Family Law Outline
Topics: Conceptual Framework (What is a family; The family as Biological Unit,
Reproduction and Abortion Rights; The Family as an Economic Unit; The Family as a Locus of
Violence; What is Marriage; Who can Marry?)
I. Historical View of the Family's Role on Society (by John Demos, describing primarily
white, Northeastern families.)
A. 18th Century: The Family was a building block of the larger
community. (Little privacy)
1. The family and the community were closely linked.
2. Virtually all persons lived in families.
3. The state and the family were closely connected.
a. Cts. ordered families to do certain things, e.g.
take in strangers.
4. The church had a strong control over families.
5. Neighbors would often intervene in the family life of neighbors.
B. 19th Century: The family was now considered separate and apart from the
1. Family as a bunker from which people retreated from a
C. 20th Century: The family as a source of fulfillment.
1. The world is bland and alienated. The family is an encounter
group that makes up for this.
D. The views of the family are linked to the economies of the time.
1. Colonial Period: An agrarian economy.
2. 19th Century: Industrialization. Hard & dangerous work.
3. 20th Century: A consumer economy. Great
stratification and alienation.
E. What is missing from Demos' account of the family?
1. Black families, Upper-Class families, working women, single
parent families are missing.
F. Three paradigms to families:
1. Feudal: everyone in the family has a rigid, assigned role
2. Liberal: treats everyone as an independent,
3. Social Relational: All of these issues arise in
relationships among people. You must consider the individual's position in
II. Different Political Views of the Family:
A. Liberal-Conservative View: (THE DOMINANT VIEW TODAY)
1. There is a sharp division between the family and the state.
2. The family is an organization in which sharing,
cooperation & mutual support occur
a. The market and the state are seen as places of
individuality and conflict.
3. A very strong notion of family privacy. Protect family from
4. This view is the basis of court decisions, for example,
allowing the family the freedom to educate children without the state.
B. New Right:
1. The family and the state are linked. The health of the
state depends on the health of the family. Our country was built on 19th Century
views of family as refuge.
2. The preservation of the state is essential and
dependent on the continuance of the traditional family.
a. This is a hierarchical view.
3. Family life is not easy. The man must work & support the wife
& kids & be monogamous. The dependent family is essential to keep men tied
to the family.
4. Advocates state action to preserve the traditional
5. Advocates limiting opportunities for women in the labor force & in
6. Major proponent: George Guilder.
1. They share some of the New Right's goals, but disagree
on the choice of means.
a. Less willing to use the state to enforce their view
of the family.
2. They believe in the family's right to privacy.
3. They believe in equality for women in the public sphere.
1. Like the New Right, they reject the separation of the family,
market & state.
2. The personal is political.
3. The caring of the private sphere is built on the backs (and at
the expense of) women.
4. Female equality can only be achieved if the state
dismantles patriarchal family structures.
5. Note: feminists are divided into Liberal Feminists & Cultural
6. The reject claims of individual privacy with regard to
battered women, but want privacy in reproductive rights.
1. The New Right & Feminists both agree that the state
should play a role in family life & should encourage certain structures of
a. Both feminists & the New Right support anti-
2. They differ only in the substantive values they promote.
III. WHAT IS A FAMILY?
A. What motivates a community to pass a single- family residential zone?
1. A belief that single families are:
a. Stable; less transient
b. Less prone to congestion & traffic
c. More likely to invest in the community
d. More likely to preserve property values
e. Families have someone to complain to: (A senior
f. More likely to protect social/moral values
g. Non-traditional families may be immoral
h. Families are better people
i. The town wants to enforce homogeneity.
B. The cases defining what constitutes a family?
1. Family=a single housekeeping unit, regardless of blood or
a. Case: Glassboro v. Vallorosi (NJ 1990)
a1. Facts: 10 unrelated college students lived in a house, which was purchased by one. The
ct. found this to be a family.
2. Contrasting Case: Penobscot v. City of Brewer (Me.
a. Facts: Group house for retarded persons.
b. HELD: THIS WAS NOT A "FAMILY"
b1. Reasoning for holding?
•The residents didn't cook together.
•The living arrangements were not
•The residents had no control over who lived
in the house
•No permanent authority figure present (The
staff rotated.) (Prof. Law; "No daddy")
•The residents were not responsible for the
chores (Prof. Law: No mommy)
3. Are Glassboro & Penobscot reconcilable?
a. Probably not.
b. Actually, the college students in Glassboro are
less of a family than the group home in Penobscot. (Students didn't
eat together, cook together, & there was no authority figure).
C. Under Federal law, you can't exclude unmarried couples with children
from low-income housing.
1. Case: Hahn v. Housing Authority of Easton (E.D. Pa.
2. Reasons for the holding:
a. Demographics: There are too many unmarried
couples w/kids to exclude them from housing.
b. Most zoning ordnances already allow
heterosexual couples to live together.
3. Note: Hahn and similar decisions have strengthened the
New Right, as alternative lifestyles are becoming more accepted.
D. In NY, a gay couple can be a family:
1. Case: Braschi v. Stahl Associates Co. (NY 1989)
2. Facts: A gay couple have lived together for 10 years. One is the formal
tenant on the rent-controlled housing lease. The couple are considered spouses; they cook
together, etc. The spouse on the lease died & the LL tried to have the surviving "spouse"
3. Held: A lifetime partner is a family member in the context of a long-
term relationship characterized by emotional & financial interdependence.
a Factors in assessing the relationship:
•The exclusivity & longevity of the
•The level of emotional & financial
•How the parties hold themselves out to
4. Problems with Braschi:
a. Serious proof problems for determining if a family
5. In the wake of Braschi, should there be formulas for
establishing relationships as families when the relationship isn't by
marriage, blood or adoption?
6. How about domestic partnership legislation? CONS:
a. Some people don't want to enter into a
b. Lower-income people & the poor may not know
about the registration requirement.
c. Potential for abuse by tenants against the LL's.
IV. EQUAL PROTECTION IN THE CONTEXT OF THE FAMILY
1. For most of history , the 14th A. was applied only to race.
(See e.g. Slaugterhouse, holding that 14th A. applied only to anti-black laws.)
2. Modern E.P. Jurisprudence: began in 1950's:
a. E.P. clause requires that individuals similarly situated
be similarly treated.
B. Basic Equality Analysis: (when the law does not target a suspect
1. TEST: Is the classification reasonably related to a
rational purpose (the state's purpose must be permissible).
a. The classification is overbroad (Overinclusive)
(ex. a Quarantine)
b. The classification is underinclusive: the statute
affects too few people (ex. Skinner v. Oklahoma)
c. The classification is perfect. (Not likely in most
d. The law is utterly irrational. (Does not promote
its purpose in any way.)
3. Most laws are neither perfect, nor utterly irrational; they tend to be
overinclusive or underinclusive
C. When is heightened E.P. scrutiny applied?
1. When the law affects a "suspect class" (e.g. insular
minorities, discriminated-classes, classes w/immutable characteristics)
2. When the law affects fundamental rights:
a. eg. This is such an important liberty that the
gov't can't deny it.
b. Is this the kind of fundamental right that we need to
check if the gov't is granting it on an equal basis?
D. Case: Belle Terre v. Boraas (US 1974).
1. Facts: 6 SUNY Stony Brook students, living in a group house in Belle
Terre, challenge the city's zoning ordinance, which states that; if people are related, an
unlimited number of them can live together on a property; if people are unrelated; then
only 2 can live together.
a. Sup. Ct. upholds the law.
b. The law doesn't evidence an obvious prejudice
against unrelated persons as up to 2 can live together.
c. Applied traditional rational, relationship
test; eg. The ct. assumes the law is valid & P must
overcome that presumption.
3. Justice Marshall's dissent:
a. The classification violates a fundamental right;
the right to privacy & freedom of association; therefore, he would
apply strict scrutiny.
b. The 1st A. protects the students right to
assembly, which the state is now violating.
E. Case: City of Cleburne v. Cleburne Living Center (US 1985)
1. Facts: A retarded group home challenges a city zoning
ordinance which requires a special use permit for retarded group homes, but not
for other group living arrangements (e.g. fraternity houses, nursing homes)
a. The ct. refuses to classify the retarded as
a suspect class
b. Nevertheless, the ct. applying the
rational basis test, strikes down the law, as applied to P's
a. Slippery slope: if you declare the retarded a
protected class; other groups will want similar status.
b. You can't help the retarded by making them a
F. Prof. Law's Response to Cleburne
1. Laws that help a suspect class should be loosely scrutinized,
while laws that hurt a suspect class should be strictly scrutinized.
2. Problem: Does leg. meant to help a suspect class actually help?
a. ex. Protective Labor Legislation: Women
couldn't work more than 8 hrs./day. This hurt women.
G. Best way to establish a suspect class (Prof. Law):
1. Show a history of oppression against the class
2. Show a history of political powerlessness.
3. Show the class is a discrete, insular minority & is vulnerable.
4. Show IMMUTABILITY: The class members have no control
of their characteristics. (ex. race, gender, retardation)
V. THE ROLE & IMPORTANCE OF BIOLOGY IN FAMILY LAW:
A. Historical Background:
1. Up to the 1960's, the law was very hostile to the children of
B. The children of unmarried parents are a quasi- suspect class: they have the
right to sue for the wrongful death of their parents:
1. Case: Lee v. Louisiana:
a. Facts: An unwed mom had 5 kids. Due to medical
malpractice, she died. The La. wrongful death statute barred the
children of unmarried parents from suing for wrongful death.
b. Held: The statute was unconstitutional.
•Children of unmarried parents are a
C. A mother has the right to sue for the wrongful death of her illegitimate
children. Case: Glona v. Aetna.
D. All parents, including unmarried fathers, are entitled to a hearing on their
fitness as parents before the state can take the kids away.
1. Case: Stanley v. Illinois (US 1972)
a. Facts: Unmarried mom & dad are living
together w/kids. The mom died. The state took the kids away
& the dad sues.
b. Held: (1) The father was entitled to a
(2) All parents, including unmarried
fathers, are entitled to a fitness hearing before
the state can take the kids away.
E. Mere biology, without more (like a parent-child relationship) does not
give the unmarried, biological father of a child the right to a hearing to contest
his child's adoption.
1. Case: Lehr v. Robertson (US 1983)
a. Facts: A child is born from unmarried parents.
The mom marries another man. The "new father" wants to adopt
the child. The biological dad asserts his parental rights. The Sup Ct.
strikes down the dad's claim.
b. Reasoning: It is OK to treat men & women
differently in certain family situations. (Assumes the mom is the
primary caregiver of the child)
2. Prof. Law: Why do Stanley & Lehr come out differently?
a. In Stanley, unlike Lehr, the parents were living
b. The alternative "dad" in Stanley was to make the
kids wards of the state. In Lehr, the alternative dad was a
F. Unless there is a determination of paternity during the parent's lifetime,
no instate succession for illegitimate children.
1. Case: Lalli v. Lalli (US 1978)
a. Facts: An illegitimate child seeks, through
intestate, to inherit his father's estate. Significantly, the father &
son had every other aspect of the parent-child relationship.An NY law
excludes P from instate succession because he didn't prove
paternity during the dad's lifetime. The Sup. Ct. upholds the
•The statute promotes the orderly disposition
•The court wants to prevent frauds.
G. States may not impose an S of L on paternity suits. (Strongly suggested in
the ct.'s holding.)
1. Case: Clark v. Jeter (US 1988)
•The ct. struck down a Pa. statute which put a
6-year S of L on child support/paternity suits brought by
•Test: (1) The period for obtaining support must be
sufficiently long enough to present a reasonable opportunity for those with an interest in
such to assert claims on their behalf.
(2) Any time limitation placed on
that opportunity must be
substantially related to the State's interest in avoiding
the litigation of stale or fraudulent
H. The constitutionally required B of P in paternity cases is a
preponderance of the evid. standard.
1. Case: Rivera v. Minnich (US 1987)
a. Reasoning of majority:
•The dad has a liberty interest in avoiding
•A parental termination proceeding (which
has a "clear & convincing" evid standard) has more serious
consequences than a parental creation proceeding.
•In a parental creation proceeding, the mom
loses; she can't sue again.
I. The biological father of a child has an obligation to support that child,
even if he wanted the mother to get an abortion.
1. Case: People in Interest of S.P.B. (Colo. 1982)
a. Facts: The natural father offers to pay for his
girlfriend's abortion. The mother refuses, has the kid, and sues
the father for support.
J. The biological mother cannot contract out the father's support obligation.
1. Recent NY Ct. App. case: Overruled the previous rule
allowing unwed parents before the child's birth to agree to a support
K. In order for an unwed biological father to have veto powers over his
child's adoption, he must prove a relationship w/the child, beyond biology.
(However, the biological mom has veto power over the adoption merely
because of biology.)
1. Case: In Re Adoption of Kelsey S. (Cal Ct App. 1990)
2. Is this a good opinion from a feminist perspective?
a. Yes: It empowers women
b. No: It perpetuates stereotypes of women's
L. The child of a married couple is presumed to be the child of the father.
The paramour-father has no parental rights over the child.
1. Case: Michael H. v. Gerald D. (US 1989)
2. Facts: A wife had an affair & had a child by the paramour. The
paramour, not the husband, is the child's father. The paramour has lived w/the
child & its mot & wants his paternity rights. The ct. denied the
paramour parental rights.
3. Reasoning (per Scalia, J.):
a. To identify a fundamental right, we look
at the most specific level at which a relevant tradition
protecting or denying the asserted right can be identified. (Here; at the
most specific level, have we historically protected a family
relationship like the one between the paramour & the child? The
answer is no.)
b. Threats to the unitary family unit must be struck
The rights of other biological relatives over children:
M. Zoning ordinances limiting the ability of an extended family (related by
blood) to live together are unconstitutional as they violate the DPC.
1. Moore v. City of East Cleveland (US 1977)
a. Facts: Grandma & grandsons (who are cousins)
are living together. But the city's zoning ordinance does not allow
this kind of living arrangement.
b. Reasoning of maj.
•The zoning ordinance has little relation to a
•There has been a historical tolerance of the
•Belle Terre doesn't apply as it didn't involve
N. A grand-aunt who is taking care of kids is entitled to resist the state's
attempt to gain custody of the kids.
