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Premarital Agreement Form Florida - DOC

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Premarital Agreement Form Florida - DOC Powered By Docstoc
					PREPARING TO MARRY & COHABITATION

1. Breach of Promise to Marry
       a. most states (including PA) abolish the cause of action altogether
                i. a few states recognize the cause of action, but with limitations
       b. damages:
                i. mental suffering and humiliation
               ii. expectation damages – monetary and social value of marriage
              iii. reliance damages – expenses incurred in preparation for marriage
              iv. punitive damages (sometimes)
       c. defenses:
                i. physical and mental defects
               ii. unchastity of π
              iii. π’s lack of love for ∆
              iv. mutuality of decision to terminate the engagement
       d. mitigation:
                i. ∆’s subsequent good faith offer to marry π
       e. policy argument for barring actions for breach of contract to marry:
                i. stops future divorce
       f. seduction (tort liability):
                i. common law:
                        1. unmarried, previously chaste woman consents to intercourse in reliance on
                            ∆’s false promise to marry
               ii. states:
                        1. generally reformulate as action for intentional misrepresentation
       g. circumscribing cause of action for breach of promise to marry:
                i. Rivkin (TN)
                        1. TN circumscribes cause of action for breach for promise to marry in 4 ways:
                                 a. (1) these claims cannot be joined with other damage claims
                                 b. (2) promises / contracts of marriage can only be established using
                                      either:
                                           i. singed, written evidence of the promise/contract, or
                                                   1. need only prove that parties had agreed to marry (not
                                                       evidence of specific moment of engagement)
                                          ii. the testimony of at least 2 disinterested witnesses
                                 c. (3) requires juries to consider parties’ ages and experience in
                                      calculating damages
                                 d. (4) prohibits awarding punitive damages in cases where alleged
                                      breaching party is over 60 years old
2. Gifts in Contemplation of Marriage
       a. Pavlicic (PA)
                i. facts: π gave ∆ many gifts in contemplation of marriage, but ∆ married someone else
               ii. Heart Balm Act – only prohibited suits for emotional suffering due to breach of
                   contract to marry
                        1. didn’t forbid cause of action for breach of contracts subsidiary to actual
                            contract to marry (narrow interpretation of statute)
              iii. treated gifts as conditional (upon marriage) (here, title never vested in ∆)
                        1. gift requires donative intent + delivery (here, delivery not completed)
              iv. should result be based on issue of fault?
       b. Ferraro (PA)
                i. Heart Balm Act barred π’s suit for wedding expenditures (essentially the same as
                   breach of promise to marry)
       c. Lindh (PA)
                i. no-fault approach to engagement ring disputes
                        1. marriage must occur before title vests in donee
               ii. it shouldn’t matter why condition is not fulfilled (i.e. – fault, death, etc.)
3. Cohabitation by Unmarried Couples
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      a. all states treat cohabitation agreements differently (PA allows)
                i. in states that allow, if there is no agreement, the other party may pursue equitable
                   remedy (but clients doing so are at risk)
               ii. some states only allow express agreements
      b. Marvin (CA)
                i. facts: suit for breach of alleged oral contract which would entitle π to ½ the property
                   she and ∆ acquired during time they were unmarried
               ii. couples could use several theories (including contract law) to bring suit for
                   dissolution of non-marital relationship, but they cannot use marriage laws
                        1. court should enforce express contracts between nonmarital partners except to
                            the extent the contract is explicitly founded on the consideration of
                            meretricious sexual services
                        2. court may inquire into parties’ conduct to see if implied contract or other
                            agreement of partnership / joint venture existed
                        3. quantum meritum – using equitable theory to divide property (??)
             iii. here, court enforces express contract since it was not based on any unlawful
                   consideration
              iv. alternatives for the court – 1) no rights to unmarried couples (discourages
                   marriage), 2) contract was unenforceable as related to sexual services
4. Prenuptial Agreements
      a. prenup – premarital agreement which generally limits spousal property rights in the event of
         dissolution / death
                i. what they cover:
                        1. disposition of property, alimony, spouses’ rights at death (can disinherit
                            spouse through prenup)
               ii. highly state-specific
      b. requirements for valid prenup:
                i. disclosure of assets and liabilities
               ii. cannot restrict judicial discretion regarding child custody/support
      c. dissolution / death:
                i. prenups generally limit spousal property rights even if there is death / divorce
      d. approaches to prenups:
                i. (1) governed by contract principles
                        1. Simeone (PA, p. 128) – (NOT current state of the law)
                                 a. facts: W was presented with prenup the night before the wedding
                                 b. prenup is governed by contract principles
                                           i. valid (absent fraud, misrepresentation, or duress) even if:
                                                   1. one party doesn’t have legal assistance / fully
                                                       understand terms of agreement
                                                   2. agreement is unfair
                                                   3. timing of agreement is bad
                                 c. if agreement provides that full disclosure has been made, a
                                      presumption of full disclosure arises
               ii. (2) need for special protection
                        1. substantive fairness at execution and dissolution and procedural fairness (i.e.
                            – agreement entered into voluntarily and with full disclosure)
                                 a. UPAA (Uniform Premarital Agreement Act) – requires
                                      unconscionability to invalidate premarital agreement (about 26
                                      states)
                                 b. ALI – substantive and procedural (informed consent and disclosure)
                                      fairness required
                                           i. rebuttable presumption arises that agreement satisfies
                                               informed consent requirement if: (1) executed 30+ days prior
                                               to marriage, (2) both parties
                        2. Button (PA)
                                 a. 3 things required for fairness:
                                           i. (1) knowledge of assets (independently / through disclosure)
                                                                                                         2
                                        ii. (2) voluntary execution (parties had meaningful choice)
                                                 1. factors: counsel, time to review agreement,
                                                      understanding of agreement and its effect,
                                                      understanding of financial rights in absence of
                                                      agreement
                                       iii. (3) fair terms at execution and divorce
                               b. when fairness is determined:
                                         i. time of agreement
                                        ii. time of divorce (if circumstances significantly change)
             iii. (3) substantive and procedural fairness are alternative requirements
                       1. substantive fairness must be present before court will examine agreement for
                          procedural fairness
       e. policy:
               i. combine contract principles with equitable distribution (family law)
              ii. how different from traditional contracts:
                       1. subject matter (deal with property/support rights during/after marriage,
                          personal rights/obligations of spouses during marriage, or education/care of
                          children)
                       2. relationship of parties (usually not evenly matched in bargaining power)
                       3. when performed (usually in the future)
       f. PA – 23 Pa. § 3106 (supp. 21):
               i. prenup not enforceable if party seeking to set it aside proves by clear and convincing
                  evidence that either:
                       1. (a) party did not execute agreement voluntarily
                       2. (b) party, before execution was not provided fair and reasonable disclosure of
                          property / financial obligations of other party


MARRIAGE

1. Common Law Marriage
     a. only recognized by a few states (not PA)
             i. PA – 23 Pa.C.S.A. § 1103: “No common-law marriage contracted after January 1,
                2005, shall be valid.”
            ii. no state automatically allows common law marriage to arise after cohabitation for a
                certain number of years (common misconception)
     b. standard of proof – usually clear and convincing evidence (including PA)
             i. minority of states – preponderance of the evidence
     c. 4 elements of common law marriage:
             i. (1) capacity to enter marital contract
                    1. no impediments can exist, such as pre-existing marriage
            ii. (2) present-tense agreement to be married
                    1. may be inferred from cohabitation / other circumstantial evidence
                             a. (ex.) vows
                    2. Staudenmayer (PA)
                             a. common law marriage can only be created by exchange of
                                 present tense words + intention that marriage be created
                                      i. clear and convincing evidence required
                             b. where there is no proof available of verba in praesenti because of
                                 inability for parties to testify, then a rebuttable presumption of
                                 common law marriage can be raised by sufficient proof of
                                 cohabitation + holding out as H & W
                                      i. but, if spouse is able to testify and fails in their burden of
                                          proof, then such evidence of cohabitation and holding out
                                          cannot be presented
                             c. here, π failed to prove existence of present tense words showing
                                 intent to be married
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               iii.  (3) cohabitation
                         1. need not be for specified amount of time
                         2. look at equities of situation
              iv. (4) holding out to community as H & W
                         1. general reputation is what’s important (not just what a select few think)
                         2. reason – prevent fraud
                                 a. (ex.) relevant evidence – joint tax return, joint title in deeds, joint
                                      bank account, estate plan, life insurance policy to “my spouse,”,
                                      health insurance records, retirement plan designations, club
                                      memberships, mail addressed to “Mr. & Mrs.,” leases on property,
                                      titles to other property, anniversary cards
      d. policy arguments for / against – (see p. 225)
      e. Jennings (NY, alleging marriage under SC law because of lex loci)
                i. SC law – marriage is mere contract (no ceremony required)
                         1. all that is required is intent to be married
               ii. common law marriages are tolerated, but not encouraged
              iii. here, no common law marriage where there was no holding out or reputation of
                    marriage
2. Where Marriage is Valid
      a. lex loci (common law rule) – marriage valid where performed is valid everywhere
                i. only applies if marriage would not offend forum state’s public policy
               ii. R(2) Conflict of Laws § 283:
                         1. (1) – validity of marriage determined by local law of state which, with
                            respect to the particular issue, has most significant relationship to spouses /
                            marriage
                         2. (2) – marriage which satisfies the requirements of the state where the
                            marriage was contracted will everywhere be recognized as valid unless it
                            violates the strong public policy of another state which had the most
                            significant relationship to the spouses and the marriage at the time of the
                            marriage
      b. Uniform Marriage and Divorce Act (1970) – requires states to recognize marriages provided
          that they are valid either at:
                i. place of celebration, or
               ii. domicile of the parties
3. Putative Spouse Doctrine (PSD) & Other Curative Devices
      a. PSD – recognizes marriage of individual who participated in marriage ceremony in good
          faith, in the belief that a valid marriage took place, and in ignorance of an impediment
          making marriage void(able)
                i. curative device when marriage fails to comply with formal requirements
               ii. (does not constitute common law marriage)
      b. presumptions – can function as curative devices
                i. rules of evidence may raise presumption of valid marriage based on couple’s holding
                    out as H & W, even if jurisdiction abolished common law marriage
               ii. presumption of validity to later of 2+ marriages
              iii. common law marriage as legitimizing any issue (even if marriage is null and void)
4. Constitutional Limits on State Regulation of Entry Into Marriage
      a. 4 levels of scrutiny for DP / EP claims:
                i. (1) rational basis test – presumption that statute is constitutional as long as it is
                    “rationally related” to legitimate state interest (very lax)
               ii. (2) intermediate scrutiny (often involves women, mentally handicapped, etc.)
              iii. (3) “highly deferential” standard – there must only be a reasonable relationship
                    between statute and penological interests (security and rehabilitation)
                         1. created in Turner (Sup. Ct.)
                                 a. no strict scrutiny applied to prisoners because life in prison is
                                      different
              iv. (4) strict scrutiny – to abridge fundamental right, state must have compelling interest
                    which is closely tailored to effectuate only those interests (very hard test to meet)
                                                                                                          4
                      1. Zablocki (Sup. Ct.)
                               a. reasonable regulations that do not significantly interfere with the
                                    decision to marry may be legitimately imposed
                                         i. here, a statute forbidding marriage to people who had not
                                            paid child support did not pass strict scrutiny
                               b. different degrees of scrutiny for regulations infringing right to marry:
                                         i. significant (“direct” & “substantial”) interference – rigorous
                                            scrutiny
                                        ii. reasonable regulations that are not significant interference –
                                            minimal scrutiny
                               c. note that this case never defined:
                                         i. what significantly interferes with right to marry
                                        ii. what is a “reasonable regulation”
      b. Loving (Sup. Ct.)
               i. freedom to marry is fundamental right (requiring strict scrutiny)
                      1. bans on interracial marriage violated EP (no rational basis) and DP
      c. Turner (Sup. Ct.)
               i. there is a constitutionally protected right to marry in prison context
                      1. regulation forbidding inmate marriages without superintendent’s permission
                           did not pass highly deferential standard
      d. constitutional history re: marriage / family:
               i. Myer – right to marry guaranteed under DP
              ii. Pierce – parents have right to direct children’s upbringing
            iii. Skinner – right to marry and procreate
             iv. Griswold – right to privacy (“penumbras”)
              v. Roe – right to privacy
             vi. Bowers – right to privacy in the bedroom
5. Getting Married: Substantive and Procedural Regulations
      a. Substantive Restrictions
               i. void vs. voidable distinction:
                      1. invalid marriages under statutes and common law are classified as either void
                           / voidable
                               a. void (ab initio) – invalid from inception; never had legal existence
                               b. voidable – valid until subsequently declared invalid
                      2. important distinction in terms of:
                               a. who may assert invalidity of a marriage
                                         i. void – either party / third party may challenge validity of the
                                            marriage at any time and in any proceeding
                                        ii. voidable – invalidity of marriage can only be asserted by one
                                            of the parties and only during the marriage (not after death of
                                            one of the parties)
                               b. whether validity of marriage may be collaterally attacked in a related
                                    proceeding
                                         i. voidable – cannot be collaterally attacked
                      3. what restrictions are void / voidable:
                               a. void – serious substantive defects
                                         i. (ex.) same-sex, bigamous, incestuous, age
                               b. voidable – less serious substantive defects
                                         i. (ex.) age
              ii. annulment vs. divorce:
                      1. annulment – declares that no marriage occurred because some impediment
                           existed at time of ceremony
                               a. (a) jurisdiction exists at either party’s domicile, state where marriage
                                    was celebrated, or any state with personal jurisdiction over parties
                               b. (b) spousal/child support do not typically follow from invalid
                                    marriage

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                c. (c) “relation back” doctrine applicable – benefits lost by virtue of
                     marriage may be reinstated
                d. grounds for annulment:
                           i. (1) existing marriage (except where party had presumed
                              death of spouse (ex. Cast Away))
                          ii. (2) parties are blood relatives of certain degree
                         iii. (3) either party was incapable of consenting due to mental
                              disorder / incapacity to consent (ex. drugs/alcohol)
                         iv. (4) either party is under 18
                e. such marriages are void / voidable
                           i. void = invalid from inception (ab initio), as if it never took
                              place
                                   1. either party can challenge validity at any time
                          ii. voidable = valid unless and until declared invalid
                                   1. invalidity can only be asserted by a party during the
                                       marriage (i.e. – before one spouse’s death)
                                   2. cannot be collaterally attacked
        2. divorce – terminates valid marriage
                a. (a) jurisdiction rests on domicile
                b. (b) spousal/child support can be obtained
                c. (c) “relation back” doctrine not applicable
iii. PA substantive restrictions:
        1. Pa. Cons. Stat. § 1304 – restrictions on issuance of license (supp. 15)
iv. incest:
        1. most states regard incestuous marriages as void ab initio (also a crime)
        2. restrictions on right to marry based on relationships (must pass strict
            scrutiny):
                a. types of relationships:
                           i. consanguinity – blood relations
                          ii. affinity – relations by marriage
                b. what relationships are involved:
                           i. all states prohibit marriage between: 1) parent/child, 2)
                              grandparent/ grandchild, 3) siblings
                          ii. most states prohibit marriage between: 1) aunt/nephew, 2)
                              uncle/niece, 3) first cousins, 4) half-siblings, 5) degrees of
                              affinity (relations created by marriage)
                         iii. some states prohibit marriage between persons related by
                              adoption
                c. some states will continue prohibitions even after divorce / death
        3. Adoption of M (NJ, p. )
                a. facts: father and adopted daughter had baby, wanted to marry
                b. court allowed adoption to be rescinded because of
                     “extraordinary circumstances”
                           i. in both parties’ best interests – 4 reasons:
                                   1. (1) legitimize child; (2) avoid simultaneous legal
                                       status as father and grandfather); (3) best interest
                                       standard no longer pertained to adopted girl (she was
                                       not a minor anymore); (4) marriage would be
                                       allowed if not for legal status of parties
        4. Smith (TN, p. 187)
                a. criminal sanctions for incest did not violate right to privacy (no
                     fundamental right involved; statute rationally related to interest in
                     promoting morality and family stability)
        5. Marriage of MEW (PA)
                a. children who grew up separately but were adopted by each other’s
                     parents were not allowed to marry

