relating to emergency and non-
       emergency medical care; terminal care documents; family leave
       benefits; public assistance benefits; state and municipal tax laws;
       homestead rights; laws relating to loans to veterans; family land-
       owner rights, etc.]
         (f) The rights of parties to a civil union, with respect to a child
       of whom either becomes the natural parent during the term of the
       civil union, shall be the same as those of a married couple, with
       respect to a child of whom either spouse becomes the natural parent
       during the marriage.

  § 1205. Modification of civil union terms
         Parties to a civil union may modify the terms, conditions, or ef-
       fects of their civil union in the same manner and to the same extent
       as married persons who execute an antenuptial agreement or other
       agreement recognized and enforceable under the law, setting forth
       particular understandings with respect to their union.

  § 1206. Dissolution of civil unions
          The family court shall have jurisdiction over all proceedings
       relating to the dissolution of civil unions. The dissolution of civil
       unions shall follow the same procedures and be subject to the same
       substantive rights and obligations that are involved in the dissolu-
       tion of marriage in accordance with chapter 11 of this title, includ-
       ing any residency requirements. . . .
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  32              CONSENSUAL ALTERNATIVES TO MARRIAGE                          CH. 3

    See also Comment, Issues in Vermont Law: Same-Sex Marriage in
  Vermont: Implications of Legislative Remand for the Judiciary’s Role, 26
  VT. L. REV. 381 (2002); Note, Monkey See, Monkey Do: On Baker, Goodridge,
  and the Need for Consistency in Same-Sex Alternatives to Marriage, 26 VT.
  L. REV. 959 (2002).
    Other states, however, have expressly prohibited civil unions or domestic
  partnerships, either through state statutes or state constitutional amend-
  ments. Virginia, for example, in Va. Code Ann. § 20-45.3 (2004), expressly
  prohibits civil unions or domestic partnerships:
         A civil union, partnership contract or other arrangement between
       persons of the same sex purporting to bestow the privileges and
       obligations of marriage is prohibited. Any such civil union, partner-
       ship contract or other arrangement entered into by persons of the
       same sex in another state or jurisdiction shall be void in all respects
       in Virginia and any contractual rights created thereby shall be void
       and unenforceable.
    Two years later, in 2006, Virginia voters approved a state constitutional
  amendment that prohibits same-sex marriage and civil unions or domestic
         That only a union between one man and one woman may be a
       marriage valid in or recognized by this Commonwealth and its
       political subdivisions.
          This Commonwealth and its political subdivisions shall not create
       or recognize a legal status for relationships of unmarried individu-
       als that intends to approximate the design, qualities, significance,
       or effects of marriage. Nor shall this Commonwealth, or its political
       subdivisions, create or recognize another union, partnership, or
       other legal status to which is assigned the rights, benefits, obliga-
       tions, qualities, or effects of marriage.
  Virginia Constitution, Article I § 15-A.
    Proponents of this constitutional amendment argued that it was neces-
  sary to dissuade “activist judges” from questioning or overruling Virginia
  statutory prohibitions against same-sex marriage and domestic partner-
  ships or civil unions. Opponents of this constitutional amendment argued
  that the language in this constitutional amendment, specifically relating
  to civil unions and domestic partnerships, arguably raises a number of
  troubling legal issues and unexpected consequences regarding the enforce-
  ability of contractual and property rights between unmarried persons,
  certain employment benefits, health care coverage, and retirement benefits
  given to unmarried domestic partners, and other important family law
  issues involving child custody disputes, domestic violence issues, and
  surrogate medical decision-making. See generally Swisher, Diehl & Cottrell,
  Virginia Family Law §§ 1:1, 1:11 (2007 rev. ed.).
    So query: How should the courts respond in a conflict of laws situation
  involving a family law issue arising in a state recognizing civil unions or
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  domestic partnerships (e.g., Vermont) which seeks enforcement in a state
  prohibiting civil unions or domestic partnerships (e.g., Virginia)?
    The following case addresses this conflict of laws issue involving child
  custody and visitation.

                       Virginia Court of Appeals
                 49 Va. App. 87, 637 S.E.2d 330 (2006)
  WILLIS, JR., Judge.
     Janet Miller-Jenkins (“Janet”) appeals the October 15, 2004 “Final Order
  of Parentage” of the Circuit Court of Frederick County [Virginia] (“trial
  court”). In that order, the trial court held (1) that Lisa Miller-Jenkins (“Lisa”)
  is “the sole biological and natural parent of” IMJ, a minor, (2) that Lisa
  “solely has the legal rights, privileges, duties and obligations as parent
  hereby established for the health, safety, and welfare of” IMJ, and (3) that
  neither Janet “nor any other person has any claims of parentage or
  visitation rights over” IMJ.
    On appeal, Janet contends the trial court erred (1) in failing to recognize
  that the federal Parental Kidnapping Prevention Action (“PKPA”), 28 U.S.C.
  § 1738A, barred its exercise of jurisdiction, (2) in holding that the Virginia
  Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)
  Code § 20-146.1 et seq. permitted it to exercise jurisdiction, and (3) in
  refusing to enforce the June 17, 2004 custody order of the Rutland County,
  Vermont Family Court (“Vermont court”).
    We hold that the trial court erred in failing to recognize that the PKPA
  barred its exercise of jurisdiction. Accordingly, we vacate the orders of the
  trial court and remand this case with instruction to grant full faith and
  credit to the custody and visitation orders of the Vermont court.

                                  I. Background
    Beginning in the late 1990’s, the parties lived together in Virginia. On
  December 19, 2000, they traveled to Vermont and entered into a civil union
  pursuant to the laws of that state. See Vt. Stat. Ann. Tit. 15, § 1201 et seq.
  Thereafter, while residing in Virginia, Lisa was artificially inseminated
  with sperm from an anonymous donor. In April 2002, she gave birth to IMJ.
  In August 2002, the parties and IMJ moved to Vermont and established
  residence there. In September 2003, the parties ended their relationship.
  Lisa moved to Virginia with IMJ. Janet remained in Vermont.
    On November 24, 2003, Lisa filed in the Vermont court a “Complaint for
  Civil Union Dissolution.” She designated IMJ as “the biological or adoptive”
  child of the “civil union.” She asked the Vermont court to dissolve the civil
  union, to award her legal and physical “rights and responsibilities for the
  minor child,” to award Janet “suitable parent/child contact (supervised),”
  and to “award payment of suitable child support money.”
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  34             CONSENSUAL ALTERNATIVES TO MARRIAGE                          CH. 3

    On June 17, 2004, the Vermont court entered a “Temporary Order Re:
  Parental Rights & Responsibilities.” In that order, the Vermont court
  awarded Lisa “temporary legal and physical responsibility for the minor
  child of the parties,” and awarded Janet “on a temporary basis, parent-child
  contact with the minor child as follows. . . .” The order then listed the
  specifics of that contact, and in so listing thrice used the word “visitation.”
    On July 1, 2004, the day Virginia’s Marriage Affirmation Act {“MAA”)
  [Virginia] Code 20-45.3 [prohibiting the recognition of civil unions in
  Virginia] became law, Lisa filed in the trial court a “Petition to Establish
  Parentage and for Declaratory Relief.” She asserted that she had “sole
  custody” of IMJ, and asked the court (1) to declare that she was the “sole
  parent of” IMJ, (2) to rule that she was “to be the sole parent of and to
  have sole parental rights over” IMJ, (3) to adjudicate any parental rights
  claimed by Janet “to be nugatory, void, illegal and/or unenforceable,” and
  (4) to award her attorney’s fees and costs.
    On July 19, 2004, after learning of the petition filed by Lisa in Virginia,
  the Vermont court entered the following order:
          This Vermont Court has and will continue to have jurisdiction
       over this case including all parent-child contact issues. This Court
       is unaware of any proceedings available in a state that does not
       recognize a civil union to resolve the issue of this case. This court
       will not and cannot defer to a different State that would preclude
       the parties from a remedy.
         The Temporary Order for parent-child contact [is] to be followed.
       Failure of the custodial parent to allow contact will result in an
       immediate hearing on the need to change custody.
     On July 29, 2004, Janet filed a demurrer to Lisa’s Virginia petition. On
  August 18, 2004, the trail court entered an order (1) recognizing that Janet
  was entering a special appearance for the purpose of contesting jurisdiction;
  (2) directing the parties to file memoranda addressing the question jurisdic-
  tion, and (3) staying all visitation between Janet and IMJ except for
  supervised visitation in Virginia. Following an August 24, 2004 hearing,
  the trial court ruled it had jurisdiction pursuant to the MAA and the UCC-
  JEA. It memorialized this ruling in a September 9, 2004 order.
     Meanwhile, the Vermont court, by order entered September 2, 2004, held
  Lisa in contempt for refusing to comply with the child visitation terms of
  its June 176, 2004 order.
    On October 15, 2004, the [Virginia] trial court entered the final order in
  this case [finding for Lisa, and according to the first paragraph of this
    On appeal by Lisa, the Supreme Court of Vermont . . . affirmed the
  judgment of the Vermont court, holding inter alia that the civil union en-
  tered into by Lisa and Janet was valid under Vermont law, that the
  Vermont court had jurisdiction to dissolve that civil union and to determine
  all its implications, including the parentage of an parental rights and
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  responsibilities with respect to IMJ; and that the Vermont court acted
  properly in holding Janet to be a parent of IMJ and in assigning parental
  rights and responsibilities to her. Miller-Jenkins v. Miller-Jenkins, [912
  A.2d 951 (Vt. 2006)]. It held that PKPA afforded preemptive jurisdiction
  to Vermont and denied full faith and credit to Virginia orders contradicting
  those entered by the Vermont court. [Id.]

                                  II. Analysis

                                 A. The PKPA
     28 U.S.C. § 1738A, commonly referred to as the Parental Kidnapping
  Prevention Act, carries the following title: “Full faith and credit given to
  child custody determinations.” Subsection (a) of the PKPA reads: “The
  appropriate authorities of every State shall enforce according to its terms
  . . . any custody determination or visitation determination made consis-
  tently with the provision of this section by a court of another State.”
       * * *
     The PKPA had it genesis in the confusion concerning the applicability
  of the full faith and credit doctrine, 28 U.S.C. § 1738, to child custody
  orders. See Thompson [v. Thompson, 484 U.S. 174, 180 (1988)]. Indeed, “a
  parent who lost a custody battle in one State had an incentive to kidnap
  the child and move to another State to relitigate the issue.” Id. Yet, despite
  its unofficial and common title, the PKPA is not limited to parental
  kidnapping cases.
       * * *
    Moreover, it is well settled that the PKPA preempts any conflicting state
  law. See Meade v. Meade, 812 F.2d 1473, 1476 (4th Cir. 1987) (“The PKPA
  quite simply preempts conflicting state court methods for ascertaining
  custody jurisdiction”). [Other citations omitted].
       * * *
     § 28 U.S.C. 1738A(c)(2)(A)(ii) sanctions the Vermont court’s exercise of
  jurisdiction. That subsection applies where a state “had been the child’s
  home state within six months before the date of the commencement of the
  proceeding and the child is absent from such State because of his removal
  or retention by a contestant or for other reasons, and a contestant continues
  to live in such State.” Id. The parties lived together in Vermont until Sep-
  tember 2003, when Lisa and IMJ moved to Virginia. Janet continued to
  live in Vermont. Lisa commenced the Vermont proceeding to dissolve the
  civil union in November 2003, two months after Vermont ceased to be IMJ’s
  “home state, due to her having been removed from that state” by Lisa.
       * * *
    Lisa argues: “Even if the Vermont court properly made an initial custody
  determination within the meaning of the PKPA, the Virginia court properly
  exercised jurisdiction over the parentage action filed in Virginia.” Specifi-
  cally, Lisa contends the Virginia parentage action is not a custody or
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  36              CONSENSUAL ALTERNATIVES TO MARRIAGE                          CH. 3

  visitation determination per the PKPA. Yet, Lisa’s petition to the trial court
  prays that she be adjudicated as having “sole parental rights” over IMJ and
  that Janet’s claim to “parental rights” by adjudged “nugatory, void, illegal
  and/or unenforceable.”
    Lisa’s complaint in the Vermont court asserted that IMJ was the “biologi-
  cal or adoptive” child of the civil union. She asked that court to award Janet
  “suitable parent/child contact” and to “award payment of suitable child
  support money.” She thus submitted the determination of IMJ’s parentage
  to the jurisdiction of the Vermont court. Its resolution of that issue has been
  affirmed by the Vermont Supreme Court and is final.
     Whatever semantical machinations are involved, any common understand-
  ing of the term “parental rights” includes the right to custody, see Szemler
  v. Clements, 214 Va. 639, 643, 202 S.E.2d 880, 884 (1974) (“Parental rights
  of custody are founded upon the strong presumption that the best interests
  of the child will be served by placing it in the custody of its natural
  parents”), and visitation, see Peter N. Swisher, Lawrence D. Diehl, & James
  R. Cottrell, Virginia Practice Series: Family Law: Theory, Practice, and
  Forms § 15:8 (2004 ed.) (“The right of a non-custodial parent to the
  company and society of his or her child is well established. Barring gross
  unfitness which jeopardizes the well being of the child, visitation is a
  presumed entitlement.”). . . . We therefore reject the contention that Lisa’s
  “parentage action” is not a custody or visitation determination embraced
  by the PKPA.

                             DOMA and the MAA
    . . . Lisa argues: “Even if the Vermont court properly made an initial
  custody determination within the meaning of the PKPA, and the Virginia
  order is somehow construed as a visitation or custody determination, the
  Virginia court properly exercised jurisdiction over the matter by virtue of
  the federal Defense of Marriage Act and the [Virginia] Marriage Affirmation
  Act.” DOMA reads:
          No state, territory, or possession of the United States, or Indian
       tribe, shall be required to give effect to any public act, record, or
       judicial proceeding of any other State, territory, possession, or tribe
       respecting a relationship between persons of the same sex that is
       treated as a marriage under the laws of such other State, territory,
       possession, or tribe, or right or claim arising from such relationship.
       28 U.S.C. § 1738C.
     Lisa argues that DOMA, enacted in 1996, effectively trumps the PKPA,
  enacted in 1980, thus enabling the [Virginia] trial court to exercise jurisdic-
  tion over Lisa’s petition. We disagree.
    Lisa cites no authority holding that either the plain wording of DOMA
  or its legislative history was intended to affect or partially repeal the
  PKPA. . . .
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     We do not read the two statutes in conflict. They can be reconciled. . . .
  As we have noted, “Congress’ chief aim in enacting the PKPA was to extend
  the requirements of the Full Faith and Credit Clause to custody determina-
  tions.” [citing to Thompson v. Thompson, 484 U.S. at 183, 108 S. Ct. at 518].
  DOMA “has two primary purposes. The first is to defend the institution
  of traditional heterosexual marriage. The second is to protect the right of
  the States to formulate their own public policy regarding the legal recogni-
  tion of same-sex unions, free from any federal constitutional implications
  that might attend the recodgnigtion by one State of the right for homosexual
  couples to acquire marriage licenses.” H.R. Rep. No. 104-664, at 2 (1996)
  reprinted in 1996 U.S.C.C.A.N. 2905, 2906. . . .
     Nothing in the wording or the legislative history of DOMA indicates that
  it was designed to affect the PKPA and related custody and visitation
  determinations. Simply put, DOMA allows a state to deny recognition to
  same-sex marriage entered into in another state. This case does not place
  before us the question whether Virginia recognizes the civil union entered
  into by the parties in Vermont. Rather, the only question before us is
  whether, considering the PKPA, Virginia can deny full faith and credit to
  the orders of the Vermont court regarding IMJ’s custody and visitation. It
  cannot. The law of Vermont granted the Vermont court jurisdiction to ren-
  der those decisions. By filing her complaint in Vermont, Lisa invoked the
  jurisdiction of the Vermont court. She placed herself and the child before
  that court and laid before it the assertions and prayers that formed the
  bases of its orders. By operation of the PKPA, her choice of forum precluded
  the courts of this Commonwealth from entertaining countervailing asser-
  tions and prayers.
    Lisa argues that the MAA forbade the trial court to extend full faith and
  credit to the orders of the Vermont court. The MAA reads:
         A civil union, partnership contract or other arrangement between
       persons of the same sex purporting to bestow the privileges and
       obligations of marriage are prohibited. Any such civil union, part-
       nership contract or other arrangement entered into by persons of
       the same sex in another state or jurisdiction shall be void in all
       respects in Virginia and any contractual rights created thereby shall
       be void and unenforceable. [Virginia] Code § 20-45.3
     We need not, and do not, decide whether the MAA applies to this case.
  If it does, it is preempted by the PKPA. See, e.g., Meade, 812 F.2d at 1476
  (PKPA preempts conflicting state law).
   Janet also contends the [Virginia] trial court erred in holding that the
  UCCJEA permitted it to exercise jurisdiction in this case. Having deter-
  mined that the PKPA is the controlling law in this matter and that the
  PKPA preempts conflicting state law, we need not address that issue.

    We hold that the trial court erred in failing to recognize that the PKPA
  prevented its exercise of jurisdiction and required it to give full faith and
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  38             CONSENSUAL ALTERNATIVES TO MARRIAGE                          CH. 3

  credit to the custody and visitation orders of the Vermont court. By so
  holding, we do not address whether Virginia law recognizes or endorses
  same-sex unions entered into in another state or jurisdiction. We do not
  comment on the constitutionality, viability or breadth of, the UCCJEA and
  the MAA. We do not consider the merits of the rulings of the Vermont court.
  Those questions are not before us. The issue before us is the narrow one
  of jurisdiction. . . . Accordingly, we vacate the orders of the [Virginia] trial
  court and remand this matter to the trial court with instruction to extend
  full fail and credit to the custody and visitation orders of the Vermont court.
       Vacated and remanded.

