Family Law - Joslin - F07 - Outline

INTRODUCTION A. Governing laws a. State law i. Family law is largely state law b. Model laws i. States can chose whether or not to adopt them c. Federal law i. There are some constitutional limits I. CONSTITUTIONAL PROTECTION FOR THE FAMILY A. Think about: a. What is the protected right or interest identified? b. What is the constitutional source of the protection? B. Con Law Review: Substantive Due Process: a. 14th (states)/ 5th (fed) amendments: “No State shall… deprive any person of life, liberty, or property, without due process of law…” b. It has come to be recognized that there is a substantive part of due process as well. (Certain things the government just can’t take away.) c. Standard of Review i. Fundamental right  Strict scrutiny 1. Narrowly tailored to achieve a compelling state interest. ii. Non-fundamental right  Rational basis 1. Reasonably related to a legitimate state interest. d. Whether the interest is fundamental i. No clear test: ii. “implicit in the concept of ordered liberty,” and iii. “deeply rooted in this Nation’s history and traditions.” C. Con Law Review: Equal Protection Clause a. “no state shall… deny to any person within its jurisdiction the equal protection of the laws.” b. 3 tiers – strict scrutiny, intermediate scrutiny, rational basis review i. Strict scrutiny – race, national origin, and alienage (suspect classes) 1. Narrowly tailored to further a compelling state interest ii. Intermediate scrutiny – gender and illegitimacy 1. Substantially related to an important government interest iii. Rational basis review – everything else 1. Rationally related to a legitimate state interest iv. Maybe a fourth tier? – “rational basis with a bite” 1. Targets a “politically unpopular group;” and 2. “inhibits personal relationships.” 3. Lawrence- O’Connor’s concurrence c. Suspect classes: indicia of suspectness (from 9th circuit) i. Whether the group: 1. Suffered a history of discrimination; 1 2. Exhibits obvious, immutable, or distinguishing characteristics that define them as discrete group; and 3. Demonstrates that they are a minority or politically powerless. D. What is a family? a. Recognizing and supporting close adult relationships… no cases…. Important? E. Evolution of Right to Privacy a. The birth of privacy: Griswold v. Connecticut (US S.C.) i. Connecticut had a complete ban on contraceptives ii. According to Douglas, this was invasion of right to privacy. Right to privacy came from 1, 3, 4, 5, 9th amendment’s “penumbras.” They create a “zone of privacy.” iii. Goldberg concurring: emphasize 9th amendment – enumeration not construed to deny rights not enumerated. iv. Harlan concurring: Due Process Clause of the 14th amendment because it violates basic values “implicit in the concept of ordered liberty.” v. For all the above judges, it seems to be an associational right, almost indivisible form the marital relationship; not an individual right. vi. The scope is limited to married couples. It’s a societal/cultural thing. vii. Note: difficulty in 1) finding constitutional source for the protection; and 2) in providing an outer scope to this right. b. An individual right: Eisenstadt: (US S.C.) i. Felony to distribute birth control ii. Married people could get it from doctor, while unmarried persons couldn’t get it at all (except for disease prevention.) iii. Different treatment of married vs. non-married persons iv. The marital unit is not an independent entity; if the right to privacy means anything, it is for individuals. 1. court doesn’t decide if complete ban would be ok b/c this statute differentiated b/t married and unmarried. v. The court makes leaps from Griswold, saying it’s an individual right and whatever right it is must be available to both married and unmarried. vi. This is about the decision to bear or begat a child, and it’s an individual right. c. Growth of privacy: Abortion as a private choice: Roe v. Wade: i. Statute: it’s a crime to get an abortion except to save mother’s life. ii. Roe brought claim under right of privacy iii. Court recognizes right, but not absolute iv. The state may properly assert important interest in safeguarding health, in maintaining medical standards, and in protecting potential life. 2 v. At some point in the pregnancy, those interests become sufficiently compelling to sustain regulation. vi. “person” in 14th amendment doesn’t include unborn vii. Trimester Framework: 1. Up to first trimester mark – no regulation of abortion. 2. After first trimester – regulation reasonably related to health of the mother. (state’s interest in health becomes compelling at this point.) a. Ex: physician’s qualifications, facility 3. That point for potential life is viability (generally, third trimester) a. State may proscribe abortion at this point b. Unless necessary for life or health of the mother. viii. Where certain “fundamental rights” are involved, regulation limiting these rights may be justified by a “compelling state interest,” but the law must be narrowly drawn to express only the legitimate state interests at stake. ix. Some scholars argues it would have been better to use equal protection (sex discrimination) because restrictions on abortion only impact women. They tie it to social inequality of women because child bearing causes problems for women wanting to work, makes them dependent on men, etc. Also, using the right to privacy reinforces the idea that what happens in the home is private. That is dangerous to domestic violence issues. x. Dissent: 1. right to abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” xi. At first this was seen as a fundamental right. More recently it’s been changed to an “undue burden” standard and has become less clear. More restrictions allowed (very recently.) F. Liberation of Privacy: Lawrence v. Texas (2003 US S.C.) a. Statute outlawed same-sex sexual contact b. Precedent: Griswold and subsequent cases; confirm that right to privacy not confined to married adults. c. Court didn’t use equal protection b/c that would allow statute that prohibited certain acts equally b/t same and opposite sex couples, like in Bowers. (and there would be a disparate impact on same-sex couples) This opinion overruled Bowers. d. The statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. e. Right defined here: Some kind of right to form relationships with consenting adults, and engage in intimate conduct in private. i. Court doesn’t give clear definition of the right f. O’Connor concurring: it’s equal protection based on sexual orientation. SO warrants rational basis review, and since there’s no legitimate state interest it doesn’t pass. 3 g. Scalia dissenting: i. We should only overlook stare decisis and overrule cases when 1) its foundations have been eroded by subsequent decisions; 2) it has been subject to substantial and continuing criticism; and 3) it has not induced individual or societal reliance that counsels against overturning. 1. problem with that reasoning is that Roe would fit it. ii. Doesn’t violate equal protection b/c applies equally to men with men and to women with women. iii. It’s not a fundamental right “deeply rooted in the nation’s history and traditions.” G. Today: a. Neither intermediate nor strict scrutiny has never been applied for classes based upon sexual orientation. It appears to fall under rational basis review, although O’Conner suggests a fourth tier (rational basis with a bite), for when a statue targets a politically unpopular group and inhibits personal relationships. Q: is Bowers important? (sodomy case b/t Roe and Lawrence) II. GETTING MARRIED A. Marriage is a fundamental right B. Constitutional limitations on state regulation of entry into marriage a. Loving v. Virginia (US S.C.) i. Statute: No white person could marry a non-white person. (crime) ii. State argued: no equal protection issue b/c punishes white and nonwhite participant equally. Since no EP, rational basis test- it passes. iii. Equal application is not enough. The clear purpose of the 14th amendment is to eliminate all discrimination. iv. Equal protection: Racial classifications are subject to rigid scrutiny (must be necessary to important state interest and it’s not) v. Also due process: court recognizes the right to marry is fundamental. 1. Deprives the Lovings of liberty without due process. vi. After this case, people were still unsure if the court would say right to marry is fundamental if the race issue were not present. b. Zablocki (US S.C.) i. Statute: if non-custodial parent is under court order of support to a child, they may not marry without court order, which is only given if they’re in compliance with support order and show child is not likely to become public charge. ii. In this case, appellee’s child would have been public charge even if he got current on support payment. iii. Affirmed that right to marry is fundamental 4 iv. A law that interferes with a fundamental right must be narrowly tailored to an important state interest. v. Was an important interest but not narrowly tailored (preventing marriage doesn’t even prevent children.) vi. Not just any infringement on the right gets strict scrutiny; must be a direct and substantial interference. (regulations ok, like license to marry.) vii. This case explains more why the right to marry is fundamental – ties it to the right to procreate. viii. Stewart concurring: not equal protection; it’s due process ix. Stevens concurring: it’s equal protection – against the poor. x. Hypo: two officers live in different counties and want to marry and live together. Statute says they must live w/in 20 miles of their station. Direct and substantial interference? 1. A court in such a case said it was an incidental burden on the choice and was not direct and substantial. 2. are the state interest sufficient to justify the policy? xi. We now know that the state can impose reasonable rules that don’t directly and substantially infringe on the right to marry. They can impose such infringements if they can prove an important interest and narrowly tailored. c. Turner v. Safley (US S.C.) i. Statute: inmate can marry only for compelling reason; practically it wasn’t allowed unless pregnant or birth of illegitimate child. ii. State argues: right to marry is fundamental, but when applied to prisoners should be tested under reasonableness standard. iii. Zablocki applies to prisoners 1. Inmates retain those constitutional rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. iv. The given state interests (security and rehabilitation) were legitimate but the rule wasn’t related to them. v. Issue court didn’t need to address: right of non-prisoners to marry prisoners. vi. Rational basis review for fundamental rights for prisoners vii. Side note: conjugal visits don’t have to be allowed (sex is not one of the aspects of marriage this was based on) C. Substantive restrictions on marriage: same-sex a. Goodridge v. Dept of Public Health (Gay marriage case) (MA) i. Lawrence left the marriage question open; it dealt with physical intimacy. ii. Standard of review: doesn’t pass rational basis review iii. State interests asserted: 1. favorable setting for procreation a. Procreation is not the main purpose of marriage; there are no fertility requirements for marriage. 5 2. favorable setting for child rearing a. No evidence for this 3. conserving state financial resources. a. Assumes that homosexual couples are less dependent on each other – wrong. iv. The court declines to specify which constitutional grounds they are striking down the statute on. EP and DP often overlap and they do here. The exclusion of same-sex couples from marriage violates principles of both, and they don’t divide it. v. They also declined to say if heightened scrutiny (and thus a fundamental right) was required here, saying that it doesn’t even pass rational basis. vi. Dissent: 1. The right “to marry a person of one’s choice” is not included in the fundamental right to marry. 2. Same-sex marriage is not “deeply rooted in the Nations’ history” and is not fundamental. vii. As of May 2004, same-sex couples can marry in MA. 1. but they also have another statute: No couple allowed to marry in MA if their marriage would be void in their home state. D. Summary of Right to Marry: arguments for and against a. The prior cases held that right to marry is fundamental b. Then Locke said direct and substantial interference is subject to strict scrutiny. c. So why is a ban on same-sex marriage not unconstitutional? i. Yes there’s a right to marry, but the right doesn’t include same-sex couples because it’s not “deeply rooted in the Nation’s tradition” ii. Argument: interracial marriage wasn’t rooted in tradition either. iii. Are we repeating the error of Bowers and defining the right (manwoman) too narrowly? iv. What about discrimination on the basis of sex? 1. some make the “equal application” argument 2. but that was rejected in Loving. 3. but some say Loving was different b/c only prohibited whites from marrying non-whites. E. Substantive Restrictions: bigamy, incest, and age a. Incest i. Prohibited both criminally and civilly ii. Based on both consanguinity and affinity (marriage/adoption) iii. All states prohibit incest in some form 1. 22 states include step parent/child iv. The marriage is considered void and there are criminal penalties. v. CA: half blood and step relatives prohibited vi. In re Adoption of M. 1. adoptive father and daughter have child and want to marry 6 2. since he’s now divorced from the adoptive mother, it’s in the best interest of he child, as well as the two parties. vii. Ohio v. Lowe 1. held: OH incest statue is constitutional as applied to a stepparent and adult stepchild. a. “child” doesn’t just mean child 2. no fundamental right  rational basis a. legit state interest and rationaly related (protecting the family unit, children) 3. the “right” is defined as consensual sex with stepdaughter 4. narrow reading of Lawrence as a right to consensual sex b/t unrelated adults. b. Polygamy i. CA: illegal and void unless spouse either missing for 5 years or generally believed to be dead. ii. State v. Green (Utah) 1. statute: knowing you have spouse, marry or cohabit illegal 2. Green had 9 wives. He divorced or didn’t marry some so he was only married to one at a time. They all shared family duties, family business. 3. Green argues freedom to practice his religion 4. Statute is neutral and of general applicability, so may restrict practice of religion. a. It’s facially neutral – “cohabit” applies to everyone, not just his religion. b. Generally applicable – although maybe adverse affect on his religion, purpose was for general welfare. 5. If statute is neutral/generally applicable  rational basis. a. State interest: regulating marriage, preventing marriage fraud, protecting vulnerable individuals. c. Age Restrictions i. All but two states say 18 or parental consent ii. CA: If under 18, need parent consent AND judicial approval (more restrictive than many states) iii. Uniform Marriage and Divorce Act: 1. Under 16: consent of both parents AND judicial approval 2. 16-18: both parents OR judicial approval iv. Kirkpatrick v. District Court (NV) 1. mom allowed 15 year old daughter to marry 48 year old man, by going to Vegas and she gave consent there. 2. dad tries to interfere. 3. Court: The state has the appropriate balance of the child’s right to marry and parent’s rights regarding the child; also the relationship b/t parent and child doesn’t end there. So he’s not deprived of the parent-child relationship. 7 4. Consent of both parents is by no means a constitutional requirements for even the most important decisions regarding minors. 5. fundamental right to marry applies to child as well; the state statute was sufficient safeguard. F. State of mind restrictions; procedural restrictions; and informal marriages G. Annulment Based on Fraud a. Annulment Generally: i. Determination that the marriage was never valid ii. Grounds for annulment 1. bigamy, arrest, insanity, others… iii. Consequences traditionally: 1. children illegitimate 2. no property division or alimony (still child support) iv. Consequences Today: 1. children are legitimate (most states) 2. property is distributed b/c women earn money 3. In most states, if good faith belief that the marriage was valid, they’re a putative spouse and may have right to distribution of property and support from the other. v. In contrast, divorce- dissolution of what was once a valid marriage. b. Blair v. Blair i. She files for divorce and he cross-files for annulment, saying that she falsely represented to him he was the father, inducing him to marry her. ii. He wants annulment based on fraud; to establish fraud: 1. a representation 2. its falsity 3. its materiality 4. wife’s knowledge of its falsity of ignorance of its truth 5. intent that the representation be acted upon 6. husbands’ ignorance of falsity 7. husbands’ reliance on truth of representation 8. husband’s right to rely on the representation 9. consequent and proximate injury iii. court found he would have married her anyways, so no reliance. (he had questioned/doubted paternity and done it anyways) c. Generally for fraud i. fraud occurred before marriage ii. it was material iii. there was reliance iv. the fraud went to the essences of the marriage 1. no clear test, but courts have held that fraud related to pregnancy, fertility, or sometimes strong representations about a person’s religion or faith. (character or will not usually sufficient.) 