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                          i. policy reasons – undermine family life/integrity; parties had
                              already gotten benefits of adoption
                  b. PA law says that marriage between parent and adopted child is
                     prohibited by public policy and decency
                  c. prof thinks court here was afraid of not being able to draw bright
                     line and that this case didn’t really implicate policy underlying most
                     restrictions on marriage
  v. bigamy:
          1. Green (UT, p. 189)
                   a. facts: man had 9 “wives” and lived with each in trailer home on
                       rotating basis
                   b. ∆ convicted of bigamy (statute passed rational basis test)
                             i. rationally related to asserted state interests of:
                                     1. prevention of marriage fraud
                                     2. protection of vulnerable individuals from
                                         exploitation
                                     3. prevention of misuse of marital benefits
                   c. antibigamy statute did not violate Free Exercise Clause
                       (operationally and facially neutral)
 vi. age:
          1. all states establish minimum age for marriage
                   a. minors below statutory age must have parental and/or judicial
                       consent
                   b. may be void / voidable
                             i. parental consent proves important if underage marriages are
                                void (and thus vulnerable to third-party attack), since it
                                lessens likelihood of subsequent parental attacks on validity
                                of marriage
          2. Kirkpatrick (p. 201)
                   a. minor girl allowed to marry under statute allowing minor to marry
                       with one parent’s consent
                             i. right to marry is fundamental and government should
                                interfere as little as possible
                            ii. statute struck balance between arbitrary age rule and
                                accommodation of individual differences/circumstances
vii. state of mind (fraud / duress):
          1. marriage may be set aside for lack of consent
                   a. fraud and duress vitiate consent
          2. most courts apply strict test for fraud, requiring that the misrepresentation go
              to the “essentials” (generally, ability and willingness to engage in sexual
              relations and childbearing) to render the marriage voidable
          3. duress:
                   a. agreements to marry that are procured by force, fear, or coercion are
                       unenforceable
                             i. lesser forms of duress which do not involve physical force
                                may suffice if sufficient to overcome π’s free will
          4. tort of fraudulent inducement to marriage – recognized by some states
          5. Blair (p. 207)
                   a. no fraudulent inducement to marry where H said he married W
                       because she (wrongly) told him he was father of her child
                             i. evidence showed that H would have married W regardless of
                                the representation
          6. marriage fraud in immigration:
                   a. the rule that marriage to US citizen exempts alien from quota
                       restrictions of Immigration and Nationality Act gives strong
                       incentive for aliens to marry citizens

                                                                                           7
                        b. Immigration Marriage Fraud Amendments (IMFA) – requires that If
                            the IND finds the marriage genuine, it grants conditional adjustment
                            of status
                                  i. spouse obtains permanent resident status after 2 years, if
                                     marriage is determined again to be genuine
                                          1. if deportation proceedings are initiated at any time
                                              during marriage, alien required to leave US for 2
                                              years before adjustment of status unless alien proves
                                              by clear and convincing evidence that the marriage
                                              was entered into in good faith and no consideration
                                              was given
b. Procedural Restrictions
        i. licensure
               1. every state has statutes providing for the manner of issuance of marriage
                   licenses
                        a. majority of states hold that a violation of formality requirements will
                            not void a marriage unless there is statute expressly makes a
                            marriage invalid without a license
                        b. PA – 23 Pa. Cons. Stat. §§ 1301-03 (supp. 15): (check and see if
                            SCM can be brought in)
                                  i. § 1301 – marriage license required
                                 ii. § 1302 – application for license
                                iii. § 1303 – waiting period after application
               2. 3 justifications for licensure statutes:
                        a. aid in reinforcing marriage laws by requiring persons not qualified to
                            marry for reasons of age, health, or existing marital status to disclose
                            such information
                        b. serve as public health measures by preventing marriages that would
                            be damaging to the health of one spouse or would produce unhealthy
                            children
                        c. serve as proof that marriage has occurred
               3. who issues licenses:
                        a. county clerk / judge
               4. where license come from:
                        a. half the states require that licenses be procured from county where
                            one party resides or where marriage is to be performed
               5. waiting periods:
                        a. required by most states (with some exception for exigent
                            circumstances)
               6. health certificates:
                        a. many states require applicants to file health certificate saying that
                            they have no venereal disease, or (if infected) that it is not
                            communicable stage
               7. Carabetta (CT, p. 212)
                        a. facts: parties exchanged vows before priest but did not get license
                        b. legislature’s failure to expressly characterize as void marriage
                            properly celebrated without license means that such marriage is not
                            invalid (in line with majority of states)
       ii. solemnization
               1. states also require that marriages be solemnized by authorized individual
                   (religious / governmental officials)
      iii. procedural variations
               1. proxy marriage = one party is represented at ceremony by agent/proxy
                        a. usually used for war, circumvent immigration laws, assist political
                            refugees
               2. confidential (secret) marriages – enable couple to dispense with some
                   procedural requirements
                                                                                                   8
                               a. permitted by some states
                       3. permitted by a few states
                               a. marriage by declaration
                               b. marriage by contracts acknowledged before a judge
                               c. tribal marriages
6. Same-Sex Marriage
      a. historical background:
               i. Bowers (Sup. Ct.) – overturned
                       1. homosexuals said to not be a protected class (their private conduct was not
                           protected)
              ii. Lawrence (Sup. Ct.)
                       1. overturned Bowers – homosexuals are a protected class
                       2. law (protection of privacy) protects personal decisions relating to marriage,
                           procreation, contraception, childrearing, family relationships, and education
             iii. in general, courts have not shown high desire to give benefits to homosexual couples
      b. DOMA (federal Defense of Marriage Act) – 28 U.S.C. §§ 7, 1738C (supp. 20):
               i. 2 elements:
                       1. (1) defined marriage as between man and woman
                       2. (2) other states do not have to give full faith and credit to homosexual
                           marriages that occurred in other states (avoid lex loci)
              ii. (state versions of DOMA – see below)
      c. same-sex custody cases:
               i. apply best interests standard
              ii. some states have shifted emphasis away from biological parenthood (since one
                  person will always not be biologically related to child) and decided cases based on
                  parental roles
      d. how prof thinks same-sex marriage case will get to Sup. Ct.:
               i. MA same-sex couple getting married in MA, then traveling to another state and
                  asking that their marriage be recognized
                       1. other state will refuse to recognize it because of the state DOMA
      e. states:
               i. constitutional amendments barring same-sex marriage:
                       1. 27 states have barred same-sex marriage through constitutional amendments
                               a. AZ is only state to consider and reject such an amendment
              ii. states also have versions of DOMA
                       1. PA 23 Pa. Cons. Stat. §§ 1102, 1704 (supp. 19)
                       2. courts are divided on the constitutionality of state DOMA’s
             iii. civil unions / domestic partnership legislation:
                       1. civil unions – CT, VT
                       2. domestic partnership legislation – Hawaii, CA, NJ, ME (limited)
                               a. (note: domestic partnerships are not recognized for benefits under
                                   federal law)
             iv. Goodridge (*important) – (MA, p. 160 – did not have DOMA)
                       1. denial of same-sex marriage licenses did not pass rational basis test
                               a. asserted state interests: (1) favorable setting for
                                   procreation/childrearing, (2) preserving state resources, (3)
                                   endangering heterosexual marriages
                                         i. (1) – marriage’s primary purpose is not procreation; no
                                            relationship between marriage statute and protecting
                                            “optimal” childrearing unit
                                        ii. (2) – ban on same-sex marriage not rationally related to goal
                                            of economy
                                       iii. (3) – πs did not seek to undermine institution of marriage
                       2. (note: Cote-Whitacre prohibits couples from most states (with express laws /
                           constitutional amendments barring same-sex marriage) from marrying in
                           MA but plan to move to another home state)
              v. Baehr (Hawaii, p. 173)
                                                                                                        9
                      1. denial of marriage licenses to same-sex couples implicated state EPC (which,
                           unlike federal EPC, barred sex-based discrimination)
                               a. decision whether to issue a license to marry a particular person
                                    depended on the applicant’s sex
                      2. (note: nullified by constitutional amendment:
                               a. legislation provided that those who were prohibited from marrying
                                    could register for benefits as reciprocal beneficiaries
                                         i. however, no rights of status of marriage given to reciprocal
                                            beneficiaries)
               vi. Brouse (Alaska. p. 173)
                      1. right to choose marriage partner was fundamental right
                               a. interference with this right violated right to privacy and equality
                                    provisions of state constitution
                      2. remanded to trial court to allow state to allege compelling interest for
                           interfering with marriage right
                      3. (note: nullified by constitutional amendment)
              vii. Baker (VT)
                      1. state Common Benefits Clause required that same-sex couples be afforded
                           same benefits as married persons
                               a. none of the asserted state interests justified denying same-sex
                                    couples benefits of marriage (while homosexuals got same
                                    benefits as marriage, they didn’t get title – called “civil unions”)
                      2. 3 asserted state interests: (1) procreation/childrearing, (2) foster interests of
                           children, (3) better parenting by heterosexual couples
                               a. reasons these interests were dismissed:
                                         i. (1) – many heterosexual couples do not have children but are
                                            nevertheless given benefits of marriage
                                        ii. (2) – excluding same-sex parents from benefits might harm
                                            children (since children won’t receive benefits)
                                       iii. (3) – no evidence existed that heterosexual couples were
                                            better parents
                      3. (court did NOT: redefine marriage / legalize same-sex marriage / allow
                           same-sex couples marriage license)


NON-MARITAL CHILDREN

1. Support Rights of Non-Marital Children / Paternity (for presumption of paternity, see below)
      a. why paternity actions are necessary:
              i. establish child support
             ii. inheritance purposes
      b. history of discrimination against nonmarital children:
              i. Sup. Ct. has minimized differences in treatment of marital/nonmarital children,
                 although has not invalidated all discrimination, especially with regard to inheritance
                 rights
                      1. Gomez (Sup. Ct., p. 450)
                              a. state cannot grant marital children statutory right to paternal support
                                  while denying right to nonmarital children
                                       i. statutes require both parents to support child (regardless of
                                           marital status)
                      2. Levy (Sup. Ct., p. 451)
                              a. illegitimacy classification / discrimination against nonmarital
                                  children is unconstitutional under EPC
                      3. Lalli (Sup. Ct., p. 452)
                              a. for nonmarital child to inherit from noncustodial father, state could
                                  require higher level of proof in form of judicial declaration of
                                  paternity
                                                                                                       10
                   4. Trimble (Sup. Ct., p. 452)
                           a. for nonmarital child to inherit from noncustodial father, state could
                                not require that child’s parents subsequently marry after child’s birth
          ii. UPA – policy of equal treatment of children regardless of their parents’ marital status
         iii. PRWORA (welfare reform legislation):
                   1. requires states to adopt new paternity provisions in order to receive federal
                       funds for programs for child support enforcement and welfare
c.   2 responses to paternity action:
           i. consent to paternity
          ii. ask for DNA test
d.   requiring genetic testing:
           i. UPA – courts may deny requests for genetic testing based on estoppel principles in
              the interest of preserving child’s ties to presumed/acknowledged father (whether or
              not he is genetic)
          ii. PRWORA – paternity can be established when: (1) either parent brings paternity suit
              before child is 18, (2) when both parents voluntarily acknowledge paternity
                   1. court must order genetic tests upon request by either party
e.   theories to establish long-arm personal jurisdiction over alleged fathers:
           i. failure to support constitutes “commission of tortious act”
          ii. breach of contractual obligation within state
         iii. “doing business” within state
f.   time (SOL) limitations in paternity statutes:
           i. Clark (Sup. Ct., p. 448)
                   1. facts: paternity suit brought 4 years after statute of limitations expired (when
                       child was 10)
                   2. 2-part test for challenge to time limitation in paternity statue:
                           a. (1) period must be sufficiently long to present reasonable
                                opportunity for those with interest in children to assert claims on
                                their behalf
                           b. (2) any time limitation placed on that opportunity must be
                                substantially related to state’s interest in avoiding litigation of
                                stale/fraudulent claims
                   3. here, SOL: (1) violated EPC (treated legitimate/illegitimate children
                       differently), and (2) was not reasonable opportunity to assert claim on child’s
                       behalf
          ii. Child Support Enforcement Amendments:
                   1. require states to extend SOL to 18 as condition to receipt of federal funds
         iii. Family Support Act:
                   1. requires states to permit paternity establishment for children whose paternity
                       actions were dismissed previously under short SOLs
                   2. requires states to have procedures by which genetic tests can be performed
                   3. states must meet specified “paternity establishment %”
                   4. established “Parent Locator Service” to locate parents owing child support
g.   fault in causing conception:
           i. L. Pamela (NY)
                   1. facts: mother deceived father into thinking she used birth control and father
                       argued he shouldn’t have to pay child support (asserted right not to
                       procreate)
                   2. child support statute:
                           a. did not permit consideration of fault / wrongful conduct in
                                causing conception
                           b. mandated consideration of: (1) child’s needs for support, and (2)
                                parent’s financial ability to contribute
                   3. right not to procreate did not encompass right to avoid child support
h.   indigent ∆s:
           i. Little (Sup. Ct, p. 455)
                   1. DP guarantees cost of blood testing to indigent ∆s in paternity actions
                                                                                                    11
             ii. courts are split whether DP guarantees right to counsel
      i. jury composition:
              i. J.E.B. (Sup. Ct., p. 455)
                     1. state’s use of peremptory challenges to purposely exclude men from jury
                         when suing on child’s behalf violates EPC
             ii. most states now provide that parties are not entitled to jury in paternity case
      j. standard of proof:
              i. Rivera (Sup. Ct., p. 455)
                     1. DP merely requires “preponderance of evidence” standard of proof
                     2. distinguished state’s imposition of parent-child obligations from the
                         termination of those obligations because of the latter’s severe consequences
      k. voluntary paternity establishment:
              i. Omnibus Budget Reconciliation Act:
                     1. required all states to adopt voluntary paternity establishment programs
             ii. PRWORA:
                     1. expanded scope of these programs by providing that:
                              a. (1) valid, unrescinded, unchallenged acknowledgement of paternity
                                   is equivalent to judicial determination of paternity and is entitled to
                                   full faith and credit
                              b. (2) parents must be advised of legal consequences before signing
                                   voluntary acknowledgement
                              c. (3) either parent has option to rescind within 60 days, and thereafter
                                   may challenge voluntary acknowledgement only judicially and only
                                   on limited grounds
2. Presumption of Legitimacy for Paternity (PA approach)




                                                              elements of estoppel:

                                                               (1) holding out (ex. conduct/words that
                                                                  indicate that someone is the father)
                                                               (2) reasonable reliance
                                                               (3) resulting prejudice (ex. emotional
                                                                   reliance child has placed in forming
                                                                   bonds)
                                                                   - courts often rely on more than
                                                                       emotional bonds




        a. states / PA:
                 i. most states (including PA) – married men get rebuttable presumption of paternity
                        1. how rebutted – clear and convincing evidence that: (1) husband is sterile, or
                            (2) husband did not have access to his wife
                ii. PA – when presumption of paternity does not apply:
                        1. Brinkley (PA)
                                 a. if the policy reason of preserving an intact family no longer
                                     exists, then the presumption of paternity does not apply
                                          i. policy – want to keep family units intact; discourage disputes
                                              over parentage