                        NOTES AND QUESTIONS
    (1) The Virginia Court of Appeals in the Miller-Jenkins case held that
  the legal issue in this case “was a narrow one of jurisdiction” involving the
  application of the federal Parental Kidnapping Prevention Act [PKPA]
  which preempted any state laws to the contrary.
    (2) But query: What if other legal issues emanating from their Vermont
  civil union were hypothetically involved in the Miller-Jenkins case, such
  as spousal support or its equivalent; employment, retirement and workers
  compensation benefits; domestic violence issues; or medical benefits and
  surrogate medical decision-making? How should the Virginia Court of
  Appeals arguably address these issues?
    (3) What if the parties in the Miller-Jenkins case had entered into certain
  contractual and property rights and obligations, separate and apart from
  their Vermont civil union. Should Virginia courts recognize such contrac-
  tual or property rights? Or would this violate the statutory provisions of
  Va. Code § 20-45.3 supra?
    (4) In the case of Rosengarten v. Downes, 802 A.2d 170 (Conn. Ct. App.
  2002), the Connecticut Court of Appeals, citing the Defense of Marriage Act
  [DOMA], refused to recognize any same-sex relationship treated as mar-
  riage in another state. However, in Salucco v. Alldredge, 17 Mass. L. Rep.
  498, 2004 Mass. Super. LEXIS 82 (2004), a Massachusetts court did find
  the authority to dissolve a Vermont civil union in Massachusetts, since
  Massachusetts had not adopted DOMA, and since Massachusetts recog-
  nized same-sex marriages under Goodridge v. Dept. of Public Health, 798
  N.E.2d 941 (2003).
    (5) There undoubtedly will be many more conflict of laws enforcement
  disputes in the foreseeable future involving states which have recognized
  civil unions or domestic partnerships and those states which do not legally
  recognize civil unions or domestic partnerships.
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  Chapter 4

  § 4.01       CONTRACEPTION
  Page 239–43:

                       NOTES AND QEUSTIONS
    (3)(b) See also Denise A. Copelton, Assessing the Social Impact of Mifepri-
  stone in the United States: A Pro-Choice Perspective, 11 KAN. J.L. & PUB.
  POL’Y 333 (2001), where the author foresees positive effects of RU-486, not
  an increase in abortions, but occurring earlier in pregnancies when they
  do occur.
    (4) Bowers v. Hardwick, 478 U.S. 186 (1986), is no longer good law. It
  has been overruled by Lawrence v. Texas, 539 U.S. 558 (2003). See Chapter
  1, § 1.07[A].

  § 4.02       ABORTION
  Page 252–56:

                       NOTES AND QUESTIONS
    (6)(b) Health Issues-See also Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
  The U.S. Supreme Court in Gonzales held that the failure to allow the
  banned partial-birth abortion procedure’s use when necessary for the
  mother’s health was not an unconstitutional burden to the right to an
  abortion, because there were other safe medical options available.

                       GONZALES v. CARHART
                      United States Supreme Court
                   ___ U.S. ___, 127 S. Ct. 1610 (2007)
  Justice KENNEDY delivered the opinion of the Court.
     These cases require us to consider the validity of the Partial-Birth Abor-
  tion Ban Act of 2003 (Act), 18 U.S.C. § 1531 (2000 ed., Supp. IV), a federal
  statute regulating abortion procedures. In recitations preceding its opera-
  tive provisions the Act refers to the Court’s opinion in Stenberg v. Carhart,
  530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000), which also
  addressed the subject of abortion procedures used in the later stages of
  pregnancy. Compared to the state statute at issue in Stenberg, the Act is
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  40           HAVING CHILDREN: THE ALTERNATIVE CHOICES                       CH. 4

  more specific concerning the instances to which it applies and in this respect
  more precise in its coverage. We conclude the Act should be sustained
  against the objections lodged by the broad, facial attack brought against
       . . .


    The Act proscribes a particular manner of ending fetal life, so it is
  necessary here, as it was in Stenberg, to discuss abortion procedures in some
  detail. Three United States District Courts heard extensive evidence
  describing the procedures. In addition to the two courts involved in the
  instant cases the District Court for the Southern District of New York also
  considered the constitutionality of the Act. Nat. Abortion Federation v. Ash-
  croft, 330 F. Supp. 2d 436 (2004). It found the Act unconstitutional, id., at
  493, and the Court of Appeals for the Second Circuit affirmed, Nat. Abortion
  Federation v. Gonzales, 437 F.3d 278 (2006). The three District Courts
  relied on similar medical evidence; indeed, much of the evidence submitted
  to the Carhart court previously had been submitted to the other two courts.
  We refer to the District Courts’ exhaustive opinions in our own discussion
  of abortion procedures.
    Abortion methods vary depending to some extent on the preferences of
  the physician and, of course, on the term of the pregnancy and the resulting
  stage of the unborn child’s development. Between 85 and 90 percent of the
  approximately 1.3 million abortions performed each year in the United
  States take place in the first three months of pregnancy, which is to say
  in the first trimester. Planned Parenthood, 320 F. Supp. 2d, at 960. The
  most common first-trimester abortion method is vacuum aspiration (other-
  wise known as suction curettage) in which the physician vacuums out the
  embryonic tissue. . . .
    Of the remaining abortions that take place each year, most occur in the
  second trimester. The surgical procedure referred to as “dilation and
  evacuation” or “D&E” is the usual abortion method in this trimester.
  Planned Parenthood, 320 F. Supp. 2d, at 960-961. Although individual
  techniques for performing D&E differ, the general steps are the same. . . .
     After sufficient dilation the surgical operation can commence. The woman
  is placed under general anesthesia or conscious sedation. The doctor, often
  guided by ultrasound, inserts grasping forceps through the woman’s cervix
  and into the uterus to grab the fetus. The doctor grips a fetal part with
  the forceps and pulls it back through the cervix and vagina, continuing to
  pull even after meeting resistance from the cervix. The friction causes the
  fetus to tear apart. . . . Once the fetus has been evacuated, the placenta
  and any remaining fetal material are suctioned or scraped out of the uterus.
  The doctor examines the different parts to ensure the entire fetal body has
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  § 4.02                          ABORTION                                   41

  been removed. See, e.g., Nat. Abortion Federation, supra, at 465; Planned
  Parenthood, supra, at 962.
       . . .
     The abortion procedure that was the impetus for the numerous bans on
  “partial-birth abortion,” including the Act, is a variation of this standard
  D&E. [citation omitted] The medical community has not reached unanimity
  on the appropriate name for this D&E variation. It has been referred to
  as “intact D&E,” “dilation and extraction” (D&X), and “intact D&X.”
  [citation omitted] For discussion purposes this D&E variation will be re-
  ferred to as intact D&E. The main difference between the two procedures
  is that in intact D&E a doctor extracts the fetus intact or largely intact
  with only a few passes. There are no comprehensive statistics indicating
  what percentage of all D&Es are performed in this manner.
       . . .

       . . .
     The Act responded to Stenberg in two ways. First, Congress made factual
  findings. Congress determined that this Court in Stenberg “was required
  to accept the very questionable findings issued by the district court judge,”
  [citation omitted] but that Congress was “not bound to accept the same
  factual findings,” ibid., P(8). Congress found, among other things, that “[a]
  moral, medical, and ethical consensus exists that the practice of performing
  a partial-birth abortion . . . is a gruesome and inhumane procedure that
  is never medically necessary and should be prohibited.”
    Second, and more relevant here, the Act’s language differs from that of
  the Nebraska statute struck down in Stenberg. . . .

    The District Court in Carhart concluded the Act was unconstitutional for
  two reasons. First, it determined the Act was unconstitutional because it
  lacked an exception allowing the procedure where necessary for the health
  of the mother. 331 F. Supp. 2d, at 1004-1030. Second, the District Court
  found the Act deficient because it covered not merely intact D&E but also
  certain other D&Es. Id., at 1030-1037.
    The Court of Appeals for the Eighth Circuit addressed only the lack of
  a health exception. 413 F.3d at 803-804. The court began its analysis with
  what it saw as the appropriate question—“whether ‘substantial medical
  authority’ supports the medical necessity of the banned procedure.” Id., at
  796 (quoting Stenberg, 530 U.S., at 938.) This was the proper framework,
  according to the Court of Appeals, because “when a lack of consensus exists
  in the medical community, the Constitution requires legislatures to err on
  the side of protecting women’s health by including a health exception.” 413
  F.3d at 796. The court rejected the Attorney General’s attempt to demon-
  strate changed evidentiary circumstances since Stenberg and considered
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  42          HAVING CHILDREN: THE ALTERNATIVE CHOICES                        CH. 4

  itself bound by Stenberg’s conclusion that a health exception was required.
  413 F.3d at 803 (explaining “the record in [the] case and the record in
  Stenberg [were] similar in all significant respects”). It invalidated the Act.

    The District Court in Planned Parenthood concluded the Act was uncon-
  stitutional “because it (1) posed an undue burden on a woman’s ability to
  choose a second trimester abortion; (2) [was] unconstitutionally vague; and
  (3) required a health exception as set forth by . . . Stenberg.” 320 F. Supp.
  2d, at 1034-1035.
    The Court of Appeals for the Ninth Circuit agreed. Like the Court of
  Appeals for the Eighth Circuit, it concluded the absence of a health
  exception rendered the Act unconstitutional. The court interpreted Stenberg
  to require a health exception unless “there is consensus in the medical
  community that the banned procedure is never medically necessary to
  preserve the health of women.” 435 F.3d at 1173. Even after applying a
  deferential standard of review to Congress’ factual findings, the Court of
  Appeals determined “substantial disagreement exists in the medical com-
  munity regarding whether” the procedures prohibited by the Act are ever
  necessary to preserve a woman’s health. Id., at 1175-1176.
    The Court of Appeals concluded further that the Act placed an undue
  burden on a woman’s ability to obtain a second-trimester abortion. The
  court found the textual differences between the Act and the Nebraska stat-
  ute struck down in Stenberg insufficient to distinguish D&E and intact
  D&E. 435 F.3d at 1178-1180. As a result, according to the Court of Appeals,
  the Act imposed an undue burden because it prohibited D&E. Id., at
     Finally, the Court of Appeals found the Act void for vagueness. Id., at
  1181. Abortion doctors testified they were uncertain which procedures the
  Act made criminal. The court thus concluded the Act did not offer physi-
  cians clear warning of its regulatory reach. Id., at 1181-1184. Resting on
  its understanding of the remedial framework established by this Court in
  Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 328–330
  the Court of Appeals held the Act was unconstitutional on its face and
  should be permanently enjoined. 435 F.3d at 1184-1191.

    The principles set forth in the joint opinion in Planned Parenthood of
  Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d
  674 (1992), did not find support from all those who join the instant opinion.
  See id., at 979-1002, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (SCALIA, J., joined
  by THOMAS, J., inter alios, concurring in judgment in part and dissenting
  in part). Whatever one’s views concerning the Casey joint opinion, it is
  evident a premise central to its conclusion—that the government has a
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  § 4.02                           ABORTION                                   43

  legitimate and substantial interest in preserving and promoting fetal life—
  would be repudiated were the Court now to affirm the judgments of the
  Courts of Appeals. . . .
       . . .
    We assume the following principles for the purposes of this opinion. Be-
  fore viability, a State “may not prohibit any woman from making the
  ultimate decision to terminate her pregnancy.” 505 U.S., at 879. It also may
  not impose upon this right an undue burden, which exists if a regulation’s
  “purpose or effect is to place a substantial obstacle in the path of a woman
  seeking an abortion before the fetus attains viability.” Id., at 878. On the
  other hand, “regulations which do no more than create a structural mecha-
  nism by which the State, or the parent or guardian of a minor, may express
  profound respect for the life of the unborn are permitted, if they are not
  a substantial obstacle to the woman’s exercise of the right to choose.” Id.,
  at 877. Casey, in short, struck a balance. The balance was central to its
  holding. We now apply its standard to the cases at bar.

       . . .
     Respondents agree the Act encompasses intact D&E, but they contend
  its additional reach is both unclear and excessive. Respondents assert that,
  at the least, the Act is void for vagueness because its scope is indefinite.
  In the alternative, respondents argue the Act’s text proscribes all D&Es.
  Because D&E is the most common second-trimester abortion method,
  respondents suggest the Act imposes an undue burden. In this litigation
  the Attorney General does not dispute that the Act would impose an undue
  burden if it covered standard D&E.
    We conclude that the Act is not void for vagueness, does not impose an
  undue burden from any overbreadth, and is not invalid on its face.

    The Act punishes “knowingly performing” a “partial-birth abortion.”
  § 1531(a) (2000 ed., Supp. IV). It defines the unlawful abortion in explicit
  terms. § 1531(b)(1).
    First, the person performing the abortion must “vaginally deliver a living
  fetus.” § 1531(b)(1)(A). The Act does not restrict an abortion procedure
  involving the delivery of an expired fetus. . . .
    Second, the Act’s definition of partial-birth abortion requires the fetus
  to be delivered “until, in the case of a head-first presentation, the entire
  fetal head is outside the body of the mother, or, in the case of breech
  presentation, any part of the fetal trunk past the navel is outside the body
  of the mother.” § 1531(b)(1)(A). . . .
    Third, to fall within the Act, a doctor must perform an “overt act, other
  than completion of delivery, that kills the partially delivered living fetus.”
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  44          HAVING CHILDREN: THE ALTERNATIVE CHOICES                        CH. 4

  § 1531(b)(1)(B) (2000 ed., Supp. IV). For purposes of criminal liability, the
  overt act causing the fetus’ death must be separate from delivery. And the
  overt act must occur after the delivery to an anatomical landmark. This
  is because the Act proscribes killing “the partially delivered” fetus, which,
  when read in context, refers to a fetus that has been delivered to an
  anatomical landmark. Ibid.
    Fourth, the Act contains scienter requirements concerning all the actions
  involved in the prohibited abortion. To begin with, the physician must have
  “deliberately and intentionally” delivered the fetus to one of the Act’s
  anatomical landmarks. § 1531(b)(1)(A). If a living fetus is delivered past
  the critical point by accident or inadvertence, the Act is inapplicable. In
  addition, the fetus must have been delivered “for the purpose of performing
  an overt act that the [doctor] knows will kill [it].” Ibid. If either intent is
  absent, no crime has occurred. . . .

    Respondents contend the language described above is indeterminate, and
  they thus argue the Act is unconstitutionally vague on its face. “As
  generally stated, the void-for-vagueness doctrine requires that a penal
  statute define the criminal offense with sufficient definiteness that ordinary
  people can understand what conduct is prohibited and in a manner that
  does not encourage arbitrary and discriminatory enforcement.” [citations
  omitted] The Act satisfies both requirements.
     The Act provides doctors “of ordinary intelligence a reasonable opportu-
  nity to know what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104,
  108 (1972). Indeed, it sets forth “relatively clear guidelines as to prohibited
  conduct” and provides “objective criteria” to evaluate whether a doctor has
  performed a prohibited procedure. Posters ‘N’ Things, supra, at 525-526.
  Unlike the statutory language in Stenberg that prohibited the delivery of
  a “ ‘substantial portion’ ” of the fetus—where a doctor might question how
  much of the fetus is a substantial portion—the Act defines the line between
  potentially criminal conduct on the one hand and lawful abortion on the
  other. Stenberg, 530 U.S., at 922 (quoting Neb. Rev. Stat. Ann. § 28-326(9)
  (Supp. 1999)). Doctors performing D&E will know that if they do not deliver
  a living fetus to an anatomical landmark they will not face criminal
     This conclusion is buttressed by the intent that must be proved to impose
  liability. The Court has made clear that scienter requirements alleviate
  vagueness concerns. Posters ‘N’ Things, supra, at 526; see also Colautti v.
  Franklin, 439 U.S. 379, 395 (1979). (“This Court has long recognized that
  the constitutionality of a vague statutory standard is closely related to
  whether that standard incorporates a requirement of mens rea”). The Act
  requires the doctor deliberately to have delivered the fetus to an anatomical
  landmark. § 1531(b)(1)(A) (2000 ed., Supp. IV). . . .
    Respondents likewise have failed to show that the Act should be invali-
  dated on its face because it encourages arbitrary or discriminatory
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  § 4.02                            ABORTION                                   45

  enforcement. Kolender, supra, at 357. Just as the Act’s anatomical land-
  marks provide doctors with objective standards, they also “establish mini-
  mal guidelines to govern law enforcement.” Smith v. Goguen, 415 U.S. 566,
  574 (1974). . . . The Act is not vague.

    We next determine whether the Act imposes an undue burden, as a facial
  matter, because its restrictions on second-trimester abortions are too broad.
  A review of the statutory text discloses the limits of its reach. The Act
  prohibits intact D&E; and, notwithstanding respondents’ arguments, it
  does not prohibit the D&E procedure in which the fetus is removed in parts.

   The Act prohibits a doctor from intentionally performing an intact
  D&E. . . .
    The Act excludes most D&Es in which the fetus is removed in pieces,
  not intact. If the doctor intends to remove the fetus in parts from the outset,
  the doctor will not have the requisite intent to incur criminal liability. . . .
  Removing the fetus in this manner does not violate the Act because the
  doctor will not have delivered the living fetus to one of the anatomical
  landmarks or committed an additional overt act that kills the fetus after
  partial delivery. § 1531(b)(1)
     . . . The Court also rejected the limiting interpretation urged by Nebras-
  ka’s Attorney General that the statute’s reference to a “procedure” that
  “ ‘kills the unborn child’ ” was to a distinct procedure, not to the abortion
  procedure as a whole. Id. at 943.
     Congress, it is apparent, responded to these concerns because the Act
  departs in material ways from the statute in Stenberg. It adopts the phrase
  “delivers a living fetus,” § 1531(b)(1)(A) (2000 ed., Supp. IV), instead of
  “ ‘delivering . . . a living unborn child, or a substantial portion thereof,’ ”
  530 U.S., at 938 (quoting Neb. Rev. Stat. Ann. § 28-326(9)). The Act’s
  language, unlike the statute in Stenberg, expresses the usual meaning of
  “deliver” when used in connection with “fetus,” namely, extraction of an
  entire fetus rather than removal of fetal pieces. [citation omitted] . . . Here,
  unlike in Stenberg, the language does not require a departure from the
  ordinary meaning. D&E does not involve the delivery of a fetus because
  it requires the removal of fetal parts that are ripped from the fetus as they
  are pulled through the cervix.
    The identification of specific anatomical landmarks to which the fetus
  must be partially delivered also differentiates the Act from the statute at
  issue in Stenberg. § 1531(b)(1)(A) (2000 ed., Supp. IV). The Court in
  Stenberg interpreted “ ‘substantial portion’ ” of the fetus to include an arm
  or a leg. 530 U.S., at 939, 120 S. Ct. 2597, 147 L. Ed. 2d 743. The Act’s
  anatomical landmarks, by contrast, clarify that the removal of a small
  portion of the fetus is not prohibited.
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  46           HAVING CHILDREN: THE ALTERNATIVE CHOICES                       CH. 4

       . . .

