1966 California Divorce Cruelty Family 'Restraining Order'

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					                                 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
state.

                 1. Family as a bunker from which people retreated from                   a
hostile world.

         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.




                                                   1
        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,
        individual

                 3. Social Relational: All of these issues arise in
        relationships among people. You must consider the                 individual's position in
the society.




                                                2
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
state interference.

                  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
family.

               5. Advocates limiting opportunities for women in the                labor force & in
reproductive choice.

                  6. Major proponent: George Guilder.

          C. Neo-Conservatives:

                  1. They share some of the New Right's goals, but disagree
                  on the choice of means.




                                                   3
                          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.

        D. Feminists:

                  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
Feminists.

                6. The reject claims of individual privacy with regard to
        battered women, but want privacy in reproductive rights.

        E. NOTE:

               1. The New Right & Feminists both agree that the                     state
should play a role in family life & should             encourage certain structures of
families.
                       a. Both feminists & the New Right support anti-
       pornography laws.
               2. They differ only in the substantive values they           promote.




                                                   4
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
        authority figure)
                            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
marriage.

                            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.
1981)

                            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
        permanent.
                                     •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)




                                                    5
                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.
1989)

                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"
evicted.

              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
        relationship
                                 •The level of emotional & financial
        commitment




                                                 6
                                    •How the parties hold themselves out to
          society.

                     4. Problems with Braschi:

                            a. Serious proof problems for determining if a               family
exists.

                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
          formalized relationship.

                           b. Lower-income people & the poor may not know
          about the registration requirement.

                            c. Potential for abuse by tenants against the LL's.




                                                    7
IV. EQUAL PROTECTION IN THE CONTEXT OF THE FAMILY

         A. Background:

                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
class)

                1. TEST: Is the classification reasonably related to a
         rational purpose (the state's purpose must be               permissible).

                  2. Answers:

                         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
         cases)

                          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.




                                                  8
                          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.

                2. Held:

                         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.




                                                  9
        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)

                2. Held:

                       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
home.

                3. Reasoning:

                        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
        suspect class.

        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)




                                                10
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
unmarried persons.

                           ILLEGITIMACY CASES
        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
                quasi-suspect class.

       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
        fitness hearing.

                                            (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.




                                                11
                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
        together.

                         b. The alternative "dad" in Stanley was to make the
         kids wards of the state. In Lehr, the alternative                          dad was a
traditional family.

        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
law.

                         b. Reasoning:

                                 •The statute promotes the orderly disposition
        of property.
                                 •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)

                         a. Held:




                                                 12
                                  •The ct. struck down a Pa. statute which put a
          6-year S of L on child support/paternity suits                         brought by
illegitimate child.

                                 •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
                                       claims.

      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
        paying support.
                                •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.
(Gen. Rule)

               1. Recent NY Ct. App. case: Overruled the previous rule
       allowing unwed parents before the child's birth to agree                     to a support
agreement.




                                                13
        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
       traditional roles.




                                                 14
      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
down.

  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.




                                               15
                          b. Reasoning of maj.

                                  •The zoning ordinance has little relation to a
       state concern.
                                  •There has been a historical tolerance of the
       extended family.
                                  •Belle Terre doesn't apply as it didn't involve
       blood relatives.

      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
system.

               3. Reasoning:

                          a. This is economic legislation. Therefore it gets
       loose scrutiny.

                        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.




                                                 16
                3. Held: It is in the best interests of the child to             stay w/the
grandparents.

                4. Reasoning:

                        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
        jobs.

                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.




                                               17
                 3. Reasoning:

                          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
process.

        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
1973):

                 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
another.

                 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




                                                18
in a state mental hospital to share in    the costs.




                                         19
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
the Constit.?

                         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
heightened protection?

                         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
test.

                        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.




                                                20
        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,
            autonomous.

              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
article.)

                  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,
although ineffective.

                          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
birthrates.

                        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-
         competitiveness.)




                                                  21
                        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
        abortion.

