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How to Find Marriage License Records in Pennsylvania - DOC

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					                                                FAMILY LAW
                                               PROFESSOR KEARNEY
                                                  SPRING, 2003

1) DEFINING A FAMILY
   a) Standards
      i) Traditional Approach
           (1) Families related by blood, marriage, or adoption and having a domestic bond
           (2) Domestic Bond
               (a) Resident authority figure (not a paid resident authority figure)
               (b) Permanence and cohesion (one year not enough)
               (c) Self-sufficiency and independence (e.g., cooking)
               (d) Policy: Administrable rule for courts to apply—encourages self-sufficient families
      ii) Functional Approach
           (1) Families that are the functional equivalent of a traditional family based on their appearance and
               conduct under the totality of the circumstances
           (2) Factors
               (a) Exclusivity and longevity of the relationship.
               (b) Level of emotional and financial commitment.
               (c) Manner in which the parties conduct themselves in everyday life.
               (d) Manner in which they hold themselves out to society
               (e) Reliance on each other for daily family services
               (f) Degree of self-sufficiency of residents
               (g) Public/commercial enterprise vs. a private home
           (3) Policy: Fairness: fact-intensive analysis that follows intent of the ―family‖ members. Totality of the
               relationship as evidenced by dedication, caring, and self-sacrifice
      iii) Analysis: Defining Family Members
           (1) Statutory
               (a) Language of the Statute
                   (i) Definition of family
                   (ii) Look to other sections
               (b) Legislative History
               (c) Judicial Opinions
           (2) Constitutional
               (a) Infringement on a fundamental right gets strict scrutiny. Must be narrowly tailored to achieve a
                   compelling government interest
                   (i) Right to Privacy
                   (ii) Right to associate with whomever one pleases
               (b) Mere economic or social legislation gets rational basis review. Need only be rationally related to a
                   legitimate government interest.
                   (i) State police powers
   b) Cases
      i) Penobscot
           (1) P was denied an occupancy permit for a house to be used as a residential facility for 6 retarded adults
               in an area zoned for single families.
           (2) Family was defined as an individual or collective body living as a single housekeeping unit, doing
               their own cooking, in a domestic relationship based on birth, marriage, or a domestic bond.
           (3) HOLDING: Family based on a domestic bond implies the existence of a traditional family-like
               structure with a central authority figure.
           (4) Here, the residents were only there temporarily, they were not completely self-sufficient, and the
               supervising employees rotated shifts and did not live at the house.
      ii) Glassboro
           (1) D and 10 friends were college students who lived in a house zoned for families.
           (2) HOLDING: Ds are the functional equivalent of a family.
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             (3) Ds had a common checking account, ate together, shared chores and cooking, and planned to stay
                 there for at least 4 years.
        iii) Braschi
             (1) P’s gay partner and roommate died, leaving him as the tenant in a rent-controlled apartment from
                 which D attempted to evict him.
             (2) HOLDING: P is the functional equivalent of a family member who had been living w/ the tenant.
             (3) P demonstrated that he and P were lifetime partners and shared an emotional and financial
                 commitment w/ each other.
             (4) Letting P keep the apartment furthers the goal of the rent-control statue; to keep people in the
                 apartments and not be unfairly evicted.
        iv) Belle Terre
             (1) Village’s zoning ordinance restricted land use to single families and no more than 2 unrelated persons
                 could live together.
             (2) Ps, 5 unrelated college students, leased a house in violation of the ordinance.
             (3) HOLDING: Village may prohibit more than 2 unrelated persons from living together.
             (4) The purpose of the ordinance was to prevent loud noise, traffic, and provide children w/ places to
                 play
             (5) DISSENT: (Marshall) Ps have a fundamental right to privacy and association. It is under and over
                 inclusive b/c any # of related persons can live in a home but only 2 unrelated persons.

2) GETTING & BEING MARRIED
   a) Marriage Restrictions
      i) Standard: Void Marriages
          (1) When a marriage is declared void, it never existed. On its face the marriage is illegal. Examples:
              (a) Incest—marriage between blood-related person (statutory definition)
                  (i) State’s Arguments
                        1. History and tradition forbid this type of marriage
                        2. State wants to criminalize incest to protect children’s health (i.e., birth defects)
                  (ii) Couple’s Argument
                        1. Look to the (a) plain language of the statute and (b) legislative intent.
                        2. A silent statute is not meant to exclude incestuous marriages
              (b) Polygamy—marriage of one man and many wives
                  (i) State’s Argument
                        1. Parens patrie argument: prevent polygamy to protect children
                        2. Polygamy teaches immoral and illegal behavior to children
                        3. Sins of the farther are visited on the children
                        4. Religious belief is not prohibited, but religious acts can be prohibited
                  (ii) Couple’s Argument
                        1. Polygamy is intertwined with religion
                        2. polygamy is not abusive or neglectful
                        3. no nexus between neglect and polygamy
                        4. nothing to show that parents were unfit parents
                  (iii) Immorality view
                        1. police powers
                        2. parens patrie
                        3. problem: who decides what is moral?
                  (iv) Illegality view
                        1. A crime is a crime
                        2. One cannot commit any crimes
                        3. polygamy is a crime, whether it is moral or not
              (c) Same Sex Marriage—marriage of two people of the same sex
                  (i) State’s Argument
                        1. Marriage is one man and one woman (common meaning)
                        2. History and tradition prohibit this type of marriage
                  (ii) Couple’s argument

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                   1.     Equal protection is violated because heterosexuals are treated differently from
                          homosexuals
                     2. Homosexuals are suspect classifications that get strict scrutiny (not the law)
                     3. Gender discrimination gets intermediate scrutiny (sufficiently important interest closely
                          tailored to achieve the interest)
ii)    Standard: Voidable Marriage
       (1) Declared void at certain point. If never challenged still good. Examples:
           (a) Age Restrictions
               (i) State statute requiring parental consent for minors to marry must be rationally related to a
                     legitimate state interest
                     1. Couple’s Arguments
                          a. Equal protection and due process arguments.
                          b. Parental consent withheld for the wrong reasons.
                          c. Couple is responsible.
                     2. State’s Arguments
                          a. Children are immature.
                          b. Children are bad at making critical decisions.
                          c. Parental right to control is constitutionally protected
                     3. Court’s Rationale
                          a. Legitimate state interests
                          b. Laws protect minors and prevent unstable marriages.
                          c. Delay not denial of right to marry
iii)   Access to Marriage
       (1) State statute denying fundamental right to marry must be supported by important state interests
           closely tailored to meet the state's goals
           (a) Is there a fundamental right implicated?
           (b) If it is a deprivation of a fundamental right, strict scrutiny applies and there must be a compelling
               state interest.
           (c) If it is a delay of a right, intermediate scrutiny applies and there must be an important state interest.
           (d) The more narrowly tailored the law is to the state’s interest, the more likely the law will be upheld
iv)    Race Restrictions on Marriage
       (1) Equal protection demands strict scrutiny applies to restrictions based on race
       (2) Traditional Rule: Freedom to marry
       (3) Racial restrictions get strict scrutiny but generally the state may regulate marriage under the 10th
           Amend
       (4) Race restriction is a total deprivation of the right to marry
v)     Formal Requirements for Marriages
       (1) Marriage license and
       (2) Solemnization (ceremony)
vi)    Engagement Rings
       (1) Gift Analysis
           (a) Conditional gifts must be returned
           (b) Irrevocable gifts cannot be returned
       (2) Fault or No Fault
           (a) Fault
               (i) Donor breaks off the engagement, donee keeps the ring
               (ii) Mutual break up, donor keeps it
               (iii) Argument: Fairness, encourage people to keep their promises
           (b) No Fault (PA Rule)
               (i) If marriage does not occur, donor gets the ring back
               (ii) Fault is not relevant
               (iii) Argument: finality and administrability—less emotion—less litigation to determine fault
                     (which is difficult to prove)