    Contrary arguments by the respondents are unavailing. Respondents look
  to situations that might arise during D&E, situations not examined in
  Stenberg. They contend—relying on the testimony of numerous abortion
  doctors—that D&E may result in the delivery of a living fetus beyond the
  Act’s anatomical landmarks in a significant fraction of cases. This is so,
  respondents say, because doctors cannot predict the amount the cervix will
  dilate before the abortion procedure. It might dilate to a degree that the
  fetus will be removed largely intact. To complete the abortion, doctors will
  commit an overt act that kills the partially delivered fetus. Respondents
  thus posit that any D&E has the potential to violate the Act, and that a
  physician will not know beforehand whether the abortion will proceed in
  a prohibited manner. Brief for Respondent Planned Parenthood et al. in
  No. 05-1382, p. 38.
    This reasoning, however, does not take account of the Act’s intent
  requirements, which preclude liability from attaching to an accidental
  intact D&E. If a doctor’s intent at the outset is to perform a D&E in which
  the fetus would not be delivered to either of the Act’s anatomical landmarks,
  but the fetus nonetheless is delivered past one of those points, the requisite
  and prohibited scienter is not present. 18 U.S.C. § 1531(b)(1)(A). . . .
       . . .

    Under the principles accepted as controlling here, the Act, as we have
  interpreted it, would be unconstitutional “if its purpose or effect is to place
  a substantial obstacle in the path of a woman seeking an abortion before
  the fetus attains viability.” Casey. The abortions affected by the Act’s
  regulations take place both previability and postviability; so the quoted
  language and the undue burden analysis it relies upon are applicable. The
  question is whether the Act, measured by its text in this facial attack,
  imposes a substantial obstacle to late-term, but previability, abortions. The
  Act does not on its face impose a substantial obstacle, and we reject this
  further facial challenge to its validity.

    The Act’s purposes are set forth in recitals preceding its operative
  provisions. A description of the prohibited abortion procedure demonstrates
  the rationale for the congressional enactment. The Act proscribes a method
  of abortion in which a fetus is killed just inches before completion of the
  birth process. Congress stated as follows: “Implicitly approving such a
  brutal and inhumane procedure by choosing not to prohibit it will further
  coarsen society to the humanity of not only newborns, but all vulnerable
  and innocent human life, making it increasingly difficult to protect such
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  § 4.02                           ABORTION                                   47

  life.” Congressional Findings (14)(N), in notes following 18 U.S.C. § 1531
  (2000 ed., Supp. IV), p. 769. The Act expresses respect for the dignity of
  human life.
    Congress was concerned, furthermore, with the effects on the medical
  community and on its reputation caused by the practice of partial-birth
  abortion. . . .
    There can be no doubt the government “has an interest in protecting the
  integrity and ethics of the medical profession.” Washington v. Glucksberg,
  521 U.S. 702, 731 (1997); see also Barsky v. Board of Regents of Univ. of
  N.Y., 347 U.S. 442, 451 (1954) (indicating the State has “legitimate concern
  for maintaining high standards of professional conduct” in the practice of
  medicine). Under our precedents it is clear the State has a significant role
  to play in regulating the medical profession.
     Casey reaffirmed these governmental objectives. The government may
  use its voice and its regulatory authority to show its profound respect for
  the life within the woman. A central premise of the opinion was that the
  Court’s precedents after Roe had “undervalued the State’s interest in
  potential life.” The plurality opinion indicated “the fact that a law which
  serves a valid purpose, one not designed to strike at the right itself, has
  the incidental effect of making it more difficult or more expensive to procure
  an abortion cannot be enough to invalidate it.” Id., at 874. This was not
  an idle assertion. The three premises of Casey must coexist. See id., at 846
  (opinion of the Court). The third premise, that the State, from the inception
  of the pregnancy, maintains its own regulatory interest in protecting the
  life of the fetus that may become a child, cannot be set at naught by inter-
  preting Casey’s requirement of a health exception so it becomes tantamount
  to allowing a doctor to choose the abortion method he or she might prefer.
  Where it has a rational basis to act, and it does not impose an undue
  burden, the State may use its regulatory power to bar certain procedures
  and substitute others, all in furtherance of its legitimate interests in
  regulating the medical profession in order to promote respect for life,
  including life of the unborn.
    The Act’s ban on abortions that involve partial delivery of a living fetus
  furthers the Government’s objectives. No one would dispute that, for many,
  D&E is a procedure itself laden with the power to devalue human life.
  Congress could nonetheless conclude that the type of abortion proscribed
  by the Act requires specific regulation because it implicates additional
  ethical and moral concerns that justify a special prohibition. Congress
  determined that the abortion methods it proscribed had a “disturbing
  similarity to the killing of a newborn infant,” Congressional Findings
  (14)(L), in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769,
  and thus it was concerned with “drawing a bright line that clearly distin-
  guishes abortion and infanticide.” Congressional Findings (14)(G), ibid. The
  Court has in the past confirmed the validity of drawing boundaries to
  prevent certain practices that extinguish life and are close to actions that
  are condemned. Glucksberg found reasonable the State’s “fear that
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  48           HAVING CHILDREN: THE ALTERNATIVE CHOICES                       CH. 4

  permitting assisted suicide will start it down the path to voluntary and
  perhaps even involuntary euthanasia.” 521 U.S., at 732-735.
       . . .
    In a decision so fraught with emotional consequence some doctors may
  prefer not to disclose precise details of the means that will be used,
  confining themselves to the required statement of risks the procedure
  entails. . . .
     It is, however, precisely this lack of information concerning the way in
  which the fetus will be killed that is of legitimate concern to the State.
  Casey, supra, at 873. (“States are free to enact laws to provide a reasonable
  framework for a woman to make a decision that has such profound and
  lasting meaning”). The State has an interest in ensuring so grave a choice
  is well informed. It is self-evident that a mother who comes to regret her
  choice to abort must struggle with grief more anguished and sorrow more
  profound when she learns, only after the event, what she once did not know:
  that she allowed a doctor to pierce the skull and vacuum the fast-developing
  brain of her unborn child, a child assuming the human form.
       . . .
     . . . It was reasonable for Congress to think that partial-birth abortion,
  more than standard D&E, “undermines the public’s perception of the appro-
  priate role of a physician during the delivery process, and perverts a process
  during which life is brought into the world.” Congressional Findings (14)(K),
  in notes following 18 U.S.C. § 1531 (2000 ed., Supp. IV), p. 769. There would
  be a flaw in this Court’s logic, and an irony in its jurisprudence, were we
  first to conclude a ban on both D&E and intact D&E was overbroad and
  then to say it is irrational to ban only intact D&E because that does not
  proscribe both procedures. In sum, we reject the contention that the
  congressional purpose of the Act was “to place a substantial obstacle in the
  path of a woman seeking an abortion.” 505 U.S., at 878, 112 S. Ct. 2791,
  120 L. Ed. 2d 674 (plurality opinion).

    The Act’s furtherance of legitimate government interests bears upon, but
  does not resolve, the next question: whether the Act has the effect of
  imposing an unconstitutional burden on the abortion right because it does
  not allow use of the barred procedure where “ ‘necessary, in appropriate
  medical judgment, for [the] preservation of the . . . health of the mother.’ ”
  Ayotte, 546 U.S., at 327-328 (quoting Casey, supra, at 879 (plurality
  opinion)). The prohibition in the Act would be unconstitutional, under
  precedents we here assume to be controlling, if it “subjected [women] to
  significant health risks.” Ayotte, supra, at 328, see also Casey, supra at 880
  (opinion of the Court). In Ayotte the parties agreed a health exception to
  the challenged parental-involvement statute was necessary “to avert seri-
  ous and often irreversible damage to [a pregnant minor’s] health.” 546 U.S.,
  at 328. Here, by contrast, whether the Act creates significant health risks
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  § 4.02                           ABORTION                                   49

  for women has been a contested factual question. The evidence presented
  in the trial courts and before Congress demonstrates both sides have
  medical support for their position.
    Respondents presented evidence that intact D&E may be the safest
  method of abortion, for reasons similar to those adduced in Stenberg. See
  530 U.S., at 932. Abortion doctors testified, for example, that intact D&E
  decreases the risk of cervical laceration or uterine perforation because it
  requires fewer passes into the uterus with surgical instruments and does
  not require the removal of bony fragments of the dismembered fetus,
  fragments that may be sharp. Respondents also presented evidence that
  intact D&E was safer both because it reduces the risks that fetal parts will
  remain in the uterus and because it takes less time to complete. Respon-
  dents, in addition, proffered evidence that intact D&E was safer for women
  with certain medical conditions or women with fetuses that had certain
  anomalies. See, e.g., Carhart, 331 F. Supp. 2d, at 923–929; Nat. Abortion
  Federation, supra, at 470–474; Planned Parenthood, 320 F. Supp. 2d, at
    These contentions were contradicted by other doctors who testified in the
  District Courts and before Congress. They concluded that the alleged health
  advantages were based on speculation without scientific studies to support
  them. They considered D&E always to be a safe alternative. See, e.g., Car-
  hart, supra, at 930-940&; Nat. Abortion Federation, 330 F. Supp. 2d, at 470-
  474; Planned Parenthood, 320 F. Supp. 2d, at 983.
     There is documented medical disagreement whether the Act’s prohibition
  would ever impose significant health risks on women. See, e.g., id. at 1033
  (“There continues to be a division of opinion among highly qualified experts
  regarding the necessity or safety of intact D & E”); see also Nat. Abortion
  Federation, supra, at 482. The three District Courts that considered the
  Act’s constitutionality appeared to be in some disagreement on this central
  factual question. The District Court for the District of Nebraska concluded
  “the banned procedure is, sometimes, the safest abortion procedure to
  preserve the health of women.” Carhart, supra, at 1017. The District Court
  for the Northern District of California reached a similar conclusion.
  Planned Parenthood, supra, at 1002 (finding intact D&E was “under certain
  circumstances . . . significantly safer than D & E by disarticulation”). The
  District Court for the Southern District of New York was more skeptical
  of the purported health benefits of intact D&E. It found the Attorney
  General’s “expert witnesses reasonably and effectively refuted [the plain-
  tiffs’] proffered bases for the opinion that [intact D&E] has safety advan-
  tages over other second-trimester abortion procedures.” Nat. Abortion
  Federation, 330 F. Supp. 2d, at 479. In addition it did “not believe that many
  of [the plaintiffs’] purported reasons for why [intact D&E] is medically
  necessary [were] credible; rather [it found them to be] theoretical or false.”
  Id., at 480. The court nonetheless invalidated the Act because it determined
  “a significant body of medical opinion . . . holds that D & E has safety
  advantages over induction and that [intact D&E] has some safety
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  50           HAVING CHILDREN: THE ALTERNATIVE CHOICES                       CH. 4

  advantages (however hypothetical and unsubstantiated by scientific evi-
  dence) over D & E for some women in some circumstances. Ibid.
    The question becomes whether the Act can stand when this medical
  uncertainty persists. The Court’s precedents instruct that the Act can
  survive this facial attack. The Court has given state and federal legislatures
  wide discretion to pass legislation in areas where there is medical and
  scientific uncertainty. [citations omitted] (“When Congress undertakes to
  act in areas fraught with medical and scientific uncertainties, legislative
  options must be especially broad”).
    This traditional rule is consistent with Casey, which confirms the State’s
  interest in promoting respect for human life at all stages in the pregnancy.
  Physicians are not entitled to ignore regulations that direct them to use
  reasonable alternative procedures. The law need not give abortion doctors
  unfettered choice in the course of their medical practice, nor should it
  elevate their status above other physicians in the medical community. . . .
    Medical uncertainty does not foreclose the exercise of legislative power
  in the abortion context any more than it does in other contexts. See Hen-
  dricks, supra, at 360. The medical uncertainty over whether the Act’s
  prohibition creates significant health risks provides a sufficient basis to
  conclude in this facial attack that the Act does not impose an undue burden.
    The conclusion that the Act does not impose an undue burden is sup-
  ported by other considerations. Alternatives are available to the prohibited
  procedure. As we have noted, the Act does not proscribe D&E. . . .
       . . .
    In reaching the conclusion the Act does not require a health exception
  we reject certain arguments made by the parties on both sides of these
  cases. . . .
       . . .
     A zero tolerance policy would strike down legitimate abortion regulations,
  like the present one, if some part of the medical community were disinclined
  to follow the proscription. This is too exacting a standard to impose on the
  legislative power, exercised in this instance under the Commerce Clause,
  to regulate the medical profession. Considerations of marginal safety,
  including the balance of risks, are within the legislative competence when
  the regulation is rational and in pursuit of legitimate ends. When standard
  medical options are available, mere convenience does not suffice to displace
  them; and if some procedures have different risks than others, it does not
  follow that the State is altogether barred from imposing reasonable regula-
  tions. The Act is not invalid on its face where there is uncertainty over
  whether the barred procedure is ever necessary to preserve a woman’s
  health, given the availability of other abortion procedures that are consid-
  ered to be safe alternatives.
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  § 4.02                                 ABORTION                                   51

       . . .
    Respondents have not demonstrated that the Act, as a facial matter, is
  void for vagueness, or that it imposes an undue burden on a woman’s right
  to abortion based on its overbreadth or lack of a health exception. For these
  reasons the judgments of the Courts of Appeals for the Eighth and Ninth
  Circuits are reversed.
       It is so ordered. . . .
       Justice THOMAS concurring, with whom Justice SCALIA joins, concurring.
  Justice GINSBURG, with whom Justice STEVENS, Justice SOUTER, and
  Justice BREYER join, dissenting.
       . . .
     Today’s decision is alarming. It refuses to take Casey and Stenberg
  seriously. It tolerates, indeed applauds, federal intervention to ban nation-
  wide a procedure found necessary and proper in certain cases by the
  American College of Obstetricians and Gynecologists (ACOG). It blurs the
  line, firmly drawn in Casey, between previability and postviability abor-
  tions. And, for the first time since Roe, the Court blesses a prohibition with
  no exception safeguarding a woman’s health.
    I dissent from the Court’s disposition. Retreating from prior rulings that
  abortion restrictions cannot be imposed absent an exception safeguarding
  a woman’s health, the Court upholds an Act that surely would not survive
  under the close scrutiny that previously attended state-decreed limitations
  on a woman’s reproductive choices.
       . . .

                           NOTES AND QUESTIONS
    (1) What exactly was the holding in Gonzales v. Carhart? How did Justice
  Kennedy, writing for the majority, distinguish the Supreme Court’s prior
  partial-birth abortion decision in Stenberg v. Carhart? Are you persuaded
  by the Court’s reasoning? Why or why not?
    (2) The dissenting opinion in Gonzales v. Carhart states that this case
  “blurs the line, firmly drawn in Casey, between previability and postvia-
  bility abortions” and “for the first time since Roe, the Court blesses a prohi-
  bition with no exception safeguarding a woman’s health.” Do you agree with
  the dissenting judges? Why or why not?
    (3) Columnist Charles Krauthammer, in an article entitled “Roe Debate
  Remains Hopelessly Muddled,” argues that Gonzales v. Carhart, in uphold-
  ing a federal ban on partial-birth abortions, “has been misread by partisans
  on both sides. Pro-choice advocates denounced it as the beginning of a
  gradual cutting back on abortion rights. Pro-lifers celebrated it for precisely
  that same reason. It is nothing of the kind. The only reason the court upheld
  the ban is because an alternative (far more commonly used, in fact) to this
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  52          HAVING CHILDREN: THE ALTERNATIVE CHOICES                        CH. 4

  mid-to-late term procedure is readily available. Hence no “undue burden”
  to the woman. Hence it respects the confines of existing abortion jurispru-
  dence. Roe (and its successors) lives.” Do you agree with this assessment?
  Why or why not?
    (4) Assume, for the sake of argument, that the United States Supreme
  Court, as presently constituted, may overrule Roe v. Wade in the foreseeable
  future. What effect would this have on state abortion laws? What effect
  would this have on the underlying constitutional right to privacy, as first
  enunciated in Griswold v. Connecticut and Eisenstadt v. Baird, and (argu-
  ably) in Lawrence v. Texas?