                      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.




                                               22
               1. In the 20th Cent. the drive to legalize abortion was led          by
doctors.

                         a. Prior to Roe, states had given doctors much
       greater latitude in deciding which abortions were                     medically
necessary.

                        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
       than childbirth.

                     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:




                                                23
                        a. Dr. must provide woman with state info. against
       abortion.

                        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
requirement.

                        a. Pro:
                             •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.
                             •Encourage childbirth.

                        b. Con:
                              •Many women won't admit they're being
       abused.
                              •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.




                                             24
                b. Class explanation: Waiting 24 hrs. isn't a big
deal to the middle class w/a private doctor.




                                      25
VII. THE GOVERNMENT'S ROLE IN FINANCIAL SUPPORT TO FAMILIES:
Should government benefit programs accommodate changing definitions/forms of
families?

       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
traditional family.




                                              26
        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
staying home.

               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).




                                              27
                        d. Alabama's rationale behind the policy:

                                •Discourage this type of relationship
                                •The boyfriend is a "substitute father" for
        the children.

                        e. Lesson of King v. Smith: look at general                      support
obligations.

        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)

                          b. Facts:
                                  •The Welfare Dept. wants to make a "home
         visit" to Mrs. James's home to enforce its                              "substitute
father" rule.
                                  •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
        benefits.
                                  •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.




                                               28
                         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
                         gov't.

       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
        budgets.




                                                 29
                       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
               resources.

                         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?




                                               30
VIII. FAMILY VIOLENCE:

       A. Importance of family violence: It is common.

              1. Surveys show that up to 16% of families have violence
       problems.

      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
husband.

                       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
his wife?

                         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.




                                              31
      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
was right)

                        c. BWS=victim suffers from guilt & low self-
        esteem.

                         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.




                                              32
       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
circumstances.

                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
woman.

                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.




                                               33
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.

                               •Marriage=support/services
                               •Support/services are gender-specific roles
                               •Marriage is an instit. defined by the state




                                             34
          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
VIEW)

                        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
courts:

              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.




                                               35
        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.

                       c. Held:

                               •The law is unconstit. as it violates the
       EPC.

                       d. Reasoning:

                               •This type of law reinforces stereotypes of
                               women.
                               •Use of stereotypes in generating legal rules
       is unfair & produces perverse results.
                               •Gender equality protects men as well
       as women.




                                              36
        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.
                (US 1981)

                           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
EPC.

                        a. Case: Mississippi U. for Women v. Hogan
                        (US 1982)

        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.




                                               37
       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
       misrepresentation.
                       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.




                                              38
               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:

                       d. Reasoning:

                               •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.)




                                            39
               6. A contract between cohabitants is not                 necessarily
void as long as sex was not the                    primary consideration. Case:
Marvin v. Marvin
               (Cal. 1976)

                      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.




                                              40
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
                 Cal.

                       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
another state?

                           c. HELD:           (1) A marriage that is legal in one state
        will be illegal in another state if it strongly violates                        the state's
public policy.
                                              (2) This marriage is incestuous & illegal.

                        d. Reasoning:
                                         (1) There are strong public policy
                 reasons against incest.
                                         (2) Incest increases the chance of birth
                        defects.

                 2. Why are there anti-incest law? Protect                              children.




                                                   41
        C. A marriage between a former step-parent & step-           child is not incest &
is legal.

               1. Case: Back v. Back (Iowa 1910)

                      a. Facts: A man marries his former stepdaughter.
                      b. Held:
                             (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
               (Utah 1955)

                 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
practices.

               4. Reasoning:

                       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)




                                            42
        F. The state may not ban interracial marriages:

                1. Case: Loving v. Virginia (US 1967)

                         a. Facts: A challenge to a Va. law banning
        interracial marriages.

                         b. The state: This law is not discriminatory as it
        applies equally to blacks & whites.