8 d. CA: annulment based on fraud restricted to 4 years after finding truth. e. Why would you want annulment rather than divorce? i. If you’re the wealthy party you don’t want to split your property, or pay alimony. ii. Relation back (if you were previously getting alimony from someone else) iii. Jurisdiction: less limited than getting divorced iv. Stigma of divorce H. Void and Voidable Marriages a. Void: invalid from inception. (even if nobody brought annulment action) i. can be challenged by anyone, and at any time including after death. ii. Ex: bigamous, incestuous marriages b. Voidable: valid until judged a nullity. i. can only be challenged by a party (or parents if under-age.) ii. Can’t be challenged after death, and there may be statutes of limitations. iii. Ex: under age without parent consent, or fraud or duress marriages c. CA: i. Underage party must file w/in 4 years of reaching consent age. ii. Parent must challenge before minor reaches age of consent. iii. Underage participant can’t challenge at all if, after attaining age of consent, they freely cohabited with the other as husband and wife. d. UMDA: requires any challenge be brought before minor is age of consent. I. Procedural Restrictions a. Generally, states have two procedural requirement: i. Solemnization 1. No specific form of ceremony required 2. All states allow both religious and non-religious people to solemnize a marriage. (states differ on requirements) ii. Licensing 1. proof of age 2. some states- waiting period (3-5 days); none in CA 3. license valid for 30-60 days (90 in CA) 4. dwindling # of states- blood test and/or health certificates b. So what do we do when people screw up these requirements? c. Carabetta v. Carabetta i. P and D were married in a Catholic church, but never obtained a marriage license. ii. Q: whether, despite solemnization by religious ceremony, a marriage is void where there has been noncompliance with the statutory requirements of a marriage. (licensing) iii. Such a marriage, though imperfect, is dissoluble rather than void. 1. this is the majority rule 2. and that means the court has jurisdiction for divorce iv. In Hames v. Hames the opposite case (solemnized but no license) was interpreted not to be void. 9 v. California WILL set aside a marriage if they don’t comply with licensing requirements. 1. But equitable principles soften harshness of this. vi. Hypo: fake wedding to please parents, but because it was solemnized it was valid. W may try to claim fraud but H may claim estoppel since she participated. (court found valid.) d. Common Law Marriage i. Common law marriage used to make procedural problems less of an issue. (it was a back-up) ii. Today: 9 states recognize it; the UMDA takes no position. iii. Still important b/c of lex loci rule 1. if valid on one state, other state must recognize it a. unless against strong public policy of their state. iv. Requirements for valid common-law marriage: 1. Cohabitation 2. Holding out (as spouses) 3. Capacity (ability to agree and no legal impediment) 4. Present agreement to be married (at some point) v. Standard of proof 1. Most states- clear and convincing evidence vi. To dissolve common law marriage 1. actually have to get a divorce vii. Durational requirements 1. some states hold you have to have some significant connection to the state to enter into common law marriage there. 2. Other states allow very short periods of time (like a vacation) viii. If you’re in a common law state it will be easier to prove putative spouse status, because you won’t have to prove you tried to comply with formal requirements. (Putative common law spouse) e. Putative Spouse: one has good faith belief they’re married; don’t get divorced, but may have $$ benefits. J. Rights/Responsibilities of marriage include: a. Tort b. Family Law c. Financial i. Taxes ii. Gifts d. Death & Dying e. Employment Benefits III. REGULATING THE FAMILY A. The changing nature of marriage a. Bradwell: woman not allowed to practice law b/c destiny was at home. 10 b. McGuire: court won’t intrude into an intact marriage; claim for maintenance only ok if separated or seeking divorce. i. Didn’t make sense b/c she could go to third party, buy something on credit, and then they would attack his credit. ii. Doctrine of non-intervention still valid. iii. But what about Griswold (contraception)? Here, one party seeks intervention; in Griswold both were trying to keep gov’t out. c. Common law: woman’s legal identity merged with her H’s. Single women could still contract, sue, or make a will. “Coverture” – protection of W. d. Then: married women’s property acts e. Property now: i. Common law/separate property regime: “title theory” 1. majority of states 2. argument: disfavorable to women b/c historically, not as much opportunity to gain property; homemakers. 3. upon divorce, most states will do equitable distribution, producing result close to community property (50/50.) ii. Community property 1. CA + 8 other states 2. partnership theory 3. property acquired during marriage- each gets ½ undividable interest; either can control/manage without other’s consent. B. Tort and Criminal Law: tort actions against third parties, interspousal immunities, and evidentiary privileges a. Tort Actions against third parties i. “Amatory” Torts: alienation of affection and criminal conversation 1. both descend from notion that wife is property of husband. 2. don’t recognize wife’s volition 3. Some states abolished the torts, some made them genderneutral 4. Today 42 states have abolished both torts (including CA) ii. Jones v. Swanson (South Dakota, 2007) 1. W has affair; H sues third party for alienation of affection. 2. Elements of “alienation of affection”: (INTENTIONAL tort) a. 1. a valid marriage b. 2. wrongful conduct i. This does not require sex ii. Could be the in-laws encouraging child to leave the marriage c. 3. loss of affection or consortium (society, companionship, conjugal affection, etc.) d. 4. a causal connection 3. court: W may have stayed w/ H if not for T, so causal connection, and no requirement that T intended to harm H. 11 4. hard to determine damages; net worth used; the punitives in this case were excessive. (25% of his net worth?) iii. Intentional Infliction of Emotional Distress 1. Osborne v. Payne (FL) a. Couple goes to marriage counseling and wife has affair with priest. b. The state has abolished the amatory torts c. H sues priest and church for IIED 2. IIED elements: a. Intentional or reckless conduct b. Outrageous and intolerable in that it offends the generally accepted standards of decency and morality c. Causal connection d. Distress suffered must be severe 3. In Osborne, the special relationship made the conduct outrageous, where it otherwise would not have been. 4. Church’s vicarious liability dismissed- no reason to know he would do this. (Counseling part of the job; adultery not.) b. Tort Actions Between Spouses – Interspousal Immunity i. Recently, courts have been peeling away interspousal immunity. (which is opposite of above, where courts are limiting ability of spouses to sue third parties for interference) 46 states have abrogated partially or wholly the doctrine of interspousal immunity. (esp. for STDs and Domestic Violence) ii. G.L. v. M.L. (NJ) 1. Privilege of marriage doesn’t shield D from personal injury action, in which he had affair and gave herpes to wife. 2. Intentional act was putting W at risk by having affair, not knowingly giving herpes to W. iii. CA (most states) abolished immunity for both intentional and negligent torts iv. Note on negligence: what if H doesn’t shovel snow properly? There could be endless negligence suits. v. Torts b/t Spouses Generally: 1. in favor of immunity: protect marital relationship 2. against immunity: if suing someone, no marital harmony to preserve; limiting a right one would have absent marriage. c. Evidentiary Privileges Arising from the Marital Relationship i. At Common law: Two privileges 1. confidential communications (either can invoke and continues after marriage ends) 2. adverse spouse privilege (any adverse testimony whether or not in private – only during the marriage) a. historically inadmissible b/c spouse may lie (interest in the case) and b/c idea of H and W as one. 12 ii. All other privileges (priest, attorney, physician, etc.) are limited to private communications. iii. Trammell v. United States (only deals with the second privilege) 1. Q: Whether an accused may invoke the privilege against adverse spousal testimony to exclude the voluntary testimony of his wife. 2. if spouse willing to testify, probably no marital harmony. 3. if H can prevent W’s testimony, gov’t unlikely to offer her immunity in exchange  endangers W b/c of H’s control. 4. Existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely. 5. Adverse spousal privilege is held by the witness-spouse iv. The private communications rule was not changed (either spouse may evoke the privilege) d. Summary of Tort/Criminal law in marriages i. In heart balm (the amatory torts), courts have restricted ii. Courts have opened the doors to sue each other though. C. Tort and Criminal Law: Domestic Violence a. DV only taken seriously since the 70s/80s, due to notions of marital privacy and non-intervention. b. CA domestic violence law: i. Domestic Violence is an act of abuse perpetrated against: 1. A spouse or former spouse, a cohabitant or former.. a “person with whom respondent is having or had a dating or engagement relationship.” A person with whom the respondent had a child, a child, or any other person related by blood or affinity within the second degree. ii. Abuse: 1. Intentionally or recklessly to cause or attempt to cause bodily injury 2. Sexual assault 3. Reasonable apprehension of injury 4. other: molesting, stalking, etc. c. We didn’t learn about other stats but most include unmarried partners. d. Statistics i. Most victims are female; most perpetrators are white males; 22% of murders are family murders. e. Battered Women Syndrome: Hawthorne v. State (FL) i. W convicted of murdering H; she claims Battered Woman Syndrome. (to show self-defense needs reasonable belief of harm, BWS would show the reasonable belief of harm.) f. Today: all 50 states admit testimony about BWS g. CA Evid. Code §1107: intimate partner battering.. expert testimony is admissible by either side, except when offered against defendant to prove the occurrence of the act. (can’t prove they are a batterer) h. General rule for expert testimony: 13 i. the expert is qualified to give an opinion on the subject matter; ii. the state of the art or scientific knowledge permits a reasonless opinion to be given by the expert; iii. the subject matter of the expert opinion is so related to some science, profession, business, or occupation as to be beyond the understanding of the average layman. 1. The conflicting authorities primarily disagree on ii and iii. i. State Protection: i. De Shaney held: the state, absent a special relationship, has no duty to protect citizens against deprivation of life, liberty or property committed by private individuals. j. Town of Castle Rock v. Gonzalez (US S.C.) i. Whether one who has a restraining order has a constitutionally protected property interest in having the police enforce the TRO when they have probable cause to believe it has been violated. ii. Ex-H took girls from yard, W tried to get police to do something, they did nothing and told her to wait, H killed girls. iii. She claimed due process b/c of property interest in enforcing TRO. iv. She was not entitled to enforcement v. Even the mandatory arrest statute didn’t make it mandatory (impractical and police discretion); no property interest at all. vi. Note: no negligence b/c of sovereign immunity k. Marital Rape: People v. Liberta (NY) i. They were living apart after DV issues, she went to hotel with son to visit, he raped her and made son watch. (but still married) ii. The statute had a “marital rape exception” to rape law 1. but considered not married if living apart by court order. iii. Defendant (H) claims equal protection on marital status iv. Equal protection doesn’t prohibit classifications, but when based on marital status there must be some ground of difference that rationally explains the different treatment. 1. There is no rational basis for distinguishing between marital rape and non-marital rape. 2. Married woman has same right to control her body as an unmarried woman does. v. Non-intervention b/c of right of privacy, but privacy protects consensual acts; can’t use privacy to beat wife can’t rape either. vi. In CA, until 2006, marital rape was treated differently (wife must report w/in 1 year or support charge with independent evidence.) vii. The laws are now gender-neutral and marital status-neutral D. Balancing Work and Family a. Pregnancy Overview i. stage 1: “protective” legislation 1. forced to leave work when pregnant ii. stage 2 (the 70s) 1. sex discrimination claims brought 14 2. Supreme Court: pregnancy is not sex iii. stage 3 (1978) 1. Congress overruled that and amended Title VII to include pregnancy in sex discrimination definition. 2. And get same benefits employer gives for other disabilities when taking leave. b. Pregnancy and Due Process: Cleveland Board of Education v. LaFleur (US S.C.) i. Laws made women take leave certain amount of time before due; and not guaranteed reinstatement. ii. Q: are mandatory maternity leave rules for public school teachers constitutional? -- no 1. Freedom of personal choice in marriage and family life is liberty protected by Due Process. Eisenstadt. 2. Penalizing teachers for having kids is a heavy burden on the exercise of these freedoms. iii. State interests: 1. Continuity of classroom instruction a. Legit goal but mandated leave not necessary; no rational relationship to goal. (teachers get pregnant at different times anyways!) 2. Protect health of mother and unborn child, while assuring students have a physically capable instructor. a. Physically capable instructor ok, but too broad; can just get doctor’s determination individually. 3. convenience/administrative expense a. insufficient for DP violation (not even legitimate) iv. At least some teachers become physically incapable of performing duties. v. Court rules on the basis of constitutionally protected right to raise a family, etc. and looks to substantive due process cases, like Eisenstadt. 1. note: this claim couldn’t be brought against private employer; against gov’t ok b/c constitutional right. 2. note: not equal protection claim, b/c pregnancy not sex. vi. Medical requirement is narrowly drawn (other statute); waiting until child is certain age serves no purpose. c. Pregnancy Discrimination Act (Title VII): i. Can’t be fired, same benefits ii. Does it require employers to provide maternity leave? 1. Not explicitly but because they have to give same benefits as to other disabilities. 2. So temporary disability leave, if it’s given to all employees, will include for pregnancy. iii. Which employers covered by title VII: 1. 15 employees or more 15 iv. What are some limitations with framing it as disability? 1. Once you give birth the “disability” ends 2. Doesn’t cover fathers; it’s gender-specific v. May not provide enough protection d. Pregnancy and Equal Protection i. California Federal Savings & Loan Association v. Guerra (USSC) 1. Q: Whether Title VII of Civil Rights Act as amended by Pregnancy Discrimination Act preempts CA statute that requires employers to provide leave and reinstatement to employees disabled by pregnancy. a. Is the greater protection in CA law preempted by federal law? (FEHA) 2. Pregnancy Discrimination Act- amended Title VII to include pregnancy in sex discrimination. 