  Page 266–70:

                        NOTES AND QUESTIONS
    (3) Abortion in the Future—President George W. Bush appointed John
  Roberts as Chief Justice of the United States Supreme Court in September
  2005, and Samuel Alito as Justice in January 2006. Gonzales v. Carhart,
  ___ U.S. ___, 127 S. Ct. 1610 (2007), is discussed supra.
     (10) See also Teresa Stanton Collett, Fetal Pain Legislation is it Viable?,
  30 PEPP. L. REV. 161 (2003), discussing the nature of the medical communi-
  ty’s consensus on fetal pain; Rebecca J. Cook & Bernard M. Dickens, Human
  Rights Dynamics of Abortion Law Reform, 25 HUM. RTS. Q. 1 (2003),
  discussing modern human rights dynamics on abortion law reform; Helena
  Silverstein & Leanne Speitel, “Honey, I Have No Idea”: Court Readiness
  to Handle Petitioners to Waive Parental Consent for Abortion,” 88 IOWA L.
  REV. 75 (2002), analyzing the practical realities of mandating parental or
  judicial involvement in minors’ abortion decisions; Jon-Michael Foxworth,
  Note, An Unjust Act: The Schizophrenic State of Maturity and Culpability
  in Juvenile Justice and Minor Abortion Rights Law: Recent Trends in
  Virginia and Nationally, 9 WM. & MARY J. WOMEN & L. 495 (2003),
  comparing the broadening of juveniles’ responsibility for criminal acts and
  decreased responsibility for reproductive decisions; Jeffery A. Van Detta,
  Constitutionalizing Roe, Casey, and Carhart: A Legislative Due-Process
  Anti-Discrimination Principle That Gives Constitutional Content to the
  “Undue Burden” Standard of Review Applied to Abortion Control Legisla-
  tion, 10 S. CAL. REV. L. & WOMEN’S STUD. 211 (2001), explaining the undue
  burden standard through the principle of non-discrimination against

  § 4.03       STERILIZATION
  Page 280–84:

                        NOTES AND QUESTIONS
    (14) If someone who is mentally retarded is forcibly sterilized and only
  later comprehends what has been done to them, what remedies should the
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  § 4.04                           SURROGACY                                   53

  law afford? In Lake v. Arnold, 232 F.3d 360 (3d Cir. 2000), plaintiff was
  sterilized at age 16 and was time barred from bringing suit under state
  and federal law. The court reasoned that due to her mental incapacity the
  plaintiff was unable to appreciate the injury of sterilization. Plaintiff there-
  fore was not lax in bringing suit because she did not recognize that she
  had cause to do so. She did bring suit within two years of learning from
  her gynecologist that she had been sterilized. The state claims were barred,
  but the federal claims were allowed to proceed.

  § 4.04       SURROGACY
  Page 294–96:

                        NOTES AND QUESTIONS
    (11) See also Pamela Laufer-Ukeles, Approaching Surrogate Motherhood:
  Reconsidering Differences, 26 VT. L. REV. 407 (2002) (giving arguments for
  and against surrogacy from the perspective of a right to reproductive
  freedom); Helen M. Alvare, The Case for Regulating Collaborative Repro-
  duction: A Children’s Rights Perspective, 40 HARV. J. ON LEGIS. 1 (2003)
  (arguing that regulation should be addressed from a children’s rights

  Page 301–05:

                        NOTES AND QUESTIONS
     (8) See also Marsha Garrison, Law Making for Baby Making: An Interpre-
  tive Approach to the Determination of Legal Parentage, 113 HARV. L. REV.
  835, 856 (2000); Amy M. Larkey, Note, Redefining Motherhood: Determin-
  ing Legal Maternity in Gestational Surrogacy Arrangements, 51 DRAKE L.
  REV. 605 (2003) (discussing gestational surrogacy); Molly Walker Wilson,
  Precommitment in Free-Market Procreation: Surrogacy, Commissioned
  Adoption, and Limits on Human Decision Making Capacity, 31 J. LEGIS.
  329 (2005) (exploring the legitimacy and enforceability of surrogacy

       [B] In Vitro Fertilization and the Status of the
  Page 315–17:

                        NOTES AND QUESTIONS
    (9) The issue has since come up in an Arizona case, Gillett-Netting v.
  Barnhart, 371 F.3d 593 (9th Cir. 2004), where the mother conceived
  children from her deceased husband’s deposited sperm. The mother was
  denied social security benefits for the children due to the fact they were
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  54          HAVING CHILDREN: THE ALTERNATIVE CHOICES                        CH. 4

  not dependents at the time of her husbands death, this was overturned on
  appeal and the court ruled that they were “legitimate children.”
    In In re Estate of Kolacy, 753 A.2d 1257 (N.J. Super. Ct. Ch. Div. 2000),
  the court determined the New Jersey state probate code intended that a
  decedent’s after-born children be provided for.
    See also Margaret Ward Scott, A Look at the Rights and Entitlements
  of Posthumously Conceived Children: No Surefire Way to Tame the Repro-
  ductive Wild West, 52 EMORY L.J. 963 (2003); and Christopher A. Sharman,
  Not Without My Father: The Legal Status of the Posthumously Conceived
  Child, 55 VAND. L. REV. 1001 (2002), which proposes a guide for lawmakers
  in defining the right of posthumously conceived children.
    (10) See also Note: Artificial Insemination: Right of Privacy and the
  Difficulty in Maintaining Donor Anonymity, 35 IND. L. REV. 213 (2001);
  Sara D. Petersen, Comment, Dealing with Cryopreserved Embryos Upon
  Divorce: A Contractual Approach Aimed at Preserving Party Expectations,
  50 UCLA L. REV. 1065 (2003); Karissa Hostrup Windsor, Note, Disposition
  of Cryopreserved Preembroys After Divorce, 88 IOWA L. REV. 1001 (2003);
  Fotini Skouvakis, Defining the Undefined: Using a Best Interests Approach
  to Decide the Fate of Crypopreserved Preembryos in Pennsylvania, 109
  PENN. ST. L. REV. 885 (2005); Naomi R. Cahn, Parenthood, Genes, and
  Gametes: The Family Law and Trusts and Estates Perspectives, 32 U. MEM.
  L. REV. 563 (2002).
    (11) In the 1990s an argument appeared where men who unintentionally
  impregnated women argued that this was “artificial insemination by
  intercourse” and, like sperm donors, they had no duties toward the child.
  Courts generally have not accepted this argument. See, e.g., 77 WASH. L.
  REV. 1035, 1070 (2002); see also Ellen Waldman, The Parent Trap: Uncover-
  ing the Myth of “Coerced Parenthood” in Frozen Embryo Disputes, 53 AM.
  U. L. REV. 1021 (2004).

  Page 326–29:

                        NOTES AND QUESTIONS
    (7) Inmates and In Vitro—In Gerber v. Hickman, 291 F.3d 617 (9th Cir.
  2002), the Ninth Circuit Court of Appeals held that the fundamental right
  to association with one’s child does not extend to an incarcerated person’s
  right to procreate by artificially inseminating his wife.
    (8) Additional Reading—See J.B. v. M.B., 170 N.J. 9 (2001) (can’t force
  anyone to be a parent against his or her will); Leslie Bender, Genes, Parents,
  and Assisted Reproductive Technologies: Arts, Mistakes, Sex, Race & Law,
  12 COLUM. J. GENDER & L. 1 (2003); Karen L. Goldstein & Caryn H. Okinaga,
  Assisted Reproductive Technology, 3 GEO. J. GENDER & L. 409 (2002) (legal
  implications of artificial insemination).
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  § 4.04                        SURROGACY                                   55

       [C] Cloning
  Page 330:

                       NOTES AND QUESTIONS
    (4) See also Symposium, Conceiving a Code for Creation: The Legal Debate
  Surrounding Human Cloning, 53 HASTINGS L.J. 987 (2002); Allison Lam-
  pert, Note: An Andy Warhol Society—First Coca Cola, Now Humans: An
  Examination of Whether a Ban on Human Cloning Violates Procreative
  Liberty, 16 ST. JOHN’S J. LEGAL COMMENT. 245 (2002)
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  Chapter 5


       [A] Scientific Testing
  Page 353–58:

                       NOTES AND QUESTIONS
    (4) See also State v. Snelling, 637 N.W.2d 906 (Neb. Ct. App. 2001),
  holding that a genetic test alone is not enough to establish paternity. The
  court found that such tests are 99.99% accurate and create a presumption
  of paternity.
    (6) What happens when you have a paternity dispute involving identical
  twins? See Richard v. Richard, 812 N.E.2d 222 (Ind. Ct. App. 2004). When
  a former husband claimed that his identical twin fathered a child born out
  of wedlock to his ex-wife, he failed to rebut the presumption of paternity
  since DNA testing indicated a 99.99% probability that he was the child’s
  biological father, even though his identical twin brother also had sexual
  intercourse with his ex-wife, and suggested the child was his, and offered
  to pay child support.

       [C] Procedural Issues in Paternity Cases
  Page 369–71:

                       NOTES AND QUESTIONS
    (4) See also In re J.A.G., 18 S.W.3d 772 (Tex. Ct. App. 2000), holding that
  an incarcerated man was not entitled to an appointed attorney involving
  a paternity/child support dispute and trial.
    (6) Time Limits on Paternity Actions. In the case of Calcaterra v. Manfra,
  56 P.3d 1003 (Wash. Ct. App. 2002), a thirty-four-year-old woman sought
  to determine paternity after her mother died. The appellate court ruled that
  the Uniform Parentage Act did not preclude a non-minor from establishing
  a father-child legal relationship. The child had a constitutional right to
  receive a determination of paternity, no matter what her age. The state
  could infringe on the rights of the putative father, by compelling a DNA
  test if it had a compelling state interest.
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  58                 ESTABLISHING LEGAL PARENTHOOD                            CH. 5


       [A] Presumptive Parents
  Page 385–87:

                        NOTES AND QUESTIONS
    (4) Informing the Child of Paternity. In Callendar v. Skiles, 623 N.W.2d
  852 (Iowa 2001), the court found it in the child’s best interest to allow a
  putative father to establish his paternity to the child even though there
  was another presumed father. The presumed father’s rights were termi-
  nated and the putative father was granted visitation, but the trial court
  could not require that the child be informed of who her biological father
  was before she began kindergarten.
     (5) Paternity Disputes during Marriage. Even though there is a presump-
  tion of legitimacy for a child born into an intact marriage, a biological father
  may still establish paternity. In this particular case, the biological father
  demonstrated that the child was conceived while the husband and wife were
  separated and living in separate states, and the mother testified that she
  had not engaged in sexual intercourse with her husband during that time.
  This evidence was sufficient to dispel the presumption of the child’s
  legitimacy occurring during the marriage. Lander v. Smith, 906 So. 2d 1130
  (Fla. Dist. Ct. App. 2005).
     (6) Paternity and Statutory Rape. Twelve years after the birth of the child,
  the mother sought a determination of paternity and a support order against
  the alleged father. The trial court denied the father’s motion to surrender
  his legal rights, and ordered that he pay child support. The court further
  noted that at the time of the parties’ sexual intercourse, the father was
  fifteen years old, and the mother was nineteen, and the mother’s actions
  arguably constituted statutory rape. If the father had pursued a rape charge
  against her, the mother would not have been permitted to assert his willing
  participation as a defense because he was under the age of consent when
  the sexual conduct occurred, and his acquiescence was thus involuntary as
  a matter of law. See In re K.B., 104 P.3d 1132 (Okla. Ct. Civ. App. 2004).

       [B] Non-Binding Presumptive Parents
  Page 415–17:

                        NOTES AND QUESTIONS
    (6) What may Constitute Knowledge of Pregnancy. In Hill v. Blevins, 109
  P.3d 332 (Okla. 2005), the putative father was charged with knowledge that
  a positive pregnancy test administered on December 25, 1996 is likely to
  be followed by the birth of a child approximately forty weeks later. Instead
  of making inquiry about the birth, the issuance of a birth certificate, or
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  § 5.05              ESTABLISHING PARENTAL RIGHTS                            59

  matters of support and visitation, the putative father waited until the child
  was almost six years old before he filed suit. The trial court correctly deter-
  mined that his suit was time barred.
    (7) See also Jeffrey A. Parries, Old-Fashioned Pregnancy, Newly-
  Fashioned Paternity, 53 SYRACUSE L. REV. 57 (2003), urging paternity law
  reform because existing law often mistreats fathers; and Brie S. Rogers,
  The Presumption of Paternity on Child Support Cases: A Triumph of Love
  Over Biology, 70 U. CIN. L. REV. 1151 (2002), presenting a good examination
  of the presumption of paternity and the use of DNA evidence.
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  Chapter 6

  § 6.01      INTRODUCTION

       [B] Why Doesn’t She Leave?
  Page 423:
    See also Laurie S. Kohn, Why Doesn’t She Leave? The Collision of First
  Amendment Rights and Effective Court Remedies for Victims of Domestic
  Violence, 29 HASTINGS CONST. L. Q. 1 (2001)


       [B] Contemporary Approaches to Domestic Violence

        [1] Criminal Prosecution: Mandatory Arrest and
            No-Drop Prosecution Policies
  Page 433–35:

                       NOTES AND QUESTIONS
    (7) See also Louise Ellison, Prosecuting Domestic Violence Without Victim
  Participation, 65 MODERN L. REV. 834 (2002); Laura J. Hickman & Sally
  S. Simpson, Fair Treatment or Preferred Outcome? The Impact of Police
  Behavior on Victim Reports of Domestic Violence Incidents, 37 LAW & SOC’Y
  REV. 607 (2003); Erin L. Han, Mandatory Arrest and No-Drop Policies:
  Victim Empowerment in Domestic Violence Cases, 23 B.C. THIRD WORLD
  L.J. 159 (2003).

        [2] The Civil Protection Order Process
  Page 442–43:

                       NOTES AND QUESTIONS
    (6) Recent Anti-Stalking Cases. In Jagat v. State, 525 S.E.2d 388 (Ga.
  Ct. App. 1999), the term “harassing” or “intimidating” is defined to mean
  a knowing and willful course of conduct directed at a specific person that
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  62          DOMESTIC VIOLENCE AND INTRAFAMILY TORTS                         CH. 6

  causes emotional distress by placing such person in reasonable fear of death
  or bodily harm which serves no legitimate purpose. Overt threats of bodily
  harm are not required.
    In Pike v. Maguire, 716 N.E.2d 686 (Mass. Ct. App. 1999), a permanent
  restraining order was entered over defendant’s argument that hang-up
  telephone calls and vandalism to plaintiff’s home could not be directly traced
  to him. The judge, however, was entitled to credit the plaintiff’s testimony
  that the defendant had kept her in fear for five years, and that fear is a
  prelude to physical harm.


       [A] Tort Claims Between Spouses
  Page 472–73:

                        NOTES AND QUESTIONS
    (6) Other Parties and Alienation of Affection. In Dowling v. Bullen, 94
  P.3d 915 (Utah 2004), a therapist was sued for alienation of affection by
  breaking up the petitioner’s marriage by beginning a relationship with
  petitioner’s spouse while the couple was in marriage counseling with the
  respondent. The intermediate appellate court had originally determined
  there was no alienation of affection cause of action, since it did not arise
  out of the health care provided by the therapist. Query: If the therapist was
  not sleeping with her client, but the marriage still ended, would there be
  sufficient grounds for an alienation of affection suit?

       [B] Parent-Child Tort Actions
  Page 481–83:

                        NOTES AND QUESTIONS
    (6) See also State v. Leopard, 563 S.E.2d 342 (S.C. Ct. App. 2002), where
  the South Carolina Court of Appeals found that a stepdaughter falls within
  the statutorily defined class designed to be protected from domestic
     And see also Roberts v. Williamson, 111 S.W.3d 113 (Tex. 2003), a case
  of first impression in Texas, where the court held that the parents did not
  have a medical malpractice tort claim for loss of consortium involving a
  surviving newborn child who suffered neurological injuries.
    (7) Tort Liability and Social Workers. See also Weatherford v. State, 81
  P.3d 320 (Ariz. 2003), where a foster child successfully sued her social
  worker under Section 1983, based on her right to reasonable safety.
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  Chapter 7

  Page 504–07:

                        NOTES AND QUESTIONS
    (1) See also Heather M. Good, “The Forgotten Child of Our Constitution”:
  The Parental Free Exercise Right to Direct the Education and Religious
  Upbringing of Children, 54 EMORY L. J. 641 (2005), providing a helpful
  overview of applicable standards of review involving parental rights and
  free exercise to direct a child’s education and religious upbringing.


       [A] Abuse or Discipline?
  Page 517–22:

                        NOTES AND QUESTIONS
    (2) See also State v. Baron, 848 A.2d 275 (Vt. 2004). In this case the father
  was charged with assault after slapping his son when the boy refused to
  allow his father to use the telephone. The trial court dismissed the case
  based upon its view that the definition of child abuse required the state
  to prove a higher degree of injury in cases of parent-child assaults. However,
  the Vermont Supreme Court reversed, noting that the state was only
  required to show “bodily injury” in cases of parent-child assaults and child

       [B] Parental Failure to Protect
  Page 532–33:

                        NOTES AND QUESTIONS
    (2) In C.K. v. Dept. of Public Welfare, 869 A.2d 48 (Pa. Commonwealth
  Ct. 2005), a mother was listed on the ChildLine Registry as an indicated
  perpetrator of sexual abuse, based on a finding that she had placed her
  three children in imminent risk of sexual abuse by living with a couple
  known for engaging in acts of child sexual abuse, and the mother’s appeal
  to have her name removed from the registry was properly denied. However,
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  64               CARE AND SUPERVISION OF CHILDREN                           CH. 7

  in N.J. Division of Youth & Family Services v. S.S., 855 A.2d 8 (N.J. Super.
  App. Div. 2004), the court held that the Division of Youth and Family
  Services did not meet its burden in showing that a child was harmed or
  in danger of being harmed when his father physically abused his mother
  while the child was present. The mother was not guilty of child abuse, and
  her name should not have been included in the Central Registry.
    See also Justine Dunlap, Sometimes I Feel Like a Motherless Child: The
  Error of Pursuing Battered Mothers for Failure to Protect, 50 LOYOLA L.
  REV. 565 (2004), arguing that children should not be removed from a
  battered mother because she failed to protect them from abuse.

       [C] Defining and Responding to Child Neglect
  Page 537–40:

                        NOTES AND QUESTIONS
    (1) See also Emily Buss, Allocating Developmental Control Among Parent,
  Child, and the State, 2004 U. CHI. LEGAL FORUM 27, arguing that in many
  areas the parent possesses the best insights regarding developmental issues
  in child-rearing, but also discussing when control should be taken over by
  the state; and Ellen Marrus, Fostering Family Ties: The State as Maker
  and Breaker of Kinship Relationships, 2004 U. CHI. LEGAL FORUM 319,
  reviewing the stages of a dependency proceeding, discussing related state
  and federal legislation, and the options and preferences for a child’s
    (3) See, e.g., In re Alexis X., 798 N.Y.S.2d 148 (App. Div. 2005), where
  the court denied the state agency’s application to terminate a mother’s
  parental rights where she had demonstrated progress by keeping her
  violent boyfriend away from the children, improving her housing situation,
  seeking stable employment, and showing more interest in the children. On
  the other hand, in the case of In re L.N., 690 N.W.2d 245 (S.D. 2004), the
  South Dakota Supreme Court affirmed the termination of parental rights
  where the mother had been given multiple opportunities to develop her
  parenting skills, but had failed to do so.