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   vii) Cases
        (1) Singh
            (a) Uncle married niece of half blood
            (b) Statute was silent
            (c) Held: half-blood uncles and nieces are prohibited
            (d) Reasoning: history, tradition, protection of children
        (2) Black
            (a) H and many wives had 26 children
            (b) Children were taken away
            (c) Children were all healthy and taken care of by H and wives
            (d) Held: custody can be taken away from polygamous parents
        (3) Jones
            (a) Lesbian couple wanted to get married
            (b) Clerk refused
            (c) s argued right to marry, associate, and exercise religion
            (d) Held: marriage is limited to a man and a woman
        (4) Loving
            (a) White man and black woman were married in D.C. and moved to Virginia
            (b) VA made it a felony to be married interracially
            (c) Held: SS applies to suspect classifications (race) and the statute was unconstitutional
        (5) Zablocki
            (a) Statute prohibited person from marrying if he or she did not satisfy child support
            (b) Purpose was to prevent kids from becoming public charges
            (c) Rule: Intermediate Scrutiny applies when marriage is not entirely prohibited; SS applies when
                marriage is entirely prohibited
        (6) Keeney
            (a) Prison guard and prisoner became romantically involved
            (b) Guard was told to quit her job or stop seeing inmate
            (c) Guard quit and married prisoner
            (d) Guard sued, arguing that the choice of marrying or quitting violated constitutional rights
            (e) Held: prison can impose burdens on the ability of guards and inmates to marry without infringing
                on constitutional rights—Here, guard was not totally prohibited from marrying
        (7) Moe
            (a) State reg. Required parental consent and judicial approval before marriage between minors
            (b) Minors challenged
            (c) Held: Rational basis applies and reg. upheld
        (8) Heiman
            (a)  purchased ring contemplating marriage and gave to .
            (b)  ended relationship and wanted ring back
            (c) Held: engagement ring is a conditional gift; if marriage doesn't occur, ring returns to donor
b) Common Law Marriage
   i) Standards
        (1) Most JDs have abolished common law marriage
        (2) PA recognizes common law marriages. Elements:
            (a) Cohabitation (no set length)
            (b) Representing to community to be married
            (c) Showing of intent between parties to be married
            (d) Ability to enter into a legal relationship (legal capacity)
        (3) Both parties must be single
        (4) Full faith and credit applies
        (5) Arguments for Common Law Marriage
            (a) Benefits the elderly
            (b) Fairness to parties
            (c) Legitimizes children
        (6) Arguments against Common Law Marriage

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            (a) Difficult to prove
            (b) Easier to show a marriage license
            (c) Undermines state's ability to regulate marriage
            (d) No need for common law marriage
            (e) Potential for fraud
c) Prenuptial Agreements
   i) PA Standard
        (1) Elements: Prenuptial agreement upheld unless
            (a) Duress, fraud, or misrepresentation
            (b) Lack of meaningful choice in the creation
            (c) Lack of full and fair disclosure of financial assets
            (d) Reasonableness is not considered
        (2) Sexual relationships cannot be terms in a prenuptial agreement
        (3) Custody and child support obligations cannot be terms in a prenuptial agreement
        (4) Freedom of contract principles apply
        (5) Ignorance is not an excuse to avoid the prenuptial agreement
   ii) Alternative Standard
        (1) Elements: Prenuptial agreement upheld if
            (a) Reasonable
            (b) Full and fair disclosure
            (c) Freely and voluntarily entered into and
            (d) No fraud, duress, or misrepresentation
   iii) Cases
        (1) Simeone (PA)
            (a) H, 39 marries W, 23 and asked her to sign prenuptial agreement night before wedding
            (b) W signed without counsel present; H's counsel drafted and did not advise W
            (c) Agreement limited support payments to $25,000
            (d) H had $300,000 worth of assets
            (e) Held: Regardless of reasonableness, W is bound by prenuptial under basic contract principles
        (2) Greenwald (Wisconsin)
            (a) Housekeeper forced H to marry her
            (b) Held: reasonableness is a factor in determining validity of prenuptial agreement
d) The Ongoing Relationship
   i) Standards
        (1) Contract View: The validity of nonmarital relationship agreements are determined basic contract
            principles
            (a) Nonmarital relationships are the functional equivalent of marriage
            (b) Implied contract principles dictate that remedies are available when parties split up
            (c) COUNTER: this discourages actual marriages and may lead to common law marriages in a
                jurisdiction that has abolished common law marriages
        (2) Status View: Parties cannot enter into contracts that change the essential incidents of marriage
            (a) Public Policy: state determines parameters of marriage
            (b) There is a mutual duty to support a family
            (c) Marriage is a status and the parties have certain roles that cannot be disturbed
        (3) Family Privacy Rule
            (a) There is a zone of privacy where the state cannot intrude
            (b) State can only intervene when there is abuse or neglect
            (c) There is a duty of mutual support but that duty determined by family not courts
   ii) Gender Discrimination: Maternity Leave Policies that do not Allow Men to take Leave
        (1) Equal Protection requires that similarly situated person have equal protection under the law
        (2) Gender Discrimination receives intermediate scrutiny
            (a) State must show important governmental interest
            (b) Classification was necessary to achieve the interest



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        (3) Governed by the Family & Medical Leave Act
            (a) Who Qualifies?
                (i) Any person who has been employed by same employer for at least 12 months
                (ii) Completed at least 1250 hours of service during the previous twelve months
            (b) If yes, employee is entitled to 12 workweeks of leave during any 12-month period to:
                (i) Care for a newborn son or daughter
                (ii) Care for a recently adopted son or daughter
                (iii) Care for the spouse, son, daughter, or parent with serious health condition
                (iv) Recover from a serious health condition that makes the employee unable to perform the
                      functions of his or her position at work
   iii) Cases
        (1) Marvin
            (a)  and  lived together for years without marrying
            (b) they had an oral agreement that they would combine their efforts and earnings and share equally
                all assets
            (c) Held: contract was enforceable
        (2) McGuire
            (a) H did not give W any money, did not provide her with cloths, the house was old and there was
                not toilet inside.
            (b) W sued for support and maintenance.
            (c) Here the court would not get involved, does not want to interfere with the living standard of a
                family.
            (d) The court set a ceiling on the duty of support. Court does not want to get into private lives.
        (3) McCourtney
            (a) Mom cannot find child care and dismissed from work for excessive absences
            (b) She was denied unemployment compensation
            (c) Mom's Argument: good faith attempt to find child care; out of her control; it was a no-fault
                dismissal—she does not challenge the termination but argues that the denial of unemployment
                benefits is a "penalty"
            (d) Employer's Argument: It's her problem, not ours
            (e) Held: Inability to find childcare is not misconduct
        (4) Danielson
            (a) Maternity Leave policy allowed women to leave but not men
            (b) Husband wanted to leave work to care for child
            (c) Husband argued equal protection
            (d) Held: If maternity leave is given for women to care for their newborn children, the same leave
                must be afforded to men
e) Torts & Crimes
   i) Loss of Consortium
        (1) emotional distress suffered by one spouse who loses the normal company of his or her mate when the
            mate is physically injured due to the tortious conduct of another
        (2) Must be Married at the time of injury to claim this loss
            (a) Arguments in Favor of LOC Claim
                (i) Emotional losses are recognized
                (ii) Burden on plaintiff to prove loss of consortium remains very high anyway—no abuse
            (b) Arguments Against LOC Claim
                (i) Double recover
                (ii) Difficult to measure emotional damages
                (iii) Fraudulent claims
   ii) Parent Child Loss of Consortium ???
        (1) Not adopted in PA
        (2) The H and W relationship is unique as opposed the parent child relationship because their may be
            another parent or caregiver.
        (3) Difficult to measure emotional damage