3. Does the CA law require permitting employers to violate Title VII? 4. Does the PDA (national) prohibit states from requiring employers to provide reinstatement to pregnant workers, regardless of their policy for disabled workers generally? 5. Congress intended the PDA as a floor rather than a ceiling. 6. If Congress had intended to prohibit preferential treatment, it would have been the height of understatement to say only that it would not require it. 7. statutes not inconsistent 8. dissent: “pregnant employees shall be treated the same for all employment-related purposes as non-pregnant employees similarly situated with respect to ability or inability to work. e. Federal Pregnancy Law Overview i. Sex discrimination includes pregnancy, child birth, and medical conditions related to child birth. ii. Does not require employers to give leave as long as given same benefits/leave as other disabilities. iii. Doesn’t require any minimal level of treatment (“same as” other disabilities) iv. Narrow; only applies to pregnancy and maybe trying to get pregnant v. But not after birth: breastfeeding/childcare f. FMLA (Family Medical Leave Act) i. Employees: if worked for 12 months ii. Employers: those with 50 or more employees iii. What kind of leave: 1. Unpaid 2. 12 weeks per year 16 g. h. i. j. k. 3. Must be for children (adult child ok), parents, spouses (woman/man) a. In loco parent (someone who is functioning as a parent) iv. What triggers coverage: 1. Serious health condition a. In patient care; OR continuing medical treatment 2. Birth or placement of a child (adoption/foster) v. Requirements: 1. 30 days notice if foreseeable, or as much notice as is practicable vi. Protections besides leave: 1. Job back 2. Keep health insurance (if you contribute you have to continue contributing) 3. Whatever benefits you had must be continued when you come back. (can’t take away accrued benefits) vii. Applies equally to men/women viii. If you show you were otherwise entitled to FMLA leave, burden is on employer to show that wasn’t the reason for firing. PDA (Pregnancy Discrimination Act) i. Limited by gender (women only), doesn’t require leave (FMLA does), 15 employees (50 for FMLA), doesn’t cover post-birth events (FMLA does.) Caldwell v. Holland of Texas, Inc. i. Issue was whether son had serious health condition to make mom miss work. ii. Problem: if he has a bad cold she still misses work and she can be fired for it (not protected.) (court said it was at least arguable?) CA: (2003) i. CA first state to provide paid family leave ii. 6 weeks, maximum 55% of salary or $880/week. iii. Covers domestic partners and their children iv. Since then, WA enacted a plan; NY/NJ considering it. Sex-stereotyping: FMLA doesn’t do anything for when the woman comes back to work, but discrimination cases have been successful based on this. i. Also works for men who want to take FMLA time. Breastfeeding: courts have been consistent in rejecting claims that it’s a fundamental right. (even where medically required to breast feed and employer refused to accommodate her.) i. Some state have required employers to make accommodations (CA) IV. ALTERNATIVE FAMILIES A. Why does the law treat unmarried people differently? a. The functional definition of family 17 B. C. D. E. b. Involves intrusion into the family c. Certainty (bright line rule) Communes: US Dept of Agriculture v. Moreno (US S.C.) a. Statute: food stamps eligibility based on “household” income; household – must be related. b. Must be rationally related to legitimate government interest. i. The purpose was to exclude hippie commune ii. Gov’t desire to harm politically unpopular group not legitimate. iii. If the purpose were fraud, it’s not rationally related. c. Politically unpopular groups maybe rational basis with a bite. d. Concurrence: 1st amendment freedom of association. e. Dissent: legit interest is protect family as we know it. f. Belle Terra (one year later): no more than two unrelated people in a house ok. (plaintiffs were less sympathetic – college students) Moore v. City of East Cleveland (US S.C.) a. Woman criminally convicted for violating statute that defined family so as to exclude one of her grandsons. b. Freedom of personal choice in marriage and family life is a liberty protected by Due Process of 14th amendment. c. City’s interests: i. Overcrowding, minimize traffic and parking, reduce financial burden on schools. d. Interests are legitimate but the ordinance serves them marginally at best. i. Would let a family with 10 drivers as long as parents/children. ii. But would prohibit adult brother and sister who used public transit e. Different than Bella Terra because there only unrelated people affected. Unmarried Couples: Property, Torts, and Medical Decision-Making a. Marvin v. Marvin: Distribution of property in non-marital relationships b. P and D lived together 7 years and all property was in D’s name; court gave it all to him; she sued for enforcement of oral contract under which she gets half of property plus support. c. Immoral nature of relationship doesn’t matter unless the contract was based on sexual consideration. d. Agmnts in contemplation of marriage must be written but no marriage. e. Rule: express agreements will be enforced unless they rest on unlawful considerations (like sex.) In the absence of express agreement, courts can use other, equitable remedies. (Implied K, constructive trust, quantum meruit for household services rendered.) f. Note: no common law marriage claim because CA abolished it, and he was actually married anyways so no capacity. No putative spouse claim b/c she didn’t think she was married. (ceremony requirement plus one party’s good faith belief that they’re married.) i. In CA, putative spouse would have all rights of married spouse. ALI: Domestic Partners a. Same household for set period of time (but ALI doesn’t set the time.) i. This creates rebuttable presumption 18 F. G. H. I. b. If common child in the household, shorter time i. Creates irrebutable presumption c. Then divide property same as if married i. Only covers property distribution; doesn’t create any other rights. d. (status-based rule) Approaches to Unmarried Couples: a. Don’t enforce any agreements (a few states do this) b. Contract theory (most states will enforce express K’s b/t unmarried ppl) i. Most states will also provide equitable remedies, but not a claim for acquired income (half the assets) c. Status-based approach (three states- wa, or, nv) i. If you look enough like a married couple, treat it that way. Tort Recovery: a. Graves v. Estabrook (NH) i. Fiancé driving behind him and he was killed by driver. ii. She sued for NIED. b. Negligent Infliction of Emotional Distress i. Close proximity to accident ii. Directly observed iii. Closely related c. Different approaches: i. Physical impact ii. Zone of danger iii. CA’s test: 1. P near scene of accident 2. direct emotional impact from sensory observation 3. closely related a. this was the issue (CA would go other way) d. Court (Graves) decided no bright-line rule for closely related; must consider relationship (duration, dependency, etc.) Minority rule e. Other torts: loss of consortium and wrongful death i. Courts don’t usually allow unmarried partners to sue ii. Some states allow domestic partners or reciprocal beneficiaries. Medical Decision-Making: In Re Guardianship of Kowalski (Minnesota) a. Woman was in an accident and brain damaged; her father and lesbian partner both want guardianship. Father terminated her visitation. b. Standard for appointment: ward’s best interest (W’s wish, P’s qualifc) c. Today most courts would award guardianship to ss unmarried partners. Unmarried Couples: Domestic Violence a. Same-sex: State v. Yaden (OH) – majority rule i. For purpose of defining household, “cohabit” meant financial and consortium. Should be case-by-case; same-sex couples protected. ii. Most states give DV protection to same-sex couples. b. Opposite-sex: Ohio v. Carswell (OH) -- majority rule i. Unmarried man and woman live together 19 ii. OH Const. Amendment: state shall not recognize legal status of unmarried people that approximates marriage. iii. DV Statute: Household member: living as spouse: married, or otherwise cohabiting. iv. Argument: the DV statute violates const. by recognizing status. v. Court interprets the Const. to mean can’t create status that bears all the attributes of marriage. vi. Maybe courts more likely to give protection when b/t people, less likely when involves third parties. J. Unmarried Couples: Familial Benefits a. National Pride, Inc v. Governor of Michigan i. Statute: marriage or similar is one man and one woman ii. Q: Does amendment prohibit employers in providing ss benefits? iii. Court of appeal said giving benefits is recognizing union- can’t. iv. Only way around this would be for employers to let each person chose one beneficiary, so it’s not based on their legal relationship. b. Problems even in states that recognize other relationships: i. FMLA is federal and fed is man/woman. ii. Taxation of benefits is federal (taxed for unmarried) iii. ERISA (regulates most pensions) is federal iv. If a company is self-insured, state can’t require them to have same benefits. Many are largest companies, like Coca Cola. c. Marvin argument: express/implied agmt. Or maybe equity offset interest. d. Housing: Braschi v. Stahl Associates Co. (NY) i. Male partners lived in rent-controlled apartment and the one on the lease died. ii. Rent-control code didn’t define family (who can stay) iii. Legislature intended to extend protection to those who reside in households having all the normal familial characteristics. 1. factors: exclusivity, duration, level of emotional and financial commitment, everyday conduct (holding out.) iv. this was first state high court (NY) to recognize same sex family, but it’s been limited to rent-control situation so it’s not indicative. e. Inheritance: Vasquez v. Hawthorne (WA) i. V and S (men) lived together; S died intestate; V wants community property. ii. Remanded for determination of equitable remedies iii. This was WA (status-based) so he may have a claim. iv. This case is not typical. In most states, if you don’t have a will your property will NOT go to your non-marital partner. v. Courts more likely to provide protection where one has died, so state isn’t recognizing an existing relationship. K. Same-Sex Couples: Summary of Current Law a. Marriage: only MA; RI and NM can marry in MA b. Civil unions: CT, NJ, VT, NH c. Comprehensive Domestic partner: CA and OR 20 d. More limited protections: DC, HI, ME, WA e. Internationally, marry: Belgium, Canada, Netherlands, South Africa, Spain L. Same-Sex Couples: Interstate Recognition Issues a. Two sources of law: i. Full Faith and Credit Clause 1. Ff&C to public acts, records, judicial proceedings of every other state. 2. Historically, states have recognized a public policy exception in regards to marriage. (not a judgment) 3. So if the state has a strong public policy against a marriage (like first cousins) it doesn’t have to recognize it even if it was valid in the first state. 4. Currently: a. Recognition is required for court judgment even if it violates policy of second state. b. Acts and records are different c. And marriage is not a judgment ii. DOMA 1. in response to HI about to recognize same-sex marriage. 2. So congress said states don’t have to recognize marriages that violate their public policy. b. Dissolution of Same-sex partnerships i. Some courts say they lack subject matter jurisdiction b/c their state doesn’t recognize the union. ii. DOMA (Defense of Marriage Act) permits states to refuse to recognize the marriage (validly entered into in Massachusetts.) iii. CA law recognizes valid unions from other states, and so may have jurisdiction to dissolve them. iv. CA law: people that register as domestic partners consent to jurisdiction for dissolution in CA even if they’re not in the state at the time. v. Rosengarten v. Downes (Conn.) 1. P brings action in Connecticut to dissolve civil union entered into in Vermont. (D now lives in NY) 2. CT does NOT have public policy in favor of recognizing civil unions. 3. Same statute that prohibits discrimination also says: nothing in this shall mean that the sate condones homosexuality or same-sex marriage. 4. CT will enforce written contracts and equitable remedies but won’t recognize the legal relationship. 5. (this was before CT recognized civil unions) vi. Salucco v. Alldredge (MA) 1. P- MA resident; D- Arkansas resident; union in VT 2. DOMA wasn’t a problem b/c it’s not against MA public policy (they allow same-sex marriage.) 21 3. didn’t treat it as divorce b/c VT law wouldn’t, but still could dissolve it. vii. Gonzalez v. Green (NY) 1. P was student; D was rich, gave him large gifts; married in MA but don’t live there. 2. MA law: if marriage would be void in the jx where the parties live it’s null and void in MA too. 3. they had a separation agreement, including one-time gift 4. Court: there was consideration in the agreement; no mutual mistake b/c they knew the marriage was void. viii. Langan v. St. Vincent’s Hospital (NY) 1. S and L lived together many years; when law changed they got civil union in VT; joint homeowners; sole beneficiaries for wills and life insurance. 2. Q: is P recognized as “spouse” for NY’s wrongful death? 3. NY would recognize common law marriage from another state (even though they don’t have it.) 4. If the VT civil union does not offend policy, as would a polygamous or incestuous union, it will be recognized in NY for purpose of wrongful death statute. 5. Court isn’t deciding if they had a valid marriage, only if he is a “spouse” for purpose of wrongful death. 6. P, a SS under VT law, is included in the meaning of spouse as used in the EPTL, and has standing to recover for wrongful death of S. 7. Does this mean the civil union will be recognized for all purposes? a. No; limited to wrongful death 8. this was reversed on appeal – not a spouse for WD statute 9. so do we need to know this case at all??? ix. Burns. v. Burns (Georgia) 1. Darian and Susan got divorced; modified their visitation order: no visits if parent is cohabiting or overnight stays with someone they’re not legally married to or related to in the 2nd degree. 2. Then Susan started living with her lesbian partner. They went to VT and got a civil union, so wants FF&C in GA. 3. Court: civil union is NOT the same as marriage, and even if they were married in VT, GA has mini-DOMA and won’t give FF&C to any same-sex unions. 4. W must either stop living with partner or not see her kids. V. PARENTHOOD A. Paternity: a. Can bring paternity action until child is 18 22 b. Today, not only mom- also dad and social service agency can bring action. c. If mother is on some kind of gov’t aid, the agency will bring action against father and mother is required to cooperate. d. Defenses to paternity action: (there are very few) i. Even if mom lied about fertility status or birth control, man is still responsible for child support. ii. Also, parents cannot enter into agreements about child support iii. Ex: woman says don’t worry if I get pregnant, I wont hold you liable for child support. iv. Courts will enforce financial relationships between two adults, but not in regards to children. B. Federal Laws: a. 2000 federal gov’t required all states to pass laws allowing courts to require genetic testing. b. And states must have a way for fathers to voluntarily acknowledge paternity C. Non-Marital Children a. Stanley v. Illinois (US S.C.) i. J and P lived together intermittently for 18 years and had 3 kids. ii. Statute: children of unwed fathers become wards of the state upon death of the mother. iii. Due Process: S entitled to hearing on his fitness as parent, just like a married parent would be before kids taken away. iv. Equal Protection: by denying him a hearing but extending it to married people, state had denied him equal protection. v. State interest- protecting child legit, but no rational relationship. vi. Result of this decision: the fact that a person isn’t married doesn’t necessarily mean they won’t be considered a parent. 