1. Case: Welfare Commissioner v. Anonymous (Ct. 1976):
2. Facts: The mom is in jail. The dad can't provide the kids
with a home. The grand-aunt is taking care of the kids. The state seeks to take
the child away.
3. Held: The kids can stay w/the grand-aunt.
O. A state's foster care system may subsidize non- relative foster
parents; but refuse to subsidize relative foster parents. (NO EPC VIOLATION)
1. Case: Lipscomb v. Simmons (9th Cir. 1992)
2. Facts: A challenge to a state's foster-care system which pays
non-relative foster parents, but not relative foster parents. The ct. upheld the
a. This is economic legislation. Therefore it gets
b. The state law is not excluding anyone from being
a foster parent; it just isn't helping relative foster parents.
P. Warning NOT GOOD LAW: A case allowing child child custody to be
granted to grandparents over father on "best interests" rationale
1. Case: Painter v. Bannister (Iowa 1966)
2. Facts: Mom died. Father sends the kid to live with the
grandparents. Later, dad get married & wants custody back. The ct. denies
the father's petition.
3. Held: It is in the best interests of the child to stay w/the
a. The grandparents will provide the child w/ a
conventional, middle-class background.
b. The dad gives the kid too much leeway.
c. The child has been w/the grandparents for along
time. In the child's mind, the grandfather is the child.
d. The father is "bohemian" & has had too many
5. Implications of Painter v. Bannister
a. Enormous class & religious bias.
Q. Members of a child's extended family (eg. grandparents) have no right
to custody to a child the mother has given over to the state for adoption.
1. Case: Matter of Peter L. (NY 1983)
2. Facts: Father died. Mom signed over custody of the child to
the state. The state put the kid up for adoption. The grandmother tries to get
custody of the child. The ct. denied custody to the grandmother.
a. The grandmother has no special right to custody
of a child the mom has given up for adoption.
b. Even in a best interests regime, the
grandmother, on these facts, would lose.
c. Slippery slope: to give extended family
members special rights will complicate & slow up the adoption
R. A grandparent is entitled to visit their grandchild, notwithstanding the
objections of the natural parents, if it is in the best interests of the child. (But, if the
parents were adoptive, the grandparent would have no rights to visitation.)
1. Case: Mimkon v. Ford (NJ 1975)
2. Facts: Grandma cared for the child, along with the mom for 4
years. The mom died. The father got custody. The father remarried. The
stepmother adopted the kid. The dad & stepmom refused to let the
grandmother see the kid. The grandmother sued. The ct. allowed the
grandmother to visit the kid over the objections of the father & stepmother.
3. Reasoning: The ct. cited a NJ statute which provided that if
visitation between grandparents & grandchildren is in the best interests of the
child, nothwithstanding the wishes of the parents, it will be allowed by the court.
S. A state law forcing adult children to subsidize state aid to their poor
parents was Constitutional.
1. Case: SWOAP v. Super. Ct. of Sacramento Cty. (Cal
2. Reasoning: The ct. rejected Ps claims that the law
discriminates on the basis of economic status and/or ancestry.
3. Principles behind SWOAP: It is difficult to find Constitutional
grounds to challenge relative responsibility laws. Families should take care of one
4. These relative responsibility laws are losing popularity.
5. But see Kirchner: Ca. law was struck down , which had
required relatives of persons involuntarily institutionalized
in a state mental hospital to share in the costs.
VI. REPRODUCTIVE RIGHTS & FREEDOM IN FAMILY LAW
A. Key issues in the reproductive rights cases?
1. Does the Constit. protect liberties not specifically enumerated in
a. Majority View: Yes. See e.g. Roe, Griswold
b. Minority View: No
2. If yes, how should the Court determine whether a right enjoys
a. Dominant View: Look to our history and
traditions. Is the right implicit in the concept of ordered liberty. In this
view, traditions are not static & can change. See Justice Harlan's opinion in
Griswold & the Joint opinion in Casey.
b. Rhenquist's View: Many liberties are protected,
but it is unclear whether any but those enumerated are
fundamental. Other than those enumerated liberties. use the rational relation
c. Scalia: Look to the traditions of common law &
the founders. (Tradition is static.)
3. What is the standard for evaluating state restrictions on the exercise
of fundamental individual liberties?
a. Traditional View (Roe): Strict scrutiny=there
must a compelling state interest & the statute must be narrowly
tailored to serve that interest.
b. Casey: State regulation must not create an undue
burden on the exercise of that right.
c. Rhenquist: Rational relation test.
B. What does Griswold tell us of the ct's view of the appropriate
relationship between the family & the state?
1. A vision of the family as separate, private,
2. Griswold is no the first Sup. Ct. decision protecting the family:
Myers and Pierce protected family's right to educate their kids.
3. Griswold opinion essentially states that it is a longstanding
tradition to see the family as different from the state.
a. Griswold represents an acceptance of the view of
the family as a source of personal fulfillment. (See Demos's
4. The disagreement in Griswold & in other opinions is about
how specific a level of tradition do we look at in determining if a fundamental
liberty exists. (ex. Scalia: we should look at the most specific level of tradition.)
C. History of abortion & contraception in America:
1. Colonial America: Abortion & contraception were legal,
a. This symbolizes the founder's view that the
community and the church would enforce moral standards.
2. 19th Century: Abortion was criminalized. Note; abortion was
still common. What was the reason behind these anti-abortion laws?
a. The industrial revolution changed the society.
Birthrates declined. The society was alarmed at declining
b. Society was alarmed at the kind of women having
abortions. The women were white, middle class "good people." Immigrant
women did not have many abortions. Thus, the immigrants were
outbreeding the Yankees.
c. The 19th Century doctors were the primary
proponents of anti-abortion laws. Medicine was controlled by
specialists. General practitioners struggled to take control of medicine.
How? Criminalize abortion. (true motive was anti-
d. Keep women in their maternal role.
e. Many women opposed abortion. Why? Mothers
felt threatened & marginalized by abortion.
f. 19th Cent. abortions were dangerous.
g. Abortions might encourage the sexual
exploitation of women.
3. 20th Century:
a. By 1930's, 1/3 of all pregnancies ended in
b. In the 20th Cent., anti-contraception laws were
abolished. Connecticut was one of the holdouts.
D. Griswold v. Connecticut (US 1965)
1. Why did Connecticut hang onto this anti-contraception law?
a. Keep contraceptives out of the hands of singles.
b. A moral view that sex is for babies; not pleasure.
c. Reproductive choice changes sexual relationships
& man-woman relations.
2. Held: The ct. struck down Conn.'s anti- contraception
law, with regard to marries couples.
E. Eisenstadt v. Baird (US 1972): Extended Griswold to single people.
1. Is this a logical extension of Griswold?
a. Probably not. Griswold's reasoning centered
around the privacy of the marriage.
2. Eisenstadt essentially says that if married people have the right
to contraceptives, so do single people.
F. Roe v. Wade: legalized abortion.
1. In the 20th Cent. the drive to legalize abortion was led by
a. Prior to Roe, states had given doctors much
greater latitude in deciding which abortions were medically
b. This pre-Roe liberalization of abortion brought
these inequalities to the surface.
2. Was Roe a product of changing ideas about the family?
a. Changing sexual values were in play.
b. By the time of Roe, abortion was times safer
c. Abortion rights were a by-product of the Civil
Rights movement's emphasis on individual rights.
d. The Roe Ct.: did not emphasize the woman's
rights side of abortion rights.
3. The Roe Ct. focused on the physician. Why? More people
support doctor's freedom than abortion rights.
4. Concerns of the pro-life movement:
a. Concern for the fetus.
b. View that the family is under assault & that
abortion weakens the family structure.
c. Distrust of doctors.
G. Casey v. Planned Parenthood
1. Held: The ct. reaffirmed the "essential holding of
Roe," but it changed the standard for judicial
review of abortion rights from strict scrutiny to approval of all
laws except those which place an undue burden on the woman's freedom to
exercise her right to abortion.
2. Challenged Pa. statute:
a. Dr. must provide woman with state info. against
b. 24-hour waiting period.
c. Spouse must be notified.
d. Woman must receive a counseling session.
3. Held: The ct. upheld all the statute's requirements,
except the spousal notification requirement.
4. Arguments for & against the spousal notification
•Makes fathers more responsible.
•The statute does not double-check the
women on whether or not they got the spouse's
signature of notification.
•Spouse has no veto.
•Promotes marital harmony.
•Many women won't admit they're being
•No state requires an adult to inform another
adult when they are undergoing medical treatment.
•The spousal notification requirement is a
very pro-natal view.
5. The ct. upheld the 24-hr. waiting period:
a. Problem: some clinics only have doctors working
one day a week. This may mean a 1-week waiting period. (The
ct.: this is not a substantial obstacle.)
6. Why did the ct. uphold the 24-hr. waiting period, but strike
down the spousal notification?
a. Gender explanation: Women are not the chattels
of their husbands.
b. Class explanation: Waiting 24 hrs. isn't a big
deal to the middle class w/a private doctor.
VII. THE GOVERNMENT'S ROLE IN FINANCIAL SUPPORT TO FAMILIES:
Should government benefit programs accommodate changing definitions/forms of
A. Two general views of whether gov't benefit programs should
reward/encourage certain preferred family types.
1. Hands off.
2. Gov't should encourage more "functional" family types.
B. REALITY: True gov't neutrality is impossible.
1. The real issue is the substance (What types of families to
support) & degree (how much gov't control) of gov't involvement.
C. Different government programs have different levels of
intrusiveness on families:
1. Tax Law: Least Intrusive
2. Social Security: Middle Intrusive
3. Welfare: Most intrusive.
D. The Tax Law & the Family: The Least Intrusive:
1. However: the tax ct. did not allow an older man to adopt his young
girlfriend in order to save taxes.
2. However, the general scheme is to provide incentives for the
E. Social Security: Middle Intrusiveness
1. It is permissible for Social Security to pay old age benefits
to wives of beneficiary husbands, while denying those benefits to ex-wives.
a. Case: Mathews v. de Castro:
b. Held: The funding scheme was permissible.
c. Reasoning: Most divorced couples do not live
together. The husband's moving out may save the ex-wife $$.
d. NOTE: P could argue that she stayed home, while
the husband worked, therefore she has an interest in his benefits.
e. Hidden justification for ruling: we don't like
divorced women. We should discourage divorce.
f. Hidden justification: The S.S. system was
founded w/the assumption of a 1-wage-earner family w/the wife
2. The government may not deny AFDC benefits to a woman
(otherwise eligible) who co-habits with an able-bodied man.
a. Case: King v. Smith (US 1968)
b. Facts: Alabama policy: a woman w/dependent
children can't receive AFDC benefits if she co-habits w/an able
bodied man. (Cohabitation can be as little as an occasional boyfriend).
c. Held: The ct. struck down the law. The
children are entitled to support under the Social Security Act.
The "substitute father" has no legal obligation to support the
children.(Significantly, the ct. did not base its
decision on Equal Protection Grounds).
d. Alabama's rationale behind the policy:
•Discourage this type of relationship
•The boyfriend is a "substitute father" for
e. Lesson of King v. Smith: look at general support
F. Welfare Program: The Most Intrusive:
1. The state may force a welfare recipient to accept a
"home visit" by a welfare worker as a condition of the recipient
receiving welfare benefits. Such a visit is not a violation
of the 4th A.'s prohibition of unreasonable searches & seizures.
a. Case: Wyman v.James (US 1971)
•The Welfare Dept. wants to make a "home
visit" to Mrs. James's home to enforce its "substitute
•At the time, welfare caseworkers would
often come to a recipients home in the night to look for
evidence of a man in the house.
•Mrs. James refused the visit.
c. Held: The visit was OK & didn't violate
the 4th A.
•The beneficiary has a choice; no visit or no
•This is not a "search"; no criminal penalties
attached to the result of the search.
•This policy is no different than IRS policy
when a taxpayer claims a deduction, but won't produce
evid. In that case, the IRS simply disallowed the deduction & does
not compel the taxpayer to produce evid.
d. Other justifications for home visits:
•Check kids for abuse.
•Provide services for the elderly.
e. Note: Now, home visits have largely
disappeared. Why? Too expensive. Not enough gov't
employees. The "man in the house rule" has been struck down.
2. The state may count child support of a minor child as family
income against eligibility for AFDC benefits.
a. Case: Bowen v. Gilliard (US 1987)
b. Facts: A family has children w/different
fathers. One of the minor children receives support from his father.
Should that minor child help support his siblings & parents?
c. Held: The statute is permissible.
d. HELD: We will presume that people in the
same household will financially support each other. The man
probably controls the kid's $$.
e. Problem w/the central holding: It may
discourage non-custodial parents from paying child support.
f. Gov't rationale behind the policy: family over
G. Why is the gov't so intrusive in welfare situations, but less so in Social
Security and tax situations?
1. We don't like welfare recipients
2. Welfare recipients are a small, politically weak group.
3. Tax policy & Social Security affect more voters. (Makes
it less likely for gov't interference in these areas to be politically viable)
H. Big Family Support Issues:
1. Institutionalized support for the elderly:
a. Medicaid: The biggest item in many state
b. Under the medicaid system, to get
medicaid, the elderly must use all their resources before
they qualify for assistance. The spouses are obligated to share
c. The gov't requires the elderly couple to mortgage
their home & requires the spouses to spend all their resources (up
to the point where they'll be received welfare) before they can get medicaid.
Is this fair?
VIII. FAMILY VIOLENCE:
A. Importance of family violence: It is common.
1. Surveys show that up to 16% of families have violence
B. Trend: No immunity for the husband for marital rape. (CAVEAT:
Some states still do not recognize marital rape.)
1. Case: Warren v. State (Ga. 1985)
2. Reasons for old rule of no marital rape:
a. A contractual marital obligation of the woman to
consent to sex whenever the husband wanted it.
b. Wives are the husband's property.
c. Unity in marriage: The married woman had no
legal existence; her legal existence was subsumed to that of her
d. Women might fabricate their stories.
e. The state should not interfere in the marriage.
3. Why did the cts. take until 1985 to
acknowledge marital rape?
a. Safeguard family privacy from the gov't.