                        c. HELD:

                                (1) The law is unconstit. on EPC & DPC
        grounds.
                               (2) Racial classifications are subject to
        the most rigid scrutiny.
                               (3) This law serves no legitimate state
        purpose.
                               (4) The law is meant to serve racial
        discrimination.

        G. Laws banning remarriage of non-custodial parent  who are not meeting
their child support obligations   are unconstitutional. MARRIAGE IS A
FUNDAMENTAL RIGHT.

                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.

                2. HELD:

                      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
those interests.




                                               43
                 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.

                       b. Held:
                              (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
       test here.




                                              44
        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.
Ct. 1987)




                                              45
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.

                    c. Held:

                            •The law is constit.
                            •There is no historical tradition for
     protecting sodomy.

                    d. Underlying Reasoning:

                            •The ct. reinforces cultural beliefs.
                            •2/3 of Americans belief that gay sex is
     wrong.
                              •Sodomy was condemned in colonial America
                              •Society has an aversion to homosexuality
                              •For years, science & psychiatry defined
     homosexuality as an illness.




                                          46
      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.

                          b. Held:

                                  (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
         women.




                                                 47
XII. Common Law Marriages:

       A. Policy Tendency:

               1. Fewer & fewer states are recognizing common law                marriages.
Why?

                          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)

               1. Cohabitation

               2. Between a man & a woman

              3. Both of whom are capable of contracting
       marriage.

              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)




                                              48
       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
Texas.

                           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.




                                            49
                          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
                 health.
                                        (3) The wife's verbal abuse was
                 sporadic & didn't constitute a                                                 course
of conduct.




                                                 50
                          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
leave.
                               •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.




                                                 51
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
clearly establish:

                       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'
story. Why?

                         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
alibi.

                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.
App. 1983)
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)




                                                52
                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.




                                             53
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.

                2. Held:

                      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.




                                              54
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)

               1. Facts:

                      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.

               2. HELD:

                      a. No divorce. Accepts the wife's defense of
       condonation.

                      b. For men; sex is always voluntary.

                      c. Condonation=sex forgives all fault.




                                            55
VIII. Traditional Fault Defense: Collusion

       A. We will not give a divorce to a couple that cooks                up fault-grounds for
divorce.

            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
      presumption.

            B. Case: Anonymous v. Anonymous (NY Sup. Ct. 1962)

                  1. Facts: The wife had an affair. She admitted it, but          claimed
insanity.

              2. Held: The wife loses on the defense. The ct.                     did not
believe her. She refused to testify.




                                                56
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
        up marriages.

               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
marriage.

             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?




                                            57
               1. A change in the roles of women & in the functions of
        marriage.

                  2. Pursuit of liberty & personal happiness.

                          a. The family as an encounter group & a                      source
of fulfillment.

        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
woman).

        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
        divorce on:

                          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.




                                                58
        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.




                                                59
       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
together.

                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
living together.

                                 (3) Here, the couple retained many of the
        elements of a marital relationship.




                                               60
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:

                        a. Factors:

                        •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
        between peers
                        •Arranging baby-sitting. daycare
                        •Disciplining
                        •Educating
                        •Teaching elementary skills, eg. reading, writing

                 5. Ask the child: This is directly dependent on the        kid's age.




                                               61
                 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
decisions.

                        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
custody cases.

                         a. 3 Types of Experts in Rose

                              •Suicide experts
                              •Parenting experts
                              •Joe Goldstein: an expert on parent-child
        separation. (Propounder of the psychological                           parent theory)




                                                62
       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
parent.

               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
expert testimony.

                         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
       parents.

                8. NOTE: This theory has largely dropped out of use             because it is not
helpful. Lots of people are possible         psychological parents.




                                                 63
       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
MOST STATES!!!


                     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
the mother.

                     c. Now: Most states have rejected the tender
       years doctrine:

                                •Case: Ex Parte Devine (Alabama 1961)

                                •Held: Tender years presumption was
        unconstitutional. (Only 1 of 2 states to hold                            the presumption
unconstit.)

                       d. Is the doctrine right:

                                •Yes.
                                       (1) Custody is an area in which stability
                      & predictability are important.
                                       (2) It avoids destructive custody
                      battles.
                                       (3) Mothers are generally the primary
               caretakers of children.
                                       (4) It protects women from bargaining
               away $$ to get custody.