       [D] Abuse or Neglect of a Fetus?
  Page 549–52:

                        NOTES AND QUESTIONS
    (8) See also Janet Ashley Murphy, Successful Pregnancy Prevention
  Program for Addicts Remains Under Siege, 5 J. L. & SOC’Y 155 (2003), which
  discusses how the “crack baby crisis” transformed a social problem into a
  public health problem. The author reviews the CRACK Program, involving
  payment for sterilization, as well as the economics of prenatal cocaine abuse,
  and a multi-tiered suggested responsive program.
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  § 7.06                THE FOSTER CARE PROGRAM                              65

  Page 643–46:

                       NOTES AND QUESTIONS
    (6) See also In re D.M., 677 N.W.2d 578 (S.D. 2004), holding that relatives
  were not entitled to intervene as a matter of right in a child abuse and
  neglect case, and the state department of social services could select an
  unrelated foster family to adopt the child.
    And see James Gilliam Jr., Toward Providing a Welcoming Home for All:
  Enacting a New Approach to Address the Longstanding Problems Lesbian,
  Gay, Bisexual and Transgender Youth Face in a Foster Care System, 37
  LOYOLA L.A. L. REV. 1037 (2004), addressing the problems faced by openly
  gay and lesbian teenagers in the foster care system.
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  Chapter 8

  § 8.02         CONSENT TO ADOPTION

       [A] Timing and Validity of Consent
  Page 661–64:

                        NOTES AND QUESTIONS
    (1) See also Adoption of Michaela C., 863 A.2d 270 (Me. 2004). The
  maternal and paternal grandmother in this adoption dispute both filed a
  petition for adoption in separate probate courts. The mother’s rights had
  been terminated, but the father would only consent to adoption by the
  paternal grandmother. The maternal grandmother’s petition was not viable
  without the written consent of the legal and biological father.
    And see D.J.R. v. P.K.D., 114 P.3d 214 (Mont. 2005), where the termina-
  tion of the father’s paternal rights was affirmed where he was able to
  provide support for his child but failed to do so. The father had part-time
  employment while attending college, so he could have paid some child
       (3)(d) Proof of Fraud or Duress
     See also Fakhoury v. Fakhoury, 613 S.E.2d 729 (N.C. Ct. App. 2005). Wife
  left her husband soon after she adopted her husband’s adopted son. Because
  the couple had experienced marital discord repeatedly during the relation-
  ship before the adoption petition was filed, the husband’s consent to the
  adoption was not procured by fraud.
    And see In re Adoption of Baby Girl T., 21 P.3d 581 (Kan. Ct. App. 2001).
  Absent a showing of fraud, a voluntary consent is not revocable even if the
  birth mother feels pressure from her home environment and misunder-
  stands what an open adoption means. Misunderstanding as to visitation
  does not constitute fraud or duress.
    And see also Vela v. Marywood, 17 S.W.3d 750 (Tex. App. 2000), holding
  that an adoption agency could not mislead the mother regarding the
  enforceability of an open-adoption agreement and obtain valid affidavit of
       (6) Child’s Best Interests
    See also Arizona Dept of Econ. Sec. v. Oscar O., 100 P.3d 943 (Ariz. Ct.
  App. 2004). The mother voluntarily relinquished her rights after the
  children were taken away so that the aunt and uncle could adopt the girls.
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  68                               ADOPTION                                   CH. 8

  The father contested terminating his parental rights. Noting that there
  were no findings to show that the father’s visits with the children meant
  something to them, and the children wanted to be with the aunt and uncle,
  the court found it was in their best interests to be adopted by the aunt and
  uncle, and the father’s rights were terminated.
    And see Elizabeth Brandt, Cautionary Tales of Adoption: Addressing the
  Litigation Crisis at the Moment of Adoption, 4 WHITTIER J. CHILD. & FAM.
  ADVOC. 187 (2005).

               PARENTAL RIGHTS
  Page 693–94:

                        NOTES AND QUESTIONS
    A man whose marriage to the mother of his child was void because of
  her previous undissolved marriage is nevertheless the child’s “legal father,
  the child is legitimate, and the man’s parental rights should be taken into
  account.” Hall v. Coleman, 530 S.E.2d 485 (Ga. Ct. App. 2000).
    Equitable and judicial estoppel barred a putative father from obtaining
  custody of a child and vacating an adoption decree after he previously
  denied paternity in a support proceeding. In re Adoption of S.A.J., 838 A.2d
  616 (Pa. 2003).
     (6) See also In re Kyle F., 5 Cal. Rptr. 3d 190 (Cal. Ct. App. 2003). The
  trial court erred in disqualifying an unwed eighteen-year-old father from
  asserting his constitutional right to withhold his consent to adoption of his
  child merely because the father conceived the child with sixteen-year-old
  mother; since consent preclusion in California applies only to cases of
  forcible rape.
    See also Shepherd v. Clemens, 752 A.2d 533 (Del. Super. Ct. 2000). A
  parent accused of statutory rape does not have a constitutionally protected
  right to parent a child. On abandonment and best interest grounds, the
  court terminated the father’s parental rights and awarded custody to the
  maternal grandparents.
     (9) In In re Adoption of Baby Boy Brooks, 737 N.E.2d 1062 (Ohio Ct. App.
  2000), the failure to register with the Putative Father Registry did not
  terminate the biological father’s right to consent to adoption if he has estab-
  lished paternity prior to the adoption proceedings.
    But in Mathews v. Hansen, 797 N.E.2d 1168 (Ind. Ct. App. 2003), the
  father failed to register timely with putative father’s registry and was pre-
  cluded from challenging an adoption decree, even though notice was
    See also In re Paternity of Baby Doe, 734 N.E.2d 281 (Ind. App. 2000).
  Failure to register with a putative father’s registry until six months after
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  § 8.04                   THE ADOPTION PROCESS                               69

  adoptive parent’s petition to adopt had been filed was an implied consent
  to the adoption and precluded the alleged father from challenging the
  adoption. Promptness in registering with the putative father registry was
  measured in terms of the baby’s life, not by the onset of father’s awareness.
    And see In re TMK, 617 N.W.2d 925 (Mich. Ct. App. 2000). Failure of
  mother to inform the putative father of the birth of his nonmarital child
  was not a ground for denial of termination of parental rights and a
  stepparent adoption, because the Michigan adoption code contained no
  requirement for the notification of the biological father.


       [A] Agency Adoption
  Page 699:

                        NOTES AND QUESTIONS
     (1) See also Doe v. Noe (In re J.D.), 739 N.E.2d 1036 (Ill. App. Ct. 2000).
  A child is available for adoption if the child has been surrendered for adop-
  tion to an adoption agency, and if that agency thereafter consents. A trial
  court may enter an adoption judgment if (1) the adoption is for the good
  of the child; and (2) either a valid consent exists or no consent is required.

       [C] Stepparent and Second Parent Adoption
    See generally Alona Croteau, Voices in the Dark: Second Parent Adoptions
  When the Law is Silent, 50 LOYOLA L. REV. 675 (2004); Martin Gardner,
  Adoption by Homosexuals in the Wake of Lawrence v. Texas, 6 J.L. & FAM.
  STUD. 19 (2004); Scott Ryan & Scottye Cash, Adoptive Families Headed by
  Gay or Lesbian Parents: A Threat . . . or Hidden Resource?, 15 U. FLA. J.L.
  & PUB. POL’Y 443 (2004); Lynne Wardle, Considering the Impacts on
  Children and Society of “Lesbigay” Parenting, 23 QUINNIPIAC L. REV. 541

  Page 717:

                        NOTES AND QUESTIONS
    (3) See also Mariga v. Flint, 822 N.E.2d 620 (Ind. Ct. App. 2005). In this
  case, a mother’s same-sex partner adopted her two children but when the
  relationship ended, the adoptive mother sought to vacate the adoption and
  avoid child support. In denying the adoptive mother’s petition, the court
  held that “whether a parent is a man or a woman, homosexual or heterosex-
  ual, or adoptive of biological; in assuming that role, the person also assumes
  certain responsibilities, obligations, and duties, and may not simply shed
  the parental mantle because it becomes inconvenient.”
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  70                               ADOPTION                                   CH. 8

    And see Davenport v. Little-Bowser, 611 S.E.2d 366 (Va. 2005). The
  Virginia Supreme Court held that the state’s Registrar of Vital Records &
  Health Statistics could not lawfully refuse to issue a new birth certificate
  to a same-sex couple who had already been allowed to adopt a child as the
  “adoptive parents,” since the state statute did not use the words “mother
  and father.”

       [D] Procedural Requirements
  Page 720:

                        NOTES AND QUESTIONS
    (2) See also Gray v. Bourne, 614 S.E.2d 661 (Va. Ct. App. 2005). The
  Virginia Court of Appeals found that a prospective adoptive father was not
  per se ineligible as an adoptive parent, despite the fact he had a conviction
  for sexual battery and failed to register as a sex offender.
     And see In re C. and J., 789 N.Y.S.2d 610 (N.Y. Fam. Ct. 2004). The
  biological father is only entitled to notice of the proceedings of adoption and
  a right to be heard as to the best interests of the child. These rights do
  not entitle the biological father to discovery because the biological father
  is not deemed a “party” to the adoption proceedings under state statutory


       [B] “Open Adoption” and Post-Adoption Visitation
  Page 757:

                        NOTES AND QUESTIONS
    (4) See also Hede v. Gilstrap, 107 P.3 158 (Wyo. 2005). The grandparents
  brought a declaratory action against the adoptive parents seeking to enforce
  grandparent visitation rights that existed prior to adoption. The court held,
  however, that adoption severs all biological family rights, including those
  judicially vested in grandparents.

  Page 766: Add the following new material:
    Intercountry adoptions are becoming much more frequent, and are
  increasingly being utilized by more American couples in search of adoptive
  children. For more information on intercountry adoptions, see generally
  Donovan Steltzner, Intercountry Adoption: Toward a Regime that Recog-
  nizes the “Best Interests” of Adoptive Parents, 35 CASE WESTERN RESERVE
  J. INT’L L. 113 (2003); Amy Grillo Kales, The Intercountry Adoption Act of
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  § 8.07                INTERCOUNTRY ADOPTION                               71

  2000: Are its Laudable Goals Worth its Potential Impact on Small Adoption
  Agencies, Independent Intercountry Adoptions, and Ethical Independent
  Adoption Professionals?, 36 GEO. WASH. INT’L L. REV. 477 (2004); Alison
  Fleisher, The Decline of Domestic Adoption: Intercountry Adoption as a
  Response to Local Adoption Laws and Proposals to Foster Domestic Adop-
  tion, 13 S. CAL. REV. L. & WOMEN’S STUD. 171 (2003); Barbara Stark, Baby
  Girls from China in New York: A Thrice-Told Tale, 2003 UTAH L. REV. 1231;
  Linda Olsen, Live or Let Die: Could Intercountry Adoption Make the
  Difference?, 22 PENN. ST. INT’L L. REV. 483 (2004).
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  Chapter 9

  Page 782:

                       NOTES AND QUESTIONS
    (8) In the case of In re Zacher, 98 P.3d 309 (Mont. 2004), the trial court
  was held to be without jurisdiction to enter a divorce decree when the wife
  was never personally served nor acknowledged service of process, even
  though she signed a separation agreement and a consent to entry of

       [B] Migratory Divorces
  Page 794:

                       NOTES AND QUESTIONS
    (3) In Sinha v. Sinha, 834 A.2d 600 (Pa. Super. 2003), husband and wife
  had been married in India, and were both citizens of India, but had been
  domiciled in Pennsylvania since 1996. While traveling in India, the parties
  separated, and returned to Pennsylvania, where the wife filed for divorce.
  Unknown to the wife, however, prior to returning to Pennsylvania, the
  husband had filed for divorce in India. The court held that Pennsylvania,
  and not India, had jurisdiction over this divorce action, because Pennsylva-
  nia had the greatest interest in the matter, and had the most significant
  contacts and relationships with the parties under a conflict of laws legal
    In Keating v. Keating, 855 A.2d 80 (Pa. Super. 2004), where the husband
  was divorced in Guam and remarried, his first wife was held to be the legal
  wife of the husband on his death, because she had no prior notice or
  opportunity to be heard in the Guam divorce proceeding.

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  74               DIVORCE OR DISSOLUTION OF MARRIAGE                         CH. 9


       [A] Fault Grounds for Divorce
         [2] Adultery, Cruelty, and Desertion
  Page 806:

                        NOTES AND QUESTIONS
       (3)(a) Cruelty
    In the case of Moore v. Davidson, 145 S.W.3d 833 (Ark. Ct. App. 2004),
  there was sufficient evidence to corroborate wife’s divorce grounds based
  on cruelty. Although no one witnessed the alleged assault, witnesses
  testified that they observed bruises on wife’s neck after the assault, and
  husband had been angry and verbally abusive to wife on other occasions
  as well. However, in Tedford v. Tedford, 856 So. 2d 753 (Miss. Ct. App.
  2003), the court ruled that the evidence presented did not sustain a divorce
  based on cruel and inhuman treatment because the husband’s behavior did
  not rise to the level of abuse.

  Page 821–25:
    For other articles advocating the rejection-or retention-of fault factors in
  no-fault divorce see Ira Mark Ellman & Sharon Lohr, Marriage as Contract,
  Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997
  U. ILL. L. REV. 719; Allen M. Parkman, Reforming Divorce Reform, 41
  SANTA CLARA L. REV. 379 (2001); Peter Nash Swisher, The ALI Principles:
  A Farewell to Fault—But What Remedy for the Egregious Martial Miscon-
  duct of an Abusive Spouse?, 8 DUKE J. GENDER L. & POL’Y 213 (2001)
  (Symposium); and Peter Nash Swisher, Marriage and Some Troubling
  Issues with No-Fault Divorce, 17 REGENT U. L. REV. 243 (2004-2005)


       [B] Binding Arbitration
  Page 868:

                        NOTES AND QUESTIONS
    (4) In MacIntyre v. MacIntyre, 693 N.W.2d 822 (Mich. 2005), the Michigan
  Supreme Court held that a trial court had an independent duty to deter-
  mine the child’s best interests in a custody dispute, and was not bound by
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  § 9.07            ALTERNATIVE DISPUTE RESOLUTION                            75

  an arbitrator’s decision. See also Andre Imbrogna, Arbitration as an
  Alternative in Divorce Litigation: Defining the Judicial Role, 31 CAPITAL
  U. L. REV. 413 (2003).
    See also Hirsch v. Hirsch, 774 N.Y.S.2d 48 (N.Y. App. Div. 2004), holding
  that child support and custody issues were not subject to arbitration by a
  Beth Din rabbinical tribunal under Jewish law.

  Page 868: Add the following new material:

       [C] Collaborative Law
     Collaborative Law is a relatively new form of alternative dispute resolu-
  tion, but as one commentator recently asserted, collaborative family lawyer-
  ing is “one of the most significant developments in family law services in
  the last 25 years.” See, e.g., Julie MacFarlane, The Emerging Phenomenon
  of Collaborative Family Law (2005).
     Collaborative law differs from arbitration and mediation in that it does
  not involve the use of neutrals in the decision making process. Each party
  is represented by an attorney trained in collaborative law. The parties, with
  the help of their attorneys, engage in direct problem-solving negotiations
  with one another in the context of conferences between husband and wife
  and their respective attorneys in generating creative ideas and negotiated
  solutions and settlements of their family law issues.
    The collaborative family law process relies on voluntary disclosure of all
  relevant information from both parties, and in addition to a retainer agree-
  ment, the clients and their attorneys also sign a “disqualification agree-
  ment” stating that each lawyer is only retained to represent his or her client
  in the collaborative process, and cannot represent either party in any
  subsequent litigation against the other party. See generally Pauline Tesler,
  Collaborative Law: Achieving Effective Resolution in Divorce Without
  Litigation (2001); Janis Pritchard et al., Collaborative Practice Handbook
  (2002); Janet Brumley, Divorce Without Disaster: Collaborative Law in
  Texas (2004); see also Gay Cox, Problem Solving Process: Peacemakers and
  the Law: The Case for Collaborative Law, 11 TEX. WESLEYAN L. REV. 45
  (2004); John Lande, Possibilities for Collaborative Law, 64 OHIO ST. L. J.
  1315 (2003); see also Donna Beck Weaver, The Collaborative Law Process
  for Prenuptial Agreements, 4 PEPP. DISP. RESOL. L.J. 337 (2004); Pauline
  Tesler, Collaborative Family Law, 4 PEPP. DISP. RESOL. L.J. 317 (2004).
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  Chapter 10


       [C] Marital or Separate Property—or Both?
  Page 884:

                        NOTES AND QUESTIONS
     (4) In determining how to apportion “hybrid” property, in the context of
  real estate and other commingled property, a growing number of states
  have adopted the so-called “Brandenburg formula,” based on the landmark
  Kentucky case of Brandenburg v. Brandenburg, 617 S.W.2d 871 (Ky. Ct.
  App. 1981), as an appropriate or presumptive method of apportioning the
  increase in value of real estate and other commingled properties on divorce
  or dissolution of marriage. This specific formula and definitions are as
  follows: (1) nonmarital [or separate] property    nmc divided by tc times
  e. (2) marital property     mc divided by tc times e.
     Nonmarital contribution [nmc] is defined as the equity in the property
  at the time of marriage, plus any amount expended after marriage by either
  spouse from traceable nonmarital funds in the reduction of the mortgage
  principal, or the value of improvements made to the property from such
  nonmarital funds. Marital contribution [mc] is defined as the amount
  expended after marriage from other than nonmarital funds in the reduction
  of the mortgage principal, plus the value of all improvements made to the
  property after marriage from other than nonmarital funds. Total contribu-
  tion [tc] is defined as the sum of nonmarital and marital contributions.
  Equity [e] is defined as the equity in the property at the time of distribution.
  This may be either at the date of the divorce decree, or if the property has
  been sold prior to divorce, and the proceeds properly traced, then the date
  of the sale shall be the time at which the equity is computed.
    Other states which have recognized this “Brandenburg formula” as well,
  including: In re Marriage of Herr, 705 S.W.2d 619 (Mo. Ct. App. 1986);
  Willis v. Willis, 358 S.E.2d 571 (N.C. Ct. App.1987); and Hart v. Hart, 497
  S.E.2d 496 (Va. Ct. App. 1998).
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  78              ECONOMIC CONSEQUENCES OF DIVORCE                           CH. 10

       [D] “Tracing” and Transmutation of Property

  Page 890:

                       NOTES AND QUESTIONS
    (6) In Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004), the Alaska Su-
  preme Court for the first time approved the process of “tracing” assets back
  to their marital and nonmarital sources. The court held that marital and
  separate interests in a mixed or “hybrid” asset normally are in the same
  ratio as marital and separate contributions used to acquire that asset.
  However, in the absence of proof to “trace” such assets, the separate
  contribution is transmuted, by commingling, to marital property.
    In Spooner v. Spooner, 850 A.2d 354 (Me. 2004), stock was allegedly gifted
  to the wife by her mother as separate property. However, the wife put the
  stock in a joint marital account for a significant period of time, and she
  was not able to convincingly prove that the stock was her sole separate
  property, nor “trace” it out from the marital property; therefore the stock
  was transmuted into marital property.