4. What if the law stated that a married man could not rape
a. Challenge the law on E.P. grounds: The
differentiation between married & unmarried women does not serve
a rational purpose. (See Eisenstadt v. Baird)
5. NY: Recognized marital rape in 1985.
6. Some states, bucking the trend, have extended the marital rape
exemption to couples cohabitating together.
C. In some states, a woman who kills her batterer- husband can use the Battered
Women's Syndrome to bolster her claim of self-defense. The BWS is relevant
to (1) the honesty of the women's belief that her life was in imminent
danger; and (2) her credibility.
1. Case: State v. Kelly (NJ 1984)
a. Facts: D-woman was involved in a cyclical-
abusive relationship. During one of the beatings, she pulled out a
knife & killed the abuser. She now mounts a self-defense defense. Issue
before the ct: Should D be allowed to admit testimony
on Battered Women's Syndrome?
b. P seeks to use the BWS as part of her
justification defense. (Justification=her killing of batterer
c. BWS=victim suffers from guilt & low self-
d. HELD: The BWS is relevant to D's
credibility; it explains why she didn't leave the batterer.
2. Feminist problem with Battered Women's Syndrome: It
depicts women as helpless.
3. The point of Kelly: Domestic violence is unacceptable & state
intervention is OK.
D. Most cts. will allow a wife to get a RESTRAINING ORDER against a
husband ex parte (no notice or hearing beforehand) under certain egregious
1. Case: State ex Rel. Williams v. Marsh (Mo. 1982)
a. Facts: P (wife) asked for a restraining order,
ex parte against her husband. The lower ct. held
the statute allowing such ex parte restraining orders to be
unconstitutional. The Mo. Sup. Ct. rev'd, upholding the statute. Why?
The statute is directly necessary to secure an
important gov't interest: protect victims of abuse &
prevent further abuse.
E. If a woman gets a protective/restraining order against her husband, the
local police department may owe the women a special duty of care as the
restraining order forms a "special relationship" between the police & the
1. Case: Raicci v. Rotterdam (2d Cir. 1990)
a. Facts: Woman had a protective order. She was afraid that
husband would kill her. The cops finally arrested the husband, but a judge released him
because the cops did not notify the judge of the D's history of violence. After the release, D
kills the son & wounds the wife. The wife sues the local PD alleging a "special
relationship" was formed between the police and her by the restraining order.
b. Held: the police did owe P a special duty
of care as the restraining order formed a special relationship.
F. If cops witness a man beating a woman & do nothing, they may violate the
gender equality aspect of the E.P. clause: See Torrington.
G. In some jurisdictions, if the police fail to respond to a protective/restraining
order, & woman is inured, woman can bring a tort claim against the police, only needing the
"reasonable care" standard.
H. Ways of improving police response to protective orders:
1. Money damages.
2. Injunctive relief.
IX. MARRIAGE IN THE LAW: (What is marriage; Can parties by K chance the
obligations of marriage)
A. What is marriage; can parties change, by K marital obligations?
1. Traditional View: The heart of the marital obligation is
SUPPORT (husband supports wife) & SERVICES (wife services
husband); married persons CANNOT by K alter the personal
relationships & obligations of marriage.
2. Case for Traditional View: Graham v. Graham (E.D.
Mich. 1940) (Traditional view was overruled by the Sup. Ct.'s decision
in Orr v. Orr, infra.)
a. Facts: Wife was a performer. The husband quit
his job to follow his wife & help her in her career. They reached
an agreement in which she would pay him $$. They broke up & the wife
stopping paying. The husband sues.
b. HELD: THE K IS VOID.
•Support/services are gender-specific roles
•Marriage is an instit. defined by the state
B. The doctrine of family privacy against the state:
1. As long as the home is maintained & the parties
are living together as husband & wife, it may be said that the husband is
legally supporting the wife & the purpose of the
marriage relation is being fulfilled. (TRADITIONAL
a. McGuire v. McGuire (Neb. 1953)
b. Facts of McGuire: Wife is still living w/her
husband. She sues him for support as she claims that he's
withholding money. Husband hasn't bought her clothes in 4 years; house has
no indoor plumbing. Wife: The husband's support is
inadequate. I've kept my part of the bargain, but he has not.
c. Held: See #1. Wife loses:
•The parties are still living together.
•The ct. respects family privacy.
d. The underlying reasoning: The wife owes
the husband a duty to serve, in exchange, the husband supports the
wife. However, the ct. does not want to define what the level of support
should be. YET; if the husband & wife were living
apart, the wife could get court-ordered maintenance.
C. The traditional support/services view of marriage was enforced by
1. Men could defeat a woman's claim to alimony by proving the wife
was a bad housekeeper or didn't assist the husband in his career.
D. The US Sup. Ct. did not consider gender equality claims until 1971.
(Before 1971, the ct. had approved many gender-based classifications.)
1. In 1971, the Sup. Ct. approved an intermediate scrutiny
standard for gender classifying laws. Gender is a quasi-suspect classification.
E. LANDMARK CASE OVERTURNING THE RIGID-GENDER-
BASED ROLES OF THE MARRIAGE:
1. Case: Orr v. Orr (US 1979)
a. Facts: An Alabama state law provided that
only women could collect alimony upon divorce. Here, a
husband, wanting alimony, challenged the law.
b. The state's reasons for the law:
•Reinforces traditional marriage roles of
husband as supporter & wife as servicer.
•The law is unconstit. as it violates the
•This type of law reinforces stereotypes of
•Use of stereotypes in generating legal rules
is unfair & produces perverse results.
•Gender equality protects men as well
F. Statutory-rape & gender equality:
1. A statutory rape law making statutory rape a crime only for
male perpetrators does not violate the EPC.
2. Case: Michael M. v. Sonoma Cty. Super Ct.
a. Facts: A challenge to a statutory rape law, which
contains a gender classification making men alone criminally liable
for their act of sexual intercourse w/a minor.
b. Held: The law is sufficiently related to the
state objective of preventing teenage pregnancy.
c. Reasoning: Men & women are fundamentally
different. Women can get pregnant; men cannot.
d. Problem w/the holding: This reinforces a
stereotype that only men are competent to consent to sex.
G. Gender equality & educational admissions:
1. A state statute excluding men from an all- women's
nursing school was unconstitutional, as it violated gender equality aspect of
a. Case: Mississippi U. for Women v. Hogan
H. The point of the Sup. Ct. decisions in E, F, & G: The ct. is more willing to
overturn laws based on sexual stereotypes not having to do with biological difference
between the sexes.
I. CONTRACTING IN MARRIAGE (Prenuptials):
1. Old law: Hostile to Ks altering the traditional duties
of marriage. See e.g., Graham v. Graham at A.
2. Modern law: Contracting is allowed in regard to
PROPERTY, MAINTENANCE & DISTRIBUTION OF ECONOMIC
ASSETS ON DIVORCE.
3. To be enforced, a pre-nuptial agreements must meet the
following requirements: Case: Edwardson v. Edwardson (Ky. 1990)
a. The K must not be unconscionable.
b. The K must be free of any material omission or
c. The K must be reasonable, both at the time of
contracting & at the time of enforcement.
d. The K must not be signed under duress.
e. The parties must provide full disclosure.
f. The K must relate only to disposition of property
& maintenance; not child custody, child support, or visitation.
4. In Pennsylvania, a prenuptial agreement will be enforced
unless a party can prove fraud, misrepresentation or duress by
clear & convincing evid. The ct. will not engage in an
assessment of the reasonableness of the agreement.
a. Case: Simeone v. Simeone (Pa. 1990)
b. Facts: Husband is a Dr. Wife is an unemployed
nurse. On the eve of the wedding, husband presents wife
w/a pre-nup. The pre-nup provides that on divorce, husband will pay wife
$200/wk. w/a maximum limit of $25,000.
c. Held: The ct. will enforce the agreement,
subject to the limits of #4, above:
•Prenuptial agreements are Ks & should be
governed by normal K law.
•Women in Penn. are equal under the state
Constit. Therefore, they should be treated equally.
5. WARNING: The standards for enforcing
prenuptials vary from state to state. (For more hypos. on pre-nups.
see the notes for 2/17.)
6. A contract between cohabitants is not necessarily
void as long as sex was not the primary consideration. Case:
Marvin v. Marvin
a. Facts: A woman (P) gives up her career to live
w/Lee Marvin. The wife wants to enforce an oral agreement
between she & Lee which stated that if she gave up her career, he would give
her 1/2 of his income.
b. Lee's argument: the K is void because the
parties were having a sexual relationship.
c. HELD: •See #6 above.
•Ks will only be void if the
consideration is sex
•In the absence of a written agreement,
the ct. may look to a variety of remedies
in order to protect the parties' lawful expectations.
X. WHO MAY MARRY?
A. Not everyone may marry. The parameters are decided by the state.
B. NO INCESTUOUS MARRIAGES:
1. Case: Singh v. Singh (Ct. 1990)
a. Facts: A half-uncle & half-niece got married.
They later discovered their biology & had an annulment. The
parties now seek to reopen the judgment of annulment as they got remarried in
b. Issues: (1) What constitutes an incestuous
marriage in Conn?
(2) How does one state deal w/a
marriage that's illegal in it, but legal in
c. HELD: (1) A marriage that is legal in one state
will be illegal in another state if it strongly violates the state's
(2) This marriage is incestuous & illegal.
(1) There are strong public policy
reasons against incest.
(2) Incest increases the chance of birth
2. Why are there anti-incest law? Protect children.
C. A marriage between a former step-parent & step- child is not incest &
1. Case: Back v. Back (Iowa 1910)
a. Facts: A man marries his former stepdaughter.
(1) This is a valid marriage.
(2) At the moment when the step-
father & the mother got divorced, the step-
daughter/step-father relationship is over.
D. No polygamous marriages:
1. Case: In Re State in Interest of Black
2. Facts: Mr. Black has 3 wives & 26 kids. The state wants
to take the kids way because the parents have done something immoral (polygamy).
The parents claim 1st A. free exercise as polygamy is their religion.
3. Held: (1) The state could take the kids away.
(2) Polygamy is not constitutionally
protected; laws may interfere w/religious
a. We want to stop the spread of polygamy.
b. Polygamy is immoral & illegal.
E. A per se rule declaring polygamous parents to be unfit is improper.
Case: Sanderson v. Tryon (Utah 1987)
F. The state may not ban interracial marriages:
1. Case: Loving v. Virginia (US 1967)
a. Facts: A challenge to a Va. law banning
b. The state: This law is not discriminatory as it
applies equally to blacks & whites.
(1) The law is unconstit. on EPC & DPC
(2) Racial classifications are subject to
the most rigid scrutiny.
(3) This law serves no legitimate state
(4) The law is meant to serve racial
G. Laws banning remarriage of non-custodial parent who are not meeting
their child support obligations are unconstitutional. MARRIAGE IS A
1. Case: Zablocki v. Redhail (US 1978)
a. Facts: State law: denies non-custodial parents a
marriage licence unless they (1) submit proof of compliance
w/support obligations; (2) certify that the children covered by the support
order are not likely to become public charges.
a. The ct. will apply intermediate scrutiny. Why:
Marriage is a fundamental right.
b. The statute is overbroad as it applies to people
who can't support their children & it is too narrow as it does not
impinge on other rights.
c. The law must be supported by "sufficiently
important" state interests & is closely tailored to effectuate only
3. Burger, Concurring: The law should directly restrict the
marriage right, not just make it more difficult.
4. Powell, Concurring: The ct.'s standard opens the door to the
Fed. Gov't interfering w/the state's legitimate right to regulate marriage.
H. Because marriage is a fundamental right, in bankruptcy, a debtor can
have his bankruptcy obligations reduced to support a new family.
(Case: In Re Walker US Bank. Ct. N.D.N.Y. 1990)
I. The state can restrict the ability of TEENAGERS to get married.
1. Case: Moe v. Dinkins (SDNY 1981)
a. Facts: 2 teenagers want to get married to
legitimate their child. But NY requires parental consent. One of the
mothers will not consent.
(1) The law is not unconstit.
(2) Teenagers do not enjoy the same
Constit. rights as adults.
(3) The pwr. of the state to control the
conduct of children reaches beyond the scope of its
authority over adults.
(4) The ct. applies the rational relation
J. When an engagement falls apart, who keeps the ring?
1. Maj. Rule: The party at fault for breaking the engagement
gives up their right to the ring.
2. Min. Rule: An engagement ring is a conditional gift. If the
marriage is broken off, the ring must be given back. Aronow v. Silver (NJ Super.
XI. SAME-SEX MARRIAGE (GAY MARRIAGE)
A. Anti-sodomy laws are constitutional.
1. Case: Bowers v. Hardwick (US 1986)
a. Facts: Challenge to Ga.'s anti-sodomy law.
b. Georgia's justifications:
•Preservation of the family & of marriage.
•The privileging of the traditional,
monogamous, patriarchal family.
•The law is constit.
•There is no historical tradition for
d. Underlying Reasoning:
•The ct. reinforces cultural beliefs.
•2/3 of Americans belief that gay sex is
•Sodomy was condemned in colonial America
•Society has an aversion to homosexuality
•For years, science & psychiatry defined
homosexuality as an illness.
B. No state recognizes gay marriage; but Hawaii may soon be the first, as
the Hawaii Sup. Ct. subjected the Hawaii marriage law (which doesn't recognize
same- sex marriage) to strict scrutiny.
1. Case: Baehr v. Lewin (Hawaii 1993)
a. Facts: P (lesbians) were denied a marriage
licence solely because they were of the same sex. P's alleged
violation of the right to privacy & of the EPC of the Hawaii Constit.
(1) Hawaii Constit. did not give rise to
fundamental right of persons of the same sex to marry. (Not
rooted in the traditions & conscience of Hawaii's people & not
implicit in the concept of ordered liberty.
(2) The statute restricting marriage to
persons of opposite sexes is subject to strict scrutiny on EP
challenge. It must be justified by a compelling state interest &
the statute must be narrowly drawn to avoid
unnecessary abridgement of Constit. rights.
C. Query: If 2 gays get married in Hawaii & then go to NY; will NY recognize the
marriage? TEST: Does NY have a strong public policy reason against gay marriage?
(See Singh v. Singh)
D. The issue of gay marriage is controversial in the gay community:
1. Why? Is this the topic on which the gay community wants
to allocate its resources. Some persons critique marriage as a sexist institution.