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       iii) Interspousal Immunity
            (1) Husbands can now sue wives and vice versa
            (2) Doctrine of immunity abolished in most states including Pennsylvania
                (a) Argument in Favor of the Immunity
                    (i) Encourage marital harmony and prevent collusive lawsuits
                    (ii) Historical notion of husband and wife being as one unit—can't sue one's self
                    (iii) If you abolish it, the potential to defraud insurance companies is high (. . . poor insurance
                          companies )
                (b) Argument Against
                    (i) If spouse commits a tort on the other, there is no marital harmony, jackass
                    (ii) Fraud is potential in any kind of tort case not just between husband and wife
                    (iii) Who cares about the f**king insurance companies anyway?
            (3) Scenarios
                (a) Auto collisions involving husband (e.g., driving) and wife (e.g., passenger)
                (b) Insurance claims
                (c) Abuse, possibly
                (d) Contraction of sexually transmitted disease (e.g., duty to warn partner; knew or should've known)
       iv) Marital Evidentiary Privileges
            (1) Elements: Privilege Against Adverse Spousal Testimony
                (a) Evidence of criminal acts
                (b) Made in contexts of third persons
                (c) Witness spouse holds the privilege
            (2) Elements: Marital/Confidential Communications Privilege
                (a) Private conversations
                (b) Between two spouses
                (c) No witnesses present
       v) Cases
            (1) Romero
                (a) Auto collision killed Romero
                (b) Wife and daughter sought damages against driver and owner of other vehicle based on loss of
                    consortium and household services
            (2) Shook
                (a) H and W died in plane crash
                (b) Estate of W alleges that W's death was a result of H's negligent operation of the plane
                (c) Interspousal immunity raised
                (d) Held: Interspousal immunity abolished
            (3) Trammel
                (a) Here H was tried for conspiracy importing drugs and W was willing to testify against her H
                (b) Held: A criminal defendant cannot invoke the privilege against adverse spousal testimony to
                    prevent his spouse from voluntarily giving testimony against him

3) PARENTING
   a) Adoption
      i) Generally
          (1) Voluntary or involuntary termination of one set of parental rights
          (2) Creation of a new set of parental rights: Two Models
              (a) Agency Model
                  (i) Involves a rigorous screening process of adoptive parents, such as visit to the home and
                       affidavits from friends and family
                  (ii) The criteria for section of adoptive parents changes from case to case – there are layers of
                       subjectivity in this process
              (b) Independent Model
                  (i) This involves the use of a third party intermediary (usually a lawyer) to arrange the adoption
                  (ii) It is independent because it is more private, no agency is involved in the process
                       1. 3 to 4 states do not allow independent adoptions

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                 2.   Called the gray market adoption – black market – sell babies
                 3.   The concern is for abuse and lack of regulation
                           i. Who is screening the adoptive parents
                           ii. With enough money you can buy whatever you want
            (iii) The benefits of this System include:
                  1. Quicker (agency process takes 2 years)
                  2. Less scrutiny into personal life
                  3. More control – if you know someone – arrange it yourself
    (3) Open v. Closed Adoption
        (a) Open: sharing information among the adoptive and biological parents
        (b) Closed: closing birth records; adoptive parents and child do not know anything about the
            biological past
ii) Standards
    (1) Best Interests Standard: Least detrimental available alternative in light of other alternatives
        (a) Age of adoptive parents cannot be the sole factor
        (b) Age must have a nexus with the health of the adoptive parent
        (c) Age must have a nexus with the ability of the adoptive parent to care for the child
        (d) Longevity of the preexisting relationship between prospective adoptive parent and child must
            also be considered
        (e) Arguments
            (i) Grandparents: Strongest argument is the biological bond. They are the closest people to the
                  child and this should trump the interest of all others
            (ii) Adopting Parents: Strongest argument is the emotional bond. The baby knows them as its
                  caretaker. According the least detrimental alternative test – the adoptive parents would be the
                  least detrimental alternative to disrupt the bonds between the parent and child
    (2) Representation of Adoptive and Biological Parents in Adoption Proceeding
        (a) An attorney may represent multiple parties in an adoption proceeding if he can adequately
            represent the interests of each party and
        (b) Each party consents to the representation after full disclosure
        (c) Conflicts:
            (i) Interest of potential adoptive parents may be adverse to one another (This problem arise
                  where there are 2 adoptive parents and one child)
            (ii) Interest of the adoptive parents may be adverse to the interest of the biological parents
        (d) Attorney should suggest biological parents obtain separate legal advice with costs incurred by the
            adoptive parents
        (e) ABA recommends discipline when an attorney knows of a conflict of interest, does not fully
            disclose to the client the possible effect of that conflict and causes injury or potential injury to the
            client
    (3) Equitable Adoption: Fact intensive analysis
        (a) Definition: Person (litigant) seeking to avail himself of the doctrine in a dispute must prove by
            clear and convincing evidence that he/she stood from an age of tender years in a position exactly
            equivalent to that of a formally adopted or biological child.
        (b) Burden of Proof: Claimant must by clear and convincing evidence prove sufficient facts to convince
            a trier of fact that his status is that of a formally adopted child except without the adoption.
        (c) Factors
            (i) How did prospective adoptive parents hold out the child
            (ii) Treatment of child and representations to the community
            (iii) Do the prospective adoptive parents support the child
            (iv) How is the child treated on a legal/formal level (documentation such as wills, taxes and
                  insurance)
    (4) Equitable Parenting or Parenting by Estoppel
        (a) Judicially created theory that a step parent has a duty to support
        (b) Make and analogy to equitable adoptions – step dad is an equitable dad who gets rights and
            obligations, such as visitation and obligation to support – in the absence of a formal adoption
    (5) Consent of Biological Mother