       [F] Property Acquired by Gift or Inheritance

  Page 985:

                       NOTES AND QUESTIONS
    (3) See also Anzalone v. Anzalone, 835 A.2d 773 (Pa. Super. Ct. 2003),
  where the court held that a special masker did not err in determining that
  the wife’s father had loaned, and not gifted, the parties’ several thousand
  dollars during their marriage.
     In In re Horton, 102 P.3d 1276 (Mont. 2004), a gift by wife’s father of
  labor and materials to build a marital home was properly excluded by the
  trial court from the marital estate as a gift to the wife, and the case was
  remanded to reassess the value of such a gift.

       [G] Pension and Retirement Benefits
    Page 897: See also Dylan Wilde, Obtaining an Equitable Distribution
  of Retirement Plans in a Divorce Proceeding, 49 S.D. L. REV. 141 (2003),
  which provides an overview of the various types of retirement plans, and
  makes recommendations on how to structure divorce settlements involving
  pension and retirement benefits. And see Perry v. Perry, 143 S.W.3d 632
  (Ky. Ct. App. 2004), holding that a husband’s pension was required to be
  valued as of the date of the divorce, rather than the date of his retirement.
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  § 10.02               DISTRIBUTION OF PROPERTY                              79

  Page 900–01:

                       NOTES AND QUESTIONS
    (4) In Grecian v. Grecian, 97 P.3d 468 (Idaho Ct. App. 2004), the ex-wife
  was awarded one-half of the ex-husband’s 401(k) retirement plan. Due to
  a drop in the stock market when the ex-wife sought to cash in her half of
  the retirement plan assets, the value of the 401(k) plan was significantly
  less. The court held, however, that the retirement plan was valued at the
  time of the divorce decree, and the ex-husband would not have to pay the
  difference out of his own pocket.
     In In re Marriage of Crook, 813 N.E.2d 198         (Ill. 2004), the Illinois
  Supreme Court held the lower court could not          consider federal Social
  Security benefit payments when determining a          division of the parties’
  marital assets. Accord In re Rogers, 817 N.E.2d       562 (Ill. Ct. App. 2004)
  (similar holding).
    In Hayward v. Hayward, 868 A.2d 554 (Pa. Super. Ct. 2005), an ex-
  husband had to pay fifty percent of his military and civilian retirement
  benefits to his ex-wife, where the husband changed some of his retirement
  benefits to disability benefits, thereby preventing their distribution under
  a Qualified Domestic Relations Order [QDRO].

       [I] Personal Injury and Workers Compensation
  Page 905:

                       NOTES AND QUESTIONS
    (3) The Iowa Supreme Court, in a case of first impression, In re Marriage
  of Schriner, 695 N.W.2d 493 (Iowa 2005), adopted the “mechanistic ap-
  proach” to equitable distribution to decide that a workers compensation
  award was marital property subject to division, if the award was received,
  or the right to receive the award accrued, during the marriage. If the Iowa
  legislature had wanted to exclude workers compensation benefits from
  property divisible in a divorce, the court reasoned, it would have excluded
  workers compensation benefits in the Iowa dissolution statute in the same
  manner as inherited or gifted property.
    In Miller v. Miller, 613 S.E.2d 87 (W. Va. 2005), the West Virginia
  Supreme Court held that a personal injury settlement resulting from a car
  accident during the marriage constituted marital property.
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  80              ECONOMIC CONSEQUENCES OF DIVORCE                           CH. 10

       [J] Professional Degrees and Licenses
  Page 911–12:

                       NOTES AND QUESTIONS
    (1) See also Holterman v. Holterman, 781 N.Y.S.2d 458 (App. Div. 2004).
  In this case, wife had made economic and noneconomic contributions to
  husband’s acquisition of his medical license and his subsequent medical
  career; and she terminated her own career to raise two children and
  maintain a household, and was absent from the job market for seventeen
  years, and had significant long-term health problems. The trial court there-
  fore did not abuse its discretion in awarding the wife 35% of the present
  value of the husband’s medical license as the marital portion of his
  enhanced earning capacity as a physician.
    However, in Hlinka v. Hlindka, 767 N.Y.S.2d 448 (App. Div. 2004), the
  court erroneously double-counted the husband’s income in valuing his
  master electrician license, which was equitably distributed both as marital
  property and in a spousal support award.

       [L] Classifying and Valuing Professional Goodwill
  Page 926–27:

                       NOTES AND QUESTIONS
    (3) See also Baker v. Baker, 861 A.2d 298 (Pa. Super Ct. 2004), holding
  that professional goodwill of a veterinary practice arises from location and
  customer lists, as opposed to the personal characteristics of the husband,
  and is a martial asset subject to equitable distribution; and In re Marriage
  of Schneider, 798 N.E.2d 1242 (Ill. Ct. App. 2003), where the failure to
  include personal goodwill in the value of husband’s dental practice was held
  to be error.

       [M] Valuing Businesses and Professional Practices
  Page 929:
     In Hoebelhenrich v. Hoebelheinrich, 600 S.E.2d 152 (Va. Ct. App. 2004),
  it was held proper for the trial court judge to appoint the wife’s expert
  witness to give an opinion on the valuation of husband’s medical practice,
  and then to follow the expert’s opinion, since the husband had been invited
  to suggest names of expert witnesses and failed to do so. Wife was awarded
  50% of these assets.
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  § 10.03                     SPOUSAL SUPPORT                                81

       [Q] Selected Bibliography on Equitable Distribution
           of Marital Property
  Page 952:
    See also Brett R. Turner, Equitable Distribution of Property (2005) (3
  volumes); Robert Kleeman et al., Handbook for Divorce Valuations (1999);
  Victor Meyen & Mark Dundee, Qualified Domestic Relations Order Answer
  Book (1998).

  § 10.03      SPOUSAL SUPPORT

       [B] Rehabilitation and Self-Sufficiency
  Page 966–68:

                       NOTES AND QUESTIONS
    (4) See also Campbell v. Smith, 609 S.E.2d 844 (W. Va. 2004), where the
  court held that rehabilitative spousal support is intended to be limited
  support for a certain amount of time, and is not predicated upon the parties
  having equal incomes. If a spouse is unable to meet a rehabilitative spousal
  support plan, modification of that plan may be allowed at a later time. And
  in In re Schiltz, 833 N.E.2d 412 (Ill. Ct. App. 2005), the court held that
  permanent spousal support and maintenance should only be awarded where
  a spouse is not employable or is employable only at a low income as
  compared to her previous standard of living.
     But in Greene v. Greene, 895 So. 2d 503 (Fla. Dist. Ct. App. 2005), the
  court held that after a fifteen year marriage, even though the wife was a
  registered nurse and could earn some income, that in itself did not preclude
  her from an award of permanent periodic spousal support, especially when
  she had given up her employment under an agreement with her husband
  to raise their children, and the children had special needs and disabilities,
  and the wife did not want to return to work as a registered nurse because
  it was a stressful and demanding occupation. And the Iowa Supreme Court
  in In re Marriage of Anliker, 694 N.W.2d 535 (Iowa 2005), held that
  traditional permanent alimony was appropriate in this particular case
  because of wife’s age (51), her physical condition (she received Social
  Security disability payments for an injured knee) and the likelihood that
  her physical condition would prevent her from finding work.
    See also David Westfall, Unprincipled Family Dissolution: The American
  Law Institute’s Recommendations for Spousal Support and Division of
  Property, 27 HARV. J. L. & PUB. POL’Y 917 (2004), providing an overview
  of the ALI recommendations regarding alimony and property division on
  divorce, and criticizing the ALI recommendations.
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  82              ECONOMIC CONSEQUENCES OF DIVORCE                           CH. 10

       [F] Modification of Spousal Support Awards
  Page 998–1001:

                       NOTES AND QUESTIONS
    (3) In Wachter v. Wachter, 607 S.E.2d 818 (W. Va. 2004), husband’s gross
  salary exceeded his ex-wife’s gross salary by $34,000 a year, and wife was
  awarded permanent alimony. The husband sought to modify this alimony,
  but he failed to show by a preponderance of the evidence that the ex-wife
  had entered into a de facto marriage with her boyfriend.
    However, in Woodard v. Woodard, 696 N.W.2d 221 (Wis. Ct. App. 2005),
  the ex-husband challenged the amount of spousal support and maintenance
  he was paying to his ex-wife because she was receiving financial benefits
  from a cohabitation relationship. The court held that these financial
  benefits from her cohabitation was reviewable for the purpose of determin-
  ing the payee’s financial condition.
    And in Stroud v. Stroud, 641 S.E.2d 142 (Va. Ct. App. 2007), the ex-
  husband established by a preponderance of the evidence that his ex-wife
  was financially supporting her lesbian partner, and that she and her lesbian
  partner cohabited in a relationship analogous to marriage, thus terminating
  ex-husband’s spousal support obligations under the parties’ property
  settlement agreement.
     See also Patricia Krogman, Maintenance Payments and Same-Sex Rela-
  tionships: When an Ex-Spouse “Cohabitates” with a Member of the Same
  Sex, 109 PENN. ST. L. REV. 317 (2004), discussing the ways that various
  state courts have treated an ex-spouse’s attempt to modify or discontinue
  alimony payments when the other former spouse has entered into a same-
  sex relationship after the parties’ divorce.
    (8) In Wasserman v. Parciasepe, 871 A.2d 781 (N.J. Super. 2005), ex-wife
  attempted to modify the alimony she paid to her ex-husband. The ex-wife
  proved that her ex-husband could work, but didn’t, so her alimony payments
  to him were reduced.
    In Ebach v. Ebach, 700 N.W.2d 684 (N.D. 2005), the North Dakota
  Supreme Court held that voluntary early retirement does not constitute
  a material change in circumstances that would justify a reduction or elimi-
  nation of spousal support.
    In Hillier v. Iglesias, 901 So. 2d 947 (Fla. Dist. Ct. App. 2005), the ex-
  wife’s petition for an increase in alimony was reversed because she did not
  prove any basis for such an increase, and an increase in inflation was not
  enough, because inflation is a national problem, and did not impact on her
  specifically. However, there was no error in denying the ex-husband’s
  petition to reduce or terminate alimony, even though the ex-wife was now
  a law school graduate, and she was earning approximately $150,000 a year
  as an attorney!
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  § 10.03                    SPOUSAL SUPPORT                                83

    And in Willoughby v. Willoughby, 862 A.2d 654 (Pa. Super. 2004), the
  ex-husband’s petition to modify his permanent alimony obligation to his
  former wife was denied because his voluntary criminal behavior and
  subsequent incarceration did not constitute a bona fide change of circum-
  stances such that he should be relieved of his spousal support obligation.
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  Chapter 11


       [A] Income Shares Model
  Page 1013–16:

                          NOTES AND QUESTIONS
    (5) See also Berryhill v. Rhodes, 21 S.W.3d 188 (Tenn. 2000). The court
  held in this case that a private agreement, without court approval, involving
  child support payments violates state public policy, and the Child Support
  Guidelines must be applied to determine the proper amount of child

       [B] Percentage of Income
  Page 1019–21:

                          NOTES AND QUESTIONS
       (4) Presumptive effect
     See also Fields v. McPherson, 756 A.2d 420 (D.C. 2000). In this case
  between a father and a custodian who was not a parent of the child, the
  trial court erred in treating the income of the custodian in the same fashion
  as it would the income of a parent. Since the unrelated custodian had no
  obligation of support, that individual’s personal income should not be taken
  into account under the guideline formula.
       (5) Dual Custody
     See also Freetly v. Mascolo, 757 So. 2d 1286 (Fla. Dist. Ct. App. 2000).
  In this paternity action, the court could order a mother to pay child support
  even though the father does not request it in his pleadings. Where the
  mother had the minor child with her from 1991 to 1995, and the father
  had the child with him from 1995 to 1999, the court could properly exercise
  its discretion and decide that the father did not owe retroactive child
  support to the mother because he was similarly entitled to it, and each claim
  cancelled the other out.
    And see Smith v. Francisco, 737 A.2d 1000 (Del. Super. Ct. 1999). The
  court reversed the trial court’s refusal to consider one parent’s greater than
  standard visitation when calculating child support. The child support for-
  mula and its guidelines are rebuttable presumptions, and the trail court
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  86                            CHILD SUPPORT                                 CH. 11

  must consider arguments and evidence as to why it should deviate from
  the formula and guidelines where circumstances, such as increased visita-
  tion, warrant. The court can require a showing of evidence that the
  increased visitation also results in an increased cost of child rearing before
  reducing the child support obligation.

  § 11.04       INCOME

       [A] Gross or Net?
  Page 1024–25:

                        NOTES AND QUESTIONS
       (2) Sources of Income
    See Davis v. Office of Child Support Enforcement, 20 S.W.3d 273 (Ark.
  2000). Federal Social Security Income (SSI) payments are not income for
  purposes of awarding child support. The court found that federal law
  precludes state court ordered child support payments exclusively from SSI
       (3) Overtime
    See also Office of Child Support Enforcement v. Longnecker, 997 S.W.2d
  445 (Ark. Ct. App. 1999). State law defines income for support purposes
  as any periodic form of payment regardless of source, including wages and
  salaries. Thus, a father’s support obligation should be based on his full-time
  job and on two part-time jobs.
    (5) See also Snow v. Snow, 24 S.W.3d 668 (Ky. Ct. App. 2000), which held
  that the trial court has the discretion and duty to scrutinize taxable income
  and to deviate if it seems the taxable income has been manipulated to avoid
  or minimize child support obligations, or where deviating is clearly in the
  best interest of the child.

       [B] Actual Income or Capacity to Earn
  Page 1032:

                        NOTES AND QUESTIONS
       (1) Involuntary Reduction
     See also Pace v. Pace, 24 P.3d 66 (Idaho Ct. App. 2001). In this case, a
  mother had lost her nursing license as a result of her addiction to prescrip-
  tion drugs. The Idaho Court of Appeals affirmed the trial court’s decision
  to temporarily increase a father’s monthly child support obligation, finding
  that the mother was not voluntarily under-employed.
    And see Bohac (Akbani) v. Akbani, 29 S.W.3d 407 (Mo. Ct. App. 2000),
  holding that a father’s business failures, and not his incarceration, war-
  ranted a reduction in child support.
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  § 11.04                           INCOME                                   87

    (2) See In re Marriage of Dacumos, 90 Cal. Rptr. 2d 159 (Ct. App. 1999).
  In determining a parent’s income for the purpose of calculating a child
  support order, a parent’s “earning capacity” includes income from invest-
  ments, as well as income derived from work.
    See also In re Marriage of Rice and Foutch, 987 P.2d 947 (Colo. Ct. App.
  1999). Averaging the father’s investment income for the two most recent
  years rather than applying investment income for the most recent year was
  a proper exercise of discretion in order to calculate the father’s overall
  income for child support purposes where the was a substantial fluctuation
  in income for the prior years.
    And see also Koszegi v. Erickson, 855 A.2d 1168 (Me. 2004). The father
  argued that the trial court erred when it determined that he was voluntarily
  unemployed because he was living off his military pension and at the time
  of the hearing was forty and had no apparent limitation on his work
  capacity. The father’s income was determined by the difference between his
  former and his present income in his gross income for child support

       [C] Spousal Income
  Page 1035–36:

                       NOTES AND QUESTIONS
       (5) Alimony
    See also Spears v. Spears, 903 So. 2d 135 (Ala. Ct. App. 2004). In this
  case, the father argued that his alimony obligation to the mother should
  be added to her gross income in calculating his child support obligation.
  The court held that the purpose of alimony is to maintain the economic
  status of the parties and the mother’s alimony by the shift in the percentage
  of child support based on income. Only alimony received from a former
  marriage can be included in income for child support calculations.

       [D] Support for Other Children
  Page 1039–40:

                       NOTES AND QUESTIONS
       (3) Deviation from Child Support Guidelines
    See Ex parte State ex rel. Daw, 786 So. 2d 1134 (Ala. Ct. App. 2001). When
  computing a former husband’s gross income for purposes of determining
  child support obligation for children of a second marriage, the court decided
  that the former husband was not entitled to a reduction for a past due child
  support payment for a child from a previous marriage who had reached the
  age of majority.
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  88                            CHILD SUPPORT                                 CH. 11

    See also Fuentes v. Fuentes, 97 P.3d 876 (Ariz. Ct. App. 2004). When the
  parties divorced, the mother got custody of the three children. The father
  had two other children out of wedlock. When child support for his three
  previous children was calculated, the father’s financial needs were taken
  into consideration, and he was ordered to pay over half of his disposable
  monthly income. However, excluding the consideration of his other two
  children in his current support calculation was held to be error by the
  appellate court.