(We should we give legitimacy to a relationship that has been hostile to
XII. Common Law Marriages:
A. Policy Tendency:
1. Fewer & fewer states are recognizing common law marriages.
a. In olden days, many people lived in the country &
it was difficult to get a preacher to marry them.
B. Should there be common law marriage?
1. Yes: Protect the reliance of the parties
2. No: Concern w/fraud & proof problems.
C. Requirements for a common law marriage:
Case: In Re Garges (Pa. 1977)
2. Between a man & a woman
3. Both of whom are capable of contracting
4. They hold themselves out to the community as married &
have a reputation as a married couple.
5. No durational requirement.
6. An INTENT on the part of the parties to be in a common law
marriage relationship at the present time. (Proof an an agreement
between the parties to enter into the legal relationship of marriage)
D. States that don't recognize common law marriages are likely to
recognize common law marriages made in other states.
1. Case: Orr v. Bowen (D. Nev. 1986)
a. Facts: The couple primarily lives in Nevada, which does not
recognize common law marriages. But, they traveled to Texas several times. (TX does
recognize common law marriages). While in Texas, they held themselves out to be married.
b. Held: The Nev. Ct. recognizes the parties'
common law marriage by reference to their conduct in
c. The point: Between 2 people who are free to
get married, it does not take much contacts w/a state that does
recognize common law marriage to be considered common law married.
FAMILY LAW OUTLINE
Topics: Divorce, Child Custody & Division of Property
I. History of Divorce:
A. English Common Law: Marriage was permanent. Escape was virtually
impossible, requiring a legislative bill.
B. American Revolution: Recognized a right to get out of an
oppressive marriage. (Forcing permanent marriage violates liberty.)
C. Early America: People did not expect as much from their marriage. Some
spouses led very separate lives. (Married, but not emotionally together.)
D. Eventually, America & England liberalized their marriage laws to include fault-
grounds for divorce.
II. Traditional Fault Ground: Cruelty:
A. Standard for a divorce on ground of cruelty:
1. Gross cruelty in a particular instance.
2. Minor cruelty over a period of time.
B. The acts of a spouse resulting from ill health (eg. cruelty) do not
furnish a ground for divorce.
1. Case: Benscoter v. Benscoter (Pa. Super. Ct. 1963)
a. Facts: After 20 years of marriage, the husband
files for divorce. The wife has M.S. The husband claims the wife
has verbally abused him for their not having a female child. Evid. shows
that it is likely the husband is having an affair.
b. Held: (1) Just because a spouse is sick
is not a ground for divorce.
(2) Marriage is for sickness & in
(3) The wife's verbal abuse was
sporadic & didn't constitute a course
c. Is this a good rule; to force the husband to stay
w/a sick wife?
•Yes: It gives Mrs. Benscoter leverage to get
a better financial deal from husband, if he really wants to
•Yes: Possibility of reconciliation.
•Yes: Some people will obey the law; it may
make Mr. Benscoter stay w/the wife.
C. Hughes v. Hughes (La. Ct. App. 1976)
1. Facts: Wife wants a divorce on the grounds that:
a. Husband threw her out of the house.
b. He threatened her.
c. He habitually treated her coldly.
2. Held: Wife get a divorce on ground of cruelty.
3. Prof Law: The ct. here is stretching the ground of fault. Compare
Benscoter, which retains a stricter standard for fault.
III. Traditional Fault Ground: ADULTERY
A. Case: Patzschke v. Patzschke (Md. 1968)
1. Facts: Wife sued husband for divorce on ground of
desertion. Husband counterclaimed on ground of adultery. The
husband, during the marriage, had given the wife most of his paycheck. The
wife keeps staying out late. The husband had detectives follow the wife
around & they see her riding w/another man & see the man park w/the man in
the woods. The wife gives a false alibi to the ct.
2. Held: The husband gets a divorce on grounds of adultery.
3. Held: To prove adultery, the circumstantial evid, must
a. A disposition on the part of the defendant &
the paramour to commit adultery and;
b. An opportunity to commit the offense.
4. The ct. is concerned w/collaborating the detectives'
a. Prevent the detectives from lying.
b. Prevent collusion among the parties.
5. Despite the ct.'s concern over the lack of corroboration of the
detectives' story, it finds there was adultery, if large part because of the wife's false
6. Why the concern over who is at fault?
a. It will impact the financial support.
IV. Traditional Fault Ground: Desertion
A. But; state laws requiring a woman to move wherever the husband chooses
to live violate the gender equality aspect of the EPC. See Crosby v. Crosby (La. Ct.
V. Traditional Fault-Based Defense: Recrimination "The Clean Hands Doctrine"
A. Definition of recrimination: If a party who wants a divorce is himself at
fault, he can't get a divorce on fault based grounds, even if the other party is also at fault.
B. Case: Rankin v. Rankin (Pa. Super. Ct. 1956)
1. Facts: The husband alleges the wife tired to run him over.
The wife alleged the husband beat her up.
2. Held: The ct. denied them a divorce. Since they are both
at fault; no divorce.
3. Traditional Principle:
a. Divorce is a privilege, only awarded to the
innocent spouse w/clean hands.
VI. Traditional Fault-Based Defense: Connivance:
A. Definition of Connivance: When the party seeking a divorce on fault-based
grounds has corruptly consented, either expressly or impliededly, to the offense the party
is now charging the defendant with.
B. Case: Sargent v. Sargent (NJ Chancery Ct. 1920)
1. Facts: The husband wants a divorce on the ground
that the wife was sleeping with the chauffeur. The husband left the house several
times at night to facilitate the adultery.
a. No divorce. The husband failed to
"protect" his wife by firing the chauffeur.
b. A spouse may not participate in a course
of conduct leading the other spouse to commit an act
which is a fault ground for divorce.
VII. Traditional Fault Defense: Condonation
A. Definition of Condonation: The forgiveness, by means of continuance
or resumption of marital cohabitation of a known matrimonial offense committed
by the other spouse that would constitute a fault-ground for divorce. The
condonation must be free, voluntary & not induced by duress or fraud.
B. Case: Willan v. Willan (Great Britain Ct. App. 1960)
a. The wife beat the husband to get him to have
sex w/her. The husband sues for divorce on ground of cruelty.
b. The wife's defense: the husband accepted by
behavior by sleeping with me.
c. The husband: she made me sleep with her.
a. No divorce. Accepts the wife's defense of
b. For men; sex is always voluntary.
c. Condonation=sex forgives all fault.
VIII. Traditional Fault Defense: Collusion
A. We will not give a divorce to a couple that cooks up fault-grounds for
B. Case: Fuchs v. Fuchs (NY Sup. Ct. 1946)
1. Facts: The wife charges the husband w/adultery. The
husband counterclaimed against the wife for adultery. But, the wife dropped
her complaint because the husband agreed to give her child custody. A default
judgment is entered against the wife & the couple is divorced. Now;
the wife seeks to reopen the divorce due to collusion.
2. Held: Due to collusion, the divorce is reopened
IX. Traditional Fault Defense: Insanity:
A. Rule: Insanity is a good defense. But, the sanity of the spouse is
presumed and the spouse claiming to be insane bears the burden of overcoming this
B. Case: Anonymous v. Anonymous (NY Sup. Ct. 1962)
1. Facts: The wife had an affair. She admitted it, but claimed
2. Held: The wife loses on the defense. The ct. did not
believe her. She refused to testify.
X. NO FAULT DIVORCE:
A. The 1966 California Report: The Brown Commission
1. Argued for no-fault divorce.
2. Brown Commission Argument: Fault-based divorce causes
needless marital breakup. Gives a party an automatic opportunity to dissolve an
otherwise good marriage. Fault-based divorce needlessly breaks
3. Brown Commission Argument: Fault allows one party to extort
$$ from the other party. Protect people from extortion.
a. Prof. Law: This reason is based on a stereotype.
4. PROF LAW: The Brown Commission's reasons for no-fault
divorce are transparently unpersuasive.
5. NOTE: Cal. No-Fault Divorce Statute is at p. 344.
6. Another argument for no-fault div. (not in Brown report):
Fault-based divorce allows many opportunities for fraud & collusion.
B. The Uniform Marriage & Divorce Act (p. 346)
1. Original Act: Required the ct. to determine whether the
marriage had irretrievably broken down.
2. Amended Act requires:
a. Separation for more than 180 days or:
b. A finding of serious marital discord
affecting the attitude of one or both of the parties toward the
3. Under the Amended Act: the ct., at its discretion,
may order counseling.
4. The amended act: is a move toward allowing divorce on the
request of one party.
C. What are the real reasons why state have accepted no fault divorce?
1. A change in the roles of women & in the functions of
2. Pursuit of liberty & personal happiness.
a. The family as an encounter group & a source
D. No fault divorce is not part of the feminist agenda:
E. Arguments against unilateral divorce on demand:
1. Protect the family.
2. Protect the party who does not want the divorce. (Usually the
F. Alternatives to unilateral divorce on demand:
1. Provide a waiting period.
2. If one party wants to stay married, the one who wants out must
show wrongdoing such that a reasonable person would not want
to remain in the marriage. (Missouri law)
a. Problem: this is a fault-based system
3. NY Law: Conservative System. You can get a
a. Fault-based grounds OR
b. You can get a divorce after 2 years of separation
entered into by mutual agreement after a ct. order.
c. Problem w/NY system: this is no fault only if
both parties agree.
d. Problem: NY's concept of fault is severe.
e. Problem: NY system hurts poor people. You
need a lawyer.
G. Unilateral divorce on demand: Hurts people's reliance interests, but anything
more hurt poor people who must get lawyers.
H. Confusion in states that have both fault & no-fault actions for divorce:
1. Case: Hanger v. Hanger (D.C. Super. Ct. 1974)
2. Facts: Wife charges husband w/adultery. Husband sues
wife for voluntary separation (no-fault). Wife was having an affair. The spouses
separated. They came to an agreement in which the husband agreed not to sue
the wife for adultery. In reliance on the agreement, the husband starts
living w/a woman. The wife now sue him for adultery.
3. Why is the wife suing the husband for fault-based divorce? She
thinks it will help her get child custody &/or more $$.
4. Held: The wife gets a divorce on grounds of adultery, but
the husband gets child custody.
I. When a no-fault statute requires that the parties must occupy
"different habitats" and must live "separate and apart", the parties must not act
like a married couple; & continue to hold themselves out to the public as
1. Case: Ellam v. Ellam (NJ Super. Ct. 1975)
a. Facts: The couple stops sleeping together. At
night, the husband sleeps at his mom's house. Yet, they couple still
acts like a married couple (though they have privately agreed to separate).
b. Held: This couple is not living "separate
and apart" as required by the no-fault statute.
(2) They should be living apart in such a
manner that the neighborhood may see that they are not
(3) Here, the couple retained many of the
elements of a marital relationship.
XI. CHILD CUSTODY:
A. Primary Theories of Child Custody Determinations
1. Best Interests of the Child
2. Gender Preference "Tender Years" Theory: if the
child is under 4, give to the mom.
3. Psychological Parent:
a. Evaluate the custody dispute from the child's
point of view. Give the child to the psychological
parent: the person the child relies on continously. Don't change custody
unless there is some very strong reason to do so.
b. Major proponent: Joe Goldstein: His book
Beyond the Best Interests of the Child
c. This theory requires EXPERTS
4. Primary Caretaker: Focus on which parent has done the most
for the child:
•Preparing & planning of meals
•Bathing, grooming & dressing
•Purchasing, cleaning & care of clothes
•Medical care (nursing & trips to the Dr.)
•Arranging for after-school social interaction
•Arranging baby-sitting. daycare
•Teaching elementary skills, eg. reading, writing
5. Ask the child: This is directly dependent on the kid's age.
6. Joint custody: 3 types:
a. Joint legal custody: Not necessary for parent to
be living with kid, but must be consulted for kid's major life
b. Joint physical custody: Kid has to spend a
certain amount of time living with each parent.
c. Joint residential custody.
B. The Rose case: for an analysis see notes of 3/2 & 3/3.
1. Rose underscores the extreme difficulty of custody decisions.
a. Parents are often convinced that if the other parent
gets the kids, they will suffer irreparable harm.
2. Rose underscores the indeterminacy of legal standards for
determining child custody.
3. Rose underscores the importance of expert opinions in child
a. 3 Types of Experts in Rose
•Joe Goldstein: an expert on parent-child
separation. (Propounder of the psychological parent theory)
C. The Psychological Parent Theory:
1. Leave well enough alone. Don't change/disturb custody
unless there is some strong reason for doing so.
2. Evaluate the dispute from the child's point of view.
a. Ex. in Rose, Jason (the kids) had been w/his dad
for one year. This is a long time in a young child's life.
3. Who is the psychological parent? The person the child
relies on continuously.
a. Here, (in Rose) where Steve worked 80 hrs/wk,
he may not be the psychological parent.
4. Determining who is the psychological parent is not always easy.
Look at the nature of the relationship between the child & the alleged psychological
5. This theory requires an expert to testify as to who the child
has internalized as a parent.
6. Major proponent of this theory: Joe Goldstein and his book
Beyond the Best Interests of the Child.
7. Problems w/this theory:
a. Disadvantages the party w/fewer $$, as it requires
b. Disadvantages the person who cares most about
getting custody. (ex. A woman w/o financial $$ who wants
custody might settle for a small $$ amount to get custody.
c. Disadvantages biological parent vis a vis foster
8. NOTE: This theory has largely dropped out of use because it is not
helpful. Lots of people are possible psychological parents.
D. The Best Interests of the Child Standard: Various Factors:
1. Gender Presumption in favor of the mother during the
child's "tender years" (usually up to age 4). NOT GOOD LAW IN
a. Historically: The father was presumed to
get custody. Why? Children & women were men's chattels.
b. 20th Cent. View: Custody presumption in favor of
c. Now: Most states have rejected the tender
•Case: Ex Parte Devine (Alabama 1961)
•Held: Tender years presumption was
unconstitutional. (Only 1 of 2 states to hold the presumption
d. Is the doctrine right:
(1) Custody is an area in which stability
& predictability are important.
(2) It avoids destructive custody
(3) Mothers are generally the primary
caretakers of children.