                                •No.
                                         (1) The presumption may hurt the best
               interests of the child.
                                      (2) It reinforces the stereotype of
               women as child rearers & males as
       irresponsible.

                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.




                                               64
                         a. Case: Feldman v. Feldman (NY App. Div.
        1974)

                         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
orphanages."

                          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
unfitness.




                                                 65
               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
        gay.

                         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.

                         d. Reasoning:
                               •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
irrelevant.




                                                66
               4. The physical handicap of a parent is not a factor                   in a
best interests determination. (The ct. needs               to look at all the
circumstances)

                       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.
                               Judgment rev'd.

                        c. Held:       •Parents do more than play ball with
               their kids.
                                       •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.
Judgment rev'd.

               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.)




                                             67
              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.
reverses.

                         c. Held: The ct. cannot give effect to private
                         racial biases.

                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
determination.

                         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.




                                                 68
                 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
         world.

                     c. Held: The ct. copped out & applied the
        "tender years" doctrine.

                          d. Reasoning:
                                  •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
alternatives:

                         a.   Conformity/conventional lifestyle
                         b.   Race/diversity
                         c.   Religion/tolerance
                         d.   Stability/chaos
                         e.   Expandedness of world views




                                                 69
        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
        account.

                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.




                                               70
       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.)




                                              71
               2. How can we force the trial cts. to issue more detailed          custody
decisions?

                      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




                                               72
        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
decisions.

                          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
custody.)

                        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.




                                                73
                     b. Feminists & fathers groups encourage it to break
       down gender roles & stereotypes.

                 6. What factors change w/a move toward                       involuntary
joint custody?

                       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.




                                               74
         J. PRIMARY CARETAKER THEORY OF CUSTODY

                 1. Standard: Focus on which parent has done the most                    for the
child:

                         a. Factors:

                         •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
         between peers
                         •Arranging baby-sitting. daycare
                         •Disciplining
                         •Educating
                         •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
parent theory?

                        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.




                                                 75
                        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
diapers.)

                  5. Problems w/P.C. standard:

                        a. Devalues the contribution of the wage-earning
        spouse.

                     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.
Mom.)

                          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?




                                               76
                       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 & $$$.

               2. Cons:

                       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
custody.




                                              77
XII. VISITATION:

       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.

                         c. Reasoning:

                                  •The mother is afraid of the moral welfare of
        the child.
                                 •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
       the order.

                        c. Reasoning:
                                 •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.




                                                 78
                               •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
                unenforceable.

                                         •Religion develops over time. The kids,
                          ages 3,4 &8 are too young to have a
        religious identity.

                                       •The child must assert their
                religious identity & be old                                                enough
to do so.




                                                79
        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
the kids.)

                         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
visitation.

                                           •It is not enough for the gov't to assert
                its interest in running the Witness
        Protection Program.

                                          •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
       child:




                                                 80
                         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.
        1991)

                            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
partner.

                         c. Non-biological mom's argument: I'm a de facto
        parent.

                         d. Held: The parental rights are
        terminated.

                        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:




                                                81
                         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
                parent.
                                         •Ignores the interests of the child.
                                         •Non-custodial parents are more likely
                to pay support if they visit the child.




                                              82
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-
        custodial parent.

        B. Sometimes, cts. will change custody to put the kid           into a more stable,
"traditional" family:

               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
the mother.

             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)




                                              83
                 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
impossible.

                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
       basis.

                       e. Reasoning: •Economics. The kids will have a
                       good home & a built-in babysitter.
       (Grandma).

                       f. Prof Law: a multi-factor test will cause lots of
       litigation.