                                                                                                          12
                        b. presumption can only be rebutted by husband (not by third
                           party) – type of estoppel
                               i. paternity by estoppel:
                                       1. no blood tests will be ordered
                                       2. policy – security for children in knowing who
                                           parents are
b. policy reasons:
         i. (1) maintain integrity of family unit
        ii. (2) prevent children from being adjudicated illegitimate (severe legal/social
            consequences)
      iii. (3) having individual, rather than state, to support the child
       iv. sometimes, there is (4) children should be secure in knowledge of who their parents
            are
c. when unwed fathers get parental rights protected (“biology-plus” test):
         i. Quiilloin-Caban-Lehr trilogy ( , p. 469-71)
                1. facts: mothers put their and unwed fathers’ children up for adoption without
                    fathers’ consent
                2. “biology plus” test = unwed father gets constitutional protection of
                    parental rights so long as he is willing to accept the responsibilities of
                    parenthood
                         a. extent of this protection varies according to the degree to which
                             father manifests indicia of parenthood (custodial, personal, or
                             financial relationship with the child)
                         b. if the unwed father is only the biological father and nothing more, he
                             has no right to assert parental rights
        ii. Michael H. (plurality Sup. Ct., p. 463)
                1. facts: likely father (by blood tests) asserted visitation and custody rights to
                    child born to married woman from adulterous relationship; child claimed
                    violation of EP because of lack of opportunity to rebut presumption of her
                    legitimacy
                         a. CA had presumption of paternity for husband when child was born to
                             married mother
                2. fundamental rights come from Constitution and need historical support
                         a. likely father had no right since there was no tradition supporting
                             adulterous relationships
                                   i. FN 6 – issues should be framed and traditions
                                      interpreted in narrowest possible way
                3. CA statute pursued integrity of natural family by rational means – no
                    denial of EP
                4. dissent – issue is not whether adulterous natural fathers have parental rights,
                    but rather whether parenthood is a protected fundamental right
                5. (note: many states don’t like this holding
                         a. most states hold that common law presumption of legitimacy is
                             rebuttable
                         b. many states have statutes allowing unwed fathers to bring actions to
                             establish paternity to children born to married women)
      iii. UPA (p. 472-74)
                1. adopted by 6 states
                2. § 201 – Establishment of Parent-Child Relationship (mother: (a); father: (b))
                3. § 204 – Presumption of Paternity (when man is presumed the father)
                         a. Article 6 – authorizes paternity proceedings, including genetic
                             testing
                                   i. for children with no presumed father, paternity proceeding
                                      can be brought at any time
                4. § 607 – Limitation: Child Having Presumed Father
                         a. (a) – children with presumed father – proceeding must be
                             commenced before child is 2
                                                                                               13
                               b. (b) – when proceeding seeking to disprove father-child relationship
                                   may be maintained
     d. paternity disestablishment
              i. some jurisdictions permit disestablishment of paternity based on paternity fraud;
                 some impose criminal penalties on mothers who intentionally establish paternity for
                 non-biological father
     e. extant marriage (married couple is separated/divorced when putative father makes claim):
              i. Brian C. (p. 475)
                     1. facts: mother had an affair, got pregnant, and left husband before child’s
                          birth to live with child’s father
                     2. presumption of husband’s paternity did not apply (no extant marital family
                          existed since mother had left husband)
             ii. Lisa I. (p. 476) – contra to Brian C.
                     1. facts: father brought paternity claim for child born 6 months after mother’s
                          divorce from another man
                     2. court applied traditional presumption of legitimacy since putative father had
                          only biological connection but no prior relationship with child
3. Unmarried Parents’ Rights
     a. unmarried parent’s right to fitness hearing:
              i. Stanley ( , p. 460)
                     1. facts: state statute said that children of unmarried fathers became wards of
                          state, but married parents (divorced, widowed, or separated) had presumption
                          of fitness
                     2. denial of fitness hearing before unmarried father’s children were taken by
                          state was denial of EP
                               a. rights to conceive and raise one’s children are “essential”


DIVORCE

1. Divorce Jurisdiction
      a. divorce jurisdiction – based on in rem jurisdiction (marriage is “thing”)
               i. special jurisdiction applies to divorce
              ii. issues:
                       1. what state can award divorce?
                       2. what does new state have to recognize?
                       3. what rights are adjudicated?
      b. types of divorce:
               i. ex parte – only one spouse participates / appears in court
              ii. divisible – marriage itself is dissolved, but issues incident to divorce are reserved for
                  later proceeding (Estin)
                       1. can be granted where court has subject matter jurisdiction but lacks personal
                       2. there must be personal jurisdiction to resolve issues incident to divorce
                               a. (see Kulko under “Child Support Jurisdiction”)
             iii. bilateral – both parties are in the same state, so regardless of domicile, they can get a
                  valid divorce
                       1. not collaterally attackable under jurisdictional rules (no “divorce remorse”)
             iv. mutual – parties go into court together
      c. court must decide 5 things:
               i. (1) divorce, (2) property division, (3) custody, (4) child support, (5) alimony
      d. personal jurisdiction (PJ) over π and ∆:
               i. domicile = living in state with intent to remain
                       1. domicile established if: (1) former domicile is abandoned, (2) there is actual
                           removal to, and physical presence in, new domicile, and (3) bona fide
                           present intention to change and remain in new domicile
              ii. what ex parte spouse can/cannot get in domicile state without PJ over absent spouse:
                       1. can get: divorce entitled to full faith and credit (Williams I)
                                                                                                         14
                                a. however, if divorce is rendered ex parte, absent spouse can
                                     collaterally attack in her state by challenging other spouse’s domicile
                                     (Williams II)
                                b. Kimura ( , p. 573)
                                           i. 2 requirements for divorce:
                                                   1. (1) domicile
                                                   2. (2) give notice to absent spouse that complies with
                                                       DP (give notice and chance to participate)
                                                           a. what fills notice requirement:
                                                                     i. service in state
                                                                    ii. transitory presence (even when ∆
                                                                        has no substantial connection to
                                                                        forum)
                                          ii. do not need PJ over absent spouse to obtain divorce
                      2. cannot get: ancillary issues – need PJ
             iii. migratory divorces (moving after divorce):
                      1. if forum has PJ over both spouses in migratory divorce, full faith and credit
                           does not forbid collateral attack
             iv. same-sex marriages / domestic partnerships:
                      1. marriages (MA) – may be terminated on same basis as regular marriage
                      2. domestic partnerships – may be terminated by state in which it was validly
                           entered into
                      3. states are divided as to whether:
                                a. states in which marriage/partnership did not occur have jurisdiction
                                     to dissolve relationship
                                b. petitioner ust be resident / domiciliary of forum state in order to seek
                                     dissolution when other partner is absent from state
                      4. federal/state DOMAs:
                                a. federal – permits second state to refuse to extend recognition to
                                     marriage (thus deprives second state of jurisdiction to dissolve
                                     relationship)
                                b. state – may require courts to deny recognition to marriage (deprives
                                     second state of jurisdiction to dissolve relationship)
      e. durational residency requirements:
               i. exist in all states
                      1. some states – residence alone suffices
                      2. other states – require both durational residence and domicile requirements
              ii. Sosna (Sup. Ct., p. 582)
                      1. durational residency requirements are permissible, since it is not a permanent
                           postponement of right to travel / divorce (merely a delay)
                                a. furthers state interests of: (1) avoiding intermeddling in other states’
                                     interests, and (2) minimizing susceptibility of its own divorce decree
                                     to collateral attack
      f. domestic relations exception to diversity jurisdiction:
               i. Ankenbrandt (Sup. Ct., p. 586)
                      1. facts: π sued ex-husband for molestation of their daughters in federal court
                           under domestic relations exception (construction of diversity statute)
                      2. federal courts have authority to hear cases arising from the domestic relations
                           of persons unless they seek the granting / modification of a divorce, alimony,
                           or custody decree (reserved for states)
                                a. here, jurisdiction was proper because it was a tort action only
2. Fault Divorce
      a. Blended Statutes
               i. over half states have blended statutes (allow for both fault and no-fault divorce)
                  (including PA)
      b. Grounds for Fault Divorce
               i. fault divorce = party wanting divorce must prove misconduct by other party
                                                                                                         15
       ii. have to prove 2 things:
                1. grounds for divorce (misconduct by other party)
                       a. willful desertion (for over 1 year), adultery, cruelty, bigamy, prison
                            for 2+ years, course of conduct showing extreme indignity as to
                            make spouse’s life intolerable and burdensome
                2. injury + innocence by party seeking divorce
      iii. adultery
                1. courts are divided as to what kind of acts constitute adultery and whether it is
                   cruelty as well
                       a. (ex.) same-sex acts,
                2. grounds for divorce in 29 states
                3. standard of proof:
                       a. some states (ex. Lickle) – clear and convincing evidence
                       b. PA – beyond reasonable doubt
                4. fault-based era required corroboration (eye witness / circumstantial evidence)
                5. Lickle (MD, p. 494)
                       a. 2 things sufficed for proof of adultery: (1) opportunity to commit, (2)
                            disposition/inclination to commit (which may be inferred from
                            parties’ conduct)
                       b. clear and convincing evidence required (different standard from PA)
      iv. cruelty
                1. can be physical / non-physical
                2. general requirement – course of habitual conduct of cruel behavior creating
                   adverse health effect
                       a. usually more than 1 incident required; however, if single incident is
                            particularly brutal, it may suffice
                3. Muhammad (Miss., p. 501)
                       a. moving to Muslim community that degraded women was habitual
                            cruel and inhuman treatment
                                 i. harm need not derive from physical abuse
                       b. test for cruelty – “intolerableness of the plight”
       v. desertion
                1. ground for divorce in over half the states
                2. requirements: (1) cessation of cohabitation, (2) without cause or consent, (3)
                   with intent to abandon, (4) continuing for statutory, (5 – some states)
                   volutariness
                       a. mere departure not sufficient
                       b. separation and intent need not occur contemporaneously
                       c. desertion dates from time intent arises
                       d. statutory period – usually 1 year
                3. constructive desertion – intolerable conduct by one party justifies other’s
                   departure (departing spouse not guilty of desertion)
                4. Reid (VA, p. 505)
                       a. facts: W was unhappy (said H was never around); H was happy
                       b. test for desertion = proof of actual breaking off of matrimonial
                            cohabitation + intent to desert
                                 i. not met here (no intent to desert – marital problems caused
                                     by both parties)
      vi. other statutory fault-based grounds:
                1. willful nonsupport of W by H
                2. criminal conviction / imprisonment
                3. drunkenness / drug addiction
                4. impotence
                5. insanity
c. Defenses to Fault Divorce
        i. many states abolished fault-based defenses with advent of no-fault divorce
       ii. affirmative defenses:
                                                                                                16
                       1. (1) collusion = parties agree to either: (1) commit marital offense to obtain
                           divorce, (2) introduce false evidence of false transgression, or (3) suppress
                           valid defense
                               a. if raised (which is rare), it would be by the state
                               b. was the norm before no-fault divorce
                       2. (2) connivance = one spouse encourages/instigates through express/implied
                           consent conduct that turns out to be grounds for divorce
                               a. why it’s a defense: (1) he who consents cannot receive injury, (2)
                                    unclean hands not entitled to relief, (3) some states limit divorce to
                                    innocent party, conniving spouse is not innocent
                       3. (3) condonation = spouse who has once condoned a marital transgression by
                           his mate is thereafter barred from using that transgression as grounds for
                           divorce
                               a. what usually happens – spouses reconcile (resume sexual relations)
                                    after one committed act that constituted ground for divorce (usually
                                    adultery)
                               b. Haymes (NY, p. 512)
                                         i. attempt at reconciliation (even if involving brief cohabitation
                                             / sexual relations) after matrimonial action has been
                                             commenced will not, as a matter of law, preclude entry of
                                             judgment for spouse who brought the action
                                                  1. factors: whether reconciliation / cohabitation were
                                                      entered into in good faith, whether it was at all
                                                      successful, who initiated it, motivation for initiation
                       4. (4) recrimination = one spouse commits act constituting grounds for divorce,
                           and then other spouse does as well (complaining spouse cannot get divorce
                           because she is equally guilty)
                               a. principal consideration is that complainant must come to court with
                                    clean hands
                               b. policy: (1) promotes marital stability (renders divorces more difficult
                                    to procure), (2) deter immorality (spouse less likely to commit
                                    offense if he knows it may bar divorce), (3) protect W’s economic
                                    status, (4) prevents people who are poor marriage risks from ruining
                                    another marraige
                                         i. downside – locks parties into bad marriage
                               c. Parker (Miss., p. 510)
                                         i. policy reasons for recrimination are impractical
                       5. (5 – some states) insanity (defense and also ground for divorce)
                               a. mental illness relieved ∆ from liability for marital misconduct
             iii. non-affirmative defenses:
                       1. innocence
             iv. PA defenses (supp. 25):
                       1. condonation, connivance, collusion, recrimination, provocation, adultery
3. No-Fault Divorce
      a. blended statutes
               i. over half states have blended statutes (allow for both fault and no-fault divorce)
                  (including PA)
      b. no-fault divorce = mutual consent 90 days after divorce complaint was served
               i. if other party doesn’t want divorce, can contest until parties have lived “separate and
                  apart” for statutory durational period
                       1. date of separation is important
                               a. presumptively when property stops being marital
                               b. beginning of statutory durational period
                       2. different from fault divorce because of time period involved before divorce is
                           granted
      c. “separate and apart” – defined differently by state
               i. 3 types of “separate and apart” statutes:
                                                                                                          17
                       1. (1) parties must live apart under judicial decree / separation agreement for
                           prescribed period
                       2. (2) parties must live apart willingly (by mutual consent)
                       3. (3) proof that parties lived apart for statutory period
              ii. durational periods – vary from 6 months to 3 years
                       1. PA – 2 years
             iii. Bennington (OH, p. 523)
                       1. facts: π moved into van next to house because disabled wife kept heat very
                           high, but kept up marital duties
                       2. parties did not live “separate and apart”
             iv. PA:
                       1. § 3103 – “separate and apart” = cessation of cohabitation (even if living in
                           same residence)
                                a. there is rebuttable presumption that living apart started when
                                    complaint was served
                       2. Mackey (PA)
                                a. facts: parties lived in different quarters of same house; H stayed to
                                    tend farm and W refused to leave (also H had girlfriend)
                                b. test is whether parties live separate lives
                                         i. parties were living separate and apart
                       3. Wellner (PA)
                                a. facts: parties lived apart for 12 years, but spent weekends and some
                                    weeknights together, vacationed together, held themselves out as H
                                    & W, had sexual relations, etc.
                                b. parties must be living separate and apart 2 years after final
                                    separation
                                         i. here, they did not live separate and apart
4. Tax Considerations
      a. change in taxpayer’s marital status:
               i. taxpayer can no longer file joint return; must either file as: (1) head of household, or
                  (2) unmarried
                       1. head of household – usually more advantageous, but requires that taxpayer:
                           (1) be unmarried on last day of taxable year, and (2) maintain as his home a
                           household constituting the principal residence for unmarried descendant /
                           dependent for more than ½ the year
              ii. filing status determines amount of standard deduction available under IRC
                       1. unmarried status offers lower standard deduction (adjusted for cost-of-living
                           adjustments)
             iii. personal exemptions:
                       1. exemption allowed for: (1) taxpayer, and (2) eligible dependents (under 19 /
                           24 if student + provided over ½ support, except*)
                                a. * divorced, custodial parent treated as providing over ½ support
                                    (regardless of actual contribution)
                       2. phaseout of personal exemptions:
                                a. occurs if taxpayer’s adjusted gross income exceeds certain threshold
                                    amount (i.e. – over a certain income won’t qualify for these
                                    exemptions)
                       3. allocating exemptions – parties should try for this by comparing incomes
                           with threshold amounts
             iv. credits:
                       1. additional tax preferences called credits are available to qualifying taxpayers
                           to reduce final tax liability on dollar-for-dollar basis ($1,000 credit allowed
                           for each child under 17 for whom taxpayer gets dependency exemption)
      b. (for tax considerations pertaining to equitable distribution, alimony, and child support, see
         those sections)