(4) It protects women from bargaining
away $$ to get custody.
(1) The presumption may hurt the best
interests of the child.
(2) It reinforces the stereotype of
women as child rearers & males as
2. The sex life of the parents should not be
factored into a best interests calculation if the parents don't flaunt it
in front of the kids & the kids are OK.
a. Case: Feldman v. Feldman (NY App. Div.
b. Facts: Originally, the mom got custody.
Subsequently, the father found a copy of "Screw" magazine and
two letters in response to an ad the mom & her boyfriend placed in Screw
looking for swingers. The lower ct. shifted custody & the mom
appeals. Judgment rev'd.
c. Held: •See #2 above.
•Mom's sex life is irrelevant because
she does not flaunt it in front of kids.
d. Reasoning: "the logical extension of the lower ct.
opinion is to place children of swinging marriages into
e. Prof Law:
•All things being equal; isn't conventionality
of sex life a good predictor of fitness?
•The slippery slope argument is wrong
because standard for terminating parental rights is
3. The HOMOSEXUALITY of a parent may a factor in a
best interests determination, but is not dispositive, especially where
the parent isn't flamboyant and doesn't try to make the kid into a
a. Case: M.A.B. v. R.B. (NY Sup. Ct. 1986)
b. Facts: Originally, the mom got custody of the 3
kids. Now, the dad wants custody of the oldest son, but not the
younger 2. (Note: public policy usually disfavors the separation of
siblings.) The oldest son is very troubled, but the mom will
not force the son to get counseling. The mom is very sick & has
no full time job. The mom wants to move to Florida. The father is gay,
the mom uses this against him.
c. Held: The father's homosexuality is a factor, but
is not dispositive.
•The father is not flamboyant.
•The father isn't trying to make the son gay
e. CAVEAT: In some states, gay parents are per
se, unfit. In some jurisdiction, the law says that sexual orientation is
4. The physical handicap of a parent is not a factor in a
best interests determination. (The ct. needs to look at all the
a. Case: In Re Marriage of Carney (Cal. 1979)
b. Facts: Handicapped father. Mother deserted
them. The lower ct. granted custody to the mother because the
dad wouldn't be able to do "physical things" with his sons. The dad appeals.
c. Held: •Parents do more than play ball with
•The disabled person may be able to
give more in other areas.
•The kids' increased responsibilities
may benefit them.
d. Disability is only a factor if it is a
MENTAL DISABILITY or if it means the disabled parent will
be absent from the home frequently.
5. A parent's HIV-positive status is not dispositive in
a best interests determination.
a. Case: Stewart v. Stewart (Ind. Ct. App. 1988)
b. Facts: Because the dad is HIV+, the lower ct. cut
off his visitation rights w/his daughter. Dad appeals.
6. The same standards in a best-interests determination
shall be applied to working mothers as working fathers.
a. Case: Linda R. v. Richard E. (NY App. Div. 1990),
(reversing trial ct. determination as that ct. put a higher standard
on the working mother, than on the working father.)
7. A court may not shift custody because the custodial
parent remarries a person of a different race.
a. Case: Palmore v. Sidoti (US 1984)
b. Facts: Interracial marriage occurs after the divorce
of 2 whites. Where should the white child of the first marriage be placed?
With the interracial couple or the white couple? The lower
ct., wanting to insulate the child from "social
stigmatization" gave custody to the white couple. The Sup. Ct.
c. Held: The ct. cannot give effect to private
8. In a dispute between 2 biological parents of an interracial
child, similarity of racial characteristics between the parents & child
may be a factor (not a controlling factor) in a best interests
a. Case: Farmer v. Farmer (NY Sup Ct. 1981)
b. Facts: Interracial marriage. Child has black
features. Should she be placed w/white mom or black dad?
c. Dad's argument: Because of child's features, child
should be placed w/black father as blacks have traditionally
been more tolerant of mixed-race kids.
d. Mom's argument: Standard should not be race,
but best interests.
e. Held: See #8 above. The ct. can't just say
Palmore rules because the racially neutral thing is
hard to figure out.
9. RELIGION and best interests: Unless the content of the
parent's religious beliefs would threaten the health & well being of the child, the
court will not deny custody to a parent merely because their religion is strict.
a. Case: Quiner v. Quiner (Cal. Ct. App. 1967)
b. Facts. Parents belonged to the "Exclusive
Brethren" religion. Mom is far, far stricter in her beliefs. Mom
wants custody, arguing that, to deny her custody would penalize her for her
religious beliefs. Dad is worried about child's best interests
& whether the mom's strict beliefs about separation will hurt the
child. In the mom's religion, members must separate themselves from the
outside world, shunning all social relationships w/the outside
c. Held: The ct. copped out & applied the
"tender years" doctrine.
•The ct. is worried about validating one set of
religious beliefs over another.
e. Prof Law: There's a value in & of itself in
increased opportunity & expanded world views.
10. Prof. Law: The gender presumption standard might be
looking more attractive where all else is equal. There are some pretty bad
a. Conformity/conventional lifestyle
e. Expandedness of world views
E. Ask the child standard of custody determination:
1. Case: Goldstein v. Goldstein (RI 1975)
a. Facts: 9 1/2 year old w/dad in Israel says she'd
rather stay w/dad but will agree to visit the mom for 4 weeks
during the summer.
b. Here; the judge really takes the kid's view into
2. Is it reasonable to ask the child?
a. Pressure on the kid.
b. Possibility for the kid to be manipulated.
c. Kid's decision of "best" might not be "best".
d. Child caught in the middle.
e. Child being forced to bear the burden of making
this really imperfect decision.
f. If it is hard to decide, what makes us think the
kid will be able to decide?
3. The credence the ct. gives to the child's view
is very dependent on the child's age.
F. Use of experts in custody determinations:
1. If the ct. hires neutral, independent experts to give an
opinion on a custody dispute, the ct. must allows the parties (1) an opportunity
to read the report and its basis and (2) an opportunity to cross-
examine the experts.
a. Case: DiStefano v. DiStefano (NY App. Div 1976)
2. The ct. may not delegate its authority to order visitation, or
the terms of the visitation to a physician.
a. Case: Shapiro v. Shapiro (MD 1983)
b. Facts: Custody/visitation dispute. The child in
camera says that she's afraid of the father. The ct. says: go to a
Dr. & when the Dr. says visitation is OK; it is OK. The father appeals.
c. Held: •Judgment rev'd.
•This was improper delegation of
judicial authority to a physician.
•Jurisdiction over custody & visitation
rests w/the cts., not with doctors.
G. Major problem in custody determinations; the trial ct. often issues little
or no justification or reasoning in its ruling:
1. Arguments in favor of allowing judges to issue custody
decisions without reasoning:
a. It would be a lot of work for judges to be
explicit. (A bad argument)
b. We trust judges to be fair. (A bad argument;
people are not perfect.)
2. How can we force the trial cts. to issue more detailed custody
a. The appeals court could send incomplete
decisions back down. (Not likely to happen, as this would create
more work for appeals cts.)
b. Legislation. (Not likely.
H. Rose v. Rose decision:
1. Seems to adopt Goldstein's psychological parent
standard, but does not use it to decide the case.
2. Is the opinion persuasive?
a. It relied on the parties' demeanor in the
courtroom. Credibility was a big factor.
b. It also relied on the fact that Diane was not suicidal,
but did not say why.
3. Custody was awarded to Diane Rose
I. JOINT CUSTODY:
1. Three types of joint custody arrangements:
a. Joint Legal Custody: Not necessary for parent to
be living w/the kid, but must be consulted in kid's major life
b. Joint Physical Custody: Kid lives with each parent
for a certain period of time (sharing)
c. Joint Residential Custody:
2. Alternative to ct.-ordered joint custody: AGREED
UPON JOINT PHYSICAL CUSTODY (voluntary)
a. Problem: hard to do it when one parent resists;
this requires consensus.
b. Advantages to this: Kid can maintain
relationship w/both parents. Good because parental
separation can be really difficult.
c. Disadvantages: "Changing of the guard" is hard
on kids. A logistical nightmare.
3. Benefits to joint custody:
a. Advantage to working parents, which might be
an advantage to the kids, too.
4. Disadvantages to joint custody:
a. Economic disparity among parents can mean the
kids live in 2 really different atmospheres, unless the poorer
parent demands support payments. (But they're usually exempt w/joint
b. Joint custody needs can get really expensive.
c. Lack of stability w/joint custody.
5. Why the 1980's trend toward joint custody?
a. No fault divorce lends itself to it.
b. Feminists & fathers groups encourage it to break
down gender roles & stereotypes.
6. What factors change w/a move toward involuntary
a. Is it ever justifiable to impose joint custody on
an unwilling parent?
b. Some parents are forced to share custody when,
in a scheme w/o joint custody, they'd get sole custody.
J. PRIMARY CARETAKER THEORY OF CUSTODY
1. Standard: Focus on which parent has done the most for the
•Preparing & planning of meals
•Bathing, grooming & dressing
•Purchasing, cleaning & care of clothes
•Medical care (nursing & trips to the Dr.)
•Arranging for after-school social interaction
•Arranging baby-sitting. daycare
•Teaching elementary skills, eg. reading, writing
2. Case: Garska v. McCoy (WV 1981)
a. Facts: Trial ct. gives custody to father, but this
gets rev'd on theory of mother being the primary caretaker.
b. Held: the best interests standard is no good
because it is:
•Way too uncertain
•No reasonable basis for negotiations because
it is way too unpredictable.
3. How is primary caretaker different from the psychological
a. P.C. focuses on what the parents have done.
Psychological parent looks at what the child perceives.
b. It is unfair that day-to-day care might not
constitute the psychological parent.
c. The P.C. assumption applies in disputes
between 2 fit & natural parents, whereas the psychological
parent runs risk of Goldstein's kidnapping theory.
d. P.C. focuses on concrete, material stuff, while
psychological parent focuses on the emotional aspect.
e. Psychological parent: requires expert testimony,
because it's looking at emotional stuff, where P.C. is very common
sense & concrete.
4. Why should a primary caretaker get custody?
a. The P.C. is likely to have a deeper emotional
relationship w/the kid in most cases.
b. P.C. entitled to custody because he/she has
contributed more to the child.
•(Contributed in what way? The wage earner
makes a serious contribution, but maybe doesn't change
5. Problems w/P.C. standard:
a. Devalues the contribution of the wage-earning
b. The P.C. standard is sex-based, as it leans toward
women, as more women take care of kids. (But, it's still open to Mr.
c. Giving child to the primary caretaker may not be
in the child's best interests.
6. Prof. Law:
a. P.C. is a good family law standard.
b. P.C. is predictable, simple, & usually coincides
w/the best interests of the child.
7. Why do only 2 jurisdictions (WV & Minn.) use this standard
when 30 jurisdictions use the psychological parent standard?
a. P.C. standard has inherent sex bias toward women.
b. P.C. is too much like maternal preference.
c. Failure of family cts. to pay attention to new trends.
K. How about flipping a coin for custody?
1. Pros: Saves time & $$$.
a. Lack of legitimacy.
b. Not a predictable judicial theory.
L. BEST INTERESTS STANDARD: DRAWBACKS
1. Disadvantages the parent who really wants custody. That
person will be more willing to make concessions on other fronts in the divorce to get
A. Black letter law: The non-custodial parent gets visitation unless that
parent is unfit in some way that jeopardizes the child's welfare.
B. Circumstances when a ct. has denied a parent visitation:
1. When non-custodial parent has an overnight companion of
the opposite sex.
a. Case: DeVita v. DeVita (NJ Super. Ct. 1976)
b. Facts: Father appeals from a court order
forbidding him from visiting the children if he has a female
companion staying overnight with him. The ct. affirms the order.
•The mother is afraid of the moral welfare of
•It is not good for the children to be confused
by seeing the father w/a new partner.
•A substantial part of the community would
disapprove of the father's conduct.
d. The theory behind the ruling: Visitation
is not as important as custody.
2. When the non-custodial parent is openly gay & brings the
kid to gay activities.
a. Case: J.L.P. (H.) v. D.J.P. (Mo. Ct. App. 1982)
b. Facts: The lower ct. denied the father overnight
visitation & visitation that occurs if the father takes the child to a
gay church or to gay activist social gatherings. The father testified that it
would be a good thing for the child to be gay. The ct. affirms
•Homosexuals are more likely to molest
children. (The ct. cited 7 cases of gay molestation.)
•The father is trying to induce the child to be
gay. Sodomy is a crime.
•The ct. disregards expert testimony that only
5% of molestations are gay in nature.
d. Prof. Law: The ct. is cutting off visitation
because the dad is gay.
C. Visitation & religion:
1. Standard: Each parent must be free to provide
religious exposure & instruction during all periods of legal
custody or visitation w/o restriction unless the parent's belief or conduct
presents a substantial threat of present or future physical or
emotional harm to the child in the absence of restriction.
2. Case asserting the standard: Zummo v. Zummo (Pa. 1990)
a. Facts: Jewish mom. Catholic dad. The parties
had a prenuptial agreement that the kids be raised Jewish. A
divorce occurs. The dad wants to bring the kids to church, & not bring
them to temple during his visitation time.
b. Held: •The prenuptial agreement is
•Religion develops over time. The kids,
ages 3,4 &8 are too young to have a
•The child must assert their
religious identity & be old enough
to do so.
D. ENFORCEMENT OF VISITATION
1. How does a ct. compel a custodial parent to allow the non-
custodial parent visitation?
a. Change custody (Egle v. Egle)
b. Put the custodial parent in jail.
(Smith v. Smith) (Ct. threatened jail if the mom did
not comply w/its order that the mom allow the dad to visit.)
c. Money damages in tort (Gleiss v. Newman)
(Rejecting money damages in tort because it takes $$ away from
d. PROF. LAW: Jail is the best option. Less
disruptive than changing custody.)
2. The non-custodial parent has a constitutional right to
protect of his visitation rights as against the state.
a. Case: Franz v. U.S. (DC Cir. 1983)
b. Facts: Mom has custody. Mom remarries a
contract killer who is put in the Federal Witness Protection
Program. The Fed. Gov't relocates the mom & kids w/o regard to the
dad, who now can't see the kids. The dad sues on the theory that
his Constit. liberties have been violated.
c. Held: •There is some Constit. protection
for the non-custodial parent's right to
•It is not enough for the gov't to assert
its interest in running the Witness
•The gov't must set up a process for
evaluating visitation in the context of the
Witness Protection Program.