1. doesn’t tell us: whether bio parent automatically has constitutional interest in custody, or if you have to show something more than biology to have parent relationship. b. Cases after Stanley i. Held ok to not allow bio dad to oppose adoption proceeding by mom’s new husband. ii. But another case: it did violate his rights b/c parent-child relationship established (lived with kids and mom for 5 years.) iii. Significance of the bio connection is that it offers that man an opportunity that no other man possesses to have a relationship with his offspring, but if he chooses not to grasp that opportunity his rights are not violated when the state chooses not let him oppose adoption. “biology +” iv. Many states require the state to attempt to find the father; and if he fails to indicate interest it’s ok to exclude him. v. More recently, courts moving in the other direction. vi. Uniform Parentage Act (most recent version) 23 1. States only required to adopt a registry (if a putative father takes advantage of his right to sign his name – that he slept with a woman and may be a father of the woman’s child – within 30 days of the birth, he gets notice) vii. CA: if mom thwarted dad’s efforts to establish relationship he still has rights. (some other courts don’t care.) c. Michael H. v. Gerald D. (CA) i. CA Law: 1. Child born to a married woman living with her husband is presumed child of the marriage. 2. Presumption may only be rebutted by the husband or wife, and then only in limited circumstances. ii. P claimed the presumption infringes DP rights of a man to establish paternity of a child born to wife of another man. (Also claims constitutional right of the child to relationship w/ dad) iii. He wants to be declared the natural father, which would give him parental rights, so he must prove that society has traditionally allowed a natural father in his circumstances to have parental rights. (it hasn’t) iv. To provide him protection is to deny protection to marital father. (that’s up to the people of CA) v. No claim for child b/c she was allowed relationship w/ legal parents (marital) and is legitimate so no EP equal b/c if illegitimacy. vi. So the court narrows the rule established in Stanley that a bio link + relationship was enough. Court adds new criteria: 1. biology 2. relationship with child (the +) 3. Relationship with mother, family looks normal. vii. 7612: when competing presumptions, policy considerations rule. d. In Re Nicholas H (CA) i. Are there cases where the person is not biologically related and is not married to child’s mother be considered father b/c he’s functioned as a father??? ii. Q: is the presumption under §7611(d) (holding out as own child) necessarily rebutted when the presumed father seeks parental rights but admits he is not the biological father? iii. (d) is only 7611 section that doesn’t rely on marriage/attempted. iv. “A presumption is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.” v. This case was not an appropriate action in which to find the presumption rebutted, because of the harsh result that would leave the six year old boy fatherless and homeless. (there was no competing father in the picture.) 24 vi. If the court finds a person is a presumed parent and the presumption is not rebutted, that person is a legal parent. (he has to provide support.) vii. if bio dad shows up later, could say - had opportunity to establish relationship and didn’t. viii. Subsequent case: competing claims b/t functioning parent and bio parent. (court said the functioning father’s interest won) But that was very fact-specific b/c the bio father had raped the mother. ix. CA today: you can be the legal parent even without bio or marital connection, and even if there’s competing presumption. e. In Re Salvador M. (CA) i. His half-sister raised him as her child when mom died. ii. Dependency proceeding iii. Q: can the sister get reunification services? iv. A man is presumed natural father if he received the child into his home and openly holds the child out as his natural child. (so woman should be too.) v. Presumptions driven by state interest in child welfare, not biology. vi. Her admission that she’s not his mother doesn’t rebut the presumption. (holding out as own) vii. This is not an appropriate action for rebuttal of the presumption because there’s no competing interest for maternity. viii. She gets services (she’s presumed, don’t need de facto status) ix. The rule in Nicholas H. applies equally to women. D. Elisa B. v. Superior Court: (CA) Extending Paternity Laws to Same-Sex Couples a. Elisa and Emily were partners. Both got artificially inseminated. Emily had twins. Elisa claimed all 3 kids on taxes, joined surnames, etc. b. Statement in Johnson that child can only have one natural mother doesn’t mean both women can’t be parents. Just not 3 parents. c. Elisa held them out as hers; wants to rebut presumption of §7611 d. This was not an appropriate action to rebut (they would be on welfare) e. Court in Nicholas H. said it may be different if unwilling candidate- but Elisa was willing at one time. f. 7611 presumption applies equally to same-sex couples. g. Today: she could also seek custody/visitation as a legal parent E. Random stuff re: Presumptions a. UPA §204 (a) (5) … For the first two years of child’s life, he resided in the same household with the child and openly held out the child as his own. b. It’s not clear re: does the child have to believe the person is their parent (Salvador) c. What if you find out years later that you’re not the parent? i. States go all different ways on this F. Assisted Reproduction Technologies (ARTs): Alternative Insemination a. Why use ART i. Can’t have kids physically 25 b. c. d. e. f. ii. Surrogacy – own genetic material iii. Less adoptable kids iv. In FL gay couples can’t adopt- only way to have kids Terms: i. AIH: artificial insemination with husband’s sperm ii. AID: artificial insemination with a donor’s sperm In re Adoption of Anonymous (NY) i. During marriage, consensual AID. Divorce decree declares child a child of the marriage. Father visits and pays support. New husband wants to adopt and father refuses his consent. Wife claims father is not “parent” of the child so his consent not required. ii. Child born of AID doesn’t have a “natural” father. Husband is legal father. iii. Conclusion: the child conceived by AID during a marriage is a child of the marriage and the father/husband is the “parent.” 1. this changed NY law; previously said he was not father. 1973 Version of UPA (19 states adopted) i. If, under supervision of licensed physician and with consent of husband…..husband is natural father. ii. Requires: woman married, license physician, H consents in writing, W signs, doctor certifies consent signatures. 1. Physician just has to supervise; doesn’t have to perform the insemination. EP issue for married requirement? iii. If H doesn’t sign: most courts- if husband actually consented, he’s still legal parent or at least require support under equitable principles. 2002 UPA Changes: (8 states adopted) (know both versions!) i. doesn’t require physician supervision ii. does still require written consent iii. but then has a default rule if parties don’t comply with written consent requirement 1. first two years of kids’ life parties live together and man holds kid out as his own, man still considered legal parent. iv. Governed solely by intent. If guy gives sperm with no intent to be parent, he’s a donor with no rights/obligations. v. What about unmarried couples? Same rule apply? In Re Parentage of M.J. i. M and W had 10 year relationship, but not married. M couldn’t father children, so they did AI w/ anonymous donor. W claims M promised to support children. He took her to the doctor, paid for the procedure, supported the twins. Later, W discovers M’s real name and that he’s married. He stops supporting the twins. ii. Q: does failure to provide written consent preclude establishment of parent-child relationship and imposition of a support obligation? iii. A: Failure to get written consent precludes a claim for paternity and child support under the Ill Parentage Act. 26 iv. Since it requires writing consent, court doesn’t have to address whether it applies to unmarried couples. v. Q: Does the Ill Parentage Act preclude common law claims for child support? vi. A: No vii. Parental responsibility may be imposed (in absence of written consent) based on conduct evincing actual consent to the artificial insemination procedure. viii. If unmarried man accidentally causes conception he’s responsible. Shouldn’t be any different for purposeful conception. ix. Also, a state can’t discriminate against a child based on parents’ marital status at the time of his birth. x. What if broke up before birth? – wouldn’t be holding out parent. There are two cases now (WA and MA) holding that if couple broke up before children born, partner is NOT responsible. g. Status of the Law re: AI and Same-sex Couples i. In IL the statutory provisions didn’t apply. Only other court to address was CA. In dicta, suggested it should apply to unmarried couples the same. ii. 2002 UPA has addressed it. 1. Equally apply to married and unmarried couples (just refers to man and woman) 2. Does require man to have the intent to be parent of resulting child. 3. Unclear if it applies to gay couples a. Commentary suggests not intended to apply b. Constitutional? (applies to unmarried heterosexuals) h. Jhordan C. v. Mary K.: Rights and Responsibilities of the Sperm Donor i. V and M (females) wanted child together; got donor- J. M was nurse and did the AI herself. (no physician) J claims they had agreed he would be involved. Child saw V and M as his parents, but J managed to stay involved despite their wishes. ii. Ca Civil Code §7005: (Now Fam. Code 7613b) 1. If, under supervision of physician and consent of husband, donor is not natural father. a. Unlike orig. UPA, not restricted to married W. iii. Court: the statute means what it says – requires physician supervision for protection from donor’s rights. 1. justifications: health and professional third party 2. physician doesn’t have to obtain the semen, just has to go through him. 3. J, as donor, is legal father. i. Another case: i. Man was woman’s partner, acted as father. But since he gave sperm to physician, statute compliance and he’s not legal father. ii. CA cts very reluctant to apply equitable principles to parenthood. 27 iii. CA has a statute about when donor is/is not legal parent. Some states don’t. Sometimes those states hold that the donor is a legal parent, despite agreements to the contrary. G. Assisted Reproductive Technologies: Surrogacy a. Surrogacy Background i. Traditional surrogacy – woman implanted w/ sperm from intended father or donor. 1. more complicated legal issues b/c woman has both gestational and genetic connection to child. ii. Gestational surrogacy – ova from another woman and sperm from intended father or donor. b. Status of Law Today i. 18 states have statutes addressing some surrogacy ii. 6 prohibit all forms of surrogacy (some have criminal penalties) iii. 3 expressly prohibit at least some forms of compensated surrogacy iv. 9 permit some surrogacy forms in certain specific circumstances. v. Potential requirements in states that permit surrogacy: 1. Intended parents married 2. Some states permit only uncompensated agreements 3. Some only permit gestational surrogacy 4. Others may include: med/psych evaluations, proof that woman unable to conceive w/out health risk, home study of intended parents, proof carrier has had prior pregnancy, proof all parties represented by independent counsel. c. Policy arguments i. For: reproductive autonomy; women can make their own choices. ii. Against: racism, exploitation, analogy to prostitution/slavery. d. In the matter of baby M. (NJ) i. K b/t H and S. S inseminated w/ H’s sperm, has baby, gives up maternal rights, and allows H’s W to adopt the baby. (pay her 10k) ii. K invalid/unenforceable – S is legal/natural mother: 3 reasons iii. 1. The K conflicts w/ statutory provisions prohibiting use of $ in connection w/ adoptions. (can’t get around that by changing K language) exception to that is medical expenses paid. iv. 2. laws require proof of unfitness or abandonment before terminating parental rights. v. 3. laws make consent to private adoption revocable (and this K was meant to be irrevocable.) vi. But custody issue: child’s best interest was w/ the couple ($$) e. Johnson v. Calvert (US S.C.) i. If a woman is already pregnant she can NOT agree for money to give baby away. ii. What’s the difference if she’s not pregnant yet? iii. H and W were the genetic parents; offered 10k in installment payments to S + life insurance. S demanded payment of balance owed or she would refuse to give up child. (still pregnant) 28 f. Determining maternity under the UPA i. no presumptions apply – must chose b/t two women ii. S gave birth, and W is genetically related to the child. iii. CA law followed UPA by recognizing both giving birth and being genetically related. And tie breaker is intent. iv. It would be gender stereotyping to say that woman can’t make these kinds of decisions. v. Rule: The act recognizes both genetic and giving birth to establish relationship. When the two means do not coincide in one woman, she who intended to procreate the child and intended to raise it as her own, is the natural mother under CA law. vi. H and W win. vii. S had argued public policy b/c $ for baby, but gestational surrogacy differs. Doesn’t have to do w/ adoption. Not vulnerable to $ inducement to part with own offspring. g. What if gestational mother and egg/sperm both donated? i. strict reading of Johnson – it would go to the surrogate (no relation to the mother, genetic or gestational.) ii. but the one CA decision with those facts said that the Johnson intent-based rule should be applied even where the intended parents had no genetic connection. (child would never have been born but for the intended parent’s actions) h. 2002 UPA §801 i. Allows unmarried and married couples to use surrogates ii. Allows for reasonable compensation iii. Must have agreement validated prior to woman becoming pregnant iv. Doesn’t have any requirements about qualifications of surrogate (like prior pregnancy, evaluations, etc) v. No requirement that intended parents be unable to have a child themselves. vi. Covers both traditional and gestational surrogacy. H. Adoption: Choosing an Adoptive Family a. Overview i. The state can regulate adoption… what are the state’s goals? 1. Making sure adoptive parents are qualified and will provide a good home. 2. Preventing coercion (consent from birth parents) 3. Make sure that individuals, rather than the state, are financially responsible for all kids. 4. Issues related to the “market” ii. International adoptions 1. Hague Convention: countries must have agency that regulates adoptions and reviews agency practices. iii. Private adoption 1. Payment prohibited, but some jx allow reasonable expenses 29 iv. Agency/State adoption 1. can be cheaper, but kids older/spent time in foster care. v. Procedures: 1. termination/consent a. some states, can revoke up to certain time (like 8 days after birth); others, any time before adoption granted or rights terminated. b. Involuntary termination of rights: Some common grounds: abandonment, abuse, neglect, non-support, incarceration, mental health status. c. Unmarried bio dad: consent rules different Doesn’t have constitutional protection and his consent may not be necessary if he has not seized the opportunity to develop relationship. 2. adoption vi. Placement: 1. historically, was race preference 2. Indian Child Welfare Act – Indian family when possible. 3. Multi Ethnic Placement Act – prohibits sole reliance on race if agency gets funds; fed - 1990s b. In re Baby Boy C. i. Mother wants to give child to private couple; she is part of tribe; tribe intervenes. ii. Existing Indian Family exception – judge-made exception that if child was never part of Indian Family don’t need placement. iii. Court: the exception is inconsistent with plain language of ICWA. iv. Arguments: no due process b/c no fundamental right to adoption; no EP b/c not based on race, but rather political status of parents and quasi-sovereign status of tribes. v. Exception to ICWA: “good cause” (request of bio parents or kid if old enough, extraordinary physical/emotional needs of child, unavailability of suitable Indian family for placement.) I. Adoption: Stepparent and Second Parent Adoption a. Adoption of Tammy (MA) i. Q: is the termination phase of the adoption process mandatory? ii. Mother’s partner wants to adopt her child as the second parent. 1. mother was inseminated from partner’s cousin, who wants no part and wants partner to adopt. Partner has a lot of inheritance coming so adoption important for the child. iii. Statute: allows any person to adopt, and if married jointly adopt. 1. doesn’t appear to provide for unmarried couples iv. Court: “person” includes “persons” v. There’s no statutory exception for stepparent adoptions but that situation has always been interpreted to not terminate first parent’s rights. 