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        (a) ISSUE: May a natural mother reclaim her baby if doing so is in the child’s best interests?
        (b) HOLDING: Yes. Because of the serious nature of the decision, the mother may change her mind
            before final adoption.
        (c) If custodial agency will not return child, court decides child’s best interests: FITNESS
        (d) Burden is on the party seeking to sever the mother/child relationship to demonstrate that
            placement with the mother would be detrimental
        (e) Minority (PA) Rule: Natural parents have an absolute right to revoke consent anytime before the
            final decree.
        (f) Majority Rule: Use judicial discretion.
        (g) Strict Rule: Absent fraud or duress, an adoption is final
    (6) Abrogation
        (a) When adoptive parents find out child is ―messed up.‖
            (i) Negligence or intentional tort of misrepresentation action brought by adoptive parents against
                  adoption agency
            (ii) Duty of Adoption Agency
                  1. Use reasonable efforts to obtain and maintain background information.
                  2. Disclose information
        (b) The failure to disclose information is the breach of the duty
            (i) Assure that parents are economically able to care for the child
            (ii) Trust between adoptive parents and agency
    (7) Adoptee’s Right to Know Natural Parents
        (a) All parties need representation.
        (b) Arguments are based on interpretation of state statute
        (c) Parties will argue fundamental right to privacy
ii) Cases
    (1) Michelle T.
        (a) T's mom signed consent to adopt and Mrs. B filed a petition to adopt
        (b) The investigation recommended adoption be denied because of age (70 and 54)
        (c) The state's concern here is age of adoptive parents
        (d) There is some personal connection between the parents (relative or friend)
        (e) Held: Age is relevant, but other factors must be considered as well
    (2) Petrie
        (a) Here attorney represented both the biological mother and the adoptive patents
        (b) At the recommendation of the biological mother attorney placed the child for adoption with a 3rd
            party
        (c) When the adoptive parents learned of this they claimed the violated conflict of interest rules
        (d) Held: Attorney was negligent in failure to recognize that the potential adoptive parents were his
            clients and that a conflict existed
    (3) Kisamore
        (a) Prospective adoptive parents were given physical custody of the child, they celebrated the child's
            birthday, developed strong family ties and the child referred to the party as Daddy
        (b) The prospective dad died and the prospective mom adopted the child and remarried
        (c) The parties had to wait six months before they could petition to adopt (here only together for 57
            days)
        (d) State's Argument:
            (i) The adoptive parents could not make authorized medical decisions, they needed to get the
                  state's permission regarding the child's medical care because the state is the child's legal
                  guardian (the state has legal custody)
            (ii) Fraud Motives - - the person seeking equitable adoption doing it for a financial benefit
            (iii) Institutional competence - - creating an exception for the 6 month requirement is a matter for
                  the legislature
        (e) Held: No equitable adoption because waiting period had not lapsed
    (4) Scarpetta
        (a) Child was born to an unmarried mom in Columbia
        (b) She came to the US to have the baby and placed the baby in Chapin adoption service

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           (c) 10 days later she executed a surrender document and the baby was placed with a family for
               adoption.
           (d) 5 days later she tried to get the baby back.
           (e) Later, she revoked consent
           (f) Held: The child's interest would be best served by return to the biological parents. The court
               found she was motivated by her concern for the well-being of her child and there was no finding
               of unfitness
       (5) Clausen
           (a) Deboer had temporary custody of child and after 90 days of physical custody they learned
               Schmidts claim of paternity (biological father petitioned to intervene in the adoption proceeding,
               because he did not consent).
           (b) Mom signed a release of custody and listed a different man as the father
           (c) Mom tried to revoke release of custody saying she lied about the dad.
           (d) Adoptive parents were not permitted to adopt
           (e) Held: JD Issue—Child was transferred back to the biological parents because Iowa had significant
               interests in the proceeding and in the child
       (6) McKinney
           (a) Adoptive parents knew child had behavior problems
           (b) The child was removed from biological mother due to neglect
           (c) Adoptive parents still loved the child and wanted to adopt her
           (d) They knew the biological mother drank heavily while pregnant and the child was born
               prematurely
       (7) Roger B
           (a) Statute that places adoption and birth records under seal
           (b) Adoptive adult has been searching for his biological parents and petitioned the court for access to
               his adoption records
           (c) His search was not based on medical or psychiatric needs – but just a desire to know information
               that pertains to him as a person
b) Unwed Fathers
   i) Standards
       (1) When Consent of Unwed Father Required
           (a) Formal Acknowledgment of Paternity
               (i) Name on birth certificate
               (ii) Putative father registry
           (b) Judicial acknowledgement of paternity
           (c) Statutory classification
       (2) Constitutional Rights of Unwed Fathers
           (a) Generally, unwed fathers are entitled to procedural due process
           (b) Due process does not require in all cases that notice be given to a biological father of the pending
               of an adoption proceeding. There must be:
               (i) Biological connection with the child and
               (ii) Biological father grasps the opportunity for relationship with the child
                    1. custodial
                    2. personal or
                    3. financial interests
           (c) Liberty Interests
               (i) Broad View: liberty interest of a father as a parent regardless of marital status
               (ii) Narrow View: no liberty interest of an adulterous, unwed father according to tradition and
                    history
       (3) PA Standard
           (a) Irrebuttable presumption that marital father is the biological father
           (b) Exception: marital father must be married to the mother; once divorced, bio father asserts paternity
   ii) Cases
       (1) Stanley
           (a) Mother died; biological, unwed father wanted custody

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             (b) Statute: children of unwed fathers become wards of the state
             (c) Biological father didn't get a hearing before children were taken by the state
             (d) Held: biological father gets a hearing
         (2) Lehr
             (a) Child was born out of wedlock
             (b) Mom married and step dad adopted
             (c) Natural dad did not list himself in the "putative father registry," he did not live with the child,
                 provide support, or have his name listed on the birth certificate.
             (d) Held: Must show connection with child before asserting parental rights
         (3) Michael H.
             (a) C and G were married and C had an affair with M and had baby V
             (b) G was listed as the father on the birth certificate and held V out as his daughter.
             (c) But C informed M that the baby might be his
             (d) A blood test showed M was the biological father
             (e) M held V out as his daughter
             (f) M sought visitation rights and G intervened
             (g) Held: adulterous father has no interests
c)   New Reproductive Techniques
     i) Standards
         (1) AIH Artifical Insemination by Husband: No issue of paternity or who the parents are.
         (2) AID (Artificially Insemination by Donor)
             (a) Consensual
             (b) Non-Consensual: Sperm bank or anonymous donor
                 (i) Husband of woman who is artificially inseminated by donor is the parent of the child
                 (ii) His consent is needed when another seeks to adopt the child.
                 (iii) Artificial insemination will not preclude the sperm donor from being declared the natural
                       father unless the sperm was obtained from the mother through the intervention of a licensed
                       physician.
         (3) Surrogacy Arrangements
             (a) If the child is procreated because of a medical procedure (surrogacy) initiated and consented to by
                 the couple, then the couple is the child’s lawful parents
             (b) The couple may be related or not, divorced or together
         (4) Frozen Embryos
             (a) RULE: If no prior agreement exists between the divorcing spouses who are in disagreement over
                 the disposition of the embryos, then the respective relative interests in the use or destruction of
                 the embryos must be weighed
             (b) Embryos cannot have the same rights as persons
             (c) Counter Argument: Fundamental right to procreate or not to procreate
     ii) Cases
         (1) Anonymous
             (a) Consensual AID and the father was listed on the birth certificate
             (b) Later the couple divorced
             (c) Wife remarried and new husbands wants to adopt the child and argues the first husband's consent
                 is not required because he is not the parent of the child
             (d) Held: A child born of consensual AID during a valid marriage is a legitimate child entitled to the
                 rights and privileges of a naturally conceived child of the same marriage. The father of the child is
                 the parent whose consent is required to the adoption of the child by another
         (2) Jhordan C
             (a) Jhordan, sperm donor donated to a lesbian couple Mary and Victoria
             (b) J was listed on the birth certificate as the father
             (c) The couple agreed on monthly visitation rights
             (d) J would not sign a contract indicating he would not seek to be the child's father
             (e) The issue was to what extent can an unanonymous sperm donor who was permitted to develop a
                 social relationship with the child can assert parental rights
             (f) The lesbian was seeking to be declared a de facto parent