3. There is a very strong presumption against allowing a
stepparent to adopt a child, when the biological parent opposes it.
(Unless the biological parent is unfit or has abandoned the
a. Case: Bevis v. Bevis (S.C. 1970)
b. Facts: The parents divorce. The dad marries.
The stepmother wants to adopt the kids as she's their primary
caretaker. The natural mom, although she doesn't want custody,
doesn't want the adoption to go through.
c. Held: Since the natural mother didn't
abandon her child, her parental rights will not be terminated in
favor of the stepmother.
d. See also: The Uniform Marriage & Divorce Act:
Sharply limits the custodial rights of non-biological parents.
4. If a lesbian couple has a child, unless the non-
biological mother adopts the kid, she has no parental rights over the kids (as
against the lesbian-biological mother)
a. Case: Nancy S. v. Michele G. (Cal. Ct. App.
b. Facts: Lesbian couple. One of the partners is
artificially inseminated & has 2 kids. The couple breaks up. The
biological mom files suit to terminate all parental rights of the other
c. Non-biological mom's argument: I'm a de facto
d. Held: The parental rights are
e. Reasoning: slippery slope: the ct. doesn't want
claims from health care providers, stepparents, etc.
f. Prof. Law: This is similar to the stepparent
case. No termination of parental rights unless of the biological
parent is unfit. Prof. Law does not agree w/this holding; she'd like a
definition of a functional parent.
5. Book by Goldstein, Freud & Solnit: Beyond the Best
Interest of the Child:
a. Thesis: The ct. should never order visitation.
It should be at the discretion of the custodial parent. Why?
It undermines the authority of the custodial parent.
b. Cons: •Allows blackmail by the custodial
•Ignores the interests of the child.
•Non-custodial parents are more likely
to pay support if they visit the child.
XIII. MODIFICATION OF CUSTODY
A. Black letter law: To modify custody, non-custodial parent must has a
significant change in circumstances.
1. Why? Reduce litigation & pressure on the non-
B. Sometimes, cts. will change custody to put the kid into a more stable,
1. Facts: Couple gets a divorce. Dad gets custody. Both parents
remarry other people. But, the dad's marriage breaks up. The ct. shifts custody to
2. Reasoning: The dad works, therefore the kid will be home
alone. Prevent instability.
3. Prof. Law: A change in custody is more disruptive. This
divorce is a normal life event.
C. A substantial increase in a child's age can be a "substantial change
in circumstances" sufficient to change custody.
1. Case: King v. King (RI 1975)
2. Facts: Originally the mom got custody. Four years go by &
the kid (a son) is now age 12. The ct. shifts custody to dad.
3. Reasoning: The dad can take him hunting & fishing.
D. Rose v. Rose: after giving custody of Jason to Mrs. Rose, 4 years later,
the ct. shifts custody back to Mr. Rose. WHY?
1. The mother is less psychologically stable than the dad.
2. It was hard on the kid to continue to be moved back & forth
between mom & dad. (The previous order had granted liberal visitation rights
to Mr. Rose).
3. The dad had remarried. Now there's a full-time
wife/mother to take care of Jason.
E. Wexler Article (p.657)
1. Mom get custody 90% of the time. However, dad are fairly
successful in getting custody shifted.
2. This is anti-woman.
3. Custody modification can be damaging to the children.
F. THE HARDEST ISSUE IN MODIFYING CUSTODY: When the
custodial parent wants to move to a location which would make visitation
1. NY Law: Won't allow the custodial parent to move out of
state absent compelling circumstances.
2. Minnesota: Allows the custodial parent to move unless the non-
custodial parent can show, by a preponderance of the evidence, that it is
not in the best interests of the child.
3. Case-by-case approach w/a presumption against
moving out of state:
a. Case: Schwartz v. Schwartz (Nev. 1991)
b. Facts: Dad got custody. He wants to move the
kids to Pennsylvania into a big house. (His mom's house). The
kid's mother is a flake.
c. Nevada statute: put up a presumption against
removal of the kids from the state.
d. Held: •the ct. allows the dad to move.
•The ct. adopts a multi-factor approach
& will look at cases on a case-to-case
e. Reasoning: •Economics. The kids will have a
good home & a built-in babysitter.
f. Prof Law: a multi-factor test will cause lots of
XIV. DIVORCE & DIVISION OF PROPERTY
1. Prior to no-fault divorce schemes, alimony was
awarded on a fault basis, giving leverage to the party less enthusiastic
2. Before Married Women's Property Act, the man got all marital
property. After the act, the property each acquired during the marriage is
3. Traditionally, states divided property by common law rules, or by
B. Goals of a ct. in dividing property:
1. FAIRNESS: Look at what the parties have contributed during
2. Need of the parties
3. Status of the parties. (Living in the way you've become
C. Big Issues in Distribution of Marital Property:
1. What constitutes marital property?
2. HOW SHOULD THE PROPERTY BE DIVIDED?
a. Community property=50/50 division of all
marital property. All property acquired during the marriage is marital
property subject to division. Property acquired before the marriage
belongs to each party. (COMMUNITY
b. Equitable Distribution: What's better
•Advantages: Allows consideration of need/
•Disadvantages to ED: It's hard to figure out
fault. The litigation involved in ED is costly, less
predictable. 50/50 will usually give women more $$.
D. An equitable distribution regime should take into account the value of
the wife's upkeep of the family home . (Case: O'Neill v. O'Neill) (Conn. Ct. App.
E. Is property earned during the marriage from gift or inheritance
considered marital property subject to distribution?
1. Yes. Case: Painter v. Painter (NJ 1974)
a. Held: •Income earned during the
marriage is marital property.
•Property earned during the
marriage from gift or inheritance is
2. NO: The NJ legislature (Reversing Painter).
F. Spousal Maintenance (Alimony): Important because many couples have little
property to divide.
1. Case: Lash v. Lash (Fla. DCA 1975)
a. Facts: Parties were married 26 years, Wife was
44. She didn't work, but helped the husband in his career. The ct.
awarded the wife permanent alimony.
b. Reasoning: It would be extremely difficult for
the wife to rehabilitate herself. (She has little education.)
2. Does permanent alimony really give the woman
a. Maybe not. She may remarry. Also, when the
husband retires, he may be able to get the alimony terminated.
G. HOT ISSUE: SHOULD NEW FORMS OF PROPERTY (especially
academic degrees) be subject to division?
1. Ex. Wife gets a law degree. Husband stayed home. She
graduates law school & dumps him. Should her law degree be considered marital
a. Some cts. look at the contribution of the non-
degreed souse to the other spouse's degree.
b. Some cts look at the expectations of the parties
as to the degree. (This argument can cut in favor of either side,
depending on the case.)
c. Some cts. look at procedural due process cases to
hold that new property can't be taken away w/o procedural due
2. Arguments against treating the degree as property:
a. Marriage is not a commercial transaction
b. It is difficult to value the degree.
3. How do we value the degree once we decide to make it
a. The cash value of the supporting spouse's
contribution. (Quantum Meruit)
b. The lost opportunity costs to the supporting
•Problem: may not give the supporting
spouse enough $$.
c. The value of the degree (Gives more $$, but
hard to fix an amount.)
4. Many appellate cts. & legislatures have given trial cts. wide
discretion to apply whatever standard applies best to the instant case.
5. In NY, educational degrees are marital property as
long as they enhance earning capacity:
a. Case: O'Brien (NY Ct. App. 1985)
b. Facts: Mrs. O'Brien worked to support the
family. During the marriage, the O'Briens moved to Mexico so
husband could earn a medical degree. She worked 3 jobs to support the
family. Two months after he got his licence, he served her
w/divorce papers. (They had very little other property).
c. Held: •The medical degree earned
during the marriage is martial
•The wife had an interest in things
acquired during the marriage.
•The medical degree can't be taken
away w/o due process, therefore, it is
•The value of the degree is its
enhanced earning capacity.
Method of valuation: Take the income stream of a college graduate & compare it to the
income stream of a surgeon. Take these streams to the age of retirement, discount to present
value, take out taxes, factor in possibility of death. Then decided how much of this the non-
degreed spouse gets. (Since NY is an equitable distribution state, there is no fixed number.)
d. Problem: The husband can get rid of
having to pay this ward by declaring bankruptcy.
e. Accord McGowan v. McGowan (Sup. Ct.
Suffolk Cty.) (Wife's teaching licence earning during
marriage was marital property subject to equitable distribution.
6. In NY, CELEBRITY STATUS is a marital asset subject
to equitable distribution, provided the claimant can show his/her
a. Case: Golub v. Golub (Sup. Ct. NY Cty. 1988)
b. Result: Most lawyers representing celebrities
will settle their divorce cases.
H. Are pensions marital assets subject to E.D.?
1. Unvested pensions are NOT marital property:
a. Case: Laing v. Laing (Alaska 1987)
b. Why? Too speculative to value. The pension
may not vest.
2. Veterans disability benefits are not marital property
subject to distribution on divorce.
a. Case: Mansell v. Mansell (US 1989)
b. Why? Protect the pension of the wage-earning
spouse. (The ct. read the statute narrowly)
XV. CHILD SUPPORT
A. Methods for determining child support: how much?
1. Two methods:
a. Make the non-custodial parent pay a fixed portion
of the income in child support, with a maximum $$ cap.
b. Do it by a chart of income & number of kids.
2. There is tremendous discretion allowed trial cts. in the
awarding of child support:
a. Case: Kaplan v. Kaplan (Pa. Super. Ct. 1975)
b. Facts: Dad earns far more than mom. Day is
paying $42.50/wk. in child support. Mom wants $125/wk. The
ct. held that $42.50 was too little and $125 was too much. Therefore,
the ct. remanded the case to the trial ct.
3. Problems w/using a rigid formula:
a. Case: Schmidt v. Schmidt (SD 1989)
b. Facts: Originally, mom had custody of all 3 kids.
But later, the ct. awarded custody of the oldest child to dad.
c. Held: applying the S.D. formula for child
support, because of the change in custody & the different
incomes of the parents, the mother's and father's child support
obligations to each other are both $250/month. (Effectively canceling
each other out.)
4. The ct. will be reluctant to apply a rigid state formula if the
formula causes one parent to pay a very large "confiscatory" sum of $$ in
a. Case: In re Marriage of Bush (Ill. Ct. App. 1989)
b. Facts: Mom & dad divorce. Mom gets custody of
the 4-year old daughter. Dad is a rich
anesthesiologist. Under the state child support guidelines, the lower ct.
ordered the dad to pay 20% of his income to mom in child support. This is
$30,000/yr. The dad appeals.
c. Held: Judgment rev'd. $30,000 a year is
confiscatory & far beyond the child's need.
d. Arguments for the kid:
•But for the divorce, the kid's life would have
•The ct.'s holding undermines the state's
5. The obligation to pay child support ends at the kid's majority.
a. Case: Solomon v. Findley (Ariz. 1991)
b. Facts: The dad wants to get out of a K he made
while married to send the kid through college.
c. Held: •Under divorce law, the ct. has no
jurisdiction to enforce the K, since the
obligation to pay child support ends at the child's
•Under K law, however, the father must
send the kid through school.
6. The test for the custodial parent's support obligation is
her maximum earning capacity; not her actual income.
a. Case: Kaplan v. Kaplan (Pa. Super. Ct. 1975)
b. Facts: Mom works in the suburbs for less $$.
She does not want to take a job in the city, which would increase
her pay. Why? She wants to be able to spend time with her child.
c. Held: The ct. will measure the mom's
support obligation based on her maximum earning capacity, not
her actual income.
B. Modification of Child Support Orders:
1. If the non-custodial parent makes a career change that
lowers his income, his support obligation may be reduced, so long
as his change was in good faith.
a. Case: Weiser v. Weiser (Pa. Super. Ct. 1976)
b. Facts: Dad was a partner in a big law firm. The
left the firm voluntarily to practice out on his own. His income fell
by 50%. The dad asks the ct. to reduce his support obligation. The ct.
reduces the dad's support obligation.
c. Held: The standard is good faith: did the father
decrease his income to avoid paying child support. (here, the answer was
no, the dad had been planning this change for a long time.)
2. To what extent can the divorced parent's
obligation to his new family reduce his child support obligations to
his old family? (This can alter the parent's support obligations, but the ct. should
also look at the new spouse's income).
a. Case: Ainsworth v. Ainsworth (VT 1990)
3. If non-custodial parent has a large increase in their income,
they may be obligated to pay more child support.
a. Case: Graham v. Graham (DC Ct. App. 1991)
b. Facts: A support order is granted. Dad gets a
new job & a higher salary. The mom sues for more support. The
ct. sides w/the mom.
c. Held: an increase in the non-custodial parent's
ability to pay child support can, by itself, constitute a material
change in circumstances sufficient to justify an increase in support.
C. ENFORCEMENT OF CHILD SUPPORT ORDERS:
a. It has become difficult to enforce child support
orders. This cuts across class lines.
b. Child support awarded in only 60% of cases; the
awards are often low; low awards are often not enforced.
2. Why are low awards often not enforced:
a. With AFDC, there is a dollar-for-dollar reduction
in AFDC benefits commensurate with the level of child support
b. It is in the interest of the AFDC mother to avoid
child support enforcement.
c. The ct. did not put a priority on child support
d. Many cts. would wait to enforce the order until
the non-custodial parent was in arrears.
e. Cts. would often modify/reduce child support
3. The gov't response to the lack of support enforcement
for AFDC mothers: The 1984 Act:
•AFDC parents would be terminated from
AFDC if they did not cooperate to get support enforced.
•AFDC parents would assign their support
claims to the state.
•The state, under AFDC, would disregard
some of the $$ collected from child support & not count some
of it against AFDC benefits.
•State would withhold some $$ from
delinquent parent in arrears & intercept tax return $$.
4. Methods for child support enforcement:
a. Mandatory wage withholding: (Note: most
states won't do it)
•Benefits: Cheaper than jail & it works.
•Detriments: (1)Doesn't work for self-employed/unemployed parents.