30 vi. Court concludes that the termination provision was intended to apply only when the natural parents are not parties to the adoption petition. b. Status of the Law: i. CA: adoptions limited to couples in intimate relationships (by practice) ii. Strong trend right now is in favor of second parent adoptions. (a few states prohibit them.) 1. they need to get judgments for FF&C though! iii. In contrast to Tammy, Wisconsin case: explicit exception for stepparent adoptions - evidence that they didn’t intend to exempt other adoptions, including those by non-marital partners. iv. There are no appellate decisions on third parent adoptions. (some trial courts have granted them.) c. Finstuen v. Oklahoma i. Statue: recognize adoptions from other states, but not if by more than one person of the same sex. ii. The parties: second parents adopted their partner’s kids in allowing states, but kids were born in OK so need OK to change birth certificate and they won’t b/c same sex. iii. There is a public policy exception to FF&C for statutes (marriage) iv. FF&C applies unequivocally to judgments, and all adoptions are judgments. v. It doesn’t say CA law dictates what the judgment means. That’s confusing choice of law and giving FF&C to judgment. OK just must apply its own law in enforcing adoption judgments. vi. The statute was unconstitutional. (didn’t reach EP or DP b/c decided on FF&C) d. DOMA i. No state required to give effect to any public act, record, or judicial proceeding… respecting a relationship b/t persons of the same sex that is treated as marriage. e. Issues with not giving FF&C i. Argue that even though the marriage is invalid (in the second state) the non birth parent should still be treated as a parent: 1. holding out 2. Elisa B. argument- parent based on conduct 3. UMDA: children born of a prohibited marriage are legitimate (to protect the kid/not punish for parents’ acts) 4. Depending on the law in the state on reproductive assistance, could argue that if husband consents for wife and he’s recognized as the legal parent, the rule should be applied equally without regard to the martial status of the two ppl because the rule is based on conduct, not the biological status of the ppl. J. Child Abuse 31 a. When does the state intervene in an intact parent/child relationship? i. State has dual interest – family privacy/autonomy + child’s best interest. ii. all states + feds have statutes to address child abuse and neglect iii. mandated reported – doctors, teachers, law enforcement iv. other people permitted but not required v. require establishment of CPS (remove/protect children) b. In Re Juvenile Appeal i. Mother + 6 children were on services and federal aid. They had good relationship, were ok, then one night youngest diedunexplained. ii. 96 hour hold provision: probable cause to believe a child is in immediate physical danger and that immediate removal is necessary to insure the child’s safety  removal. iii. Constitutional right  strict scrutiny iv. Compelling interest – it required high showing v. Narrowly tailored – another statute required other steps/action first, and court says they must be read together. vi. Statute is constitutional vii. (but in this particular case there was no showing of the danger) c. Dependency Process i. Summary seizure (some req. judicial order/some don’t) ii. Hearing to determine if abuse/neglect (jurisdictional?) iii. Dispositional hearing – what should happen next 1. reunification services or termination of rights iv. Termination proceeding – state’s burden rises to c&c evidence. v. Counsel – no const. obligation to supply to parents vi. Can be both criminal and civil proceedings d. Newby v. United States i. Witness say mother hit/kick daughter in park ii. Statue punishes whoever assaults in a menacing manner, and permits common law parental privilege defense. iii. Requiring the state to prove malice would be inconsistent with the purpose of the statute. (majority rule) 1. in some jx gov’t must prove malice. iv. The parental defense has two limitations, and this is sufficient to protect the parent’s constitutional rights: 1. The force truly is used in exercise of discipline, for betterment of the child. 2. The amount of force used is moderate and reasonable. v. Mother convicted of simple assault e. Reasonableness of Physical Discipline i. Courts consider: Age, conduct of child, physical injury, whether the force was necessary under the circumstances. ii. Some states have statutes on spanking 32 1. CA exempts: reasonable and age-appropriate spanking to the buttocks 2. Other states: spanking, switching, paddling (limited by reasonableness by the courts) iii. Some countries outlawed corporal punishment all together K. Child Neglect a. Types of neglect i. Physical (abandonment, fail to give adequate food, house, clothes) ii. Medical iii. Emotional iv. Sexual b. Physical Neglect: In re A.H. i. Statute: removal if… without proper care…and not due to lack of financial means. ii. There was sufficient proof here, with observations over months. 1. roaches in meat on counter, stove left open, feces, etc. iii. It’s common for statues to differentiate and try not to punish for lack of money. c. Medical Neglect: In re Phillip B. i. Child had down syndrome + heart condition ii. Dr. recommends surgery: 5-10% mortality risk + more for DS kid. iii. Parents refuse consent; state files petition for custody iv. Factors court should consider in deciding to overrule decision of parents: 1. Seriousness of the harm the child is suffering or likelihood that he will suffer serious harm. 2. Evaluation of the treatment by the medical profession 3. Risks involved 4. Preference of the child 5. Child’s best interest v. Parents won. (one expert- his case was more risky than normal.) vi. Current CA: 1. state should not intervene unless child suffering from severe physical harm or illness and shall not assume jurisdiction unless necessary to protect child from serious harm or illness. 2. should consider: nature of treatment proposed by parent, risks to child by parent’s preferred course, risk of proposed treatment by agency, likely success of the treatment proposed by agency. vii. Child Abuse Amendments: 1. withholding of medically indicated treatments, with certain exceptions, is a form of child neglect. d. Emotional Neglect: In Re Shane T. i. Father harassed him, calling him “fag,” etc. 1. he got sick when this happened (stomach pains) 33 ii. Statute: abused child: Whose parent ... inflicts or allows… physical injury which causes substantial risk of death, or serious disfigurement, or protracted impairment of physical or emotional health or impairment of the function of any bodily organ. iii. Q: was there “substantial pain”? iv. Concludes that “physical injury” need not be inflicted by physical force (unlike penal law definition); can be mere words. e. Sexual Abuse: M.W. v Department of Children & Family Services i. Man had sex w/ stepdaughter for 3 years, staring when she was 10. ii. He has natural daughters too; petition to remove them iii. Because the severity of potential harm is so great, it is intolerable to allow even a low probability of it. (and the psychologist said the risk was low but not zero.) iv. Daughters declared dependent (plus he was not remorseful at all) VI. DIVORCE A. Introduction and Fault-Based Divorce a. Fault-Based Divorce: Overview i. Fault-based regime: Where only one party is at fault ii. In majority of states, still can get a divorce on fault grounds. iii. All states have no-fault grounds, whether or not they have fault. iv. Fault may be considered for property division in some states. v. Commentators suggested that there’s a constitutionally protected right to divorce and fault-based regime would infringe that right. b. Fault Grounds i. Adultery 1. Still crime in 25 states and grounds for divorce in 23 states 2. Lickle v. Lickle gave rule that exists today 3. Burden of proof for divorce on complainant but not beyond reasonable doubt. 4. Two-pronged test: Circumstantial evidence must show (usually clear and convincing standard) a. Opportunity to commit it; and b. Disposition to commit it i. Disposition may be inferred from conduct and circumstances. ii. Cruelty 1. grounds for divorce in 27 states 2. General Rule: Course of conduct that results in adverse health effects on other spouse. Usually single instance not enough unless very severe. Historically, had to show physical health in danger but now emotional cruelty recognized in most states. 3. Muhammad v. Muhammad a. The Islam community; H controls; W flees 34 b. Cruelty statue: “conduct endangering life, limb, or health, or creating reasonable apprehension of danger, or unnatural and infamous conduct making the marital relation revolting” c. The harm need not derive from physical attack by the spouse. iii. Desertion/Abandonment 1. grounds for divorce in 27 jurisdictions 2. Reid v. Reid a. The fact that she filed for divorce only two months after moving out means it was not a temporary separation. She had intended to desert and did so, thus forfeiting her right to spousal support. 3. Elements of Desertion/Abandonment: a. Termination of cohabitation b. Termination was without cause or justification c. Intent not to resume cohabitation (intent can be formed at that time or at later time) d. Lack of cohabitation continues for the statutory period of time (one year in most states.) e. * all elements don’t have to happen at once. c. Defenses to Fault-Based Divorce Actions i. Recrimination (primary defense) 1. If both spouses guilty of marital fault, fault-based action must be dismissed. 2. In some states, for the defense to work, both must be guilty of the same fault. 3. In some states, it only applies to adultery. 4. Policy: “clean hands,” only helping the truly innocent. 5. Problem: if both are cruel or abusive, can’t get out of it and they’re the exact pair that should get out of it! 6. Recrimination has been eliminated in some states, particularly states that don’t recognize fault-grounds for divorce. (CA is no-fault) 7. Parker v. Parker (Mississippi) a. W files divorce: habitual cruel/inhumane treatment b. H pleads recrimination, W committed adultery c. Court narrowed the defense of recrimination d. Court suggested that the policy behind recrimination didn’t make sense anymore, but it’s not clear that they rejected it altogether. Under the facts of this case, particularly b/c adultery was after separation, recrimination won’t apply. ii. Condonation 1. Spouse forgave the behavior 35 a. But doesn’t mean they forgive forever, can be another incident later that they don’t forgive. 2. Traditionally, if they resumed living together after learned of conduct, presumption that innocent spouse condoned the behavior. 3. Some states today: condonation not available for cruelty, only for adultery. 4. Haymes v. Haymes (NY) a. Q: is attempted reconciliation sufficient to defeat claim of abandonment? b. It’s public policy to encourage reconciliation. c. An effort to reconcile is meaningless without a showing it was made in good faith. d. By granting summary judgment, the trial court precluded wife from trying to show that D did not make a good faith effort to reconcile. (trial court said she forfeited b/c sex just once) 5. Rule: An estranged couple’s attempt at reconciliation, even where it involves the brief and isolated resumption of cohabitation and/or sexual relations, after a matrimonial action has already been commenced, does not, as a matter of law, preclude an entry of judgment in favor of the spouse who originally had an otherwise valid claim for abandonment. Court must look at totality of circumstances and consider, among other factors, good faith and success of attempted reconciliation. iii. Other Defenses 1. Connivance – implied or express consent to spouses conduct before the misconduct (encourage it) 2. Collusion – the parties together decide to make some grounds for divorce. a. Doesn’t require misconduct b/c they may lie about misconduct d. Covenant Marriages? B. No-Fault Divorce a. Problems with fault-based divorce i. Adversarial ii. Created collusion iii. Forced to stay in bad marriages if both at fault b. Approaches: Many states follow either CA or UMDA c. CA i. No-fault grounds: 1. Irreconcilable Differences (court wide discretion) 2. Incurable Insanity ii. Evidence of misconduct inadmissible iii. No cooling-off period (living apart) 36 d. e. f. g. h. iv. Fault no longer affects distribution of community property (except if one spouse misused community funds or if dividing the assets would result in unfair distribution) UMDA i. No-fault grounds: 1. irretrievably broken marriage a. Parties have lived apart for more than 180 days; or b. There is a serious marital discord adversely affecting the attitude of one or both parties. 2. [this means there is no reasonable prospect of reconciliation – still a lot of discretion though.] How States Differ i. Combination of fault and no-fault 1. Minority: Pure no-fault (CA + 15 jx) 2. Majority: mixed system (can allege either fault or no fault) ii. Variation within no-fault 1. Require simply a finding of irreconcilable differences or irretrievable breakdown  enough for divorce. 2. Require that + a cooling-off period (live separate and apart for a statutory period of time. Ex: 60 days, upper range is 3 years) (NO cooling period for fault-divorce! – quicker) iii. Whether state permits unilateral no-fault divorces (If only one party seeks it) 1. CA permits it 2. Minority: don’t permit them at all. Only granted if both parties ask for it. (NY) 3. Intermediate position: state permits it but imposes different requirements a. Ex: Pennsylvania – if one party contests that the marriage is reparable, then court can only grant divorce if living separate and apart for two years. Living Separate and Apart: Bennington v. Bennington i. H lived in a van adjacent to house for 2 years, still took care of W, who had stroke years before. ii. Court: not separate and apart b/c no cessation of marital duties. iii. Problems with separate and apart: 1. many families can’t afford two homes. 2. court can find s&a even if living in same home 3. will look at how they presented themselves and interacted, as well as intent to resume living together as H & W. Problems with no-fault divorce i. More divorces ii. Harmful to economically vulnerable spouse when unilateral (usually harmful to women and children) Fault re-appears: Feltmeier v. Feltmeier (IL) i. Even in no-fault divorce, fault creeps back in, such as in tort cases. 37 ii. He battered her, prevented her escape from house, verbal abuse, attempted to isolate her from friends/family, stalked her. iii. She sued for IIED iv. Intentional Infliction of Emotional Distress 1. Extreme & outrageous conduct 2. Intent or know high probability of severe emotional distress 3. Conduct does cause severe emotional distress v. Court: Special caution should be used when in the marital setting, but no valid reason to require a heightened threshold for conduct. vi. Domestic abuse can be sufficiently outrageous to sustain cause of action for IIED. vii. “continuing tort” rule – SOL doesn’t start until conduct stops (they’re not separate incidents.) C. Access to Divorce; Divorce Jurisdiction a. Economic Obstacles: Boddie v. Connecticut i. People couldn’t afford divorce b/c of $60 fee for commencing litigation. ii. Due process prohibits the state from denying dissolution of marriage solely because of inability to pay. iii. State interest in preventing frivolous litigation is substantial, but not enough b/c litigant’s assets and seriousness of their motives. iv. b/c couples can’t privately divorce there are limits to state barriers. v. Unclear from this if fundamental right to divorce or not. vi. Does not mean state has to help poor pay for other divorce-related expenses, like attorney fees. b. Jurisdictional Barriers i. Three jurisdictional inquires: (just b/c court has one doesn’t mean court has the others) 1. to dissolve marital relationship 2. to determine financial incidents of the marriage 3. to make child custody and visitation determinations ii. Jurisdiction 101 1. needs subject matter jx and personal jx over the parties 2. personal jx: a. minimum contacts with forum state; or b. consented to jx; or c. personally served in jx iii. Jurisdiction to Grant Divorce: In Re Marriage of Kimura 1. H&W married in Japan; H moves to Iowa, seeks divorce. 2. Court concludes: divorce is not tested my International Shoe’s minimum contacts standard. 