                                             84
XIV. DIVORCE & DIVISION OF PROPERTY

        A. History:

               1. Prior to no-fault divorce schemes, alimony was
        awarded on a fault basis, giving leverage to the party less              enthusiastic
about divorce.

               2. Before Married Women's Property Act, the man got all            marital
property. After the act, the property each                 acquired during the marriage is
theirs.

              3. Traditionally, states divided property by common                law rules, or by
community property.

        B. Goals of a ct. in dividing property:

                1. FAIRNESS: Look at what the parties have contributed                   during
the marriage.

                2. Need of the parties

               3. Status of the parties. (Living in the way you've                       become
accustomed to.)

        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
       PROPERTY=EQUALITY).

                        b. Equitable Distribution: What's better
        (Equity)

                                •Advantages: Allows consideration of need/
        fault
                                   •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 $$.




                                               85
        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.
1988).

       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
marital property.

              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
security?

                       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
property?




                                            86
                     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
process.

                  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
marital property?

                       a. The cash value of the supporting spouse's
        contribution. (Quantum Meruit)

                         b. The lost opportunity costs to the supporting
        spouse.

                                 •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).




                                                 87
                         c. Held: •The medical degree earned
                 during the marriage is martial
         property.
                                            •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
         property.
                                            •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.




                                              88
               6. In NY, CELEBRITY STATUS is a marital asset                       subject
to equitable distribution, provided the      claimant can show his/her
contribution:

                       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)




                                              89
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.)




                                              90
              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
child                support.

                        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
        been richer.
                                •The ct.'s holding undermines the state's
        guidelines.

                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
majority.
                                           •Under K law, however, the father must
                          send the kid through school.




                                               91
            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.




                                              92
        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:

                 1. Generally:

                        a. It has become difficult to enforce child support
        orders. This cuts across class lines.




                                                 93
                      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
given/enforced.

                       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
       enforcement issues.

                      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
       orders.

            3. The gov't response to the lack of support                      enforcement
for AFDC mothers: The 1984 Act:

                       a. Penalties:

                              •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.




                                             94
                           b. Incentives:

                                  •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.

                           b. JAILING:

•Benefits:          (1) Falls both on the wage-earner & on the non-                    wage
earner.
                           (2) It works! It changes behavior. (Judge Wilk
        likes it)

•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
        earn money.
                 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.




                                                 95
                  FAMILY LAW OUTLINE

Topics: Neglect, Abuse, Adoption, Surrogacy, Coercive
Treatment of Pregnant Women
I. ABUSE & NEGLECT OF CHILDREN

       A. Generally:

                 1. Few substantiated claims of abuse & neglect involve               physical
injury. (2-3%)

             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.
Ct. system.

                3. Held: See letter B. This summary removal was                       a
violation of the mother's procedural due                process rights.




                                              96
                4. Why did the state take the father's complaint so            seriously?

                       a. Racism
                       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
       standard.

                        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
       of families.

                               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)




                                               97
        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.




                                                98
      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
        punishment.

                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
        unconstitutionally vague.

                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.




                                                99
                       b. The ct. should consider the ramifications flowing
         from permanent separation.

         I. Cts. may find the parents neglectful if they           emotionally neglect the
child:

                   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.




                                                100
     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
                          surgery.

                        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.




                                              101
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
        this right)

                        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.
sues.

                 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.




                                             102
        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
law.




                                            103
      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
essentially            futile.

                 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?

                         a. NO:
                                     •Drs. often overtreat.
                                     •Treatment is often costly & futile

                         b. YES:
                                 •Drs. & parents usually agree.
                                 •Every life is worth preserving.
                                 •Failure to preserve every life diminishes
        respect for the disabled.




                                                  104
III. TERMINATION OF LIFE SUPPORT FOR ADULTS:

        A. Best Interests: (Mass.): What would a reasonable person               do? (Objective
standard)

       B. (NJ): What would that person do if they awoke & could state their wishes.
(Subjective Standard)

        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
        treatment.

                      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
interests.