(2) Too intrusive: deprives conscientious fathers of
the right to pay support voluntarily.
(3) Stigmatizes fathers (non-custodial parents).
•Prof. Law likes automatic mandatory wage withholding.
•Benefits: (1) Falls both on the wage-earner & on the non- wage
(2) It works! It changes behavior. (Judge Wilk
•Detriments: (1) We don't put other debtors in jail.
(2) Jailing can have an adverse impact on the
relationships between the kids & the jailed non- custodial parent.
(3) There are less intrusive alternatives.
(4) Can cut into a non-custodial parent's ability to
5. Veterans disability benefits not exempt from
child support enforcement orders:
a. Case: Rose v. Rose (US 1987)
b. Why? The ct. is much more sympathetic to child
support than to division of marital property.
FAMILY LAW OUTLINE
Topics: Neglect, Abuse, Adoption, Surrogacy, Coercive
Treatment of Pregnant Women
I. ABUSE & NEGLECT OF CHILDREN
1. Few substantiated claims of abuse & neglect involve physical
2. 50% of substantiated claims result in the removal of the child from
the home. Most kids are not reunited w/their parents.
B. Before the state removes kids from the family home, there must be a
hearing unless there is evid. of imminent physical harm to come to the child. Even
in circumstances which warrant summary removal, the parent must get an opportunity
to be heard. (Otherwise, this violates procedural due process.)
1. Case: Roe v. Conn (M.D. Alabama 1976)
2. Facts: A white couple had a child. The woman left & moved
into a black neighborhood w/a black man. The police took the child away on
the basis that the white child was being "neglected" as it was living in a black
house w/a black man. The mom was unsuccessful in the Alabama St.
3. Held: See letter B. This summary removal was a
violation of the mother's procedural due process rights.
4. Why did the state take the father's complaint so seriously?
b. The was poor & unemployed. (In some states,
destitution was a ground for removal.)
C. Before a state may permanently remove the child from the family home
(finding of parental unfitness) it must satisfy the "clear & convincing evid."
standard that the child is permanently neglected.
1. Case: Santosky v. Kramer (US 1982)
2. Reasoning: (per Blackmun, J.)
a. The DPC of the 14th A. requires such a high
b. Private Interest: parents have a liberty interest
in their kids. VERSUS
c. State interest: Interest in taking care of kids &
running the system efficiently
3. The majority here:
a. Concerned about the wrongful destruction
b. Neglect proceedings are most often
brought against the poor.
4. The dissent here:
a. More concerned w/accuracy than w/rights.
b. Concerned about efficiency & doesn't want
to grant new rights. (Slippery slope)
5. Prof Law:
a. Likes the preponderance of the evid.
standard as it reduces risks of error.
b. The clear & convincing standard favors the parents,
but increases the risk of error.
D. In a permanent neglect proceeding, the parent does not have the right to
a free lawyer:
1. Case: Lassiter v. Dept. of Social Services (US 1981)
2. Why? Burdens of proof are free. Lawyers cost $$. Ct. does
not ant to start granting lots of new Constit. rights to lawyers.
E. Effect of Santosky:
1. Some state cts.: Have held that it is not Constit. to terminate
parental rights on the basis of best interests.
2. NY & some states: have codified that the standard for
termination of parental rights is the fitness of the parents
3. Santosky jeopardizes many state cases which use a best
interests of the child rationale in terminating parental rights.
F. The state can use "battered child syndrome" to show that parents are
abusing the kid. (Case: Commonwealth v. Rodgers) (Pa Super. Ct. 1987)
1. Battered Child Syndrome=Symptoms are multiple injuries in
various stages of healing, malnourishment, poor hygiene, injures are inconsistent
w/parent's explanation for them.
G. If the parents hit the child publicly in an manner that inflicts
permanent injury or serious temporary injury, the state may take the kids away.
1. Case: Dumpson v. Daniel M. (NYLJ 1974)
2. Facts: The Nigerian father believes he can use
Nigerian standards of punishment to discipline his son. Thus, the father
severely beat the son in front of the son's teacher.
3. Held: •The ct. took the kids away.
•Different culture is not a defense to abuse.
4. Prof Law:
a. The reason the ct. is calling this beating child
neglect is because the dad beat the child in public.
b. Our culture tolerates some parental corporal
5. Sweden: outlaws parental corporal punishment.
H. Many state statutes defining neglect are vague, to allow for many
situation to be considered in a neglect analysis.
1. Case: People in Interest of D.K. (SD 1976)
2. Facts: The child has lot of serious medical problems. The
mom keeps brining the kid to the hospital. The mom's house of dirty & the kid has
soiled clothes. The state, after a hearing, took the chid away on the basis
that the child was neglected. The mom appeals.
3. Mom's argument: The SD neglect statute is
4. Held: (Mom was neglectful)
a. The statute is necessarily vague in order to cover
many situations of neglect.
5. Prof. Law:
a. Ct. should not enter a finding a permanent neglect
until other lesser remedies are tried.
b. The ct. should consider the ramifications flowing
from permanent separation.
I. Cts. may find the parents neglectful if they emotionally neglect the
1. Case: Castorr v. Brundage (6th Cir. 1982)
2. Facts: The parents are concerned about their child & have
taken him to doctors for dwarfism. There is a marked absence of physical contact &
emotional bonding. When the kid went to foster parents, his physical
condition markedly improved.
3. Held: The ct. took the kid away from the parents.
NEGLECT & MEDICAL TREATMENT
J. Refusal of a parent to secure necessary medical treatment for a child
is neglect. (Even on religious grounds)
1. Case: Walker v. Super. Ct. (Cal. 1988)
2. Facts: Christian Scientist mother "treated" her ill child with
prayer. The child died. The state charged the mother w/involuntary manslaughter.
The mom's defense: First Amendment Free Exercise of religion.
3. Held: Parents have no free exercise of religion at the price of
a child's life.
K. The parents cannot refuse essential medical treatment for their child.
However, the parents have more leeway if the procedure is very risky.
1. Case: In Re Phillip B. (Cal. Ct. App. 1979)
a. Facts: A Down's syndrome boy was born in the
1960's. As per common practice, the boy was institutionalized.
The boy had a hole in his heart. The hole would eventually cause death.
1977: The Drs. recommended surgery to close the hole. The
parent refused. The state sued to compel the surgery.
b. Held: The parents had a right to refuse
this treatment because it was very risky.
2. Case: Guardianship of Phillip B. (Cal. Ct. App. 1983)
a. Facts: Same as above. Additionally, a couple
came forward & petitioned to get custody of Phillip B. In the
institution, he was languishing. This couple changed his life; they took him
in, trained him & taught him to play sports. The parents had
distanced themselves from Phillip. The couple petitioned the
ct. to get guardianship of Phillip to allow him to have the needed hear
b. The biological parent's argument: The theory of
the psychological parent asserted by the couple is nonsense.
Parents should not be in danger of having their children taken away.
c. Held: The couple was given guardianship
of Phillip. (The underlying rationale; best interests)
d. PROF. LAW: Doesn't like the ability of a
psychological parent to take away the rights of a non-unfit parent
strictly on best interests rationale.
II. MEDICAL TREATMENT & SEVERELY DISTRESSED NEWBORNS:
A. Duff & Campbell article:
1. Thesis: Parents must play a role in the
decisionmaking process for treating severely ill newborns. But, this
role should not be absolute.
2. 3 Options for treating newborns:
a. Treat aggressively (D& C: parents always have
b. Hydration, nutrition, wait & see:
c. No treatment
B. Prof. Law's view on this area: These cases are fact- specific
C. Case: Maine Medical Center v. Houle (Maine Super. Ct. 1974)
1. Facts: Child w/multiple medical problems. The Drs.
recommended surgery to open the trachea. The parents refuse. The Dr.
2. Held: The ct. ordered the operation. The parents didn't
have a right to refuse medically necessary treatment to save the child's life.
Such refusal= neglect.
3. Prof. Law;
a. This is a very standard case. The ct, orders
treatment. The procedure is performed. The child dies soon after.
b. The point: Cts. will even overrule the judgment
of the parents & Drs.
c. There is a tendency for Drs. to overtreat.
D. Case: Indiana Baby Doe (1982): The baby had Down's Syndrome & a
blocked esophagus. The parents decide not to treat the blocked esophagus. The Indiana Ct.
upheld the parents.
E. Case: Long Island Baby Doe
1. Facts: The child is seriously impaired. The Drs. & the parents
do not recommend treatment. The CPS & the App. Div. upheld no treatment.
2. Facts: Attorney Larry Washburn filed a petition to become the
child's guardian ad litem. He lost in state ct., but won in Fed. Ct.
3. Result: The Fed. Gov't wrote regulations finding that it
is discriminatory to refuse essential medical treatment to a
handicapped child. RESULT:
F. Case: Bowen v. American Hosp. Assn. (US 1986)
1. Facts: The Fed. Govt. tries to obtain medical records from
the hospital to see if its new regs. are being followed.
2. Held: the regs. are overturned as they have no basis in
G. Result of F: The Congress Codified the Fed. Regs. as the Child
Abuse Amendments of 1984:
1. Purpose of the act: gives conditions for the
withholding of medically necessary treatment for ill infants. Essentially,
the law requires treatment in all cases, except where treatment is
2. Withholding treatment is OK if:
a. Infant is chronically & irreversibly comatose; or
b. The provision of such treatment would:
(1) Merely prolong dying or;
(2) Not be effective in ameliorating or
correcting all of the infant's life-threatening condition; or
(3) Otherwise be futile in terms of the
survival of the infant; or
c. The provision of such treatment would be
virtually futile in terms of the survival of the infant & the treatment
itself under the circumstances would be inhumane.
3. Is this statute the right thing?
•Drs. often overtreat.
•Treatment is often costly & futile
•Drs. & parents usually agree.
•Every life is worth preserving.
•Failure to preserve every life diminishes
respect for the disabled.
III. TERMINATION OF LIFE SUPPORT FOR ADULTS:
A. Best Interests: (Mass.): What would a reasonable person do? (Objective
B. (NJ): What would that person do if they awoke & could state their wishes.
C. Case: Cruzan v. Director, Missouri Dept. of Health (US 1990)
1. Facts: Nancy Cruzan was in a persistent vegetative state. Earlier in
life, she had made statements that she wouldn't want to be alive if she were severely
disabled. Missouri fought to keep her feeding tube in, against the advice
of the Drs.
2. Held: (per Rhenquist, J.)
a. People have the right to refuse medical
b. Would require clear & convincing evid. that
the patient would reject the medical treatment.
c. The person's right to refuse medical
treatment is not fundamental; it can be balanced off by state
d. The state has an interest in preserving life
3. Brennan, J. (dissenting):
a. Would use a preponderance of the evid. standard
to see if Ms. Cruzan would have wanted the treatment.
b. Would apply the compelling state interest test.
There is a liberty interest in preserving medical treatment.
4. Scalia, J. (Concurring): The state has a strong interest in
preventing suicide. The ct. has no business being in this area.
5. O'Connor, J. (Concurring): The Constit. protects living wills.
D. Reaction to Cruzan
1. Right to die lobby: Was happy the ct. recognized that there is
a Constitutionally protected liberty interest in the right to refuse medical
2. Prof. Law; This "right to die" is a weak right.
Rhenquist did not recognize it as fundamental.
A. General Rules:
1. An adoption must be recognized by the ct.
2. Can be arranged through:
b. Foster parents
c. Friends & relatives
3. Adoption is a product of modern statutes.
4. For healthy infants, the demand exceeds the supply.
B. What would be reasonable in allocating infants in a situation where
demand for infants is greater than supply?
1. First come, first served
2. Best interests of the child
3. Preference for the infertile
4. Preference for couples
C. Can gays adopt?
1. New Hampshire & Florida: No. (By law)
2. New York: Yes. Law bans sex orientation discrim. in
D. An adoptive parent's advanced age should not disqualify them for being
1. Case: In Re Adoption of Michelle T. (Cal. Ct. App. 1975)
2. Facts: An elderly couple wants to adopt a 3-year-old child.
Husband is 70 & wife is 54.
a. The couple can adopt the child.
b. An imperfect, but stable home environment is
better than the travails of the foster care system.
4. Reasoning: The ct. does not want to remove the child from a
stable, establish home.
E. Race & adoption:
1. Case: Petition of R.M.G. (DC Ct. App. 1982)
2. Facts: Unmarried black couple had a child. (The father never
knew). The child has been in a white foster home for 5 years. The white foster
parents want to adopt; the paternal grandparents (black) contest the
adoption. The trial ct., on basis of race, held for the grandparents.
This ct. reverse, asking the trial ct. to give a more detailed analysis.
3. In a race-neutral environment, the foster parents would have
gotten the kid, without problems.
F. Conflicts of Interest faced by adoption lawyers w/many clients:
1. Case: Matter of Petrie (Ariz. 1987)
2. Facts: A lawyer is charged w/ethical violations in an
adoption. He represented multiple clients in an adoption proceeding. In
this case, the 1st set of prospective adoptive parents brought to the lawyer,
a mother wanted to give up her baby for adoption. However, the lawyer
gave the baby to another prospective adoptive couple he was
representing. The ct. gave the lawyer a slap on the wrist.
3. Prof. Law:
a. Isn't it inevitable that a lawyer will have
multiple clients seeking to adopt?
b. Isn't it inevitable that a lawyer will make some
choices between clients to place a child?
c. The prospective adoptive parents are in
competition with each other.
G. Should the law assure that the natural mother is adequately
represented in adoption proceedings?
1. Prof. Law:
a. The adoptive parents should pay the legal costs
of the natural mother.
b. The failure to have the biological parents
adequately represented creates major problems.
H. Once a natural mother signs a consent to adoption, can she change her
mind & revoke the adoption?
1. View: The mom has an absolute right to change her mind.
2. View: The mom cannot change her mind.
3. NY Law: Biological mom has 30 days to revoke her
decision to give up the child. Standard: best interests w/no presumptions.