3. Divorce is like in rem rather than in personum action. (it’s about a thing- a marriage) 4. As long as one party is domiciled in forum state, the forum state has jurisdiction to grant the divorce. 38 5. Court does not need personal jurisdiction over the defendant. (but still need proper notice) iv. It still matters that court had personal jurisdiction over parties… 1. Bilateral divorce decree: court has PJ over both parties a. Either both are domiciled there or defendant consents to jx, or they have minimum contacts. b. Parties are later precluded from attacking validity of the judgment. 2. Ex Parte divorce decree: court has PJ over only one party a. Sufficient for court to grant divorce b. But defendant can collaterally attack the finding of jurisdiction or domicile. 3. Usually there are long-arm statutes too, so if any part of the duties, marriage, etc. took place there jx is proper. v. Residency Requirements: 1. In addition to domicile, there’s residency time requirements (it was one year in Kimura.) 2. CA: one party resident of state for six months 3. Some states have no requirements; some up to two years. 4. Sosna v. Iowa a. After separation, W moved to Iowa with kids and filed for divorce a month later. b. Residency requirement was constitutional i. Only delayed her remedy for awhile ii. State interest: not being divorce mill, minor children, not interfering w/ other state’s matters. c. Dissent: it’s a penalty on interstate travel, and her extent of deprivation is great (can’t remarry.) 5. argue fnd. rt to div infringe/but not insurmountable barrier. vi. Full Faith and Credit 1. Divorce decrees entitled to FF&C in other states. a. But can collaterally attack the finding of jx b. FF&C doesn’t apply to foreign decrees (only other states) c. Common law: comity (usually will recognize unless violates public policy) c. Domestic Relations Exception to Diversity Jurisdiction: Ankenbrandt v. Richards i. W action on behalf of daughters for physical/sexual abuse; alleges diversity jx b/c in different stat than H. ii. Q: Is there a domestic relations exception to federal jurisdiction? 1. Yes 2. But it encompasses only divorce, alimony, or child custody decrees. 39 iii. This case is about a tort so the exception doesn’t apply - federal jurisdiction was proper. iv. The court narrows the exception to only apply to cases in which the court is issuing the divorce decree, the alimony decree, property distribution, child custody, or modifying one of those. v. Just because the case involves families in not sufficient to claim the domestic relations exception. vi. Rationale for the exception: very traditional state matter (family stuff); state courts handle better, also often continuing jurisdiction, which fed courts should deal with. d. Summary of Access to Divorce i. Reasonable residency requirements are constitutional. ii. Jurisdiction: 1. Court has jx to grant divorce as long as one party domiciled in state. 2. But to divide property, needs personal jx over both parties. 3. Domestic relations exception VII. FINANCIAL CONSEQUENCES OF DIVORCE A. Introduction and Theories of Distribution of Property a. Three Financial Problems: i. Property Distribution ii. Spousal support iii. Child support b. Real World: i. 90% of couples figure it out without court ii. Most divorces don’t involve a lot of money. c. 2 Basic Theories of Property i. Community Property Regimes 1. 8 states, including CA 2. Property acquired during marriage is considered community property. a. Except gifts and inheritances 3. Each has undivided divested interest in the property. 4. Partnership theory of marriage 5. CA divides 50/50 community property a. Some other CP states: equitable distribution (could be 50/50 but doesn’t have to be) ii. Separate Property 1. majority of states are common law or separate property 2. Historically, SP states divided by title theory; shift is to equitable distribution. (theory is that both parties are contributing) 3. Thus, the majority of states do equitable distribution. a. Of those, majority does dual property (see below) 40 4. Equitable Distribution Types a. all property (hotchpotch) i. court considers all assets, regardless of when acquired (can be before marriage) and who’s on the title. b. dual property system i. makes distinction b/t property acquired during/after marriage. 5. But in equitable jx: what is equitable? 6. In most states, either by case law or statute, there are factors to figure out what is equitable. Lots of discretion. 7. Mississippi became last state to shift from title theory to equitable distribution. d. Ferguson v. Ferguson (MA) i. H argues: W didn’t contribute at all to the pension plan, stock and savings plan through his employer. ii. Court: when married for 24 years and the other has contributed indirectly, by virtue of domestic services or earned income which both spouses enjoyed rather than invested, it wouldn’t be fair. The other spouse could have been working outside the home and making her own investments but didn’t. iii. Factors court looked to: 1. Relative contributions 2. Value of assets 3. Economic consequences (need and ability to pay) iv. Two overriding themes: need and contribution. e. Uniform Marriage and Divorce Act i. Court can equitably apportion all property, whenever and however acquired, and whether title is in one or both names. ii. Court will consider all circumstances: 1. Duration, prior marriages, prenuptials, age, health, occupation, income, skills, employability, needs. f. Separate Property: things generally included i. gift/devise ii. property acquired in exchange for other SP iii. increases in value in SP unless due to efforts of other spouse iv. property pursuant to a valid prenuptial agreement v. property acquired after legal separation g. See hypo handout! h. Property Distribution i. Trend is to not consider fault (some states still do), but most courts will consider economic fault. ii. CA: court will offset by amount deliberately misappropriated. iii. Factors: intent to keep $ away from other spouse, when it occurred, etc. B. Spousal Support 41 a. Mani v. Mani (NJ) i. Economic misconduct is relevant to alimony ii. Non-economic fault is nearly impossible to calculate and would generate complex litigation. iii. Only exception: egregious fault 1. Like attempted murder or deliberately infecting with a loathsome disease. 2. May be considered, not for amount of $, but to determine whether alimony should be allowed at all. iv. But it didn’t apply here – he didn’t commit economic or egregious fault. b. UMDA §308 – Maintenance i. Maintenance only if can’t support self or has custody of child so as they shouldn’t work. ii. Then court consider all factors, including ability to pay, time needed to get back in work force, standard of living, duration of marriage, age, etc. iii. Marital fault NOT relevant iv. Underlying premise of UMDA is clean break/self-supportive c. CA Spousal Support Provisions i. Family Code 4330: order of support; advice to support recipient 1. Based on standard of living during marriage ii. 4320: Determination of amount due for support; considerations 1. Earning capacity 2. Standard of living 3. Skills 4. Contributions to education, career, licensing, etc. 5. Ability to pay 6. Duration, age, health, etc. 7. Domestic violence can be considered 8. Criminal convictions – presumption against support for that party. 9. How long award should last: unless long duration, it should be one-half the duration of the marriage (long-term is 10 years or more) d. Where are States on Spousal Support? i. some: court’s complete discretion on what factors to consider ii. most states (40) have provisions that enumerate factors iii. 22 states: fault should not be considered in support/alimony award iv. 43 states: standard of living should be considered v. 26 states: status as custodial parent should be considered vi. Alimony actually very rare and usually temporary. vii. favored type - rehabilitative alimony (to get work experience/qualifications) viii. trend against permanent/indefinite awards ix. types of support: 42 1. temporary support (awarded during divorce proceeding to spouse can live while proceeding) 2. permanent support (given in long-term marriages) 3. rehabilitative (transitional, lets spouse become selfsupportive) 4. restitutional alimony (where one provided money for other’s educational development) e. Michael v. Michael (MO) i. H was dependent on W while he wrote, though never produced anything. He didn’t do all the things typical homemaker does, but did cook meals. ii. Court: he was financially dependent on her; relied to his detriment iii. Statute: divide property in a just manner iv. Consider all relevant factors including: 1. Economic circumstances 2. Contribution to marital property, including homemaking. 3. Conduct during the marriage. f. Rosenberg v. Rosenberg (MD) i. H was rich; W did all homemaking + entertained for him. ii. OK to consider W’s non-monetary contributions, court even found she contributed more than him. Also to consider circumstances leading up to divorce (his adultery.) iii. Alimony issue: Principle function is rehabilitation; but court can give indefinite award when: 1. Cant reasonably be expected (age, disability etc.) to work 2. Even if they can, the standard of living would be unconscionably disparate. (here) g. Change in Circumstances: Lucas v. Lucas (W. Va) i. H wants to terminate support b/c W has de facto marriage. ii. Court found de facto marriage; but lowered amount, not terminated. Change not based on morality, based on actual change in need. iii. Whether a de facto marriage creates substantial change in circumstances requires inquiry into each case to determine need. iv. CA: rebuttable presumption of cohabitation changing need. C. Special Circumstances re: Property a. Appreciation of Property (like H owns house but value increases) i. Spanish rule (minority): any increase is marital property ii. Majority: it will depends on the facts 1. Is it passive increase or active increase? 2. Passive: SP (like house just increases) 3. Active: MP a. Ex: house is in bad shape and both work a lot on it b. The increase is due to the active efforts of one or both spouse (i.e. even if just the husband did it, it’s still during the marriage) 43 b. Dissipation i. Court penalizes one party for wasting marital assets ii. Burden on charged party to prove $ used for marital purposes. iii. Ex: husband gives money to his paramour (having an affair with) iv. Factors courts look at: 1. Intent (keep other spouse from getting money) 2. Sole purpose for that spouse or marital purposes 3. Timing (most important factor) a. If close to time of separation, more likely dissipation c. Attorney’s Fees i. Most states permit court (discretion) to order spouse with more assets to pay all the other spouse’s costs. d. Modification i. Property distribution is generally non-modifiable (once appeals have finished) ii. Spousal support/maintenance is modifiable if can show sufficient change in circumstances. 1. Re-marriage usually automatically terminates support. a. So some ppl chose not to get married to avoid losing support b. In response, some states passed statutes to permit courts to consider this non-marital cohabitation. c. Some other states without statutes do the same thing by looking at if the new situation affected the financial situation. Lucas. 2. Financial impact is considered. e. Bankruptcy: In Re Werthern (law has changed – see below) i. W got determination that awards were alimony or support, not property division, making them non-dischargeable in bankruptcy. ii. Court looked to intent of lower court, not to the titles they actually used. f. Bankruptcy Today i. Until recently, law distinguished b/t property distribution and alimony 1. Property distribution was dischargeable 2. But couldn’t get out of support even if bankrupt 3. It didn’t matter how state court characterized the award; bankruptcy court would make its own determination (like in the case above) ii. This produced a lot of litigation and required intricate determinations about support v. property distribution. iii. 1995- Congress: 1. Balancing test a. Even if it was property award, court could find it was not dischargeable if not in parties’ best interest. 44 iv. 2005: Congress did away with the distinction for Chapter 7 bankruptcy. 1. Any award that is the result of a divorce proceeding is not dischargeable 2. Although in Chapter 13 the distinction remains g. Intangible Property i. Generally 1. Many courts today hold intangibles as property 2. For many couples, pension is their largest asset 3. Many hold very little equity in the marital home. ii. Pensions and Employee Benefits 1. Bender v. Bender (CT) (unvested pension = property) a. Unvested pension benefits are not as speculative as an expected inheritance. b. Although theoretically possible that it won’t vest, D’s expectation in his pension plan, as a practical matter, is sufficiently concrete, reasonable, and justifiable as to constitute a presently existing property interest for equitable distribution purposes. c. Factors they looked at: common sense (it’s compensation), way the business characterized it (property), how speculative (not very), reasonably accurate way to value it. 2. This is the majority rule (to treat both vested and unvested pensions as marital property.) CA too. 3. Ways to Value a. 1. Present value or immediate offset approach i. Determine portion and award other property as an offset (it severs ties and avoid future litigation, but is based on probabilities, b/c it may never vest, and doesn’t work when not enough property to offset.) b. 2. Present division method: i. Court determines at time of trial fixed percentage, then payment when pension vests, if ever. c. 3. Reserved jurisdiction method: i. Court reserves jurisdiction to distribute. Once vested, the court determines the proper share. (at time, court will know parties’ circumstances, but requires second hearing long time later.) iii. Stock Options 1. Treated the same as pensions (marital property), and courts would probably value them the same way. iv. ERISA: is a federal statute that governs retirement benefits 45 1. Congress amended, and allowed courts to assign pension benefits, if it was pursuant to a divorce decree. So now court can divide a pension benefit. v. Investments in a Spouse’s Future Success: Degrees, Earning Capacity, and Goodwill 1. In Re Marriage of Roberts (Indiana) a. A degree does not constitute marital property. i. This is the majority rule. ii. But most jx allow reimbursement for tangible benefits, and consideration of enhanced earning capacity. iii. Minority rule (NY): degrees are MP b. But the enhanced earning ability of a degree earning spouse may be considered in making division of the marital assets. D. Premarital Contracts a. Overview i. Historically, not enforceable b/c perceived as promoting divorce ii. Today all states enforce premarital agreements and some states provide clear guidance for requirements. iii. Generally, three relevant inquires: 1. voluntariness 2. whether there was full and fair disclosure of assets 3. unconscionability iv. some states require all three, while others require voluntary + one of the other two. v. Voluntaries seems to be absolute requirement under all the tests (basic contract law too.) b. Simeone v. Simeone (PA) i. Pre-nup day before wedding, limited alimony amount. ii. Women don’t need protection – equal now iii. Pre-nups are contracts, so only fraud, misrepresentation, or duress will invalidate them. iv. Full/fair disclosure is still required 1. but as long as K states there was F&Fd, presumption. v. Rule established here: pre-nuptials are like any other contract; need misrepresentation, fraud, or duress to get out of it. Reasonableness doesn’t matter. Full and fair disclosure still required b/c confidential relationship. vi. To apply heightened scrutiny would infringe right to contract. vii. Most courts uphold even if presented right before wedding. viii. Some courts distinguish b/t type of wedding c. ALI principles: i. Presumption that there was informed consent doesn’t apply if agreement presented less than 30 days before the wedding. d. Binek v. Binek (ND) 46 i. W was 52 and H 61; second marriage for both; both had kids previously ii. She knew he owned a coal mine but didn’t know extent, but K says ffd. iii. Two days before wedding: H gives W pre-nup; won’t marry her otherwise iv. W argues: it wasn’t voluntary b/c no lawyer, 2 days prior, and H won’t marry her otherwise. Also unconscionable. v. May consider factors: good faith, reasonableness, full knowledge vi. When one/both married before, reasonable to seek protection of property second time; she had opportunity to get lawyer. vii. Ct required fairness at both time of agmt and time of divorce. viii. It didn’t preclude spousal support so it was substantively fair. e. UPAA: Uniform Premarital Agreements Act i. Not enforceable if either 1. not voluntary; or 2. unconscionable when executed AND: a. not fair disclosure; b. FD not waived, and c. No knowledge of the property. ii. [to invalidate: unconscionable at time of signing + lack of disclosure; or not voluntary] f. California (in response to Barry Bonds) i. Property distribution: either both parties have counsel or written waiver of counsel. ii. Spousal support: both parties must have counsel. 