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           (g) Held: Jhordan was declared the legal father and got visitation rights and support obligations
       (3) Buzzanca
           (a) Child was born because couple agreed to have an embryo genetically unrelated to them implanted
                in a woman (surrogate) who would carry the baby and give birth to the child for them
           (b) After the child was born the couple split up and the issue in this case was who are the child's
                lawful parents
           (c) John had no biological or genetic connection; Luanne had no biological, genetic or gestational
                connection and Surrogate had no genetic connection but had a gestational connection.
           (d) Held: John and Luanne are the natural parents because the child would not have been born if they
                did not agree to have a fertilized egg implanted into a surrogate
       (4) Davis
           (a) H is suing W regarding who should have custody over 7 frozen embryos stored in a fertility clinic.
           (b) W wanted them for her own use post divorce effort to become pregnant
           (c) H wanted them to remain frozen until he decided he wanted to be a parent outside of the
                marriage
           (d) W then donated the embryos to childless couples. H was then discarded. The parties had no
                written agreement specifying the disposition of the embryos
           (e) Held: Stage between human tissue and human being that requires some "special respect" because
                potential for human life
d) Children’s Needs & Parental Duties
   i) Standards
       (1) General Duty of Parental Support: Most Courts
           (a) Food, clothing, medical care
           (b) Remains until age of majority
           (c) No emancipation
       (2) Exceptions to the General Duty
           (a) Child becomes emancipated—legal declaration of independence.
                (i) Three scenarios
                      1. Child has ability to support himself
                      2. Child marries
                      3. Child enlists in the military
                (ii) Effect: Terminates the duty to support
           (b) Parents can impose reasonable regulations that children must follow.
                (i) Duty to support is terminated if the child voluntarily abandons his or her responsibilities
                (ii) Child can defend by saying that the regulations are unreasonable
                (iii) Argument: Courts should not be involved in family matters
       (3) Inheritance
           (a) Statutes that require proof of paternity before illegitimate child can inherit from parent is
                constitutional
           (b) There is no complete deprivation of the child's ability to inherit
           (c) The proof is a limitation on the ability to inherit
       (4) Support of Unwanted Child
           (a) Father has a duty to support child even if he offers to pay for an abortion and the mother refuses
           (b) Balancing test
                (i) Right not to procreate (father)
                (ii) Fundamental right of a woman to make pregnancy decisions
       (5) Hypo: A couple is married and once has a child from a previous relationship. The step dad assumes
           all the responsibility and the biological dad is a dead beat. The step dad has not legally adopted, but
           holds out the child as his own. The couple divorces and mom tries to get support from step dad
           (a) General Rule: If step parent adopts – must pay
           (b) No Adoption (Equitable Parenting) Post Divorce Duty. Most courts say there is no duty post
                divorce – may be a limited obligation of support during the marriage.
                (i) Theory: There should be a duty of support based on the theory of equitable parenting (like
                      equitable adoption). Conduct test (functional definition of parenting: Lehr factors – does
                      parent hold out child as their own).

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                (ii) Estoppel: Estoppel is based on reliance standard. If the mother and child relied on the person
                      as a father they should be able to continue to rely
                (iii) There is never suppose to be a trade off between support and visitation. What about step
                      parent visitation? This involves the situation where step parent is paying support but the
                      other parent denies access to visitation. This is an equitable parenting problem.
                      1. Instructional Competence Argument. This is a judicially created theory - - is it better for
                          the legislature to impose support obligations on step parents
                      2. Look at Status. Generally the obligation is created where the parties have married - - if
                          here is no marriage than there is no obligation
   ii) Cases
       (1) Roe
           (a) Roe was an appointed guardian of a 20-year-old student who was supported by her father
           (b) She was living in a dorm room and contrary to her father's instruction she moved with a friend
                into an apartment
           (c) Father cut off support
           (d) Student alleges father refused and neglected to provide fair and reasonable support
           (e) Held: Father's request to live in a dorm was not unreasonable but rather it was the father's
                decision that this was in the best interest of his child
       (2) Lalli
           (a) Challenged law that requires illegitimate children who inherit by intestate succession provide
                proof of paternity, whereas legitimate children are not subject to the same requirement
           (b) Argument was this was an equal protection violation (this involves intermediate scrutiny – need a
                substantial relationship to an important government interest)
           (c) Child here showed evidence that dad referred to him as his son in legal writings.
           (d) Held: No violation of EP (there is not a complete bar to a child's access to the parent's estate). It is
                only barred if do not secure evidence within the father's lifetime
       (3) S.P.B.
           (a) Dad challenges the Uniform Parentage Act on due process and equal protection grounds because
                it imposes a duty of child support upon both parents without according the father the right
                whether the fetus should be aborted or to later avoid child support obligations by showing he
                was willing to pay for the abortion
           (b) Here dad admitted paternity but denied support
           (c) He did not want the baby and offered to pay for an abortion. She had the baby and court order
                dad to pay child support
           (d) Held: Mom gets support
e) Parental Breaches of Duty
   i) Standards
       (1) Abuse
           (a) Parents have a liberty right to direct the upbringing of their own children and apply reasonable
                corporal punishment to their children
           (b) Reasonable Corporal Punishment v. Excessive Force (Abuse)
                (i) Manner
                      1. Was the manner reasonable?
                      2. What part of the body was hit?
                      3. What implement was used to hit?
                      4. Were there other punishments in conjunction?
                (ii) Degree
                      1. Look at the injuries
                      2. Look at the frequency of the incidents
                (iii) Parental Intent
                      1. Did the parents intend to discipline?
                      2. Was the punishment out of anger?
       (2) Neglect
           (a) Failure to provide essentials or supervise
           (b) Possibility of abandonment