                                                                                                        18
ASSET DISTRIBUTION AT DIVORCE

1. Comparing the Systems
       a. 2 current systems:
                i. community property – begins with presumption that marriage is partnership (contrary
                    to title law) and that property should be divided equally
                         1. each spouse gets undivided ½ interest in all property acquired by spousal
                              labor during marriage
                         2. used by 8 states
               ii. equitable distribution – all things acquired during marriage are marital property
                         1. court decides what is “equitable”
                         2. most states start with presumption that division is 0-0, but some start with
                              50-50
                         3. in common law states, creates “deferred community property system”
                                  a. concept of marital property becoming effective upon divorce
                         4. ** used by most states
       b. common law – used title theory (whoever had title got property)
       c. whether fault is an issue in dividing property:
                i. varies by state (no in PA)
2. PA Approach (supp. 32) – representative of most states
3. 4-Step Analysis: Equitable Distribution
       a. (1) is item “property”?
                i. investments in spouse’s future success (degrees, earning capacity, goodwill):
                         1. majority rules:
                                  a. Hodge (PA)
                                           i. degree is not property because: (1) no exchange value (it’s
                                              personal to the holder), (2) future earnings not acquired
                                              during marriage
                                  b. Roberts (IN, p. 650)
                                           i. degree not property, but:
                                                   1. if there is little marital property, court can award
                                                       money for spouse’s contribution to school expenses
                                                   2. enhanced earning capacity may be considered when
                                                       dividing marital assets
                                  c. ALI Principles:
                                           i. earning capacity is not property, but compensatory spousal
                                              payments can be ordered to reimburse supporting spouse if
                                              education was completed in less than a certain # of years
                                  d. goodwill is marital property only if it exists independently of
                                      professional’s reputation
                                  e. much authority for treating as divisible personal injury awards
                                      designed to compensate for lost future earnings
                         2. minority – NY:
                                  a. O’Brien (NY, p. 656)
                                           i. degrees/professional licenses are property
                                                   1. supporting spouse should get equitable portion of
                                                       this property, based on the present value of the
                                                       enhanced earning capacity
                         3. student loans:
                                  a. PA – student loans are marital property, but court has discretion
                                      about how to divide them
               ii. pension benefits / unvested stock options:
                         1. Bender (Conn., p. 641) (majority rule)
                                  a. vested and unvested pension benefits constitute property (deferred
                                      compensation)
                                  b. look at how speculative something is (any uncertainty better handled
                                      in valuation/distribution stages)
                                                                                                       19
                2. Retirement Equity Act (REA):
                         a. mandates that ERISA’s anti-alienation rule (barring
                             assignment/alienation of pension plan benefits so participant cannot
                             consume benefits before retirement) must yield to certain state
                             domestic relations decrees
                         b. permits court to divide pension benefits in same manner as other
                             marital assets (allows enforcement of qualified domestic relations
                             orders (QDRO’s))
                                    i. QDRO – treats alternate payee as beneficiary under pension
                                       plan (to qualify, non-employee spouse must obtain state
                                       court decree specifying extent to which plan participant’s
                                       liability shall be paid from pension assets
                                            1. can be used for: (1) property division, (2) spousal /
                                                 child support
                         c. 2 kinds of plans:
                                    i. defined contribution plan – employee contributes to actual
                                       funded account (can always take out contributions)
                                            1. how valued:
                                                     a. check statements for values at date of
                                                         marriage and date of separation
                                                     b. subtract contributions after separation
                                                     c. appreciation is determined at either date of
                                                         separation / trial (whichever is less)
                                            2. (ex.) 401k, IRA, profit-sharing
                                   ii. defined benefit plan – employer funded (employee must
                                       reach certain age before taking benefits)
                                            1. marital portion (coverture fraction) = years of
                                                 marriage / total years in plan
                                            2. if client doesn’t want to wait, do a present value
                                                 stream of income based on what the plan will be
                                                 worth in the future
                                                     a. discount = amount per month x expected
                                                         years of life (mortality table)
                                                     b. give spouse direct offset by this amount
                3. to split pension 50-50, have no-pension create her own pension and transfer
                    (to avoid paying taxes and the penalty for taking pensions out early)
       iii. some courts say that a fair approach is more important than whether traditional
            “property” label fits
                1. Washburn (Wash., p. 654)
                         a. supporting spouse may be compensated through division of property
                             / liabilities, or through supplemental award of maintenance
                2. Haugan (Wis., p. 655)
                         a. “fair” result may be achieved by:
                                    i. (1) cost value approach (calculation of supporting spouse’s
                                       contributions, including services)
                                   ii. (2) opportunity-costs approach (consideration of income
                                       sacrificed because student spouse attended school instead of
                                       working)
                                  iii. (3) return on investment theory (compensates supporting
                                       spouse’s contribution at ½ the student spouse’s enhanced
                                       yearly earning power for the time during which the
                                       supporting spouse supported the other spouse)
b. (2) is property marital (gets divided) / separate (not divided)?
         i. marital property – acquired during marriage
                1. usually includes:
                         a. contractual right to receive funds which is made during marriage
                             (even if funds don’t come till after marriage)
                                                                                                  20
                    b. stock options (even though they are mere expectancy)
                    c. appreciation/income from separate property
           2. courts allocate debts as well as assets
 ii.   separate property (PA):
           1. § 3501 – separate property includes:
                    a. increase in value of nonmarital property (see sub-§ a.1 to measure
                         increase)
                    b. pre-marital property [(a)(1)] – property acquired prior to / in
                         exchange for property acquired prior to marriage
                    c. property named separate by prenup / agreement made during
                         marriage [(a)(2)]
                    d. gifts / inheritances received during marriage except those received
                         from spouse [(a)(3)]
                    e. veteran’s benefits [(a}(6)]
                    f. property acquired after final separation [(a)(4)]
                    g. property which a party has disposed of in good faith for value prior
                         to final separation [(a)(7)]
                    h. payment received as result of award/settlement for cause of action
                         which accrued prior to marriage / after date of final separation
                         (regardless of when payment was received) [(a)(8)]
iii.   Uniform Marriage and Divorce Act (UMDA) § 307 (1970 – old) (p. 601):
           1. * followed by more states than new
           2. directs division of marital property only (marital property = acquired by
                either spouse during marriage, except gifts, inheritances, or in exchange for
                nonmarital/separate property)
                    a. statutes adopting this UMDA usually presume that all property
                         acquired during marriage is marital
iv.    ALI Principles:
           1. § 4.09 – presumption of equal division of marital property (disregards fault,
                except for financial misconduct)
 v.    factors in determining property division:
           1. Ferguson (Miss., p. 595)
                    a. fairness is prevailing guideline in marital property division
                               i. it would be unfair not to recognize non-economic
                                  contribution to marriage in determining property division
                    b. factors in determining property division: (1) substantial contribution
                         to accumulation of property, (2) market / emotional value of assets,
                         (3) tax / economic consequences, (4) parties’ needs, (5) any other
                         equity factor
           2. UMDA § 307 (1998 – new) (p. 598):
                    a. lists many factors to consider in equitably dividing property
                    b. gives court great authority to divide “hotchpot” of assets owned by
                         either spouse, whenever and however owned (disregards fault,
                         except for financial misconduct)
vi.    converting nonmarital property to marital property:
           1. Madden (PA)
                    a. facts: H received bonds as gift pre-marriage, but cashed them in
                         during marriage and bought new bonds held jointly with W
                         (transmutation/conversion)
                    b. new bonds were acquired during marriage and therefore subject to
                         equitable distribution
           2. Hodge (see above – “what is property”)
           3. ALI Principles § 4.12 – Recharacterization of Separate Property as Marital at
                Dissolution of Long-Term Marriages (p. 599)
                    a. (a) – for marriages exceeding minimum duration, a portion
                         (determined by formula) of separate property held by each spouse at
                         time of marriage should be recharacterized as marital property
                                                                                          21
                        b. proposes presumptive formulae to serve as default rules in absence
                            of party agreements to provide predictiveness and consistency
                        c. claims to reflect reasonable expectation of spouses
      vii. when marital property is “acquired”:
               1. Bender (Conn., p. 641)
                        a. unvested pension benefits constitute property (deferred
                            compensation)
                        b. look at how speculative something is (any uncertainty better handled
                            in valuation/distribution stages)
               2. Solomon (PA)
                        a. facts: W’s trust gave her ½ interest at 35 and ½ at 40; H & W
                            married before W was 35 and separated before she was 40
                        b. income earned during marriage and until final separation is
                            classified as marital property, even though receipt of that income
                            is deferred until after separation
                                   i. re: trust – (1) principal was gift (not marital property), (2)
                                      interest at 35 – increase in value until date of separation was
                                      marital property, (3) interest at 40 – increase in value not
                                      marital property (acquired after separation)
     viii. hybrid system:
               1. court distributes nonmarital property only after distribution of martial
                    property, if equity requires
c. (3) how should marital property be valued?
        i. steps in valuing assets:
               1. (1) determine standard of value and formula for achieving that value
                        a. options include:
                                   i. (1) * fair market value = price at which property would
                                      change hands between willing buyer and seller when former
                                      is not under compulsion to buy and latter is not under
                                      compulsion to sell, and both parties have reasonable
                                      knowledge of facts (arms-length transaction) (IRS
                                      definition)
                                           1. most widely used, but usually not defined
                                  ii. (2) book value = assets – liabilities
                                 iii. (3) intrinsic value – value to holder
                                 iv. (4) investment value (rarely used)
                                  v. (5) net realizable value – shareholders’ pre-decided idea of
                                      what you should get if you leave (??)
                        b. PA – confusing
               2. (2) determine valuation date and date of asset distribution
                        a. court has power to make equitable rulings
                        b. PA:
                                   i. valued at date of distribution (i.e. – date of trial) (not
                                      separation), except in extreme circumstances (see Smith)
                                  ii. Smith (PA) – exception
                                           1. facts: W claimed H had chance to dissipate business
                                                assets after separation
                                           2. court used date of distribution (no evidence of
                                                dissipation)
               3. (3) valuation methods = giving value a dollar #
                        a. all that goes into marital pot are net assets
                                   i. marital debts – acquired during marriage
                                           1. in the absence of legislation, defined the same as
                                                marital assets
                                           2. may / may not be connected to identifiable asset
                                                    a. (ex.) net equity of house = fair market value
                                                         – debt (mortgage)
                                                                                                  22
                         b. accountants are free to argue whatever valuation method they think
                             is best, and trial courts do not have to listen to any expert they don’t
                             want to (Smith, above) (same Smith? – right above Feb. 21)
                         c. methods:
                                   i. (1) * earnings / cash flow = value of business is directly
                                       related to future earnings and cash flow one can expect from
                                       that business
                                            1. most widely used
                                            2. always consider subjective factors (ex. competition,
                                                clientele, reputation) (makes experts differ)
                                            3. the higher the capitalization rate, the lower the value
                                                     a. capitalization rate = annual cash flow /
                                                         capital cost (original price of asset)
                                                     b. depends on what expert thinks is the risk
                                                         (based on anticipated future earnings)
                                  ii. (2) asset approach = adding up assets’ worth (rarely used)
                                 iii. (3) book value = appraisal (rarely used)
                                 iv. (4) market approach = what similar business sells for on
                                       market (rarely used)
                         d. discounts: (more?)
                                   i. lack of control / minority interest
                         e. goodwill:
                                   i. accountants use excess earnings (what goodwill company
                                       receives above non-goodwill company) to value goodwill
                                  ii. 2 kinds:
                                            1. personal – care about specific person giving service
                                            2. enterprise – care about brand/company
                                 iii. not transferable – personal to business
                         f. Bender (Conn., p. 641) (include ??)
                                   i. valuation of unvested pension interest (trial judges have
                                       discretion to choose):
                                            1. (1) present value (immediate offset) = court
                                                determines present value and the portion to which
                                                non-employee spouse is entitled, and award other
                                                property as offset
                                                     a. bad because it relies on probabilities
                                            2. (2) present division = court determines % share non-
                                                employee spouse is entitled, and upon maturity,
                                                fixed % given to each spouse
                                                     a. good because it imposes equally risk of
                                                         forfeiture
                                                     b. bad because it prolongs relationship
                                            3. (3) reserved jurisdiction = trial court reserves
                                                jurisdiction to distribute until benefits have matured;
                                                then court determines proper share
                                                     a. good because it imposes equally risk of
                                                         forfeiture
                                                     b. bad because it prolongs relationship, court
                                                         must hold second hearing, Ws must testify
                                                         to long-ago events
d. (4) how should marital property be distributed?
         i. there has to be system to determine division (but judges get wide discretion)
                1. not all assets have to be divided in same proportions
        ii. division has to be equitable (PA and other states)
                1. § 3502 – see supp. 32 for list of 11 statutory factors
       iii. 2 times distribution can be made:
                1. (1) now – requires determining what stream of future income is worth today
                                                                                                    23
                                 a. (2) later (deferred distribution) – “you get yours if and when I get
                                     mine” (disfavored by courts because of lack of finality)
               iv. factors in figuring out who gets what / how much:
                       1. all states have theoretical basis for dividing property
                                 a. factors: contribution to acquisition of assets, need, marital fault,
                                     financial fault
                       2. tax consequences of property distributions:
                                 a. no gain/loss will be recognized for transfers of property that either:
                                     (1) occur within 1 year after date of divorce, or (2) are related to
                                     cessation of marriage (rebuttable presumption that transfer not
                                     pursuant to divorce/separation and more than 6 years after marriage
                                     is not related to “cessation of marriage”)
                                          i. IRC treats as gift, excluding value of property from
                                              recipient’s income and giving recipient the donor’s basis in
                                              the property
                                 b. property is not taxed when transferred between spouses, but
                                     remember that it will be taxed when it’s sold later (remember this
                                     when distributing property, because it may look equal but it’s not
                                     really)


ALIMONY

1. Types of Alimony
      a. temporary vs. regular alimony:
               i. temporary (pendente lite) = paid during period of separation from the spouse that
                  makes more money (no arguments – they’ll pay till case is settled)
                      1. equitable purpose – spouses should be on equal footing at divorce lawsuit
              ii. regular = paid following divorce
                      1. purpose – rehabilitative in economic way (party suffering economic loss
                           because of marriage should be reimbursed for lost earning capacity and for
                           training to re-enter workplace)
                                a. Mani (NJ, p. 606)
                                          i. purpose of alimony is primarily economic (see factors, p.
                                             607)
                                         ii. alimony is neither punishment nor reward
                                        iii. lists theoretical reasons for alimony (p. 607)
      b. overview of substantive types of alimony:
               i. Mani (NJ, p. 606)
                      1. types of alimony: (1) permanent, (2) rehabilitative, (3) limited duration, (4)
                           reimbursement
      c. rehabilitative alimony:
               i. UMDA § 308:
                      1. rehabilitative purpose – court may only grant alimony if spouse seeking
                           maintenance:
                                a. (1) lacks sufficient property to provide for his reasonable needs, and
                                b. (2) is unable to support himself through appropriate employment / is
                                    the custodian of child whose condition/circumstances make it
                                    appropriate that custodian not be required to work
              ii. Michael (MO, p. 618)
                      1. 2 guiding principles in state statute: (1) marriage is partnership, (2) property
                           division should be used to provide future support for economically dependent
                           spouse
                      2. maintenance is awarded when one spouse has detrimentally relied on the
                           other to provide monetary support during the marriage