1. Court could still find unconscionable at time of enforcement. iii. At least 7 days between presentation of agreement and signing. iv. Also must written waiver that it was explained what you give up. g. What can pre-nups include? i. CA: anything so long as doesn’t violate public policy or criminal statutes ii. Generally off-limits: provisions that restrict court’s discretion with respect to child custody and child support. (but if they go above and beyond, like supporting college, likely would be enforceable.) E. Separation Agreements – see pg. 53 F. Child Support a. Overview i. 1980: Congress made all state have guidelines. Resulted in more uniformity and predictability, and more cases in which it was awarded, but not really increased amounts. ii. No uniform answer on what purpose should be (standard of living or keep kids out of poverty.) iii. Few specific requirements of the federal mandates 47 1. Guidelines had to create a presumption that the result the court got by applying them was correct. 2. If court deviated from guidelineswritten explanations. 3. States must review their guidelines every three years. iv. Within those requirements, 3 models implemented by states 1. Percentage of income (most simple) a. Specified % of non-custodial parent’s income goes to child support (depends on # of kids too) i. Ex: Wisconsin handout (alters if parents share custody and no one is 75% or more; if so, shifts to more shared income model) 1. Has different % for very low or very high incomes. 2. Also addresses subsequent families – allows a parent to deduct. ii. about 14 states iii. this will be most fair where both parents income equal iv. least fair when big disparity v. most simple/least individualistic b. problem: high income families- % maybe too much. 2. Income Shares model (a bit more complicated) a. Accounts for more variables b. Most importantly, takes into account both parents’ incomes c. Most common method (35 states) d. CA does this e. Accounts for amount of time children spend in each household. f. 3 basic steps: i. add together the incomes ii. compute the total obligation iii. pro-rate the obligation b/t parents based on relative incomes as compared to each other. g. Criticized b/c creates disincentive for custodial parent to increase their income (less child support) 3. Delaware-Melson model (most complicated) a. Only about 4 states b. Accounts for even more variation c. Basic principle: calculate basic subsistence need of each parent, then with the remaining income, then determine child’s basic needs. Above that level, the child shares in any surplus income. Child benefits from income/living standard of both parents. d. More individualized and child-interested b. Downing v. Downing (KY) 48 i. His income rose substantially so she seeks upward modification. ii. Child support must be related to the realistic needs of the children. iii. Beyond a certain point, child doesn’t need anything more, and there should be some limit. Court has discretion to deviate from guidelines. iv. Some states do just apply the guidelines but a large number do allow courts the discretion to deviate in high income families v. CA specifically says where parents income so disparate that it’s unfair to apply guidelines. Court still must have written explanation if deviates. c. Post-Majority Support: Curtis v. Kline (PA) i. The act ordered educational support even after child 18. ii. Father challenges act as unconstitutional. iii. Act 62 doesn’t implicate a suspect class and doesn’t infringe upon a fundamental right (there’s no right to post-secondary education), so it only gets Rational Basis test. iv. There’s no rational basis for classifying young adults based on their parents’ marital status. v. Similarly situated adults (those needing college $) can’t be treated differently. vi. Other states (NH) went the opposite way. G. Standard for initial determination – best interest of child a. Higher standard for modification H. Modification of Child Support a. In General i. Must have substantially changed circumstances ii. Some changed circumstances don’t justify modification. b. Remarriage and New Families: Pohlmann v. Pohlmann (FL) i. H wants decrease in award b/c of his remarriage and three new kids. (and W’s remarriage) ii. Statute: Subsequent children may only be raised in a proceeding for an upward modification of an existing award and may not be applied to justify a decrease. iii. Rational basis review b/c no suspect class & no fundamental right iv. It furthers legitimate state interest v. Assures that non-custodial parents will continue to contribute to the support of their children from first marriages notwithstanding their new obligation. c. Approaches to New Families: i. First Mortgage option: prioritizes children of the first marriage 1. Parent makes a choice to have new obligations 2. Majority rule ii. Second Family First method: (minority rule) 1. Can reduce subsequent obligations from available income when applying percentage or something else. 2. Still variation within states: 49 a. In some: parent can only subtract obligations that are actually a child support award or written agreement (so can’t subtract obligations if you’re in a second intact family) iii. one commentator suggests a pooling together and all children share equally (no state implemented yet though) d. New Spouse’s Income i. States are split on whether to consider new spouse’s income for determining child support. ii. CA: does not consider new spouse’s income for child support. e. Change in Employment: Olmstead v. Ziegler (Alaska) i. Both were lawyers but H wasn’t making a lot and decides to go back to school to become a teacher. ii. Q: was it voluntary change? iii. Yes: he took steps to downsize practice before this, and once made over 50k/year. iv. Alaska: voluntariness and reasonableness considered. f. Approaches to Change in Employment i. some - only consider whether it was voluntary or not (laid off is involuntary and would justify modification, whereas quitting is voluntary and court would impute income to you) ii. other states – good faith (modify award as long as didn’t change job for purpose of avoiding support obligations) iii. others – balancing test (look at advantages to parent of the job change and disadvantage to child and if that significantly outweighs advantage to child) iv. ALI – reasonableness, multi factor analysis v. CA: 1. Sort of balancing test – see below 2. Ultimate criteria – how change in employment will affect child (governed by child’s best interests.) vi. Claims for involuntary servitude – uniformly rejected. (legal obligation to support child.) vii. Claims for incarceration based on debt – also rejected. viii. Change in employment in order to care for kids full-time: 1. courts split 2. wont impute income if reasonable person in intact family would have done same thing. 3. ALI – presumption that it was appropriate if at least 1 child under age of 3 or 3 kids under age 10, or child who is disabled, or if cost of child care exceed potential earning capacity of parent. ix. Example: relocation 1. dad fired b/c refuse to relocate b/c wants to stay near kids. Now has lower paying job. Voluntary change? 2. Apply test of only voluntariness: (this was actual case) 50 a. Could argue it would be involuntary b/c parent wont leave kids (want to know about relationship) 3. Good faith test: a. No evidence that he declined to move with purpose of avoiding support obligation (he probably wins) 4. Balancing test: a. Same factors to consider with voluntariness, also want to know financial harm to kids, mom’s circumstance, etc. x. Employment: Termination 1. some states: if they tried to get themselves fired to avoid obligation it’s voluntary  impute income. 2. others: foreseeable consequences (violating co. policy) g. Incarceration i. 12 states prohibit reduction in child support b/c of incarceration. ii. Others allow it. h. * all these issues also relevant to spousal support, not just child. i. How to Modify i. Retroactive modification 1. federal law prohibits it (bad for ppl that informally modify) I. Enforcement of Child Support a. Federal Law i. 1992: Child Support Recovery Act 1. federal crime for willful failure to provide support where child lives in another state and amount due for at least a year or 5k. 2. 1998: increased penalties and created rebuttable presumption that parent is able to pay amount due. ii. Congress requires states to take certain steps 1. income withholding 2. tax refund interception 3. passport, license suspension b. Criminal Sanctions: Imprisonment: criminal nonsupport and contempt i. State v. Oakley (Wisconsin) 1. Man had 9 kids w/ 4 women; court ordered probation (instead of jail) w/ condition of no more kids until paid. 2. he claims: fundamental right to procreate 3. Fundamental right  strict scrutiny  narrowly tailored to compelling state interest. 4. Compelling state interest: protecting children 5. Narrowly tailored: he says right to procreate eliminated b/c never be able to pay 6. court: it’s narrowly tailored a. condition ends at end of probation or if he makes efforts to pay. 51 b. Plus, incarceration takes away all rights, so can take away lesser rights. 7. dissent: incentive for man to demand abortion from woman J. Multi-State Cases: Jurisdiction for Child Support a. Kulko v. Superior Court i. Married in CA (H on way to duty); lived in NY; divorce; H stays in NY w/ kids; W moves to CA; eventually H lets kids move to CA ii. Due process limits on jurisdiction over nonresident defendants. iii. International Shoe: minimum contacts; and essential criterion is “reasonable and fair.” iv. CA marriage by itself can’t support PJ where both were NY resd. v. Same with H letting kids spend summers there. It would discourage reasonable visitation agreements. vi. Even buying kid’s plane ticket not enough. b. For purposes of enforcement and modification of support orders courts needs SMJ and PJ over both parent. c. PJ measured by int’l shoe minimum contacts standard. Needs to be reasonable + parent purposefully availed themselves of the foreign jx. i. Those are from Kulko ii. Remember: divorce jx is domicile of one party (physically there w/ intent to remain) iii. Some states have tried to expand grounds by passing long-arms. iv. Some courts have reasoned that failure to pay support constitutes a tortious act in that State, giving that state jurisdiction. d. Congress: i. No multiple orders in existence at once (prevents forum-shopping) K. Multi-State Cases: Interstate Child Support Enforcement: a. Federal Statute: i. Full Faith and Credit for Support Orders Act (FFCSOA) 1. Applies only to child support orders 2. Why enacted: it was unclear if orders about children were judgments entitled to FF&C b/c they were inherently modifiable. b. State Statutes i. Uniform Interstate Family Support Act (UIFSA) 1. Applies to both child and spousal support orders; 2. Where parties all initially resided in one state and got order, that state maintains exclusive and continuing jx to enforce and modify the order as long as either a parent or the child continues to live in that state. 3. Parties can consent to allow that state to keep jx even if they all move out of the state. 4. Also provides very broad provision with regard to PJ. a. 8 potential grounds: i. Personal service in state ii. Resided in state with the child 52 iii. Child resides in state as result of acts or directives of that individual (response to the Kulko case) iv. Person engaged in intercourse in state that may have resulted in birth of the child. 5. Enforcement options: direct (register order w/ obligor’s employer for wage withholding; or indirect (register order with court in that state.) c. All state required to make all employers report all new hires to a state agency to find people with outstanding awards. d. States can withhold wages, intercept tax refunds, suspend driver’s or professional license, suspend passports. L. Multi-State Cases: Modification a. Letellier v. Letellier i. DC court ordered child support; then W and kid moved to TN and H moved to VA. W filed in TN to modify award. ii. FFCSOA was intended to be consistent with UIFSA. (they don’t conflict so it doesn’t preempt.) iii. For state to have SMJ over child support order from another state: petitioner needs to be a non-resident. iv. Since W was petitioner, theoretically any state other than hers, but of course still need PJ so usually the jx is obligor’s state. b. UISFA i. If parents now living in different states, a court has jurisdiction to modify child support order issued by the court of another state if: ii. (A) neither the child, nor the obligee, nor the obligor resides in the issuing state; [otherwise, continuing/exclusive jx!] iii. (B) a [petitioner] who is a nonresident of this State seeks modification; and iv. (C) the [respondent] is subject to the personal jurisdiction of this state. v. * also if all parties reside in same state and child does not reside in issuing state, this state has jx to modify. M. Separation Agreements: a. In General i. Used to violate public policy b/c facilitated divorce by removing uncertainty on how a court would resolve the financial incidents. ii. UMDA makes the parties’ “amicable settlement of disputes” an explicit policy objective. iii. 85-90% of divorce cases are resolved by the parties iv. Even where private resolution, agreement always needs to be approved by court and court has some power to say it’s unconscionable. b. Provisions about children (custody, visitation, child support) i. Court will look at them more carefully, compare to what they would be under the child support guidelines. 53 ii. If some difference might still approve if child’s best interest taken care of. (like being provided for in other ways; ex: college $) iii. Even if parties provide that court doesn’t have power to modify child support award, court always has power to modify. c. Terminology: two different ways to present separation agreements to the court i. Merger: 1. Court sets forth provisions of your settlement agreement in the divorce decree itself. 2. They become part of court’s judgment and court has power to modify them; court has full enforcement powers. ii. Incorporation: 1. The terms are not explicitly set forth in divorce decree. Decree just refers to settlement agreement. 2. Court doesn’t have power to modify provision. They’re contract provisions and enforceable only through contract remedies. (contempt, or suspending license, not available.) 3. Can’t incorporate child support provisions b/c can’t divest court of power to modify child support. iii. Parties can chose to merge certain provision but not others. (ex: merge child support but not spousal support.) d. UMDA i. What can you include: 1. Disposition of property 2. Maintenance and support 3. Custody and visitation ii. Are they binding? 1. Some are and some are not 2. Provisions about children – different standard a. Binding as long as not unreasonable 3. Not about children: unconscionability standard iii. Parties can limit court’s ability to modify (ex: spousal support); except for terms about child support, custody, or visitation. e. ALI principles (as usual, more protective of vulnerable parties) i. Agreement unenforceable if substantially limits property rights or support payments, and would substantial impair rights of the party who is custody parent or has substantially less economic resources. ii. More willing to enforce separation agreements than premarital agreements. 1. rationale: More likely to get a lawyer for divorce than for pre-marital agreements; no rosy eyes like before marriage. VIII. CHILD CUSTODY & VISITATION A. Making Determinations Regarding Child Custody a. History 54 i. Father used to have unfettered right (coverture) ii. Then tender years presumption (mom favored for young) 1. Some states used a tie-breaker where equally fit 2. Some: burden on father to show best interest in his custody 3. Others: burden on father to show mother unfit. iii. Very briefly (only two states): primary caretaker presumption. 