4. View: A mom can change her mind. The standard is best
interests of the child w/a strong presumption in favor of the natural parent.
a. Case: Scarpetta v. Spence-Chapin
Adoption Service (NY 1971)
I. Conflicts Between Natural & Adoptive Parents:
Case: In Re Clausen (Mich. 1993) (The "Baby Jessica" case)
1. Facts: Baby Jessica was born in Iowa. The natural dad did not
know of the child. The mom put the child up for adoption. The adoptive parents
(the DeBoers) were from Michigan. When the natural dad learned of the baby,
he married the mom & instituted paternity proceedings.
2. Facts: The DeBoers moved to Michigan. The Iowa Ct.
revoked the adoption, but the DeBoers refused to recognize the
3. Facts: A Fed. law was passed (Parental Kidnapping
Prevention Act). The Act requires the child's home state to adjudicate
the custody dispute. All other states must give the decision of the home state full
faith & credit.
4. The DeBoers: Contend that Michigan, not Iowa, is the kid's
home state. The kid has been in Michigan for 2 years & most of the parties are
5. The DeBoers: The correct standard is best interests. The
Iowa Ct. did not use the best interest standard. (Iowa law uses a fitness
standard in proceeding to terminate parental rights.)
6. The Clausens (natural parents): The Act respects diversity of
standards between different states. Different states should respect each other's
standards. The Act should apply & the Iowa judgment should be
enforced. The DeBoers knew the risks of adoption.
7. HELD: THE ACT APPLIES. THE IOWA DECISION
MUST BE ENFORCED. THEREFORE, THE CLAUSENS GET
CUSTODY & THE ADOPTION IS REVOKED.
J. Does the adoptee have the right to know the identity of the natural
1. Generally NO. The anonymity of the natural parents will be
a. Case: In Re Roger B. (Ill. 1981)
b. Facts: P, an adoptive child wants to make
contact w/his biological parents.
•There are strong policies against
letting the adoptee know the identity of the natural
(1) The interests of the biological &
adoptive parents are served by
(2) The natural parents have a right to
(3) The adoptive parents should have
the opportunity to create a stable family
relationship free from interference.
•Exclusivity is an important aspect of
K. What happens if a lesbian partner of a biological mother wants to
adopt the child & the mom consents, but does not want her biological rights
1. In NY; it is OK: Case: In Re Evan
2. Facts: The lesbian partner of the biological mom of a six-
year-old boy sought to adopt the boy, so that the couple could raise the child as
parents. The non- biological mom had very generous health benefits which
could only go to child if adoption occurred.
3. Held: adoption was in the kid's best interests & was not
prohibited by law.
4. Reasoning: The non-biological mom was qualified to adopt;
all the relevant parties consented.
5. The hard issue: Under the NY statute, after adoption, the
biological mom's parent rights should have been terminated. However, the ct.
ignored the statute & did not terminate the parental rights of the natural mom.
6. Now, the NY statute: allows stepparents to adopt w/o
terminating the rights of the natural parent.
L. The adoptive parents cannot give up the baby if the adoption does not
1. Case: Allen v. Allen (Or. 1958)
2. Facts: Adoptive child proves to be disruptive & the
adoptive parents want to give the child back. The kid was mentally deficient
& was committed. But, the mental home had a waiting list.
3. Held: the adoptive parents could not give the adoptee back.
4. RATIONALE: The rights of the adoptive parents may be
smaller than those of the natural parents. (Adoptive parents are parents by choice.)
M. The adoption agency has a duty not to make affirmative
misrepresentations about the child's health. If it does, the adoptive parents can sue
for $$. But,, the agency does not have an affirmative duty to disclose health information. It
just can't make misrepresentations.
1. Case: Meracle v. Children's Service Society of Wisc. (Wisc.
2. Facts: The adoption agency told the adoptive parents the
child did not have Huntington's disease. Shortly thereafter, the child got
Huntington's Disease. Judgment for Ps.
N. Foster Care v. Adoption (Historical Dichotomy)
1. Foster care=short-term, Adoption=long-term.
2. Foster care=emotional attachment w/child discouraged,
Adoption=emotional attachment encouraged.
3. Foster care=subsidized, Adoption=unsubsidized.
4. Foster care=involvement of natural parent w/child encouraged,
O. Foster Care v. Adoption Today:
1. The dichotomies of the past are breaking down:
a. Now, many foster parents are adoption their
b. Problem: a rule allowing foster-parents to adopt
on a best-interest standard may deprive biological parents of their
c. NY: No foster parent adoption.
2. Now, more adoptions are subsidized.
V. Surrogacy & High-Tech Pregnancy:
1. New technologies have created new problems. ex. In Vitro
B. AID (Artificial Insemination by a 3rd Party):
1. A child born of consensual AID during a valid marriage is a
legitimate child the same as a naturally conceived child during the
marriage. The husband, legally is the child's parent.
a. In Re Adoption of Anonymous (NY Sup Ct. 1973)
b. Facts: Infertile couple. Mother had a child by
AID. They break up. Mother remarries & the stepfather wants to
adopt the child. The dad contests the adoption. The ct. find for the
c. Arguments for mom:
•Biology should be dispositive in determining
who is a parent.
d. Arguments are dad:
•The dad supported the kid.
•The child of a married couple is presumed to
be the child of the husband.
2. Should we formalize (legally recognize) AID?
•Men should not be disconnected from the
obligations of fatherhood.
•The parents can't screen the donors & must
rely on an agency.
•Many sperm banks may not have high
standard for donors.
•We should not encourage eugenics.
•Formal arrangements are more difficult &
informal sperm donation is so easy to arrange.
•Avoid attachment between donor & kid.
3. Why allow informal insemination:
b. Many Drs. don't want to inseminate lesbian parents.
c. The dad might want to see the kid & if the mom
wants it; that's OK.
4. Some cts. have really frowned on informal artificial
insemination; one even gave the biological dad visitation rights, over
the mom's objections.
a. Case: Jhordan C. v. Mary K. (Cal. Super. Ct. 1986):
b. Facts: Lesbian couple wants to have a child. A
gay male friend donates sperm. A kid was born. The biological
dad developed a real relationship w/the child. The mom cut off visitation.
The dad sues for a declaration of paternity &
visitation rights. JUDGMENT FOR THE DAD.
c. Reasoning: The ct. condemns the fact that the
lesbian couple did not use the official channels for AID. The state
has a strong interest in formalizing artificial insemination.
5. Impact of Jhordan (the only case granting a sperm donor
a. Will encourage formal AID
b. Will encourage insemination rather than sex.
c. Gives a strong incentive to the biological mom to
deny contact w/the child to the donor.
6. More typical artificial insemination case: (No visitation
rights given to donor)
a. Case: Thomas S.
b. Facts: A lesbian couple agrees w/2 gay friends
from San Fran. that each will inseminate one of the mothers. 2
kids are born. They whole family visits San Francisco & the dad every year.
One of the dads (who is HIV+) wants visitation rights for 2
weeks alone w/the daughter. The kid is now 10 & says she does
not want to visit dad.
c. Arguments for dad:
•Jhordan should apply
d. Arguments for mom:
•The dad has never had custody of the child.
e. Held: Judgment for mothers.
1. In NJ, surrogacy Ks are void because they're against public
policy. CASE: In Re Baby M (NJ 1988)
a. Facts: Surrogacy K for $10,000. A baby was born. The surrogate
mom refused to give the child to the father & wife/stepmother. The mom at first dad give up the
child. Later, she demanded the baby back. The Sterns did give her back Baby M. Mrs.
Whitehead then absconded w/the baby to Florida. Months later, police found the baby &
forcibly returned her to the Sterns. The Sterns now seek to enforce the surrogacy K,
allowing Mrs. Stern to adopt Baby M., and terminating Mrs. Whitehead's parental
rights. JUDGMENT FOR MRS. WHITEHEAD.
b. Held: Surrogacy Ks are void as a matter
of public policy.
c. Looking at this dispute from the paradigm of K law.
•NJ statutes ban the selling of children.
•Argument for enforcing the K:
(1) there are noble motivations that inspire people to make surrocacy
(2) Some people want to make $$.
(3) Stop protectionist leg. against women.
(4) End patriarchy.
(5) Respect people's autonomy.
(6) K law already protects against unconscionable Ks of
•Arguments against enforcing the K:
(1) There are some things you can't contract away.
(2) There is often a great imbalance of power in these Ks
(3) This is a class protection statute (protect the poor)
(4) Procreation & sexuality deserve special protection.
(5) The K is not specifically enforceable. SP is an unusual K
remedy. We don't normally enforce Ks for personal service.
d. Looking at this dispute from the paradigm of adoption law:
•Arguments in favor of Mrs. Whitehead:
(1) There is a very high standard in adoption cases to take the natural
mom's rights away.
(2) Mrs. Whitehead did not consent to the adoption within the
necessary time frame.
(3) The adoption law model protects women
•Arguments for the Sterns:
(1) The adoption model discourages surrogacy.
(2) The adoption model underrates the biological dad's role
e. Looking at the dispute through the law of custody disputes between natural parents:
•All standards except Best Interests favor Mrs.
Whitehead at the moment of the kid's birth (Tender Years Presumption,
Primary Caretaker, Psychological Parent)
2. One ct. has held that where a surrogate mom merely
contributes her womb (not her eggs) she has no parental rights over the
a. Case: Anna J. v. Mark C. (Cal. Ct. App.
b. Facts: 2 genetic parents (white). The wife can produce eggs, but
cannot have a baby. The Dr. takes the husband sperm, the wife's eggs & does in vitro
fertilization. The Dr. puts the embryo into a surrogate mom. (black). During the pregnancy, the
surrogate mom petitions for custody. The ct. awards paternity & custody to the natural
•The ct. ignores a Cal. statute which says that
if a woman gives birth, she's the mom.
•The surrogate mom only got a zygote.
•Michael H. v. Gerald D. helps the natural
parents. (The law does not protect gestation surrogates)
(Prof. Law: Bullshit)
d. Prof. Law:
•The ct.'s reasoning is unpersuasive.
•There is a class and race bias here; the
surrogate is black and an AFDC mom. The natural parents
D. The law of in vitro fertilization:
1. Case: Smith v. Hartigan (N.D. Ill. 1983)
a. Facts: This is a challenge to a state law provided that the
administrators of in vitro fertilization are the guardians of the eggs for child abuse purposes. Ps
want to use in vitro fertilization. The Drs. don't want to do it, for fear of prosecution for child
b. Facts: The state says they won't prosecute Drs.
who do in vitro fertilization. The state says that, "we assume
there will be no superovulation" (harvesting lots of eggs &
c. Problem: superovulation is standard operation
procedure. Therefore, the state's reassurance re:non-prosecution is
no good. The state is intolerant to Dr.'s operating procedures.
d. Held: Case Dismissed.
2. After divorce, parents will get joint custody of embryos:
result: the embryos can't be implanted unless both parents consent:
a. Davis v. Davis (Tenn. Ct. App. 1990)
b. Facts: Married couple has in vitro fertilization.
Result: frozen embryos. The couple breaks up. The woman wants
to have the frozen embryos implanted so she can have a child. The
husband does not want her to have a child.
c. Held: Joint Custody for the embryos
VI. FORCED TREATMENT OF PREGNANT WOMEN
A. Can the state force an unwilling pregnant woman to have medical
treatment necessary to save the fetus's life? (A Ceasarian-section)
1. Maj. View: Strong presumption against forced treatment.
However, some circumstances may justify intervention.
a. Case: In Re A.C. (DC Ct. App. 1990)
2. Min. View: The ct. can order a C-section,
regardless of the patient's wishes:
a. Case: Jefferson (Ga 1981):
b. Facts: Jehovah's Witness mom. The Dr. says that
unless the mom has a C-section, there is a 99% chance the
baby will die & a 50% chance the mom will die. The mom refuses a C-
c. Held: The ct. orders a C-section:
d. Arguments for the mom:
•Right to bodily integrity.
•Right to refuse medical treatment.
•The medical facts are not so certain
•C-section poses a greater risk than natural
•To hold for the Drs. would open the
floodgates for Drs. to go to ct. & force C- section.
•Such orders will force moms to avoid Drs.
3. Note: trial ct. orders for C-sections are
common; most are rev'd on appeal.
a. Prof. Law: The women subject to these forced
injunctions are overwhelmingly poor & of color.
VII. Prosecution of mothers who took drugs while pregnant
A. Case: Johnson v. Florida (Fla Ct. App. 1991)
1. Facts: A mother is being prosecuted for delivered controlled
substances to a minor. She took cocaine while pregnant.
2. Held: D's conviction was aff'd. (Note: this was rev'd
by the Fla. Sup. Ct.)
3. Arguments for defense:
a. We should help drug users, not punish them
b. The statute was not intended to apply to these
c. The statute does not apply to the birthing
4. Prof. Law:
a. The woman's argument for her reproductive
freedom is weak. The child, here, is born.
b. The woman's argument for her reproductive
freedom is strongest at the time of pregnancy.
B. Prof. Law's ideal's statute:
1. Criminalize drug use by pregnant women if they refuse
2. Compelling drug treatment is OK. There is less of an
C. Policy Arguments against Prosecution:
1. May discourage women from seeking medical
2. May encourage women to have abortion.
3. Prosecution may be a product of race or gender
discrimination. (Prof. Law: No Way. We already have drug laws.)
D. How should the state deal w/drug use by pregnant women?
1. Criminal Prosecution:
a. Presumption of neglect (if positive toxicology)
b. Drug use is a factor in a neglect determination.
c. Positive toxicology is irrelevant.
4. Prof. Law: positive toxicology is irrelevant (highly prejudicial)
VIII. SHOULD THERE BE MANDATORY TESTING OF PREGNANT
A. What kinds of tests?
1. Testing for drugs.
2. Testing for HIV.
B. Arguments for testing:
1. Pregnant women always have their blood/urine testing.
2. Drugs & HIV are relevant for treatment decisions.
3. In NY, any preg. woman who enters a hospital is tested for HIV.
(But the state does not notify the woman of the results.)
C. Arguments against testing:
1. When you test the mom for HIV, it's not certain if the baby
has HIV. (26% of HIV+ moms infect their fetuses.)
2. This violates informed consent.
3. Don't intrude on reproductive freedom.
4. HIV status & knowledge of it is a very personal
decision. You have a right not to know.
D. Prof. Law: When cases in this area are litigated, (crim. pros. for drug
abuse; mandatory testing) the moms usually win. Why?
1. Reaction to the race/gender dynamics of these