                                                                                                         24
                                a. rehabilitative maintenance is appropriate where there is substantial
                                     evidence that party seeking employment will/should become self-
                                     supporting
              iii. Rosenberg (MD, p. 620)
                        1. facts: H dissipated marital property by giving money to his soon-to-be
                            second wife
                        2. principal function of alimony is rehabilitation
                        3. alimony should be awarded when:
                                a. (1) party cannot be reasonably expected to make substantial progress
                                     toward becoming self-supporting because of age, illness, infirmity,
                                     or disability, or
                                b. (2) even after party made progress toward self-support, the
                                     respective standards of living will be unconscionably disparate
                        4. intentionally dissipating assets is treated as marital property
      d. what may be allocated as support:
                i. other spouse’s separate property (ex. residence)
               ii. attorneys’ fees:
                        1. typically placed on spouse in better financial position
                        2. treated as additional distribution of property / type of spousal support
2. Factors to Consider When Ordering Alimony
      a. court discretion:
                i. court has almost infinite discretion as to:
                        1. PA – whether to order alimony (may, not shall)
                        2. who gets what and how much (appeals almost never work)
               ii. lawyers should not tell client how much he/she will get, or that they can win on
                   appeal
      b. inverse relationship with property distribution:
                i. in most jurisdictions, the more assets awarded through equitable distribution, the less
                   alimony (and vice versa)
      c. 3 most important factors:
                i. (1) length of marriage
               ii. (2) disparity in earning power
              iii. (3) what spouse received from equitable distribution
      d. UMDA § 308 (see p. 610):
                i. (1) financial resources (including marital property apportioned to him), (2) time
                   necessary to find work, (3) standard of living during marriage, (4) duration of
                   marriage, (5) age and physical/emotional condition, (6) ability of spouse being
                   petitioned for maintenance to meet his own needs and the needs of his spouse
      e. ALI Principles § 5.04:
                i. (1) spouse of someone with significantly greater wealth / earning capacity is entitled
                   to compensation for portion of loss in standard of living she would otherwise
                   experience
               ii. (2) presumption of entitlement arises in marriages of specified duration and spousal-
                   income disparity
              iii. (3) presumption of award of periodic payments calculated by applying a specified %
                   (called the durational factor, which should increase with duration of marriage) to the
                   difference between incomes
      f. PA § 3701 (supp. 35):
                i. factors to consider when determining alimony
                        1. tend to overlap factors for equitable distribution
      g. cohabitiation with another person:
                i. PA § 3706 – bar to alimony when one spouse cohabits with someone of the opposite
                   sex who is not a member of the family (i.e. – alimony continues until ex-spouse
                   cohabits with someone)
                        1. way to stop people from getting alimony and living with a new person as H
                            & W (because alimony continues until remarriage)

                                                                                                       25
                        2. homosexual relationships – statute doesn’t seem to apply, but should look at
                           intent of parties
     h. gender:
              i. no gender-specific alimony rules permissible (Orr, Sup. Ct.)
     i. tax consequences of alimony:
              i. alimony (cash, but not property) is tax-deductible by payor (but not payee):
                      1. IRC provides that alimony is deductible by payor and included in gross
                           income of recipient (who must pay tax on it)
                               a. however, spousal support need not be treated as alimony under IRC
                                   – they may elect to treat the payments as non-deductible by obligor /
                                   non-taxable to oblige (might prove financially advantageous if, given
                                   parties’ respective incomes / tax rates, the deduction does not save
                                   the obligor as much as it costs oblige in taxes)
                      2. payee pays taxes in alimony (treated as income)
             ii. it’s better to pay more in alimony than in child support (which is not deductible)
     j. Mani (NJ, p. 606)
              i. alimony is neither punishment nor reward
             ii. types of alimony: (1) permanent, (2) rehabilitative, (3) limited duration, (4)
                 reimbursement
            iii. lists factors to consider when ordering alimony, which center on parties’
                 economic status (p. 607)
                      1. non-egregious marital fault only considered where it has negatively
                           affected parties’ economic status
     k. Rosenberg (MD, p. 620)
              i. facts: H dissipated marital property by giving money to his soon-to-be second wife
             ii. factors considered in determining amount of monetary award: (1) contributions to
                 family well-being, (2) circumstances contributing to parties’ estrangement, (3) how
                 and when specific marital property was acquired, (4) monetary awards
                 (interrelationship between monetary award and alimony)
3. When Alimony Ceases
     a. when payee/payor dies (unless parties agreed otherwise)


CHILD SUPPORT

1. Child Support Jurisdiction
      a. either resort to the two-state system (NY), or the one state system in your state (better for
          you) (??)
      b. approaches to child support jurisdiction:
              i. (1) “single-act” statutes:
                      1. some courts have construed these statutes to apply in family law cases,
                           reasoning that failure to pay child support was either: (1) tortious act, (2)
                           support rights have financial/business implications
                               a. single act must meet DP minimum contacts requirement
             ii. (2) legislation that allows courts to assert jurisdiction whenever DP permits
                  (encompassing all the single acts usually listed and any additional jurisdictional bases
                  permitted by the Constitution)
                      1. Kulko (Sup. Ct., p. 703)
                               a. facts: children lived with father, but wanted to move to CA to live
                                   with their mother, so F bought a plane ticket; CA said it has
                                   jurisdiction because of ticket purchase
                               b. limits extent to which long-arm statute can be applied to awarding
                                   child support orders
                                         i. to resolve issues incident to divorce (under doctrine of
                                            divisible divorce), there must be sufficient minimum
                                            contacts and purposeful availment with state for DP and
                                            substantial justice
                                                                                                       26
                                                  1. children living in state and F buying ticket (mere
                                                     domestic relations) was not enough – don’t want to
                                                     discourage parents from entering into arrangements
                                                     promoting familial harmony
             iii. (3) multistate solutions:
                       1. Uniform Interstate Family Support Act (UIFSA) (exists in every state):
                                a. contains new procedures for establishing, enforcing, and modifying
                                   support orders (relying on long-arm statutes)
                                b. bases of jurisdiction:
                                          i. (1) any basis consistent with state/federal constitution (ex.
                                             owning property, doing business, etc.)
                                         ii. (2) personal service within state
                                                  1. Burnham (Sup. Ct.) – reaffirmed rule that merely
                                                      serving ∆ within state confers personal jurisdiction
                                                  2. cases divide as to whether visiting children in state is
                                                      enough
                                        iii. (3) submission by consent
                                        iv. (4) submission by general appearance
                                         v. (5) submission by filing responsive document waiving
                                             contest to jurisdiction
                                        vi. (6) residing with child in state
                                       vii. (7) residing in state and providing prenatal expenses / child
                                             support
                                      viii. (8) engaging in sexual intercourse by which child may have
                                             been conceived in state
                                        ix. (9) asserting parentage in putative father registry
                                c. enactment by states is condition for federal funding for child support
                                   enforcement
2. Child Support Guidelines
      a. duty to support (here or elsewhere?)
               i. all states recognize both parents’ duty to support minor children
                       1. defined as either: (1) 18 (including PA), (2) 21, or (3) whichever comes later
                           – 18 or graduates from high school
                       2. equal duty on both parents
      b. purpose pf guidelines:
               i. reliance on guidelines achieves uniformity and predictability
      c. rebuttable presumption:
               i. guidelines create rebuttable presumptive minimum of the appropriate award
                       1. courts must explicitly justify deviations from guideline amount
      d. modifying award:
               i. child support is always modifiable upon change in circumstances – may include: (1)
                  change in income (if substantial and continual), (2) change in law, (3) child is not
                  with parent all the time
      e. child support models/approaches:
               i. (1) * “income shares” = child should receive same proportion of parental income
                  that child would have received if parents had not divorced (takes share of parties’
                  combined income)
                       1. * most popular approach (35 states)
                       2. chart lists share of combined parental income allotted for child support at
                           different income levels
                                a. parents divide obligation in proportion to their incomes
                       3. advantage:
                                a. flexible in allowing apportionment of additional basic expenses,
                                   extraordinary medical expenses, and variety of custody arrangements
                       4. disadvantages:
                                a. (1) may reduce incentive for custodial parent to increase her work
                                   effort because she may get lower child support payments
                                                                                                          27
                           b. (2) can bring about what may seem like perverse changes in non-
                               custodial parent’s contribution (see p. 673)
                           c. (3) can be criticized for not acknolwdging the non-monetary
                               contributions of custodial parent
                 5. Downing (KY, p. 668)
                           a. facts: F’s income greatly exceeded highest level in child support
                               guidelines
                           b. guidelines are rebuttable presumption
                                     i. courts may deviate from guidelines only when their
                                        application would be unjust inappropriate
                                    ii. court may use discretion to determine support when parental
                                        gross income exceeds highest guideline level (can go above
                                        highest level if they want)
                           c. KY guidelines based on: (1) income shares model, (2) presumption
                               that as parental income increases, proportion spent on child support
                               decreases
                                     i. child’s reasonable needs have ceiling (“Three Pony Rule”)
                           d. factors to consider: (1) child’s needs, (2) parental financial ability to
                               meet needs, (3) standard of living during marriage
         ii. (2) “percentage of income” = allocates % of noncustodial parent’s income for child
             support (14 states)
                 1. advantage – simplicity
                 2. disadvantage – obligor will pay same whether custodial parent earns no
                      income or amount equal to that of obligor
        iii. (3) Melson formula = proportionately divide child’s support needs based on parents’
             available net income
                 1. disadvantage – complex calucalations
        iv. (4) second generation formula = starts with marginal expenditure %’s (representing
             what families spend on their children), and adjusts obligation +/- in light of each
             parent’s ability to: (1) enjoy basic economic adequacy, and (2) relative ability to
             support child (ALI Principles)
                 1. advantages:
                           a. (1) purports to effect most satisfactory balance of competing interests
                               of child, parents, and society
                           b. (2) would probably increase awards
                 2. ALI Principles § 3.05(8) treats use of family home by custodial parent as
                      form of child support beyond that resulting from the formula (apportions cost
                      to relative parental income and other equities)
         v. (5) “share the wealth” = child’s standard of living should be measured in terms of
             parental income (rather than by evidence of how income is expended) (suggested by
             party in Downing)
f.   recommendations for developing guidelines:
          i. Advisory Panel on Child Support Guidelines:
                 1. (1) both parents should share responsibilities for child support
                 2. (2) parental subsistence needs should be considered (but child support should
                      virtually never be set at zero)
                 3. (3) child support should cover child’s basic needs while allowing enjoyment
                      of parent’s higher standard of living
                 4. (4) each child has equal right to share in parent’s income, subject to factors
                      such as age, income, and other dependents
                 5. (5) child support determinations should not depend on parents’ gender /
                      marital status
                 6. (6) guidelines should not create economic disincentives for remarriage / work
                 7. (7) guidelines should encourage involvement of both parents in child’s life
         ii. ALI Principles § 3.04 – lists 9 objectives, including:
                 1. (1) child’s ability to enjoy both a “minimum decent standard of living” when
                      possible to achieve without impoverishing either parent
                                                                                                    28
                       2. (2) standard of living not grossly inferior to that of the child’s higher income
                           parent
                       3. (3) protection of child from loss of important life opportunities
                       4. (4) fairness to both parents
                       5. (5) avoidance of disincentives that discourage parents from working /
                           training for work
                       6. (6) fostering cooperation / minimizing parental conflict
      g. PA – how child support guidelines work:
               i. if family income is over highest guideline amount ($20,000/month – presumptive
                  minimum), there will be non-guideline trial governed by 2 factors:
                       1. (1) needs of child, and
                       2. (2) parents’ ability to pay
              ii. presumptive minimum can be adjusted by showing compelling reasons
      h. tax consequences of support awards:
               i. child support payments are non-taxable and non-deductible under IRC
                       1. however, IRC limits parties’ freedom to get desired tax consequences
                                 a. (ex.) (1) excess alimony payments (front-loading payments by
                                     paying less than $15,000 than the year before), (2) disguising child
                                     support as alimony
                       2. it’s better to pay in alimony (deductible) than in child support
3. Determining “Income” for Child Support Purposes
      a. inheritances:
               i. Humphries (PA)
                       1. inheritances are not income for support purposes (not mentioned in PA §
                           4302)
                       2. however, evidence of inheritance is admissible for court to consider in
                           making discretionary decision as to whether to deviate from guidelines
                       3. (note: income from inheritance does count (ex. if receiver puts inheritance
                           into CD and receives interest)
      b. personal expenses paid by business:
               i. Calabrese (PA)
                       1. facts: F was 50% owner of business, which leased him his car
                       2. anything the corporation paid of personal nature on parent’s behalf must be
                           added to income for support purposes (cannot simply rely on tax returns)
              ii. Portugal (PA)
                       1. relocation expenses paid by business (how ruled??)
                       2. spouse’s contribution to 401k plan was income if he had access to the funds
             iii. where obligor is owner in a business, always look for:
                       1. deferred income, unexercised stock options, bonuses, depreciation, owner of
                           company real estate, whether obligor subtracts out-of-pocket expenses /
                           depreciation (??), dividends/interest, retirement account distributions, 401k
                           plans where employer matches, lottery winnings, bartered services
      c. contribution to retirement plan:
               i. Portugal (PA)
                       1. spouse’s contribution to 401k plan was income if he had access to the funds
      d. not taking money to which parent is entitled:
               i. Fennell (PA)
                       1. facts: F was owner in sub-S (pass-through) corporation, but corporation
                           retained distributions, so F never got the money (yet still had to pay taxes on
                           it as if he had)
                       2. trial court (majority rule) – if someone is entitled to money and doesn’t take
                           it, it won’t relieve him of support they would have owed if they had
                       3. app. court reversed – re: sub-S corporations, child support should be required
                           even if corporation retained income if: (1) obligor has control, and (2)
                           corporation has history of retaining earnings (however, this is not a blanket
                           rule)
      e. changes in income:
                                                                                                       29
               i. child support payments are only modified if change in income is substantial and
                  continual
              ii. if income fluctuates, income is averaged
4. Determining “Earning Capacity” for Child Support Purposes
      a. PA – Pa.R.CP 1910/16-2
      b. when income is considered equal to earning capacity:
               i. Portugal (PA)
                       1. where party does any of the following, there will not be a reduction in
                           support and their income will be considered equal to their earning capacity:
                           (1) voluntarily assumes lower paying job than earning capacity, (2) quits a
                           job, (3) leaves employment, (4) changes occupation/employment status to
                           pursue education, (5) is fired for cause
              ii. Grigoruk (
                       1. where parent is fired for cause, but attempts to mitigate lost income, parent
                           can discontinue job search for work at earning capacity to avoid jeopardizing
                           her current job
             iii. “Fiddler on the Roof” (MD, )
                       1. facts: H was lifelong student, and refused to pay child support
                       2. MD law: income is either: (1) actual income if parent is employed at full
                           capacity, or (2) potential income if parent is “voluntarily impoverished”
                       3. parent who choose life of poverty before having children, and who
                           doesn’t alter that life after having children, is voluntarily impoverished
                           (doesn’t matter what his reasons were)
                               a. parent cannot obligate children to live in poverty
      c. nurturing parent doctrine:
               i. nurturing parent doctrine = (1) earning capacity will not always be imputed to parent
                  who stays at home with pre-school child, and (2) nurturing parent may be excused
                  from contributing support
              ii. factors to consider when applying doctrine:
                       1. Frankenfield (PA)
                               a. fact that parent nurtures child from different relationship does not
                                    preclude doctrine’s application
                               b. factors to consider: (1) age / maturity of child, (2) availability of
                                    others to assist parent, (3) adequacy of available financial resources
                                    if parent remains at home, (4) parent’s desire to nurture child
5. Post-Majority Support
      a. states’ differing approaches to post-majority educational support:
               i. (1) construing existing statutory terms (like “children” / “education”) broadly to
                  fashion doctrines of extended dependency and deferred emancipation
              ii. (2) construing existing statutory terms (like “children” / “education”) broadly to
                  support past minority for high school, but not college, students
             iii. (3) enacting special measures designed to supplement child support under guidelines
                  with postsecondary education subsidies
             iv. (4) refusing to differentiate based on parents’ marital status (Curtis)
              v. (5) differentiating based on parents’ marital status (Leclair)
      b. for states that allow courts to order post-majority support for higher education:
               i. reasonable expenses (not guidelines) determine the amount – including education-
                  related costs such as tuition, books, room, and board
                       1. may include continuation of previous support payments
                       2. may require student to: (1) achieve particular level of academic success, and
                           (2) provide obligor with official documentation
              ii. have to address:
                       1. (1) what are “college expenses”
                       2. (2) extent to which obligor has say in where child goes to school
                       3. (3) whether child is obligated to contribute in some way
                       4. (4) whether it matters that parent/child were estranged
                       5. (5) what is “college”
                                                                                                       30
        c. PA:
              i. Blue (PA)
                      1. court has no authority to order parents to pay for college education
                              a. child support stops at majority
                      2. (note: legislature then prepared statute at issue in Curtis)
      d. differentiating children based on parents’ marital status:
              i. Curtis (PA, p. 676) – (majority rule)
                      1. statute allowing court to order separated, divorced, or unmarried parents to
                          provide equitably for children post-majority was unconstitutional because it
                          was selectively applied to benefit children based on parents’ marital status
                              a. no rational basis for differentiating between children of
                                   divorced/separated parents and children of intact families
             ii. Leclair (NH) (opposite holding of Curtis)
                      1. because of unique problems of divorced families, legislature could rationally
                          conclude that absent judicial involvement, children of divorced families may
                          be less likely than children of intact families to receive post-secondary
                          educational support from both parents
      e. disabled adult children:
              i. child support can be extended beyond majority where there is adult disabled child,
                 whether mental/physical
                      1. idea is that if child is incapable of self-support, the statute requires parental
                          support
             ii. if child reaches majority and subsequently becomes disabled, states are split
6. Support Enforcement
      a. enforcement:
              i. federal statutes:
                      1. Deadbeats Parents Punishment Act (federal) – makes child support violators
                          federal felons with enhanced penalties
                      2. Child Support Recovery Act (federal) – criminal penalties for failure to
                          provide child support payment interstate
             ii. mechanisms for collecting support:
                      1. (1) garnishing wages / wage attachments, (2) incarceration, (3) liens, (4) take
                          professional/recreational license (dumb), (5) suspend passports, (6) report
                          them to credit bureaus, (7) intercept federal income tax refunds
      b. accumulation:
              i. Yerkies (PA)
                      1. support does accumulate while in jail (dumb)
7. When Child Support Ceases
      a. when payee/payor dies (unless parties agreed otherwise)
      b. emancipation (even if it occurs during child’s minority)
              i. “emancipation” – can be construed differently in all states
                      1. usually construed that child has chosen to strike out on their own (ex. join
                          military, get married, move out, quit school, gainful full-time employment,
                          become self-supporting)