  § 11.05       DURATION OF SUPPORT

       [A] Majority/Emancipation
  Page 1051–53:

                        NOTES AND QUESTIONS
       (3) Emancipation
    See also State ex rel. Dep’t of Health and Human Resources, Bureau of
  Child Support Enforcement v. Farmer, 523 S.E.2d 840 (W. Va. 1999). A child
  who was emancipated by marriage does not become unemancipated or
  entitled to child support if he or she is divorced while under age eighteen
  and is again dependant upon his or her parents.
     And see Dunson v. Dunson, 744 N.E.2d 960 (Ind. Ct. App. 2001). A child
  emancipated himself when he moved into his aunt’s house at age fifteen
  irrespective of his ability to support himself.
       (4) Death of Supporting Parent
    See also L.W.K. v. E.R.C., 735 N.E.2d 359 (Mass. 2000). Following the
  father’s death, a mother and her minor daughter filed a complaint against
  his estate and trustees of the father’s inter vivos trust, seeking modification
  of a child support order. The Massachusetts Supreme Judicial Court held
  that: (1) a testator survived by a minor child could disinherit that child,
  subject to the prior satisfaction of all his child support obligations; (2) a
  minor child’s claim for support was in the nature of a preferred creditor’s
  claim and had to be satisfied prior to any testamentary dispositions; (3)
  assets of an inter vivos trust established by the father could be reached
  to satisfy his child support obligations; and (4) a judge in a probate and
  family court lacked authority to enter an order after the death of a child
  support obligor to secure post-minority educational support for a child who
  did not qualify for such support.
       (5) Retroactive Postminority Support
    See also Rogers v. Rogers, 540 S.E.2d 840 (S.C. Ct. App. 2001). Because
  a mother could have contested a man’s actual income at the time child
  support was originally set but had not done so, she was not entitled in a
  subsequent action for modification to a retroactive increase based on such
  actual income.
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  § 11.06                MODIFICATION OF SUPPORT                             89

       [B] Support for College
  Page 1056:

                       NOTES AND QUESTIONS
       (1) Support for College and Private Schools
    See also Loden v. Loden, 740 N.E.2d 865 (Ind. Ct. App. 2000). A father
  was not entitled to relief from contribution to his daughter’s college
  education even though he believed that his daughter had repudiated him.
  Evidence indicated that the daughter had sought to reestablish a relation-
  ship with her father by sending him an invitation to her high school
  graduation, and he failed to acknowledge or respond to her request.
     And see Sharp v. Sharp, 765 A.2d 581 (N.J. Super. Ct. App. Div. 2001).
  A California father who had made three visits to New Jersey during the
  fifteen years his daughter had lived there was not subject to long-arm
  jurisdiction, and therefore did not have to pay her college costs.
    See also Horslew v. Radisi, 750 A.2d 692 (Md. Ct. App. 2000). The costs
  of a child’s extracurricular activities and tutoring may, with a proper
  showing of need and best interests, sustain a deviation from the child
  support guidelines that clearly limit such supplementation to a defined
  group of expenses-child care, extraordinary medical coverage, attendance
  at a special or private school, and transportation-and do not cover the
  discretionary activities at issue in this case.
    And see Musser v. Watkins, 752 So. 2d 141 (Fla. Dist. Ct. App. 2000).
  In the case of private school expenses, a court must find that both parents
  have the financial ability to pay such expenses; the expenses are in
  accordance with previous attendance of the child in a private school
  according to the customary standard of living of the family; and lastly that
  attendance at a private school is in the child’s best interest.

  Page 1060–63:

                       NOTES AND QUESTIONS
       (1) Traditional Changed Circumstances
    See also Lauer v. Lauer, 609 N.W.2d 450 (N.D. 2000). An obligor must
  demonstrate a material change of circumstances only if the motion for
  modification is brought within a year after its entry.
       (2) Modification of Guidelines
    See also In re Marriage of Bohn, 8 P.3d 539 (Colo. Ct. App. 2000). After
  a father had won a state lottery, nothing precluded the court from entering
  a child support order that exceeded the known needs of the child. The child
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  90                             CHILD SUPPORT                                 CH. 11

  support guidelines had not been enacted to prevent an increase in a child’s
  standard of living by denying a child the fruits of one parent’s good fortune.
    (10) See R.E. v. C.E.W., 752 So. 2d 1019 (Miss. 1999). A man who knowing
  he was not the father of the child born to his wife during their marriage
  nevertheless agreed to pay child support may later be relieved of that
  responsibility. The court rejected equitable defenses raised by the child’s
  biological father, stating it would be unjust for the biological father to
  continue shirking his financial obligation for his child. Query: But what
  about an equitable estoppel defense against the man who knew that he was
  not the biological father, but nevertheless agreed to pay child support to
  the child? See, e.g., T. v. T., 224 S.E.2d 148 (Va. 1976).
    See also Schuyler v. Briner, 13 P.3d 738 (Alaska 2000). A father’s new
  family with special needs children was not a basis for reducing child
  support, but the overtime he worked to support his new family could be
  a defense to his ex-wife’s petition for increased support.
    And see Kuron v. Hamilton, 752 A.2d 752 (N.J. Super. Ct. App. 2000).
  A parent’s disbarment and the diminution of income may constitute
  changed circumstances for purposes modifying his or her support obligation.
  A reduction in income due to loss of a law license, like an obligor’s
  incarceration, should be treated as voluntary conduct, but that does not
  automatically preclude modification of the support order.


       [A] State Remedies
  Page 1068–71:

                        NOTES AND QUESTIONS
       (2) Action for Arrearages
    See also O’Brien v. O’Brien, 766 A.2d 211 (Md. Ct. App. 2001). A non-
  parent with physical custody of a child has standing to sue the child’s father
  for child support arrearages based on the best interest of the child if the
  non-custodial parent knows of the child’s living arrangement and acqui-
  esces to it.
    And see Koren v. Koren, 719 N.Y.S.2d 347 (App. Div. 2001). An amount
  owed to a man by his ex-wife for a marital credit card could not be offset
  against child support arrears.
       (3) Civil Contempt
    See also Bowers v. Bowers, 762 A.2d 515 (Conn. App. Ct. 2000). A court
  ordered a suspension of child support until a former husband received
  unemployment, disability, or a new job. Upon receiving any of the above
  stated items, he would immediately notify his ex-wife. The man then
  received an inheritance that he disclaimed and improperly diverted to repay
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  § 11.08      JURISDICTION AND INTERSTATE ENFORCEMENT                       91

  his brother. He was held in contempt because he had violated the intent
  of the court order.
       (4) Criminal Contempt
    See also Wilson v. Holliday, 774 A.2d 1123 (Md. 2001). If a person does
  not have the present ability to pay, a court can neither incarcerate nor set
  a purge amount at a level that the evidence fails to support that the person
  can pay.
     (10) See also Hackbart v. Hackbart, 526 S.E.2d 840 (Ga. 2000). An award
  of child support in an uncontested divorce action was held to be erroneous
  where the complaint did not request child support, nor did it allege that
  the husband was obligated and he neither answered the complaint nor
  appeared at trial. A trial court may not award relief beyond that sought
  in the complaint, when the defendant does not file defensive pleadings and
  does not appear at trial. The complaint did not put him on notice that he
  would be liable for any money judgment as a result of the litigation, and
  without more, the award of child support was erroneous.


       [A] Personal Jurisdiction
  Page 1082–83:

                       NOTES AND QUESTIONS
    (5) See Commonwealth Dep’t of Social Services, Div. of Child Support
  Enforcement ex rel. Gagne v. Chamberlain, 525 S.E.2d 19 (Va. Ct. App.
  2000). UIFSA authorizes the DSS to determine the existence and the
  amount of welfare reimbursement debt to another state that a support
  defendant owes, thus automatically creating it as a Virginia welfare debt.
  This would appear to be the kind of jurisdictional claim that Mr. Kulko
  never asserted in Kulko v. California, 436 U.S. 84 (1978), but nothing in
  this opinion states whether the Kulko issue was addressed or not.
    See also In re Marriage of Malwitz, 99 P.3d 56 (Colo. 2004). The court
  in this case held that Colorado’s UIFSA extended personal jurisdiction over
  a nonresident father during a dissolution proceeding because his actions
  caused the mother and child to reside in Colorado. The father engaged in
  abusive behavior, which forced the mother to flee to Colorado, where she
  gave birth to the child.
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  92                            CHILD SUPPORT                                 CH. 11

       [B] Interstate Enforcement
  Page 1085–89:

                        NOTES AND QUESTIONS
       (3) Uniform Interstate Family Support Act
    See In re Marriage of Abplanalp, 7 P.3d 1269 (Kan. Ct. App. 2000). A
  court lost continuing exclusive jurisdiction to modify an order of support
  when two parents and their minor children left the state. Because Kansas
  no longer had exclusive jurisdiction and the parties had not filed any
  written consent allowing Kansas to modify the support order, a party
  petitioning to modify the existing Kansas support order had to submit
  himself or herself to the jurisdiction of the state where the non-moving
  party resides.
     See also McHale v. McHale, 109 P.3d 89 (Ariz. Ct. App. 2005). The parties
  divorced in Arizona and a child support order was entered. Both parties
  moved to different states. The mother filed a petition because the father
  did not pay the ordered child support. Arizona lost its continuing jurisdic-
  tion under the Uniform Interstate Family Support Act (UIFSA) because all
  parties, including the child, were removed from the state. Therefore,
  Arizona did not have jurisdiction to issue or modify the child support order.
       (4) Full Faith and Credit for Child Support Orders Act of 1994
    See also Brickner v. Brickner, 723 N.E.2d 468 (Ind. Ct. App. 2000).
  Although the child moved with the mother to Wisconsin (which mandated
  child support to age nineteen) shortly after the divorce and had lived there
  most of her life, Indiana law (which mandated support to age twenty-one)
  controls termination of the child support. Since the father continued to live
  in Indiana and the parties never filed a written consent for a Wisconsin
  court to modify the child support order, Indiana law applied. Under Full
  Faith and Credit for Child Support Orders Act and Indiana law, Indiana
  had continuing exclusive jurisdiction and was not required to give full faith
  and credit to Wisconsin law governing issues of emancipation.
    And see Twaddell v. Anderson, 523 S.E.2d 710 (N.C. Ct. App. 1999). The
  FFCCSOA applies retroactively to arrearages that accrued under a foreign
  support order prior to the act’s effective date. The court overturned the trial
  court’s refusal to register and enforce a California order setting forth
  arrearages owed under the parties’ initial support order.
    See also Dunn v. Dunn, 738 N.E.2d 81 (Ohio Ct. App. 2000). Failure of
  both parents to reside in Ohio divested Ohio of continuing, exclusive juris-
  diction under the FFCCSOA, but did not divest Ohio of the power to enforce
  obligation for a period prior to the date in which subsequent state, having
  proper jurisdiction, issued a new child support order.
   And see Stansbury v. Stansbury, 1999 Ohio App. LEXIS 3667 (1999). The
  FFCCSOA deprives a state court where a foreign child support order is
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  § 11.08     JURISDICTION AND INTERSTATE ENFORCEMENT                        93

  registered from treating the order in the same manner as orders issued in-
  state and modifying them accordingly.
    See also Loden v. Loden, 740 N.E.2d 865 (Ind. Ct. App. 2000). A trial court
  erred in assuming jurisdiction over an order that had initially been entered
  in Indiana but was later transferred to a Texas court, which modified the
  order. Even though neither party lived in Indiana or in Texas, an Indiana
  court should have dismissed the petition to modify as the court was required
  under the Full Faith and Credit for Child Support Orders Act to enforce
  the Texas court’s modification.
    (5) See Murdock v. Murdock, 526 S.E.2d 241 (S.C. Ct. App. 1999). A U.S.
  Marine was unable to attend a contempt hearing to show cause regarding
  his failure to make child support payments because he had been transferred
  to Japan. Despite a letter explaining his difficulties, the lower court
  proceeded with the hearing. The trial court’s failure to comply with The
  Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C. § 520, rendered
  the judgment voidable. The Marine did not waive his rights to protection
  of the Act for any purpose other than obtaining a divorce. The court
  remanded this case, since the Marine’s military duties affected his ability
  to defend himself.
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  Chapter 12


       [B] The Gender of the Parents
  Page 1101–03:

                         NOTES AND QUESTIONS
       (5) Gender as One Factor among Many
    See Lester v. Lennane, 101 Cal. Rptr. 2d 86 (Ct. App. 2000). A trial court’s
  statements of skepticism about a married father’s custody and visitation
  allegations and its refusal to grant equal custody timeshare because the
  unwed mother was breast-feeding their infant child did not amount to
  gender bias.

       [C] The Primary Caretaker
  Page 1107–08:

                         NOTES AND QUESTIONS
       (2) Presumption
    See also Kjelland v. Kjelland, 609 N.W.2d 100 (N.D. 2000). Primary
  caretakers are not presumptively favored, but primary caretaking is a
  relevant factor in determining the best interest of the child. A parent’s
  commitment to the children may be measured by the noncaretaker’s
  conduct that shows devotion to parenting. A parent’s willingness to foster
  a relationship with the other parent is a relevant consideration in any child
  custody action.

       [E] Religion
  Page 1115–16:

                         NOTES AND QUESTIONS
    (2) See also Hudema v. Carpenter 989 P.2d 491 (Utah Ct. App. 1999). It
  was inappropriate to consider as a factor in a child custody proceeding that
  one parent was a better practicing member of a religious faith than the
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  96                  CHILD CUSTODY AND VISITATION                              CH. 12

     (5) See A.G.R. ex. rel. Conflenti v. Huff, 815 N.E.2d 120 (Ind. Ct. App.
  2004). It was proper to take into account that the mother and child were
  of the Jehovah’s Witness faith as the mother was the custodial parent with
  the right to determine the religious training of her child. The custodial
  parent’s right to choose religious training is paramount so long as the
  training does not unreasonably interfere with the noncustodial parent’s
  rights to parenting time. A person seeking to limit the custodial parent’s
  right to determine the child’s religious upbringing must prove that the
  child’s physical health or emotional development would be significantly

       [G] Parental Fitness

         [1] Sexual Conduct
  Page 1121–25:

                        NOTES AND QUESTIONS
    (4) In Thomas v. Thomas, 987 P.2d 603 (Utah Ct. App. 1999), it was held
  appropriate to consider a parent’s extramarital affair where that specific
  conduct negatively impacted on the children and exposed them to inappro-
  priate scenes and information.

       [H] Physical and Mental Health
  Page 1141:

                        NOTES AND QUESTIONS
       (2) Physical Health
    See also Berens v. Berens, 689 N.W.2d 207 (S.D. 2004). A husband’s high
  cholesterol, inability to read, and alleged mental problems were not suffi-
  cient reasons to reverse a primary custody award to the husband, consider-
  ing also the wife’s established lack of credibility in her unfounded assertions
  of domestic violence against husband.
       (6) Alcohol
    See also White v. Nason, 874 A.2d 891 (Me. 2005). According to the divorce
  decree the father was barred from consuming or possessing alcohol or illegal
  substances while the children were in his care. He was later convicted of
  two operating-under-the-influence offenses, and at the time of one of them,
  the children were visiting their father but were spending the night at their
  paternal grandparents’ home. However, the court found that the children
  were in the father’s care because he was exercising his visitation at the
  time of his arrest.
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  § 12.03                           VISITATION                                97

       [J] Child Abuse and Domestic Violence
  Page 1152–55:

                        NOTES AND QUESTIONS
       (5) Miscellaneous Factors
    In Thomas v. Thomas, 987 P.2d 603 (Utah Ct. App. 1999), it was held
  appropriate to consider a parent’s extramarital affair where that specific
  conduct negatively impacted the children and exposed them to inappropri-
  ate scenes and information.