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        (c) Includes emotional neglect if
             (i) Repeated and
             (ii) Sustained
        (d) Medical Neglect
             (i) Religion forbids medical treatment
             (ii) Neglect can be shown if the disease is life threatening and
             (iii) Conventional medicine would give the child a good chance of survival
             (iv) Free exercise is not absolute
    (3) Dependency
        (a) Because of circumstances beyond the parents control, the child lacks something basic (Ex:
             homelessness, nutrition)
        (b) Encourage early intervention
        (c) Parents get no opportunity to show proper parenting
    (4) Prenatal Substance Abuse: Crack Babies
        (a) Criminal?
             (i) REAP statute charge is unsuccessful because child is not a "person" yet
             (ii) Charges under drug laws are unsuccessful because statutes do no contemplate danger to fetus
        (b) Civil? More successful
             (i) Problem: slippery slope—legal v. illegal substances
             (ii) Difficult to determine remedy
             (iii) Could seek civil commitment of mother for danger to others
    (5) Evidentiary Issues
        (a) Child Testimony: Unavailable to testify
             (i) Hearsay
             (ii) Exceptions
             (iii) Relevance usually outweighs prejudice
        (b) One Way v. Two Way Closed Circuit TV
             (i) Right to confront accuser under 6th Amendment implicated if child not in court to testify
             (ii) Balance the interest of the child in not testifying with the 's interest
    (6) Removal from Home
        (a) Send child to foster care for healthy environment while natural parents get better
        (b) Return the child to natural parents
        (c) Problem: relationships develop between foster parents and child
        (d) Old Law: "Reasonable efforts" to reunify the child and natural parents
        (e) New Law: "Finality" is the goal to avoid foster care drift
             (i) Child in foster care 1.5 years, state can terminate parental rights but
             (ii) There are countless exceptions
ii) Cases
    (1) Conn
        (a) Dad argued neglect and tried to seek custody of his child because the mom was living with and
             entertaining black men
        (b) Dad sought an order for emergency seizure of the child from the mom's home
        (c) The order was granted and the child went to a shelter home
        (d) There was a hearing 6 weeks later
        (e) Held: state may only invoke summary seizure of the child from its home when the child is in
             danger of immediate harm or threatened harm and a hearing immediately follows
    (2) DSS
        (a) Dad beats daughter on leg and across face while mom stood by and watched
        (b) Held: abuse, not reasonable corporal punishment
    (3) East
        (a) Mother of unborn child was incorrigible and sexually promiscuous and no means to support the
             child when it would be born
        (b) Mom was put in a foster home
        (c) Held: mother can be deprived of a child without opportunity to prove fitness
    (4) Jewish Child Care

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                (a) 5.5 year old child lived with temporary foster parents and they wanted to adopt
                (b) Held: Temporary foster parents may not actively solicit adoption without express wish of parents

4) DISSOLVING THE FAMILY
   a) Divorce
       i) Fault
            (1) Divorce used to be based on fault only, and without fault, no divorce
            (2) Grounds
                (a) Adultery
                (b) Desertion/abandonment (prison)
                (c) Cruelty (abuse, mental suffering, physical cruelty)
                (d) Bigamy
                (e) Imprisonment of 2 or more years
                (f) Mental capacity and adjudication of insanity
                (g) "Indignities" (catch all)
            (3) Defenses
                (a) Recrimination: both parties are equally at fault
                (b) Condonation: condoning the fault and behaving like husband and wife
                (c) Collusion: husband and wife fabricated evidence to get out of marriage but really no fault
            (4) Advantages/disadvantages
                (a) More difficult to divorce
                (b) Adversary proceeding: parties are at each other's throats and children are involved
       ii) No Fault
            (1) Divorce is now also "no-fault." Modern theory that has not completely replaced fault divorce
            (2) Bilateral No Fault
                (a) Both parties agree that they want a divorce
                (b) Parties consent, sign an affidavit, wait 90 days
            (3) Unilateral No Fault
                (a) Two year process
                (b) One party alleges that the marriage is "irretrievably broken"
                     (i) No reasonable prospect of reconciliation
                     (ii) Estranged
                (c) Separated and apart for at least 2 years
                     (i) Complete cessation of any cohabitation whether living in the same residence or not
                          1. Financial separation
                          2. Lifestyle separation
                          3. Not identified in public as husband and wife
                     (ii) Complete cessation of financial, social, and sexual interdependence
            (4) Disadvantages
                (a) Easier to get out of a marriage
                (b) Financial ramifications: one party is always better off
       iii) Prenuptial Agreements Used to Determine Grounds for Divorce
            (1) Prenups can cover grounds for divorce—waiver of type of ground for divorce
            (2) Strength of prenup is high
            (3) Reasoning: prenup that covers grounds for divorce is not a total deprivation of the right to divorce,
                just a limitation on the right
            (4) There is a strong public policy favoring the enforcement of agreements
       iv) Cases
            (1) Massar
                (a) This case involves a prenup (agreement) that waives the parties right to a fault based divorce.
                (b) Wife argues duress to invalidate the agreement, but the fact that the wife signed the agreement
                     and had an attorney contradicts her argument.
                (c) The agreement provided that H agreed to vacate the marital home and W agreed not to seek
                     termination for a reason other than a no fault divorce.
                (d) W filed for divorce because of cruelty.

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            (e) Held: There is no evidence W's waiver of a fault divorce was not knowing or voluntary. Prenup is
                valid
b) Jurisdiction for Divorce
   i) Standards
       (1) GENERAL RULE: Usually a person filing for a divorce must be domiciled in the forum state
       (2) Domestic Relations Exception
            (a) Federal court will not hear divorce, alimony, and child support
            (b) Domestic relations exception does not apply to cases of child abuse
       (3) Domicile
            (a) Intent determined by conduct
                (i) Intent to make the forum state your permanent home
                (ii) Physical presence
            (b) Objective factors test: use MANY facts
       (4) Duration
            (a) Statutory Period (one year, six months, etc.
            (b) Arguments
                (i) Duration is only a delay, not a deprivation of the right to divorce
                (ii) State has an interest in preventing state proceedings from becoming divorce mills
                (iii) Assures that divorce decrees receive full faith and credit
       (5) Venue (County)
            (a) Last known marital domicile
            (b) 's residency or
            (c) 's residency, if 's residency is unknown
       (6) Foreign Divorces: Recognition and Enforcement of Divorce Decree
            (a) No full faith and credit applies (not state to state)
            (b) Recognition
                (i) Discretionary principles of "comity"
                (ii) If the foreign divorce was granted for the same reason that the state would grant divorce, then
                      the court should recognize the foreign divorce
                (iii) Exception: Party in the foreign divorce proceeding was not afforded procedural due process
   ii) Cases
       (1) Fink
            (a) H had a well-established job in one state for about 20 years, was tenured; with a contract to
                continue from year to year.
            (b) He then took most of his personal property and moved to Nevada indicating to others he
                intended to make Nevada his permanent home.
            (c) He never quit his job; made no inquiries about work in Nevada. H went to Nevada to get a
                divorce
            (d) Held: Here there was only conditional intent to reside permanently in Nevada. Therefore the
                Nevada decree of divorce is void for lack of jurisdiction
       (2) Sosna
            (a) Parties were married in NY, the parties separated and at some point W moved to Iowa with her 3
                children and sought a divorce in Iowa.
            (b) H contested jurisdiction.
            (c) The divorce petition was dismissed for lack of jurisdiction because H was not a resident and W
                had not been a resident for 1 year prior to filing for divorce
            (d) Held: duration limitation is proper
       (3) Ankenbrandt
            (a) Whether federal courts have in cases of alleged torts committed by H against children (physical
                and sexual abuse) when the sole basis for jurisdiction is diversity of citizenship
            (b) Held: federal courts can hear cases of child abuse. The domestic relations exception does not apply
                for cases of child abuse
       (4) Yoder
            (a) Mexican divorce decree
            (b) H wants decree to be made Connecticut decree