CHILD CUSTODY

1. Overview of Custody
      a. parental agreement:
              i. if parents agree (no matter how silly the arrangement), courts will defer because they
                 value parental autonomy (presumption that parents act in child’s BI)
      b. modifying custody:
              i. custody orders are always modifiable
             ii. PA:
                      1. does not require change in circumstance to modify custody order (??)
      c. micro-managing families:
                                                                                                       31
               i. Livingston (PA)
                      1. took stand against managing micro-issues
      d. legal vs. physical custody:
               i. joint legal custody = share responsibility in major decisions affecting child’s welfare
                      1. does not have to be accompanied by joint physical custody
              ii. joint physical custody = each is entitled to child’s companionship over periodic
                  intervals of time / responsibilities for daily care
      e. custody arrangement spectrum:
               i. physical custody:
                      1. primary – where and with whom child spends most of his/her time
                      2. shared / joint – allocating child’s time with each parent by percentage (may /
                           may not be exactly 50-50)
                      3. partial – custody allocated to a parent apart from primary custodial parent in
                           percentage substantially less than 50%
                      4. visitation – parent is not allowed to remove child from physical presence and
                           control of primary custodial parent
                               a. in some states, partial custody and visitation are synonymous (but
                                   not in PA)
                               b. can be granted to parent in jail
                      5. supervised visitation – court determines that one parent may present a risk of
                           grave danger to child if unsupervised
                               a. supervision can be provided by: (1) custodial parent (bad idea), (2)
                                   other family member (not-so-good idea), (3) third party (unrelated to
                                   families), (4) an organization that has an arrangement with court to
                                   supervise parent’s visitation on certain days (payment required)
                               b. often used as phase-in for situations where re-unification is desired
                               c. Hankey (??)
                      6. total denial of access
                               a. rarely occurs – uncommon because parents have fundamental
                                   constitutional right to rear their children (subject to strict scrutiny)
                                         i. when it might occur:
                                                 1. when one parent has so abused / neglected child and
                                                     is not rehabilitated
              ii. legal custody – right to make decisions with regard to life-molding situations of the
                  child
                      1. primary – one parent has primary say in major decisions
                      2. shared – both parents have some say in major decisions
             iii. custody and child support:
                      1. courts generally do not allow intertwining of support and custody
                               a. parent won’t get more custody if s/he pays more child support
      f. enforcement of custody orders:
               i. (see “Interstate Custody Jurisdiction” below)
2. Standards for Selecting Custodial Parent
      a. presumptions:
               i. tender years presumption (TYP):
                      1. TYP = presumption that mother should get custody of young children
                               a. 2 primary bases:
                                         i. (1) biological superiority of M
                                        ii. (2) M should have more parenting resposibility
                               b. 2 effects:
                                         i. substantive effect – required court to award custody to M
                                            when parents were equally fit
                                        ii. procedural effect – imposed evidentiary burden (clear and
                                            convincing evidence in Devine) on F to prove M’s unfitness
                               c. treated by courts as:
                                         i. (1) tiebreaker mandating maternal custody if all other factors
                                            were equal, (2) rule placing burden of persuasion on F to
                                                                                                        32
                                             show that paternal custody served child’s best interests, or
                                             (3) rule affecting burden of proof that required F to prove
                                             maternal unfitness in order to prevail
                               d. unpopular – expressly abolished in 20 states (including PA) and
                                    questionable in 4 others
                                         i. Devine (Ala., p. 727)
                                                  1. facts: under Alabama law, TYP presumption was
                                                      that mother should get custody absent evidence to
                                                      the contrary
                                                  2. TYP violates EP – gender-based classification
                                                      that discriminates based on sex
                                                           a. Orr (Sup. Ct.) – statutory scheme which
                                                               imposes obligations on H, but not W,
                                                               establishes classification based on sex
                                                               subject to strict scrutiny (court extended this
                                                               holding to evidentiary burden)
                               e. ALI Principles:
                                         i. prohibit court from considering either parent or child’s
                                             gender in making custody arrangements
               ii. primary caretaker presumption (PCP):
                       1. PCP = rebuttable presumption that child’s BI are served by placing child
                           with parent who has taken primary responsibility for the child’s care
                               a. current use:
                                         i. usually only used as one factor in BIS analysis
                               b. advantages: (1) gender-neutral, (2) reduction in litigation (since it’s a
                                    bright-line rule)
                               c. disadvantages: (1) overemphasis on caretaking tasks and importance
                                    of attachment, (2) devaluation of F’s role in child’s development, (3)
                                    vague standard (increase in litigation)
      b. parenting plans (here or elsewhere?):
                i. used by about ½ the states
               ii. ALI Principles:
                       1. require parties to submit parenting plan (written agreement specifying: (1)
                           authority for caretaking/decision-making, and (2) manner in which disputes
                           should be resolved)
                       2. how courts should handle parenting plans:
                               a. if parties agree – court should enforce agreement unless: (1)
                                    agreement is not voluntary, or (2) agreement would be harmful to
                                    child
                               b. if parties are unable to agree – court should award custody based on
                                    allocation of caretaking responsibility that was followed when the
                                    family was intact (to promote stability)
                                         i. how differs from PCP:
                                                  1. contemplates spectrum of possibilities, including:
                                                      (1) equal allocation of custodial time if parents in
                                                      intact family had equal caretaking responsibilities,
                                                      (2) ALI rule may be rebutted by specific factors
                                                      (such as prior parental agreement, child’s preference,
                                                      need to keep siblings together, harm to child’s
                                                      welfare, avoidance of custodial arrangements that
                                                      would be impractical / would interfere with stability,
                                                      and need to deal with parental relocation)
      c. * best interest standard (BIS) (see below)
                i. * most frequently used
3. Best Interests Standard
      a. overview:
                i. highly discretionary, and inherently indeterminate
                                                                                                           33
                 1. courts can, in their discretion, raise factors not raised by parties
         ii. disadvantage – difficult to predict (may encourage more litigation)
       iii. based on list of factors (usually statutory) regarding child’s needs
        iv. restrictions that might be imposed on parents: (are these allowed??)
                 1. religious restriction – restricting what aspects of religion child is exposed to
                 2. what people child is around
                 3. what pets child is around
                 4. what parent is allowed to do in child’s presence
                 5. what parent is allowed to tell child
b. list of factors to consider:
          i. UMDA § 402:
                 1. (1) parents’ wishes as to child’s custody
                 2. (2) child’s wishes as to his custodian (and reason for preference)
                 3. (3) interaction / interrelationship of child with parents, siblings, and other
                     people who may significantly affect his best interests
                 4. (4) child’s adjustment to home, school, and community
                 5. (5) mental/physical health of all individuals involved
         ii. Fulk (Miss., p. 743)
                 1. lists BIS factors (p. 744)
                 2. what should not be considered:
                          a. conduct of proposed custodian that does not affect his relationship
                              with child
       iii. other factors:
                 1. parental cooperation
                 2. which parent has had primary custody
                 3. child’s stability
        iv. “iffy” (apply nexus test = must have, or will have, adverse impact on child before
             custody is denied):
                 1. age, race, child’s gender, religion, sexual orientation, career, domestic
                     violence, time available, financial considerations, parental morality, illegal
                     conduct
c. constitutional factors:
          i. race:
                 1. Palmore (Sup. Ct., p. 734)
                          a. facts: court awarded custody to F because M lived with black man
                              (expert said child would be stigmatized)
                          b. EP does not permit race to be sole factor in determining custody
                          c. (note: nowadays, expert could probably present this testimony as one
                              factor in BIS hearing)
                 2. Tipton (Ark., p. 736)
                          a. F’s lack of racial tolerance affected court’s decision to reverse ruling
                              granting F custody after M married biracial man
                 3. ALI Principles:
                          a. prohibit court from considering race of child, parent, or any other
                              member of household in determining custody arrangements
         ii. religion:
                 1. Sagar (MA, p. 738)
                          a. facts: parents disagreed about whether child should go through
                              Hindu ceremony
                          b. parents have fundamental right to direct child’s upbringing
                          c. if neither parent’s desire would harm child, court intrudes as little as
                              possible
                 2. 3 approaches to disputes over child’s religious upbringing:
                          a. (1) religion may be one, but not sole, factor in custody decision-
                              making
                          b. (2) religion may only be considered to the extent that it affects
                              child’s secular well-being
                                                                                                  34
                       c. (3) religion may be considered only for children with ascertainable
                           religious preferences or for whom religious is an important part of
                           their identity
                3. courts may not:
                       a. favor one parent’s religion over the other’s
                4. courts may:
                       a. examine effect of religious belief/practice on child
                       b. (usually) interfere with parent’s religious beliefs/practices only when
                           there is evidence of harm to child
                                i. courts have different thresholds for harm: (1) * serious
                                    threatened harm child’s health/safety (most common
                                    approach), (2) effect on child’s secular well-being, or (3)
                                    actual physical/mental harm to child
                5. ALI Principles:
                       a. prohibit court from considering the “religious practices” of either
                           parent or child in custody decision-making except if: (1) religious
                           practices present “severe and almost certain harm” to child (court
                           may limit religious practices only to minimum degree necessary to
                           protect child), or (2) necessary to protect child’s ability to practice a
                           religion that has been a significant part of his life
d. fitness:
        i. sexual orientation:
               1. 3 approaches to same-sex custody disputes:
                        a. (1) * nexus approach – parent’s sexual orientation must have, or
                           will have, adverse impact on child before custody is denied (*
                           modern view)
                        b. (2) per se rule – homosexuality constitutes irrebuttable presumption
                           of unfitness
                        c. (3) homosexuality evokes rebuttable presumption of unfitness,
                           requiring parent to prove absence of harm
               2. some courts evaluate sexual conduct based on whether parent has legitimized
                   that conduct by remarriage
               3. Fulk (Miss., p. 743)
                        a. facts: M had lesbian relationship, but both parents had bad things in
                           their past (previous court had chosen F without giving explanation)
                        b. court has to consider every BIS factor listed in state’s caselaw and
                           explain why they pick one parent over the other
               4. ALI Principles:
                        a. prohibit court from considering either sexual orientation or
                           extramarital sexual conduct of parent except upon showing that such
                           conduct causes harm to child
               5. Rowe (OH, p. 751)
                        a. court does not have to ignore parent’s lifestyle / morals, but must
                           limit the inquiry to the probable effect on the child’s development
       ii. careers:
               1. maternal employment sometimes plays a role in BIS application
               2. West (Alaska, p. 754)
                        a. custody to F was improper because it was based on presumption that
                           F’s anticipated remarriage (2-parent household) was better than
                           working M’s caretaking arrangements
               3. Rowe (OH, p. 751)
                        a. facts: M wanted to attend law school classes
                        b. court does not have to ignore parent’s lifestyle / morals, but must
                           limit the inquiry to the probable effect on the child’s development
               4. statutory preference for parental care:


                                                                                                 35
                a. some states give non-custodial parent opportunity for extra parenting
                    time when custodial parent is unavailable and would otherwise use
                    childcare providers
iii. domestic violence:
        1. states:
                a. majority states:
                         i. almost all states require courts to consider domestic violence
                             as BIS factor
                                 1. trend – evidence of domestic violence creates
                                      rebuttable presumption against awarding custody to
                                      abusive parent (states differ whether presumption
                                      applies only to joint custody or precludes both sole
                                      and joint custody)
                b. minority states:
                         i. require judges to make written findings regarding existence
                             of domestic violence and/or findings showing how custody
                             to perpetrator would fail to serve BI
                        ii. Peters-Riemers (ND, p. 757)
                                 1. ND law enumerated domestic violence as custody
                                      factor
                                          a. combination of: (1) occurrence, and (2)
                                              serious injury / weapon / pattern created
                                              rebuttable presumption that perpetrator may
                                              not be awarded sole/joint custody
                c. differ in standard of proof that triggers presumption
                d. differ as to how past abuse is relevant
                e. treatment programs:
                         i. some states require those convicted of domestic violence
                             undergo treatment
                                 1. can be relevant to custody determination: (1) may be
                                      used to rebut presumption that batterer should not
                                      get custody, (2) visitation may be conditioned on
                                      program completion, (3) treatment may serve as
                                      evidence (in states without presumption) that
                                      custody in batterer serves BI
                f. friendly parent provisions:
                         i. some states require courts to favor parent most likely to
                             maintain child’s relationship with other parent
                g. violence towards children:
                         i. some states won’t consider domestic violence as factor
                             unless directed toward child
                h. child’s witnessing domestic violence:
                         i. Nicholson (NY, p. 763)
                                 1. child’s exposure to domestic violence does not
                                      presumptively establish neglect
                i. parental murder:
                         i. one parent who kills the other might have custody if the
                             child: (1) consents, and (2) is mature enough to consents
        2. court discretion:
                a. courts have much discretion in determining relevance and weight to
                    be given acts of domestic violence
        3. ALI Principles:
                a. parents and court share burden of discovery
                         i. parents – must disclose battering in parenting plan
                        ii. court – must have process to identify abuse
                b. batterers may not receive custody unless court ensures protections
                c. broadly define abuse (excludes self-defense)
                                                                                       36
                                d. suggests that courts be aware that abuser might try to use custody /
                                     visitation rights to harass other spouse
             iv. parents’ physical/mental health:
                      1. all states either permit/mandate consideration of parents’ physical/mental
                           health
                      2. focus on effects of parent’s disability on child:
                                a. Warnick (Ala., p. 765)
                                           i. refused to change F’s custody when he became partially
                                              paralyzed because child didn’t seem affected
                                b. Carney (CA, p. 765)
                                           i. refused to change F’s custody after he became quadriplegic
                                              because “essence of parenting” was in guidance parent gives
                                              child
                                c. courts sometimes presume detriment
              v. wealth:
                      1. generally, parties’ wealth is not decisive unless one parent is unable to
                           adequately provide for child
                      2. ALI Principles:
                                a. prohibit court from considering parents’ earning capacities / financial
                                     circumstances unless parents’ combined financial resources “set
                                     practical limits on the custodial arrangements”
                      3. criticism of using time as factor: (see p. 756)
4. Shared Custody: Presumption, Preference, or Option?
      a. states:
               i. virtually all states permit some form of joint custody
              ii. 3 approaches to joint custody: (1) presumption of joint custody, (2) preference, (3)
                  option in BIS determination
             iii. many states mandate that parental agreement be a prerequisite
                      1. others award joint custody even if one parent objects
             iv. parenting plans:
                      1. about ½ the states require parents seeking joint custody to file parenting plan
                           (written agreement specifying caretaking and decision-making authority and
                           manner in which future disputes will be resolved)
              v. parent education:
                      1. majority of states require that divorcing parents participate in parent
                           education programs to improve post-divorce interaction
             vi. parental coopareation:
                      1. Bell (Alaska, p. 767)
                                a. facts: state statute preferred joint legal custody, regardless of
                                     physical arrangement
                                b. parental cooperation is essential if joint custody is to be in child’s BI
            vii. PA:
                      1. Wesley (PA)
                                a. 4-prong test for whether joint custody should be awarded:
                                           i. (1) both parents must be sane and capable of making rational
                                              child-rearing decisions
                                          ii. (2) both parents must be able to provide love and care
                                         iii. (3) desire by both parents to have active involvement in
                                              child’s life (child must have formed relationship of security
                                              and love with both parents)
                                         iv. (4) minimal degree of cooperation between parents
      b. policy:
               i. joint custody is based on belief that child benefits from frequent contact with both
                  parents
              ii. arguments for presumption favoring joint custody:


                                                                                                         37
                      1. (1) BI of children, (2) means of increasing equality between Ms and Fs, (3)
                          skeptical of judges’ ability to discern what will custody arrangement will
                          work best (minimize judicial intervention)
5. Restricted/Supervised Custody
6. Parent vs. Non-Parent Custody Rights
      a. custody disputes:
                i. natural parent presumption:
                      1. rebuttable presumption favors natural parents in custody (as opposed to
                          visitation) disputes
                               a. custody should be awarded to natural parent absent evidence of
                                   parental unfitness
                      2. Jones (PA, p. 794)
                               a. facts: lesbian couple (one biological, one in loco parentis)
                               b. BI analysis has presumption favoring biological parent – can be
                                   overcome by clear and convincing evidence (need not show that
                                   biological parent is unfit, only that in loco parent is better
                                   primary custodian)
                                         i. where biological parent tried to sabotage in loco parent’s
                                            relationship with children, and was psychologically
                                            dysfunctional, in loco parent overcame presumption
                      3. Nancy S. (CA, p. 801)
                               a. claim of de facto parenthood / in loco parentis did not give lesbian
                                   partner the same rights as natural parent
                      4. refusal to follow natural parent presumption:
                               a. Painter (Iowa, p. 796)
                                         i. child’s BI would be served by remaining with stable, church-
                                            going grandparents rather than bohemian F
                               b. Charles (PA)
                                         i. facts: stepfather raised child from infancy; custody dispute
                                            between natural F and stepfather
                                        ii. natural parent presumption was overcome
                                       iii. does court apply BI standard (??)
               ii. functional parenthood (limited recognition):
                      1. ALI Principles:
                               a. biology is not determinative of parenthood
                               b. parenthood by estoppel = person who acts as parent in circumstances
                                   that would estop legal parent from denying the claimant’s parental
                                   status
                                         i. may be created when: (1) recognition of parental status
                                            would serve child’s BI, and (2) an individual either:
                                                1. (a) is obligated for child support
                                                2. (b) has lived with child from at least 2 years and has
                                                     reasonable belief that he is F, or
                                                3. (c) has had agreement with legal parent since birth
                                                     (or for at least 2 years) to serve as co-parent
                                        ii. entitled to (like legal parent) presumptive allocations of: (1)
                                            custodial responsibility, (2) joint decision-making
                                            responsibility, and (3) presumptive access to educational and
                                            medical records
                               c. de facto parenthood
                                         i. person has:
                                                1. (1) regularly performed equal / greater share of
                                                     caretaking as parent with whom child primarily lived
                                                2. (2) lived with child for significant period (2+ years),
                                                     and
                                                3. (3) acted as parent for non-financial reasons with the
                                                     agreement of legal parent OR as a result of complete
                                                                                                        38
                                              failure of legal parent to perform caretaking
                                              functions
                                 ii. precluded from receiving majority of custodial responsibility
                                     for child if legal parent / parent by estoppel is fit and willing
                                     to care for child
                                iii. rights may be limited/denied if custodial allocation would be
                                     impractical in light of the # of other adults to be allocated
                                     custodial responsibility
                2. UPA:
                        a. also recognizes that biology is not determinative of parenthood
                3. a few states use functional parenthood doctrines (ex. psychological
                    parenthood, de facto parenthood, parenthood by estoppel, in loco parentis) to
                    confer rights on gay co-parents
                4. (see “second-parent” visitation rights under “visitation disputes” below)
       iii. parental preference doctrine:
                1. assumes that child may only have one parent of each gender
                2. courts recognized this concept only until recently (refusing to recognize
                    custodial/visitation rights in cases where child would have 2 Ms/Fs
b. visitation disputes:
         i. states:
                1. all states have third-party visitation statutes that permit grandparents and
                    (sometimes) third parties to petition for visitation in certain circumstances
                2. many states:
                        a. limit # of people who can seek visitation
                        b. give deference to fit parent’s wishes
                3. standard:
                        a. some states use “harm” test (vs. BI test):
                                  i. more stringent standard
                        b. other states retained BI test but narrowed it by inclusion of particular
                            factors
        ii. grandparent:
                1. alleged explanations for grandparent visitation rights:
                        a. child’s BI
                        b. grandparents should be involved because of family disruption
                        c. maybe in loco parentis status applies
                2. Troxel (Sup. Ct., p. 789) (plurality)
                        a. facts: grandparents petitioned court for more custody; WA statute
                            said that anyone could petition for custody and court could grant it
                            whenever it would serve child’s BI (very broad)
                        b. issue: who gets to decide whether a child could benefit from
                            association with grandparents – court / fit parents? (NOT
                            whether child could benefit)
                        c. extremely narrow plurality holding – WA statute was
                            unconstitutional as applied (to grant grandparents more visitation
                            than M wanted (??))
                        d. presumption that fit parents act in children’s BI
                                  i. DP does not permit state to infringe on fundamental right
                                      of parents to make childrearing decisions simply because
                                      court believes a “better” decision could be made
                                 ii. standard of scrutiny left uncertain
                        e. Court split:
                                  i. 8 J’s recognized constitutional protected right to rear
                                      children without state interference
                                          1. 7 did so haltingly, saying right is not absolute; some
                                              circumstances permit parental decisions to be
                                              overruled (doesn’t specify which)

                                                                                                   39
                          ii. re: standard (what state must show to justify interference
                              with parental decisions re: third-party visitation):
                                   1. (1) BIS means Court doesn’t think too highly of
                                       parental right to rear children; (2) strict scrutiny
                                       would make it nearly impossible for court to
                                       overrule parental decision, (3) Scalia said there was
                                       no constitutional right to rear children – legislature
                                       should decide
                  f. (note: Court does NOT decide whether DP requires all non-parental
                     visitation statutes to include showing of harm/potential harm as a
                     condition precedent to granting visitation)
                  g. unanswered questions: (1) is right to rear fundamental?, (2) what
                     standard is it subject to?, (3) if statute is constitutional, will parents
                     get special consideration over third parties?
         3. PA:
                  a. grandparent visitation statute – §§ 53-11, 53-12, 53-13 (supp. 49)
                           i. mostly deals with disruption in family
                          ii. (note: is there a reason to treat children from intact families
                              differently from children from broken families? – could be
                              argued that courts are focusing on constitutional rights of
                              parents and grandparents, not children)
                  b. Hiller (PA)
                           i. application of statute allowing grandparents visitation /
                              partial custody did not violate parent’s DP right to rear
                              child
                                   1. does give parents preferential treatment
                          ii. standard is strict scrutiny – compelling state interest is
                              child’s welfare (should be able to associate with
                              grandparents)
                        iii. does NOT require showing of harm to child
                         iv. (note: prof thinks this decision is wrong – court shouldn’t
                              decide what’s in child’s BI if fit parent can)
iii. sibling:
         1. Herbst (CA, p. 799)
                  a. facts: statute permitted sibling visitation if one parent was deceased
                      and visitation would be in child’s BI
iv. former stepparent:
         1. courts have been increasingly willing to grant visitation rights to former
              stepparents, especially if there is long-term relationship with child
 v. second-parent:
         1. H.S.H.-K. (WI, p. 802)
                  a. visitation by non-biological parent was in child’s BI if there was: (1)
                      parent-like relationship, and (2) significant triggering event
                      justifying state intervention
                            i. test for parent-like relationship:
                                    1. (1) whether biological parent consented to and
                                        fostered petitioner’s formation and establishment of
                                        parent-like relationship
                                    2. (2) whether petitioner resided in same household as
                                        child
                                    3. (3) whether petitioner assumed obligations of
                                        parenthood, and
                                    4. (4) whether petitioner served in parental role for
                                        sufficient time to enable “bonded, dependent”
                                        personal relationship with child
                           ii. significant triggering event:

                                                                                            40
                                                 1. (1) custodial parent substantially interfered with
                                                    parent-like relationship, and
                                                 2. (2) petitioner sought court-ordered visitation within
                                                    reasonable time after custodial parent’s interference
                       2. L.B. (WA, p. 805)
                                a. claim of lesbian M who qualified as de facto parent did not constitute
                                    unconstitutional infringement on parental rights of fit biological
                                    parent
                                b. distinguished Troxel:
                                          i. (1) recognition of de facto parents places them in parity with
                                             biological/adoptive parents (thereby signifying that both are
                                             parents who have fundamental liberty interest in rearing
                                             chidlren
                                         ii. (2) Troxel did not address state law determinations of
                                             “parents” and “families” and does not place constitutional
                                             limitations on the ability of states to define parent/family
              vi. parental preference doctrine:
                       1. assumes that child may only have one parent of each gender
                       2. courts recognized this concept only until recently (refusing to recognize
                           custodial/visitation rights in cases where child would have 2 Ms/Fs
7. Standing to Sue
      a. states:
               i. all jurisdictions recognize 3 bases of standing:
                       1. (1) biological parenthood
                       2. (2) in loco parentis (stood in role of parent)
                                a. controversy over whether this can occur without consent of natural
                                    parent
                       3. (3) statute
              ii. other bases may include:
                       1. (1) state
                       2. (2) adopted parents
8. Custody Relocation
      a. factors in relocation disputes:
               i. many states consider good faith by custodial parent as threshold requirement
              ii. Ciesluk (CO, p. 823)
                       1. facts: state legislature required extra 9 factors (in additional to normal BIS
                           factors) in relocation disputes:
                                a. (1) reasons for relocation, (2) reasons opposing party objects, (3)
                                    history and quality of each party’s relationship with child, (4)
                                    educational opportunities for child at each location, (5)
                                    presence/absence of family at each location, (6) advantages of child
                                    remaining with primary caregiver, (7) anticipated impact of move on
                                    child, (8) whether court could fashion new reasonable parenting
                                    schedule, (9) any other relevant factors bearing on BI
             iii. PA – 3 considerations for relocation:
                       1. Gruber (PA)
                                a. 3-prong test* (but see note) for relocation:
                                          i. (1) what are the advantages of the move to the custodial
                                             parent and children?
                                                  1. (problematic – people assert “trickle-down” theory)
                                         ii. (2) what is the motive behind the move?
                                                  1. (problematic – parents can lie)
                                        iii. (3) is there a schedule that will accommodate both parents?
                                                  1. judges will usually give school-age children school
                                                      time with one parent and vacation time with the
                                                      other
                                                           a. others use “virtual” (internet) visitation
                                                                                                        41
                            b. (note: most courts now say that Gruber is only a list of factors to
                                 consider in applying the BI test)
b.   balancing right to travel and right to parent:
           i. Ciesluk (CO, p. 823)
                  1. 3 approaches to balancing right to travel and right to parent:
                            a. (1) elevates relocating parent’s right to travel over competing
                                 interests
                            b. (2) eliminates need to balance competing rights in favor of elevating
                                 child’s welfare to compelling state interest
                            c. (3) * treats competing interests equally, holding that both
                                 parents’ interests and child’s BI will be best protected if each
                                 parent equally shares burden of demonstrating how child’s BI
                                 will be impacted by proposed relocation (* adopted here)
                                       i. focus on child’s BI
                                      ii. parents’ burdens:
                                              1. majority time parent must present: (1) specific, non-
                                                  speculative information about child’s proposed new
                                                  living conditions, and (2) concrete plan for
                                                  modifying parenting time as a result of the move
                                              2. minority time parent may: (1) contest relocation
                                                  entirely (seek to become majority time parent), or(2)
                                                  object to revised parenting plan proposed by other
                                                  parent (responsible for proposing new plan)
                                     iii. parent need not show that move will directly benefit child
                            d. court must make specific findings as to each statutory factor
c.   initial determination of parent location:
           i. Spahmer (CO, p. 828)
                  1. in initial determination, court has no statutory authority to order parent to live
                       in specific location, but must accept location in which each parent intends to
                       live
d.   burden of proof:
           i. some courts place burden of proof on relocating parent to prove that move is in
              child’s BI
          ii. others place it on non-custodial opposing parent to demonstrate adverse impact of
              relocation
         iii. options include:
                  1. compelling reason / exceptional circumstances / multifaceted test
e.   joint custody:
           i. many states apply more restrictive relocation rules to parents who have joint custody
f.   mileage restrictions (“100-mile rules”):
           i. some states require parents who relocate more than a certain distance from child’s
              present home to secure court permission
g.   ALI Principles:
           i. permit parent to relocate with child if that parent: (1) has exercised significant
              majority of custodial responsibility, and (2) has legitimate reason for moving to
              location that is reasonable in light of the purpose
                  1. legitimate reasons include: (1) desire to be closer to support network, (2)
                       health reasons, (3) employment/educational opportunity, (4) protection of
                       family member, (5) desire to accompany spouse / domestic partner who lives
                       in / is pursuing employment/educational opportunities in new location, (6)
                       improve quality of life
          ii. relocation justifies custody modification only when it “significantly impairs” either
              parent’s ability to exercise custodial responsibilities
                  1. in this event, court will revise parenting plan to accommodate relocation
                       while maintaining the same proportion of residential responsibility
h.   policy arguments:

                                                                                                    42
                i. some say allowing relocation promotes child’s BI because post-divorce adjustment is
                   closely intertwined with well-being of custodial parent
               ii. others say child’s relationship with non-custodial parent is very important in
                   promoting child’s welfare
9. Interstate Custody Jurisdiction
       a. UUCJA / PKPA (??)
       b. Parental Kidnapping Prevention Act (PKPA)
                i. prioritized home state jurisdiction
                        1. state giving original custody order had jurisdiction to modify that order
                        2. authorized exclusive continuing jurisdiction in the state that issued the
                            original decree as long as: (1) one parent/child remained there, and (2) the
                            state had exclusive continuing jurisdiction under its own law
               ii. tried to ensure that custody orders made pursuant to PKPA would be given full faith
                   and credit
              iii. assists parents in locating abducting parents by making federal parent locator service
                   available to state agencies and applying Fugitive Felon Act to all state felony
                   kidnapping cases
       c. Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA):
                i. purpose:
                        1. designed to clarify and unify standards for courts’ continuing and modifying
                            jurisdiction in interstate child custody matters
               ii. popular:
                        1. adopted by almost all states
              iii. types of jurisdiction UCCJEA covers:
                        1. (1) jurisdiction for the initial custody determination (§ 201, p. 839)
                        2. (2) when continuing jurisdiction resides with the state making the initial
                            custody determination (§ 202, p. 840)
                        3. (3) modification jurisdiction (§ 203, p. 840)
                        4. (4) temporary emergency jurisdiction (§ 204, p. 840)
              iv. what it applies to:
                        1. “child-custody determination” = all custody / visitation decrees (temporary,
                            permanent, initial, and modification) and proceedings related to: divorce,
                            separation, neglect, abuse, dependency, guardianship, paternity, termination
                            of parental rights, and protection from domestic violence (not adoptions)
               v. jurisdictional grounds:
                        1. (1) * home state (default – always defers to home state)
                                 a. home state jurisdiction established in state where child lived for 6+
                                     months preceding commencement of action
                        2. (2) significant connection
                                 a. only available when children have no home state or when home state
                                     declines jurisdiction
                        3. (3) more appropriate forum
                                 a. only available if home state and significant jurisdiction states decline
                                     jurisdiction in favor of another more appropriate state on grounds of:
                                     (a) inconvenience, or (b) unjustifiable conduct (ex. child snatching)
                        4. (4) vacuum
                                 a. applies where no other jurisdictional basis exists
                        5. (5) emergency
                                 a. gives temporary jurisdiction in situations that require immediate /
                                     protective action (ex. real/threatened abandonment / abuse of child,
                                     siblings, or parents)
              vi. right to modify jurisdiction:
                        1. original decree court has exclusive, continuing jurisdiction to modify until 1
                            or 2 things occurs:
                                 a. (1) original decree loses significant connection jurisdiction
                                     (Forlenza, below)