  § 12.03       VISITATION
  Page 1157–63:

                        NOTES AND QUESTIONS
       (3) Visitation Schedule
     See also Warner v. Warner, 725 N.E.2d 975 (Ind. Ct. App. 2000). Abuse
  of discretion was found when a trial court judge required the father to pay
  child support only if his college age daughter made herself available for
  visitation with the father, and at hours available to the father.
       (6) Grandparent Visitation
    See also Boothe v. Boothe, 17 S.W.3d 464 (Ark. 2000). It was error to deny
  a woman visitation rights with her divorced son’s children on the ground
  that she lacked standing because he was the children’s custodial parent.
  The law granting grandparents a right to visitation does not distinguish
  between the custodial and the noncustodial parent’s parents.
     And see Montgomery v. Montgomery, 524 S.E.2d 360 (N.C. Ct. App. 2000).
  Grandparents may seek visitation with their grandchildren in four situa-
  tions including when there is an ongoing custody proceeding and the
  children are not living in an “intact family.” A child living with its natural
  mother is living in an intact family. See also Penland v. Harris, 520 S.E.2d
  105 (N.C. Ct. App. 1999) (term “intact family” includes a married natural
  parent, step-parent and child living in a single residence).
       (7) Third-Party Visitation
    See also McNamara v. Thomas, 741 A.2d 778 (Pa. Super. Ct. 1999). A
  woman who allowed her child to be adopted by the child’s grandfather has
  the status of a nonparent in her attempt to gain court-ordered visitation
  following the grandfather’s death. The biological mother lacked standing
  as a parent to pursue her claim, and the court refused to adopt the position
  that the termination of her rights and the child’s subsequent adoption
  precluded her, as a matter of law, from seeking visitation as a third party.
    And see McDermott v. Dougherty, 869 A.2d 751 (Md. 2005). Custody of
  a child was improperly granted to the grandparents where the father
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  98                  CHILD CUSTODY AND VISITATION                            CH. 12

  worked as a merchant seaman, which required him to be at sea for months
  at a time. However, the father was never found to be an unfit parent. In
  disputed cases, where third parties are attempting to gain custody from
  natural parents, a court must find that both parents are unfit or that
  extraordinary circumstances exist before applying the best interests of the
  child standard. The father’s employment in this case did not constitute
  extraordinary circumstances.
       (8) Step-parent Visitation
    See also Brown v. Burch, 519 S.E.2d 403 (Va. Ct. App. 1999). A trial court
  judge maintained an order of joint custody between the father and the
  stepfather of a twelve year old boy. The two fathers had the burden of
  proving by clear and convincing evidence that the mother should be denied
  custody, using a higher standard than the mere best interest standard,
  because of the natural-parent presumption. The fact that one of those
  fathers was the natural parent, and not a third party, did not change the
  higher standard requirement. The mother had visitation rights.
       (10) Gay and Lesbian Partners
    See also Boswell v. Boswell, 721 A.2d 662 (Md. 1998). A gay father was
  not banned from having his male partner in his home when his two children
  visited because there was no showing of actual or potential harm to the
  child resulting from contact with the nonmarital partner. But see Roe v.
  Roe, 324 S.E.2d 691 (Va. 1985), where a custodial father lost custody of
  his daughter due to the presence of the father’s male partner in the
     And see In re C.B.L., 723 N.E.2d 316 (Ill. App. Ct. 1999). Where the other
  parent was artificially inseminated, a partner in same-sex relationship who
  had shared in the child’s birth and care during the first eighteen months
  of the child’s life had no standing to seek visitation. But see V.C. v. M.J.B.,
  748 A.2d 539 (N.J. 2000), where the same-sex partner of a biological mother
  had assumed a parental role in helping to raise her child and had estab-
  lished a “psychological parenthood,” and thuss had a legal right to petition
  for custody and visitation. A four-part test was used to determine whether
  a “psychological parenthood” existed between a third party adult and a
  child: (1) The legal parent had to consent to and foster the relationship
  between the third party and the child; (2) the third party must have lived
  with the child; (3) the third party had to have performed parental functions
  for the child to a significant degree; and (4) a parent-child bond must have
  been forged.
       (12) Supervised Visitation
     See also Hendrickson v. Hendrickson, 603 N.W.2d 17 (N.D. 2000). Al-
  though the court upheld a change of custody from a mother who persistently
  denied visitation and alienated the children from their father, it determined
  that supervised visitation rather than denial of visitation for one year was
  appropriate for the now noncustodial mother. Visitation can be denied only
  if it is likely to endanger the child’s physical or emotional health.
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  § 12.05                        MODIFICATION                                 99

       (13) Prison Visitation
    See also A.H. v. P.B., 2 P.3d 627 (Alaska 2000). Modification of telephonic
  visitation based on the father’s incarceration was overturned by the Alaska
  Supreme Court because there were no findings that a reduction in visitation
  was in child’s best interest, and because it was granted without giving the
  father an opportunity to be heard.

  Page 1168–75:

                        NOTES AND QUESTIONS
       (4) Case Law
    See also Headrick v. Headrick, 916 So. 2d 610 (Ala. Civ. App. 2005). The
  appellate court reversed the trial court’s decision to rotate physical custody
  every year, finding that the child’s natural bonds with the primary physical
  custodian and the child’s home environment in this particular case would
  be disrupted on a regular basis. However, the court found alternating
  custody arrangements were not always improper.

  § 12.05       MODIFICATION

       [A] Changed Circumstances or Best Interest?
  Page 1181–84:

                        NOTES AND QUESTIONS
       (1)(a) The Changed-Circumstances Test
    See also Albert v. Ramirez, 613 S.E.2d 865 (Va. Ct. App. 2005). A mother
  who entered into a parental agreement with her child’s stepfather and
  subsequently tried to deny the stepfather custody rights has the burden
  to show a change in circumstances significant enough to warrant a custody
  modification. She must also prove that it was in the child’s best interest
  for the parental agreement to be modified to cut the stepfather out from
  his custody rights.
       (1)(b) Best Interest Standard
    See also Wiggins v. Davis, 737 N.E.2d 437 (Ind. Ct. App. 2000). Evidence
  that a half brother had molested a child, which predated the previous
  custody hearing, was admissible because the evidence had a connection to
  a change in factors relating to the best interest of the child, and because
  of evidence of subsequent molestation by the same half brother. Evidence
  of the child’s improving condition with the non-custodial parent would not
  solely support a custody modification without independent evidence of a
  substantial change in the custodial parent’s home.
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  100                  CHILD CUSTODY AND VISITATION                           CH. 12

    And see Andrea S. v. David R., 116 P.3d 589 (Alaska 2005). The trial
  court in this case erred in denying the mother’s motion to modify custody
  without a hearing after two of the four children in the father’s custody had
  sex with each other.
    See also A.O. v. M.O., 856 A.2d 1204 (Pa. Super. Ct. 2004). The mother,
  who was the primary physical custodian of the parties’ daughter, did not
  abandon the child or her role in the child’s life by enrolling her in a boarding
  school. The father asserted that it was improper for the mother to remain
  the child’s primary physical custodian and to continue to send her to
  boarding school when the daughter could be living with the father and his
  new family. The court concluded that the mother’s decision to send the child
  to boarding school was in the child’s best interest, and maintained the
  mother’s status as the primary physical custodian of the child.

       [B] Relocation
  Page 1189–92:

                        NOTES AND QUESTIONS
       (1) When Good Parents Fight
    See also Tishmack v. Tishmack, 611 N.W.2d 204 (N.D. 2000). A custodial
  mother was denied permission to relocate when the court concluded that
  she intended to frustrate the father’s visitation rights, and avoid dealing
  with the child’s anxiety related to visitation. (There was a history of
  continual visitation-related problems, and the child’s anxiety problems
  precluded extended visitations to preserve and foster his tenuous relation-
  ship with his father.)
       (3) The Best Interest Standard
    See also Hass v. Hass, 44 S.W.3d 773 (Ark. 2001). After an initial custody
  determination, a determination of a child’s best interest involving relocation
  requires that the interests of the child’s new family unit be considered. The
  best interest of a child lies in what is advantageous to the family unit as
  a whole, to each of its members individually, and to the way they relate
  to each other and function together. Two years after her divorce, the
  custodial mother graduated from law school and was offered a position as
  a law clerk for a federal judge in a different town. The trial court judge
  found that the mother had failed to meet her threshold burden of establish-
  ing a real advantage to the child in relocating, and prospectively ordered
  that custody would be changed to the father in the event that the mother
  took the clerkship and relocated.
     And see Wild v. Wild, 696 N.W.2d 886 (Neb. Ct. App. 2005). To relocate,
  the custodial parent must show a legitimate reason for the move and that
  relocating is in best interests of the child. When relocating for job purposes,
  it must be shown that there is opportunity for advancement, in either career
  or salary. Other factors to consider in relocating are the parents’ motives,
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  § 12.06               CHILD CUSTODY JURISDICTION                            101

  quality of life of child, and impact on the noncustodial parent’s reasonable
     See also Hawkes v. Spence, 878 A.2d 273 (Vt. 2005). Backtracking
  somewhat from its former stance on relocation where the custodial parent
  generally had the power to relocate with his or her child, the Vermont
  Supreme Court announced that it would now be guided by the provision
  of the ALI, which provides that relocation is a substantial change in
  circumstances justifying a reexamination of parental rights and responsibil-
  ities only when the relocation significantly impairs either parent’s ability
  to exercise responsibilities the parent has been exercising, or has been
  trying to exercise, and how the child will be affected. The court cautioned
  that it would look at the actual time the nonlocating parent had been
  spending with the child, not simply what had been ordered in prior


       [C] State Legislation
  Page 1197–99:

                        NOTES AND QUESTIONS
       (3) Basis for Jurisdiction
    See also Abuchaibe v. Abuchaibe, 751 So. 2d 1257 (Fla. Dist. Ct. App.
  2000). Florida had no subject matter jurisdiction over a Columbian child
  who had only minimal contacts and was present for only six days prior to
  the mother filing a domestic violence injunction. Prerequisites of the
  UCCJEA must exist prior to the entry of a custody order regardless of
  whether that order is entered in a dissolution action or a domestic violence
    And see Consford v. Consford, 711 N.Y.S.2d 199 (App. Div. 2000). A six
  and a half month old child had no home state where his parents were on
  a military assignment in Germany when the child was born, awaiting
  orders for their next military assignment and then they lived in Texas for
  less than eight weeks. The determination of a child’s home state is separate
  and distinct from the determination of either the parents’ or the child’s legal
     See also Platz v. Aramburo, 17 P.3d 65 (Alaska 2001). Factors relevant
  to a forum non conveniens consideration are the ease of access of proof, the
  availability and cost of obtaining witnesses, the possibility of harassment
  of the defendant in litigating in an inconvenient forum, the enforceability
  of the judgment, the burden on the community in litigating matters not
  of local concern, and the desirability of litigating local matters in local
  courts. The child in this particular case lived in Alaska for more than four
  of her six years. The child had no home state at the time the custody petition
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  102                     CHILD CUSTODY AND VISITATION                          CH. 12

  was filed; and no other state asserted jurisdiction. Alaska had more
  information about the child than any other state. Under theses circum-
  stances, it was not an abuse of discretion to assume jurisdiction.
    And see Lester v. Popper, 18 P.3d 377 (Okla. Ct. App. 2000). The parties’
  divorce occurred in Virginia, and both parties subsequently moved to Okla-
  homa. The mother then moved back to Virginia. A day after her move, the
  father filed for modification of child custody in Oklahoma. The Oklahoma
  court was found not to have jurisdiction since at the time father’s action
  was pending, the mother and children were living back in Virginia.
       (4) Simultaneous Proceedings
     See also Steele v. Neeman, 6 P.3d 649 (Wyo. 2000). In this case, the parties
  were divorced in Wyoming. After several years of custody litigation, the
  mother filed an action in New York where she lived, which was concurrent
  with an action in Wyoming. The Wyoming court order contradicted New
  York’s visitation order. The Wyoming court must first determine if the other
  jurisdiction possesses jurisdiction under the PKPA. If so, the court must
  then analyze the facts as they apply to the UCCJA. The Wyoming court
  should communicate with the other jurisdiction to determine which forum
  is more appropriate and place the court’s findings and conclusions on the
    And see S.W. v. Duncan, 24 P.3 846 (Okla. 2001). A mother who had
  custody of her children died. The father then moved the children to Kansas,
  where he petitioned to give his relatives guardianship. The deceased
  mother’s relatives petitioned for guardianship in Oklahoma. The non-
  custodial parent was vested with legal custody upon the death of the
  custodial parent, but the jurisdiction continued with the divorce court in
  Oklahoma. While the Kansas modification proceeding had been commenced
  before the Oklahoma proceeding, Oklahoma had already obtained initial
  custody jurisdiction with the divorce action under the UCCJEA. Therefore,
  the Kansas court did not have jurisdiction in substantial conformity with
  the UCCJEA.

       [D] Federal Legislation
  Page 1213–14:

                           NOTES AND QUESTIONS
       (3) Jurisdiction
    See also Bonar v. Bonar, 539 S.E.2d 521 (Ga. Ct. App. 2001). Under the
  PKPA a court of one state can modify a child custody order of another state
  only if (1) it has jurisdiction to make such a child custody determination;
  and (2) the court of the other state no longer has jurisdiction or has declined
  to exercise its jurisdiction.
    And see Barton v. Barton, 29 P.3d 13 (Utah Ct. App. 2001). The PKPA
  required a Utah trial court to find continued residency of a father in Utah
  as a condition of exercising jurisdiction to enforce visitation by contempt.
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  § 12.06             CHILD CUSTODY JURISDICTION                              103

       [E] International Law
  Page 1228–29:

                      NOTES AND QUESTIONS
       (3) Return Remedy
    See also Gonazalez-Caballero v. Mena, 251 F.3d 789 (9th Cir. 2001). In
  a Hague Convention proceeding, the court held that because a parent had
  originally consented to a child’s removal, a changed mind did not revive
  the right of return.
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  Chapter 13

  § 13.01      INTRODUCTION
  Page 1231: The first paragraph of this Introduction should read:
    Marital property rights and support obligations normally devolve upon
  the spouses by operation of law at the time of the marriage (see Chapter
  2, §§ 2.03 and 2.04) whereas property and support rights on divorce are
  primarily governed by state statutory and judicial authority at the time
  the marriage is dissolved (see Chapters 10 and 11). Property and support
  rights in nonmarital relationships and civil union or domestic partnership
  alternatives to marriage are discussed in Chapter 3.


       [B] Traditional Premarital Agreements
  Page 1247:

                       NOTES AND QUESTIONS
    (6) Problem: See also Cannon v. Cannon, 865 A.2d 563 (Md. 2005),
  holding that the premarital agreement was valid because the wife had
  adequate knowledge of the assets involved, and entered into the agreement
    But in Holler v. Holler, 612 S.E.2d 469 (S.C. Ct. App. 2005), a Ukrainian
  woman signed a premarital agreement that was not translated into Rus-
  sian. The court held this agreement was unconscionable and void and
  executed under duress because she didn’t understand the contents of the
  agreement, and did not freely enter into the agreement.

       [C] Divorce Planning in Premarital Agreements
  Page 1251:

                       NOTES AND QUESTIONS
    (1) See also In re Marriage of Elam, 680 N.W.2d 378 (Iowa Ct. App. 2004),
  holding that even though the husband had only seen the premarital
  agreement the day prior to the wedding, that would be insufficient, standing
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  106             PREMARITAL AND SEPARATION AGREEMENTS                         CH. 13

  alone, to invalidate the agreement, since he had an opportunity to consult
  an attorney, but chose not to do so. Moreover, husband did not testify that
  he did not understand the terms of the agreement.
    In Sanford v. Sanford, 694 N.W.2d 283 (S.D. 2005), a premarital agree-
  ment purporting to waive the wife’s claim to alimony was held to be void,
  but was held valid and enforceable regarding a division of property.
    See also Donna Beck Weaver, The Collaborative Law Process for Prenup-
  tial Agreements, 4 PEPP. DISP. RESOL. L.J. 337 (2004), arguing that the
  prevailing adversarial model for negotiating premarital agreements deters
  many couples from considering such agreements prior to marriage.

       [E] The Uniform Premarital Agreement Act
  Page 1259–63:

                         NOTES AND QUESTIONS
       (1) The Uniform Premarital Agreement Act has been adopted in 28 states.
    In Berger v. Berger, 829 N.E.2d 879 (Ill. Ct. App. 2005), since the parties’
  premarital agreement predated the Illinois Uniform Premarital Agreement
  Act, common law contractual rules applied, including that the parties
  entered into the agreement with full knowledge, and free from fraud,
  duress, or coercion; and that the agreement was fair and reasonable.


       [B] Necessary Elements for a Valid Separation
  Page 1268–70:

                         NOTES AND QUESTIONS
     (6) Absent fraud, duress, or mistake, the courts lack the authority to
  change or modify the parties’ stated contractual intention in their separa-
  tion agreement, even if it gives the wife a larger share of the marital assets
  than she would ordinarily have been entitled to under the law. Bianchi v.
  Bianchi, 859 A.2d 511 (Pa. Super. 2004).
    A separation agreement will be upheld as valid even though it does not
  contain a financial disclosure of the parties’ assets and liabilities, if it
  merely recites that such financial disclosure has been made. Paroly v.
  Paroly, 876 A.2d 1061 (Pa. Super. 2005).
    Modification of alimony provisions in a separation agreement [as well as
  modification of any other provisions in a separation agreement], must be
  express and in writing; otherwise the original separation agreement
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  § 13.04 SEPARATION OR PROPERTY SETTLEMENT AGREEMENTS                       107

  provisions remain in effect and enforceable, because a valid separation
  agreement cannot be orally modified. Jones v. Jones, 590 S.E.2d 308 (N.C.
  Ct. App. 2004).
    Legal counsel can sign a separation agreement for a client. Through
  centuries of prior legal practice, counsel signing and parties signing mean
  the same thing; “signed by a party” means “signed by a party or his or her
  lawyer.” Newman v. Newman, 593 S.E.2d 533 (Va. Ct. App. 2004).
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  Chapter 14

  Page 1292–98:

                       NOTES AND QUESTIONS
     (1) See also Frank S. Berall, Tax Consequences of Unmarried Cohabita-
  tion, 23 QUINNIPIAC L. REV. 395 (2004).
    (2) See also Stephen Comeau, An Overview of Federal Income Tax
  Provisions Related to Alimony Payments, 38 FAM. L. Q. 111 (2004), which
  provides an excellent overview of the tax implications applicable to an
  alimony or spousal support award on divorce.
     For an overview of “innocent spouse” relief regarding joint and several
  tax liability, see Ron Youde, A Call for IRS Guidance in Drafting Tax
  Liability Divorce Clauses in Anticipation of Innocent Spouse Litigation, 52
  DRAKE L. REV. 363 (2004); and Lily Kahng, Innocent Spouses: A critique
  of the New Tax Laws Governing Joint and Several Liability, 49 VILLANOVA
  L. REV. 261 (2004).
    (3) See also Dorothy A. Brown, The Tax Treatment of Children: Separate
  But Unequal, 54 EMORY L.J. 755 (2005), examining the Earned Income Tax
  Credit and the Child Tax Credit.

  Page 1311–13:

                       NOTES AND QUESTIONS
    (5) See also Mattingly v. Mattingly, 164 S.W.3d 518 (Ky. Ct. App. 2005),
  holding that 11 U.S.C. § 523(a)(5) does not discharge a parent from his or
  her obligation to provide for his or her children through child support; nor
  does it affect property settlements or agreements.
    And see Patterson v. Patterson, 842 A.2d 1268 (Me. 2004), where the court
  held that the husband was not allowed to discharge his support obligations
  as a business debt through his bankruptcy petition.
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