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            (c) Held: absent statutory authority, a foreign decree may not be made a decree of the state, but
                comity dictates that the foreign decree can be adopted if it would reach the same result as the state

c)   Distributing the Assets: Standards for Property, Alimony & Child Support
     i) Alimony
         (1) The ex-spouse who makes the $ is required to support the other spouse usually for an indefinite
             period of time
             (a) Based on times when women were economically dependent on men
             (b) Still used as a viable way to distribute assets
             (c) Fault is considered
             (d) Tax Considerations: deductibles for alimony payments but considered gross income for recipient
         (2) Temporary and Permanent Alimony Factors
             (a) Relative earnings/earning capacity of the parties.
             (b) Ages, physical, and mental health.
             (c) Sources of income for both parties
             (d) Economic potential
             (e) Work history
             (f) Expectations and inheritances of parties
             (g) Duration of the marriage
             (h) Contribution by one party to the education, training, or increased earning capacity of the other
             (i) Extent to which earnings affected by custody of minor child.
             (j) Standard of living established during marriage.
             (k) Time necessary to find good job.
             (l) Property brought to marriage.
             (m) Contribution as homemaker.
             (n) Needs of party.
             (o) Marital misconduct
             (p) "Reasonable Needs" (Simmons)
         (3) Theories of Awarding Alimony (Judicial Discretion is High)
             (a) Need-Based
                 (i) Who needs the alimony
                 (ii) Usually temporary
             (b) Party Status
                 (i) Reach the same standard of living as the parties were when married
                 (ii) Helps the party that was dependent on the bread winner
             (c) Contributions
                 (i) Intangible contributions made during marriage
                 (ii) Party should be compensated for contributions
             (d) Rehabilitation
                 (i) Temporary
                 (ii) Party gets back on his or her feet and gain economic/educational stability
             (e) Fault Based Theory
         (4) Alimony Pendente Lite
             (a) Awarded before a divorce decree
             (b) During the course of litigation when one party has no resources
             (c) Used to give the other spouse money to basically pay the bills (utility, mortgage, etc.)
             (d) Criticisms
                 (i) Makes one party more likely to succeed in alimony action
                 (ii) Additionally, a person gets a remedy before a need is established
         (5) Modification of Alimony Awards
             (a) Standard: Change in circumstances of a substantial & continuing nature
             (b) Unemployment winner in unemployment comp. hearing, winner for modification
             (c) Disability: good chances for modification
             (d) Early forced retirement
             (e) Remarriage and cohabitation of alimony recipient but not payor of alimony

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    (6) Cases
        (a) Mills
            (i) W was seeking permanent alimony, but ends up only getting temporary alimony (1500.00 for
                  4 years)
            (ii) W has a real estate license, is only 41 and had a business which went to H post divorce
            (iii) Held: W has potential to earn; alimony OK
        (b) Simmons
            (i) Here W was eating at luxurious hotels because she did not want to alone and was taking cabs
                  to work and W wanted money to support these needs
            (ii) Held: reasonable needs of spouse calculated by standard of living before divorce
ii) Equitable Distribution of Property
    (1) Standards
        (a) Determine if the item at issue is property
            (i) Pensions
                  1. Vested pensions are marital property
                  2. Non-vested pensions are future economic interest that are considered marital property
            (ii) Good Will of Business
                  1. Intangible asset
                  2. Quantifiable: if so, argue that it's property (e.g., Contributions by non-owning spouse)
                  3. Most courts do not consider good will marital property
                  4. Earnings can be considered marital property
            (iii) Advanced Degrees
                  1. As Property: Test is concerted family effort
                      a. Contributions during marriage (taking care of house while spouse sought degree)
                      b. Sacrifices (deferring own career to allow spouse to pursue his or her career)
                      c. Alternative: Even if it's not property, equity calls it property
                  2. Not Property
                      a. Lacks characteristics of property (PA)
                           i. Cannot assign
                           ii. Cannot sell
                           iii. Cannot transfer
                      b. Personal only to holder of the degree
                           i. Work product of the holder only
                           ii. Holder's name on the degree
                      c. Economic Potential Only
            (iv) Career & Celebrity Status
                  1. Direct personal contributions v. non-monetary contributions
                      a. Length of marriage
                      b. Contributions during the marriage
                      c. COUNTER: spouse of celebrity reaped benefits during the marriage
        (b) Determine if the item at issue is marital property or separate property
            (i) Separate Property
                  1. Acquired before marriage or
                  2. During marriage if the property was a gift, bequest, or inheritance to one spouse
            (ii) Marital Property
                  1. Increase in value of property during marriage becomes marital property
                  2. Gifts between spouses during marriage are marital property
        (c) If marital, determine the valuation
            (i) Expert Witnesses
            (ii) Types of Valuation
                  1. Present value
                      a. Non-vested pension—divide # years worked by # years on pension (e.g., 15/20 = ¾)
                      b. Present value of law degree—Compare earning capacity with the law degree with the
                           earning capacity without the law degree (Difficult to determine)
                  2. Reserved Jurisdiction approach—defer valuation until pension vests

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         (d) Determine the distribution of the property
             (i) Judge has wide discretion
             (ii) Depending on what side you're on, one distribution method is better than the other
                   1. When opposing party is egregiously at fault, use the clean slate approach
                   2. When opposing party has most of the assets, use the 50/50 approach
             (iii) Presumption that there is a 50/50 split then work with factors
                   1. Court shall not consider marital misconduct
                   2. Length of marriage
                   3. Prior marriages
                   4. Contribution by one party to the education, training, or increased earning capacity of the
                        other
                   5. Opportunity for each party for future acquisitions
                   6. Sources of income
                   7. Other contributions of the parties (homemaker)
                   8. Standard of living established during the marriage
                   9. If party is custodian of minor child
             (iv) No presumption and start with a clean slate using the factors
                   1. Court shall not consider marital misconduct
                   2. Length of marriage
                   3. Prior marriages
                   4. Contribution by one party to the education, training, or increased earning capacity of the
                        other
                   5. Opportunity for each party for future acquisitions
                   6. Sources of income
                   7. Other contributions of the parties (homemaker)
                   8. Standard of living established during the marriage
                   9. If party is custodian of minor child
     (2) Cases
         (a) Postema
             (i) W was a license nurse going to school to become a registered nurse.
             (ii) The parties agreed H would go to law school and W would postpone her education and work
                   full time to support them.
             (iii) W worked full time, maintained the home
         (b) Opera Singer Case
             (i) Well known opera singer was married 17 years to H who was her photographer and
                   promoter.
             (ii) They had 2 kids and H provided primary child care for them.
             (iii) W wanted a divorce and H is seeking a value of W's career and celebrity status because he
                   contributed to her attainment.
             (iv) NY allowed this in the marital distribution pool and had experts value both the monetary and
                   non-monetary contributions
iii) Child Support
     (1) Standard
         (a) Child support is payable regardless of marriage
         (b) It is based on biological parentage
         (c) Can be court ordered upon separation
         (d) Exceptions or Defenses to Payment
             (i) Parent is not the biological parent of the child
             (ii) Child is emancipated
             (iii) Estrangement
             (iv) Entitlement Defense
                   1. General Rule: Stepparent has no legal obligation to support stepchild
                   2. Exception: Equitable Estoppel: stepparent holds child out as his or her own
             (v) Post-Majority Child Support Obligations