                                                                                                         43
                                  i. only the original decree court can decide whether it has lost
                                      significant connection (even if another state has become new
                                      home state)
                                 ii. Forlenza (TX, p. 833)
                                          1. facts: original decree from TX; M petitioned in TX
                                               to modify, but F challenged jurisdiction
                                          2. state did not lose significant connection where
                                               children visited for extended time, there was family
                                               there who had relationship to children, and where M
                                               lived there (and had significant relationship with
                                               children)
                                          3. to determine whether significant connection
                                               exists, emphasis is on nature/quality of child’s
                                               relationship with people in state
                                                   a. issue is NOT:
                                                             i. how many visits occurred
                                                            ii. which state has most significant
                                                                connection
                        b. (2) child, child’s parents (plural), and any person acting as child’s
                             parent no longer live in the state
                                  i. can be decided by any court (simple factual question)
d. federal court jurisdiction:
        i. Thompson (Sup. Ct., p. 841)
               1. facts: F sought relief under PKPA for conflicting state custody decrees
               2. PKPA did not create implied cause of action in federal court to determine
                    which of the 2 conflicting state custody decrees is valid
                        a. Congress did not intend federal courts to play an enforcement role
e. enforcement of custody determinations:
        i. remedies include: (1) civil contempt proceedings, (2) writ of habeas corpus, (3)
           criminal liability, (4) (some states) tort action for custodial interference (although
           some states say that victims of domestic violence are excluded from liability)
f. international child abduction:
        i. Hague Convention on Civil Aspects of International Child Abduction
               1. 75 nations, including US, are signatories
                        a. implemented in US by International Child Abduction Remedies Act
                             (ICARA)
               2. goal:
                        a. secure return of children wrongfully removed from / retained in
                             signatory state and to return them to their country of habitual
                             residence (which must be another contracting nation), where the
                             disputes can be adjudicated
               3. 3 defenses:
                        a. (1) if abducting parent establishes that the child’s caretaker was not
                             actually exercising custody rights at time of removal or retention or
                             had consented
                        b. (2) if abducting parent establishes grave risk that return would entail
                             physical/psychological harm to the child
                        c. (3) if court in forum of abducting parent finds that child, who has
                             reached an appropriate age and maturity (based on court’s
                             discretion), objects to the return
       ii. International Parent Kidnapping Act (IPKA)
               1. imposes criminal sanctions, making it a federal felony for parent to
                    wrongfully remove / retain child outside US
               2. defenses:
                        a. (1) if ∆ has been granted custody / visitation by court acting pursuant
                             to UCCJEA
                        b. (2) is fleeing from domestic violence
                                                                                                44
                                c. (3) had court-ordered custody and failed to return the child because
                                    of circumstances beyond the ∆’s control, provided that ∆ made
                                    reasonable attempts to notify the other parent
10. Termination of Parental Rights
       a. standard of proof:
               i. minimum standard – clear and convincing evidence (Santosky) (states may require
                  higher standard)
                       1. Santosky (Sup. Ct., p. 981)
                                a. facts: NY law said that parental rights could be terminated for
                                    permanent neglect under fair preponderance of the evidence standard
                                b. fair preponderance of the evidence standard violates DP
                                          i. DP in termination cases turns on balancing 3 factors:
                                                 1. (1) private interests affected by proceeding
                                                 2. (2) risk of error created by state’s chosen procedure
                                                 3. (3) countervailing governmental interest supporting
                                                     use of challenged procedure
                                c. minimum standard of proof in termination proceedings is clear
                                    and convincing evidence
       b. stages of proceeding (may occur in single hearing):
               i. (1) initial “unfitness” stage – court makes determination of unfitness
              ii. (2) subsequent “best interests” stage – court determines whether termination would
                  be in child’s BI
                       1. many states reason that Santosky only applies to initial stage, and adopt
                            different standards of proof for BI stage
       c. presumptions:
               i. many states have statutes saying that parent is presumed unfit following: (1)
                  conviction for aggravated battery, or (2) attempted murder of any child
       d. parent’s right to counsel:
               i. Lassiter (Sup. Ct., p. 987)
                       1. rejected argument that procedural DP requires appointment of counsel for
                            indigent parents
                                a. however, DP might require counsel in a case where parent’s interests
                                    were especially high and state’s interests were especially low
              ii. states:
                       1. many states nevertheless guarantee counsel



DOMESTIC VIOLENCE

1. State / Federal Remedies
       a. Violence Against Women’s Act (VAWA) (federal):
                i. creates federal remedy for crossing state with intent to injure/harass spouse / intimate
                   partner
               ii. provides for interstate enforcement of protection orders
       b. states:
                i. PA:
2. Battered Women’s Syndrome
       a. BWS theory:
                i. “learned helplessness” purports to explain why women stay in battering relationship
               ii. usually used to support claims of self-defense
       b. BWS is now admissible to some degree in all states (whether state uses Frye or Daubert)
                i. wasn’t always:
                       1. Hawthorne (FL, p. 329)
                               a. evidence of BWS could help laymen understand a situation they
                                    wouldn’t normally understand, but…

                                                                                                        45
                                 b. there was a problem with BWS under Daubert – there had been no
                                    determination as to the adequacy of the expert’s qualifications or the
                                    extent to which her methodology was generally accepted
3. Implications of Crawford
      a. Crawford (Sup. Ct., p. 336)
                i. facts: ∆’s W made recorded statement which contradicted ∆’s claim of self-defense
               ii. reversed conviction – use of W’s recorded statement violated Confrontation Clause
                   because 6th Am. requires witness unavailability and prior opportunity for cross-
                   examination when out-of-court statements are at issue
      b. Crawford’s impact:
                i. dramatic impact on prosecution of domestic violence by severely limiting
                   opportunity for admission of victims’ and witnesses’ out-of-court “testimonial”
                   statements if those persons are unavailable for trial
                        1. “testimonial”:
                                a. Davis (p. 336) – statements to 911 operators are not testimonial
                                     because elicited to resolve emergency
                                b. Hammon (IN, p. 336) – admission of victim’s statement to
                                     responding police officer did violate right to confrontation (absent
                                     opportunity for cross) because officer was investigating possible
                                     crime
4. Duties of Law Enforcement
      a. Town of Castle Rock (Sup. Ct., p. 339)
                i. no property right OR due process right in the enforcement of TRO
                        1. TRO here was not mandatory (“police officers shall use every reasonable
                            means to enforce restraining order”)
                        2. long history of police discretion
               ii. TROs are not valueless: (1) created grounds for which ∆ could be criminally
                   prosecuted, and (2) there are other remedies – contempt (go to court and get the order
                   enforced)
              iii. (note: does this opinion bar action for negligence? – maybe so – opinion says there
                   was no duty to enforce this TRO)
      b. no general right to police protection for private acts of violence
                i. police inaction is not “deprivation” under § 1983 (requiring π to show deprivation of
                   constitutional right under color of law)
               ii. when cause of action arises:
                        1. if state discriminates in providing protection to public in violation of EP
                        2. state has “special relationship” to individual such that state has affirmative
                            duty to act
                                a. DeShaney (Sup. Ct., p. 340)
                                          i. no federal constitutional right to police protection / state
                                             agencies for acts of private violence (only when someone is
                                             in their custody or there are special circumstances)
              iii. DeShaney’s impact:
                        1. battered πs’ restricted on their theories of liability for police/agency inaction
                            – could only claim:
                                a. (1) exception to DeShaney (invocation of “custodial relationship
                                     doctrine” providing that police have affirmative duty to protect
                                     victim in state custody)
                                b. (2) violation of EP
                                c. (3) liability under state tort theories
                        2. yet these theories still problems for battered women:
                                a. (1) doesn’t apply unless victim is injured and in police custody
                                b. (2) requires actual proof that non-arrest policy of some police
                                     departments denies battered spouses the protections given to other
                                     victims
                                c. (3) negligence action against police may be precluded by immunity
5. Restraining Orders
                                                                                                         46
        a. temporary restraining orders (TRO’s) – restrain respondent from committing further acts of
           violence/harassment
                i. may be issued immediately and without notice
               ii. may be temporary or permanent
              iii. may be issued in conjunction with divorce proceedings


ADOPTION

1. Types of Adoption
      a. independent placement – birth parents select adopters themselves with assistance of
          intermediary (like attorney)
                i. prohibited/limited by a few states
      b. agency placement
      c. open adoption = where biological and adoptive parents keep in contact (recognizing that it’s
          in the child’s best interests to keep in contact with biological mother)
                i. (see below)
2. Parental Consent
      a. validity and revocability of surrender of child for adoption:
                i. some states – parent’s surrender is final unless there is fraud/duress
               ii. other states – allow parent to regain custody until adoption is “final”
                       1. Scarpetta (NY, p. 1024)
                                a. facts: mother changed mind after executing written agreement about
                                     putting child up adoption because her family supported her; adoptive
                                     parents denied intervention
                                b. test for when revocation of adoption can be made:
                                          i. court should only return child to natural parent
                                             (notwithstanding surrender document) if it determines
                                             that: (1) child’s BI will be promoted, and (2) parent is fit,
                                             competent, and able to support child
                                c. burden is on third party to prove that natural parent should not have
                                     child
                                d. (note: NY amended statute after this case; now it says that parents
                                     who have consented have no right superior to that of adoptive
                                     parents and custody shall be awarded solely on child’s BI (no
                                     presumption favoring any disposition))
              iii. bases for revoking consent:
                       1. (1) the timing of consent / revocation is determinative
                                a. Uniform Adoption Act (UAA):
                                          i. parent can revoke consent within 8 days of child’s birth
                                b. some states provide that consents executed less than a certain
                                     number of days after birth are voidable
                                c. some states allow withdrawal of consent anytime before final decree
                                     of termination of parental rights / adoption
                       2. (2) fraud / coercion / duress
      b. unmarried fathers’ rights
                i. Kelsey S. (CA, p. 1028)
                       1. facts: unwed, fit F challenged adoption (wanted to raise child), but he was
                            not “presumed” F (to be “presumed,” he had to receive child into his home
                            and openly hold himself out as F; he couldn’t because he was prevented)
                       2. Lehr can be read to mean that a father need only make a reasonable and
                            meaningful attempt to establish a relationship – not that he must be
                            successful against all obstacles
                       3. if unwed F promptly demonstrates (before and after birth) full
                            commitment to parental responsibilities, his DP right prohibits
                            termination of parental relationship absent showing of unfitness
                                a. unfitness must be shown by clear and convincing evidence
                                                                                                       47
                       4. significant connection test – F must have significant connection to child
                            (it’s his obligation to make one) to have rights in adoption proceedings
                            (what case??)
               ii. statutory reforms:
                       1. many states have expanded the grounds for terminating parental rights,
                            broadening definitions of “abandonment” and “unfitness”
              iii. putative father registries:
                       1. eliminate need for adoption notification / consent from man who failed to
                            take the initiative to register (Lehr approved reliance on registry system)
                                 a. UPA – follows this approach to facilitate/expedite infant adoptions
                                     and exempting Fs of infants who timely try to establish paternity, but
                                     requires notification to Fs of older children
              iv. UAA:
                       1. allows termination of F’s rights if F has not demonstrated interest in
                            parenting, unless he can show a “compelling reason” for failure to do so
                                 a. court can nevertheless terminate his rights if it finds evidence that
                                     failure to terminate will be “detrimental” to child / granting F
                                     custody would pose risk of “substantial harm” to child
                       2. protects M’s right to remain silent about birth, but requires giving her
                            warnings
               v. 2 ways to interpret Sup. Ct. precedent:
                       1. (1) child-centered view – only actual parent-child relationship matters (not
                            efforts of F whom M successfully thwarts)
                       2. (2) Court is concerned with strength of F’s moral claim (whether he has acted
                            in a way deserving of protection) in addition to existence of meaningful F-
                            child relationship
3. Stepparent Adoption
       a. stepparent adoption – biological parent’s rights are not terminated
       b. UAA:
                i. stepparent adoptions do not affect:
                       1. (1) relationship between child and biological parent
                       2. (2) existing order for visitation / communication with child by biological
                            family
                       3. (3) child’s inheritance rights from former parent (whose rights were
                            terminated) (note: dual inheritance allowed)
                       4. (4) court order / agreement approved by court for visitation / communication
               ii. allows for judicial enforcement of visitation agreements for stepparent adoptions
4. Same-Sex (“Second Parent”) Adoption
       a. Tammy (MA, p. 1085)
                i. facts: lesbian couple petitioned to jointly (without terminating biological M’s rights)
                   adopt the child (usually, adoption was required in marital context – tried to get
                   around this by filing joint adoption)
               ii. court allows joint adoption
                       1. no prerequisite in statute that parties be married (but see *)
                       2. looked at entire matter under BIS (child could get legal benefits from having
                            partner as second M – see p. 1089 for list)
              iii. (* note: some states do require that parties be married in order to adopt; PA –
                   marriage not required; statute can be permitted to allow same-sex adoption)
              iv. (note: courts divide as to whether biological parent should be able to retain rights
                   yet have another person adopt)
       b. some courts and UAA allow second-parent adoptions to come within statutory exception for
          stepparents
5. Open Adoption
       a. open adoption = where biological and adoptive parents keep in contact (recognizing that it’s
          in the child’s best interests to keep in contact with biological mother)
       b. post-adoption visitation agreements:

                                                                                                        48
               i. about 18 states allow post-adoption agreements, but they are subject to review under
                  BI test
                      1. several states allow open adoptions but permit adoptive parents to decide
                           whether to abide by such agreements
                      2. others authorize judicial approval upon: (1) finding of BI, and (2) approval of
                           the agreement
                               a. Groves (Mont., p. 1093)
                                          i. facts: child lived with M for 3 years; after open adoption M
                                             did not keep with agreement
                                         ii. enforceability of post-adoption visitation agreement
                                             should be decided by a BI test
                                                 1. court changed visitation agreement from parties’
                                                      agreement
                                        iii. (note: prof thinks court was wrong to change agreement)
              ii. UAA:
                      1. in non-stepparent adoptions, it permits “mutually agreed-upon
                           communication between birth and adoptive families” without making such
                           agreements enforceable
6. Adoption Failure
      a. adoption failure – occurs when child is removed:
               i. before adoption is final (disruption), or
              ii. when a final adoption is abrogated/annulled (dissolution)
      b. Lisa Diane (RI, p. 1097)
               i. facts: adoption agency did not tell adoptive parents about child’s misbehavior;
                  parents tried to rescind adoption due to agency’s fraudulent conduct
              ii. standard is clear and convincing evidence (same standard that applies to natural M
                  who put child up for adoption but wishes to vacate the adoption)
             iii. balanced interests of child and adoptive parents
      c. disclosure laws:
               i. several states require full disclosure to prospective adoptive parents of child’s
                  medical history
              ii. UAA:
                      1. contains detailed list of background information that must be disclosed to
                           prospective adopters before they accept physical custody of the child –
                           includes:
                               a. current medical and psychological history, genetic diseases / drug
                                    additions by genetic parent, performance in school, and allegations
                                    of parental abuse/neglect




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DOCUMENT INFO
Description: Premarital Agreement Form Florida document sample