                        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




                                               105
                 1. Right to die lobby: Was happy the ct. recognized that              there is
a Constitutionally protected liberty interest in the           right to refuse medical
treatment.

              2. Prof. Law; This "right to die" is a weak right.
       Rhenquist did not recognize it as fundamental.




                                            106
IV. ADOPTION:

      A. General Rules:

             1. An adoption must be recognized by the ct.

             2. Can be arranged through:

                       a. Agencies
                       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
      adoption.




                                             107
       D. An adoptive parent's advanced age should not disqualify them for being
adoptive parents:

                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.

                3. Held:

                        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.




                                              108
        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.




                                                109
      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
Iowa decision.

                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
in Mich.

                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.




                                             110
          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
parents?

               1. Generally NO. The anonymity of the natural                       parents will be
protected.

                       a. Case: In Re Roger B. (Ill. 1981)

                       b. Facts: P, an adoptive child wants to make
       contact w/his biological parents.

                       c. Held:

                             •There are strong policies against
       letting the adoptee know the identity of                                    the natural
parents:

                                         (1) The interests of the biological &
                adoptive parents are served by
       anonymity.
                                         (2) The natural parents have a right to
                privacy.
                                         (3) The adoptive parents should have
                the opportunity to create a stable family
       relationship free from interference.

                            •Exclusivity is an important aspect of
       family stability.
       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
terminated?

               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.




                                             111
               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.




                                            112
      L. The adoptive parents cannot give up the baby if                    the adoption does not
work out.

                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.
1989)

                 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,
Adoption=discouraged.

        O. Foster Care v. Adoption Today:

                1. The dichotomies of the past are breaking down:

                           a. Now, many foster parents are adoption their
        foster children.




                                               113
                          b. Problem: a rule allowing foster-parents to adopt
          on a best-interest standard may deprive biological                    parents of their
rights.

                         c. NY: No foster parent adoption.

                 2. Now, more adoptions are subsidized.




                                              114
V. Surrogacy & High-Tech Pregnancy:

         A. Generally:

                  1. New technologies have created new problems. ex. In             Vitro
Fertilizations.

         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
                dad.

                            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?

                            a. No:
                                 •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.
                          b. Yes:
                                 •Avoid attachment between donor & kid.

                  3. Why allow informal insemination:




                                                115
                          a. Privacy.
                          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
visitation rights)

                       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.




                                                 116
               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:

                               •Biology
                               •Jhordan should apply

                       d. Arguments for mom:

                               •The dad has never had custody of the child.

                       e. Held: Judgment for mothers.

       C. Surrogacy:

             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
Ks.




                                             117
              (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
       adhesion.
       •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
child.

                       a. Case: Anna J. v. Mark C. (Cal. Ct. App.
       1991)

                          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
parents.




                                            118
                         c. Reasoning:

                                 •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
are white.

        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
abuse.

                          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 &
fertilizing them)

                      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




                                               119
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




                                         120
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-
section.

                      c. Held: The ct. orders a C-section:

                      d. Arguments for the mom:

                              •Right to bodily integrity.
                              •Right to refuse medical treatment.
                              •Free exercise.
                              •The medical facts are not so certain
                              •C-section poses a greater risk than natural
       birth
                                •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.




                                           121
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
               facts.
                               c. The statute does not apply to the birthing
               process.

                        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
treatment.

               2. Compelling drug treatment is OK. There is less of an
        autonomy interest.




                                            122
C. Policy Arguments against Prosecution:

       1. May discourage women from seeking medical
treatment.

       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:

       2. Neglect:

               a. Presumption of neglect (if positive toxicology)

               b. Drug use is a factor in a neglect determination.

               c. Positive toxicology is irrelevant.

       3. Testing/Notice

       4. Prof. Law: positive toxicology is irrelevant (highly        prejudicial)




                                     123
VIII. SHOULD THERE BE MANDATORY TESTING OF PREGNANT
MOTHERS?

       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
       prosecutions.




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Description: 1966 California Divorce Cruelty Family 'Restraining Order' document sample