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                1.   General Rule. Court cannot order a parent to pay post majority support, such as a child's
                     college education. Family law court looses jurisdiction when the child reaches the age of
                     majority
                2.   Exception. If the parties agree under a resolution, decree, contract, etc. that the non-
                     custodial parent will pay post majority support, which is independently enforceable as a
                     contract. If the non-custodial parent refuses to pay then breach of contract
    (2) Process
        (a) File support complaint; court will serve
        (b) Conference is set up before a domestic relations officer; parties’ income is revealed
        (c) Officer recommends order
        (d) Request is final unless one of the parties requests a judicial hearing
        (e) Order is retroactive to the date of filing
    (3) Valuation
        (a) Income Shares Model (PA)
             (i) Combine both parents income
             (ii) Support proportionate to the income of each parent
        (b) Percentage of Income
             (i) Take non-custodial parent's income
             (ii) Calculate support based on percentage of that income alone
        (c) Melson Approach (DE)
             (i) Determine child's support needs
             (ii) Prorate between the parents the needs based on combined net income
    (4) Modification of Child Support
        (a) Where justified by income of divorcing parents and the lifestyle the would have enjoyed
        (b) Child support that is ridiculously big may be reduced
        (c) PA Rule: the change in circumstances must be
             (i) material
             (ii) continuous and
             (iii) involuntary
    (5) Default on Child Support Payments and Enforcement
        (a) Reasons
             (i) Financial inability
             (ii) Remarriage and cohabitation
             (iii) Punishment motive (punish the custodial parent because of animosity)
             (iv) Parent does not see child very often
             (v) Recipient spouse ahs great increase in income
        (b) Enforcement
             (i) Garnishment of wages
             (ii) Criminal proceedings (contempt)
             (iii) Lien on property and attach refunds
             (iv) Attach assets; liquidate assets
iv) Jurisdiction for Alimony, Property, & Child Support
    (1) Doctrine of Divisible Divorce
        (a) Obtain a divorce in one state under that jurisdiction
        (b) Divide other claims (alimony, property, child support) in other jurisdiction
    (2) Jurisdiction Generally
        (a) Long Arm Statute
        (b) Based on minimum contacts with the state
             (i) Marriage contract
             (ii) Residency and domicile
             (iii) Voting
             (iv) Working in the state
        (c) State must have a manifest interest in the outcome of the case
    (3) Child Support Jurisdiction
        (a) Relocating to another state does not eliminate duty to pay child support

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          (b) Duty to pay does not lapse with the passage of time
          (c) Analogy: Third party beneficiary contracts never lapse—same thing here (child is 3rd party)
      (4) Cases
          (a) Vanderbilt
              (i) Divorce in Nevada; New York court ordered sequestration of property
              (ii) Held: Divorce decree in Nevada OK but since there was no personal jurisdiction over the W,
                    Nevada could not cut off support rights of W.
          (b) Hines
              (i) Parties married in Oklahoma; moved to New Orleans when H got accepted to medical school.
              (ii) They moved to Tulsa upon graduation until H obtained a license to practice in Oklahoma.
              (iii) H joined the air force and moved to CA and voted by absentee ballot in Oklahoma.
              (iv) H told W to go back to Oklahoma because there was another woman
              (v) Okalahoma had jurisdiction over H
          (c) Brenckle
              (i) Parties married in CA and moved to Alaska and had a child.
              (ii) H filed for divorce and was obligated to pay child support.
              (iii) H moved to MA and stopped paying child support.
              (iv) W filed an action in Alaska to recover child support from H
              (v) Held: H still has to pay no matter where he lives
d) Custody
   i) Standards
      (1) Best interest of the child: child's physical, intellectual, moral, emotional, and spiritual well being
          (a) Tender years presumption that child goes to mother is off the table
          (b) Least detrimental available alternative
          (c) Fitness of each parent: Nexus between the fitness problem and the adverse effect on the child
              (i) Substance abuse
              (ii) Mental health
              (iii) Current or past sexual behavior
              (iv) Homosexual relationships
          (d) Sibling relationships
          (e) Other General Factors
              (i) The sex and age of the children
              (ii) Characteristics and needs of each child – including their emotional, moral, physical and
                    educational needs
              (iii) The respective home environments offered by each parent
              (iv) The characteristics of those seeking custody – including age, character, stability, mental and
                    physical health
              (v) The effect on the child of disrupting or continuing an existing custodial status
              (vi) Report and recommendations of expert witness or independent investigator
      (2) Race & Religion in Custody
          (a) Argument: Best Interests Analysis
          (b) Counter: Constitutional Analysis
              (i) Religious upbringing generally the custodial parent decides religious affiliation
              (ii) Fundamental right of parent to raise the child
      (3) Child Preference
          (a) Age
          (b) Intellect
          (c) Maturity and
          (d) Reasons for the child's preference
      (4) Primary Caretaker
          (a) Totality of the circumstances
          (b) Quantitative: Who does how much? Factors:
              (i) Caring and nurturing duties of a parent
              (ii) Preparing and plainning meals
              (iii) Bathing, grooming, dressing

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                (iv) Purchasing, cleaning, caring of clothes
                (v) Arranging social events after school
                (vi) Arranging alternative care (babysitting)
                (vii) Put child to bed at night
                (viii) Disciplining; toilet training
                (ix) Teaching religion, culture, and social
                (x) Teaching reading, writing, arithmetic
            (c) Counter: Isn't this just the "tender years" presumption?
   ii) Types of Custody
       (1) Sole
            (a) One person with sole custody is responsible for raising child and other party gets visitation rights
            (b) Sole custodian is the legal decision maker
       (2) Joint Legal
            (a) One parent has sole custody
            (b) Other parent has visitation rights
            (c) Parents share to same degree the decision making responsibilities for schooling and medical
                decisions
       (3) Joint Physical Custody
            (a) Parents share childrearing responsibilities
            (b) Need not be 50/50 split in duration
       (4) Advantages of Joint Custody
            (a) Cooperation
            (b) Flexibility
            (c) Continuity of parent-child relationship
            (d) Mimics parent-child relationship
            (e) No separation anxiety
            (f) Reduced litigation because parties privately agree
e) Visitation
   i) Parental Visitation
       (1) Nexus between parental behavior to the potential harmful effects on the child
       (2) Determine whether supervised or unsupervised is appropriate based on the parental behavior
            (a) Supervised for bad behavior
            (b) Unsupervised where no nexus exists
       (3) Free Expression
            (a) State can limit 1st Amendment right of parent to "bash" the ex-spouse in front of children if it's an
                incidental restriction in light of the state's interest to protect the child
            (b) Impossible to enforce
       (4) Termination
            (a) Incarceration
            (b) Abuse
            (c) Neglect
            (d) Abandonment
       (5) Cases
            (a) Chicoine
            (b) Schutz
            (c) Egle
            (d) Kemp
   ii) Third Party Visitation
       (1) Grandparents
            (a) Petition for visitation if best interest of child would be served and
            (b) Visitation does not interfere with the parent-child relationship
       (2) Stepparents
            (a) Best interest of the child would be served and
            (b) Stepparent stood in loco parentis during the marriage (Assumed parental status and Had parental
                responsibilities)

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f) Modification
   i) PA Standards
        (1) Whether modification would be in the best interest of the child
        (2) Relocation Test: Gruber
            (a) Advantages of the relocation
            (b) Whether it significantly improves the child's life
            (c) Integrity of the motives
                (i) Custodial parent's motives
                (ii) Non-custodial parent's motives
            (d) Availability of realistic visitation arrangements
   ii) Other Standard
        (1) Change in circumstances that is
            (a) Substantial and
            (b) Material
        (2) Relocation factored into this test
g) Jurisdiction in Custody Cases
   i) Standards
        (1) Uniform Child Custody Jurisdiction Act
        (2) Determines Jurisdiction in Custody Cases
h) Enforcement of Custody Orders
   i) Contempt
   ii) Tortious interference with custody order
   iii) Kidnapping
   iv) UCCJA




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