1. can still be a factor though. b. Gender: Tender years presumption: i. Devine v. Devine (Alabama) 1. Impermissible to make presumptions based on party’s sex. Constitution requires individualized fitness determination. 2. It’s an unconstitutional gender-based classification which discriminates on the basis of sex. (Equal Protection) ii. State of Law Today 1. All states have abrogated an absolute tender years presumption, but many will still take into account the sex and age of the children. (just can’t be a dispositive factor, just one of many) 2. Presumptions generally: (+): give certainty and maybe lead to less litigation; (-): reinforces stereotypes about women as maternal caretakers. 3. Some states absolutely prohibit consideration of gender; some allow as factor but not dispositive factor. iii. ALI Principles (approximation standard; replicate what was B4) 1. Prohibit a court from considering the gender of either the parent or the child in determining custody arrangements. 2. If parents agree, court should enforce their agreement unless it was not voluntary or would be harmful to the child 3. If unable to agree, court awards custody based on the allocation of caretaking responsibility prior to separation. a. It’s not the same as the primary caretaker presumption – it contemplates a spectrum of possibilities. b. Favors an equal allocation of custodial time if parents had allocating caretaking equally before. c. ALI rule may be rebutted by specific factors such a prior parental agreement, child’s preference or welfare, keeping siblings together. d. (-) reinforces gender stereotypes. 4. But best interest is underlying factor for all 50 states. c. Best Interests Standard i. Today, all 50 states use child’s best interest in custody decision. 1. some just say best interests 2. increasingly, through case law or statute, some enumerate factors to consider in determining best interests. 55 ii. UMDA §402 [Best Interest of the Child] The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including: 1. wishes of parents 2. wishes of child 3. Interaction and interrelationship of the child with his parents, siblings, and any other person who may significantly affect his best interest. 4. Child’s adjustment to home, school, and community; and 5. Mental and physical health of all individuals involved. d. Race (Constitutional Factors) i. Palmore v. Sidoti (US S.C.) 1. W had custody, then marries black man. H petitions for custody based on changed circumstances. Trial court- child would be teased; switched custody. (US Sup. Ct. reverses) 2. The reality of private biases and possible injury caused by them is not to be considered to remove a child from its mother’s custody. 3. Race has to pass strict scrutiny a. Maybe if child in physical harm, but no case. ii. Race Today 1. Some courts have held it’s permissible to take into account parent’s willingness/ability to expose the child to things that will help develop racial or heritage. 2. ALI a. Prohibits courts from considering race or ethnicity of the child, parent, or other member of the household in determining custody arrangements. e. Religion (Constitutional Factors) i. Two constitutional relevancies here: 1. free practice of religion 2. establishment clause (separation of church and state) ii. Some states: courts permitted to take religion into account 1. Ex: account for moral fitness, and while different values can’t be dispositive they can be considered. iii. Majority: can only consider religion in initial custody determination where there’s evidence that the practice are affecting or causing harm to child’s secular well-being. iv. Sometimes: if child has a strong religious identity can consider v. If joint legal custody, both make those decision (religious upbringing)  may be disputes and court’s intervention. vi. Even where a parent does not have legal custody, parents generally have a right to expose their child to their own religious beliefs/practices. vii. Whether either parents’ beliefs/practice need to be limited 56 1. Majority: permit interference only where evidence of actual harm (OH), or in some states substantial threat of harm. viii. Is the possibility that child may sometime need blood transfusion speculative harm sufficient to justify limitation on practice of like Jehovah Witness? (usually need actual medical situation.) ix. Sagar v. Sagar 1. Motive doesn’t have to be purely religious (it was partly control for H); not the same as requirement of “sincerely held religious belief.” 2. neither parent had showed harm of the other’s choice. x. Approaches to Religion: 1. Religion may be one, but not the sole, factor in custody. 2. Religion may be considered only to the extent that it affects the child’s secular well-being. 3. Religion may be considered only for children with ascertainable religious preferences or for whom religion has become an important part of their identity. xi. Constitutional Limitations 1. Can’t interfere w/ parent’s free exercise of religion 2. Can’t weigh relative merits of parents’ religions or favor one who has beliefs over one who doesn’t. (establishment) 3. Can consider harm to child: different standards: a. Effect on child’s secular well-being b. Substantial threat of harm to health or safety c. Actual physical or mental harm xii. ALI 1. prohibit court from considering “religious practices” of either parent or child in custody decision making except: 2. if the religious practice present “severe and almost certain harm” to the child (and court may limit the religious practices only to the minimum degree necessary to protect the child); or 3. if necessary to protect the child’s ability to practice a religion that has been a significant part of the child’s life. 4. * ALI more flexible w/ religion than with other things. B. Additional Factors Influencing Custody Decisions a. Sexual Orientation i. Fulk v. Fulk (MS) 1. H claims W had relationship w/ emotionally unstable woman. 2. MS specifically requires consideration of sex, as well as parents’ moral fitness. (minority position) 3. Chancellor erred b/c didn’t consider H’s bad acts. 4. Must consider all enumerated factors ii. Approaches to same-sex sexual conduct: 57 1. Per Se Rule: Homosexuality constitutes an irrebuttable presumption of unfitness. a. 2 states (AL; VA) b. Argument: those are based on Sodomy statutes which were struck down by warren? c. Lawrence- protected liberty interest in forming intimate adult relationships, and denying custody b/c choosing to form relationships is impermissible. i. But against: liberties may be infringed to protect child’s welfare. ii. Both states distinguished Lawrence as not applying to children cases. 2. Homosexuality evokes a rebuttable presumption of unfitness and requires the parent prove absence of harm. 3. The Nexus Approach: Can’t consider orientation unless has an adverse impact on the child. (Majority rule) a. is being teased an adverse affect? i. No - Private bias thing (Palmore applies equally in this context) ii. But some courts distinguish it. Race strict scrutiny. Orientation only gets RB review. Palmore not relevant. b. What if child is upset? i. If part of the struggle is about this, appropriate response is counseling, not denial of custody. ii. Others: it’s adverse impact. iii. ALI: 1. prohibit court from considering ether sexual orientation or the extramarital sexual conduct of a parent except upon a showing that such conduct causes harm to the child. b. Affairs in General i. Majority – nexus approach (see above) c. Career i. Rowe v. Franklin 1. W moved to KY for law school and job 2. Trial court changed custody to dad (mom’s questionable decisions – new relationship, pregnant, etc.) 3. appeal: trial court was doing “reproving the mother” 4. can’t compare lifestyles ii. Day Care 1. ALI: placement in day care is not sufficient changed circumstances to warrant custody modification. d. Wealth as a factor i. Generally, not decisive unless one parent unable to provide adequately for child 58 ii. ALI: prohibit court from considering relative earning capacities or financial circumstances unless parents’ combined resources set practical limits on the custodial arrangements. e. Domestic Violence i. Peters-Riemers v. Riemers (ND) 1. court gave custody to W b/c of H’s DV on W. 2. DV is a specifically enumerated factor to consider. 3. Requires DV + one incident that involved serious injury or dangerous weapon, or pattern of DV.  rebuttable presumption of no sole or joint custody. 4. Rebuttable by clear and convincing evidence that child’s best interest requires that parent’s participation. ii. DV approaches in custody 1. All states allow courts to consider it 2. Most include DV in best-interest analysis 3. Emerging trend is rebuttable presumption against custody to abusive parent. iii. DV approaches 1. Irrebuttable presumption 2. Rebuttable presumption a. trend 3. Require consideration but no presumption a. CA 4. Allow consideration but don’t require it. (discretion) iv. Showings to rebut presumptions 1. some require conviction for DV 2. others: pattern or sever incident 3. some require courts make specific findings on DV v. ALI: parents must disclose battering and court must have a process to identify abuse. (dual burden) Batterers may not receive custody unless court orders appropriate measures to ensure protection of child and other parent. Also broadly defines abuse. vi. Friendly Parent statutes: 1. Consider which parent will facilitate relationship b/t child and other parent. Can be bad for DV victims who are afraid of the other parent. f. Physical Disability i. used to be presumption of unfitness ii. shift toward effect of the disability on the child iii. ADA protects disabled from being excluded from participation in or denied services of public entity. (hearing aid in court) iv. General rule: there can’t be a presumption; court needs to look at actual situation. C. Joint Custody a. Overview 59 i. There was a doctrinal shift towards joint custody, but very recently a shift back away from it (child stability) 1. some state eliminated presumption/preference but kept it as an option. ii. All states have some form of it but apply in different ways iii. 24 states + D.C. have presumption or preference for joint custody 1. some of those states will only apply the presumption if both parents agree to joint custody. iv. Other courts have discretion to consider it. v. Parenting Plans: A number of states encourage or require parents to submit plans (either individually or jointly) 1. They outline custody, decision-making, what to do in event of dispute vi. (+) breaks down gender stereotypes, keeps both parents involved, maybe better for child vii. (-)could increase tension b/t parents, less stability for kids in having two homes, some evidence that it doesn’t actually equalize the burden b/t parents. (Children end up residing with others anyways.) b. Joint Physical Custody i. Doesn’t require a 50/50 split, just significant parenting time. c. Joint Custody Approaches: i. presumption of joint custody (some require parental agreement as a prerequisite) ii. preference for joint custody (Alaska) iii. just one option in the best interest determination (majority rule) d. California i. If parents agree - presumption that JC is in child’s best interest. ii. Where only one parent seeks joint custody – child’s best interest. iii. If joint legal custody is ordered, the order can specify which decisions require both parents’ consent, but some (like day-to-day) decisions don’t require both consents. e. ALI i. Uses different phrases: ii. “decision-making authority” instead of legal custody iii. “Custodial responsibility” instead of physical custody f. Domestic Violence and Joint Custody i. Some states consider DV in determining custody ii. Other states prohibit joint custody if DV g. Presumption favors natural parents for custody D. Visitation and Restrictions a. General Rule: when a parent doesn’t have custody, they get visitation. b. Based on both parent’s right and child’s best interest to see both. c. Visitation only denied in extreme circumstances d. Can use restrictions: exposing to religious practices (if harm/threat), supervised visitation, parent can’t live with unmarried partner. 60 e. Sexual Abuse: i. Some states create rebuttable presumption against unsupervised visitation if a parent presents credible evidence of physical or sexual abuse. ii. Hanke v. Hanke (MD) 1. court can’t “reprove the mother” b/c she thought (and there was evidence of) sexual abuse by father. f. Bell v. Bell (Alaska): there wasn’t “inability to cooperate.” Presumption in favor of joint legal custody regardless of physical custody. g. Non-Payment of Child Support i. Willful failure to pay could be grounds to cut off visitation, but not just lack of financial means. Turner v. Turner (Tennessee) E. Parent vs. Non-Parent Disputes a. Standards b. Troxel v. Granville: statute allowed any person at any time to petition for visitation. Grandparents (dad dead) want visitation. Mom didn’t say no, but more limited. US Supreme Court: statute as applied is unconstitutional b/c it didn’t consider mom’s opinion of child’s best interest. i. what court considered: 1. Courts should give special weight to parent’s decision 2. Statute should have (or at least court should consider) special factors like time limitation (stability for child) and distinguish b/t different people. (relatives, etc.) 3. Here, mom hadn’t cut off visitation, just limited it. ii. Rule: Court does not give us the standard to apply in action b/t legal parent and non-parent. (case-by-case determination) Won’t decide if need to show harm, but suggests that court could require this if it wants. States have struggled with what this decision means. Trend: where statute is more limited to class of ppl, timing, etc, courts more likely to hold they are constitutional and consistent with Troxel. c. Third-Party Visitation i. No right at common law ii. All state have statutes now – usually grandparents, sometimes other, in certain circumstances can petition for visitation. d. Same-sex couples and visitation i. Most can’t marry so no marital presumption ii. Most AI statutes for married only so no bases iii. Only birth or bio parent is legal, and if they didn’t adopt as second parent… and want custody/visitation… (most custody/visitation statues limited to family members) iv. Very strong trend: a person who has functioned as a parent w/ consent and encouragement of legal parent, and actually formed a parent-child bond, is entitled under equitable theories to at least some parental rights/obligations. (Not NY) e. Equitable Parent Test (Wisconsin rule/Majority) 61 i. Requirements: 1. Legal parent consented to, and fostered, the relationship 2. Petitioner resided together with the child in same household 3. Petitioner assumed obligations of parenthood by taking significant responsibility for child (could include $ but doesn’t have to) 4. Petitioner served in the parent role for a sufficient period of time to establish a “bonded, dependent” parental relationship with child. ii. Still not on par w/ legal parent iii. Stepparent could be equitable parent f. Jones v. Boring Jones: court awarded custody to lesbian partner who wasn’t biologically related to child. (she rebutted the presumption) i. Presumption that primary custody should go to legal parent rather than the in loco parentis. ii. To rebut, don’t need to show legal parent unfit, just need to show by clear and convincing evidence that it’s in child’s best interest to be with in loco parent. iii. Consistent w/ Troxel b/c limited class of people (equitable parent) g. ALI: parent by estoppel and de facto parent i. parent by estoppel (4 ways) - (in parody w/ legal parent right/respns) 1. is obligated to pay child support 2. lived w/ child 2 years and has good faith belief he was the father, or continued responsibilities after finding out not. 3. Present since birth, a. holding out child as your own b. agreement with legal parent c. accepting full and permanent parental responsibilities 4. if not since birth, at least two years ii. de facto parent (not same as legal parent – not same amount of custody, preference for legal parent; no obligation to support.) 1. at least two years 2. lived with child and 3. either agreement of legal parent or complete failure by them 4. majority of caretaking or at least as much as legal parent. 5. [No requiring of accepting full responsibilities and no requirement of holding out. Could be a family member or friend that comes to help out and doesn’t hold out as child. Nanny probably wouldn’t work b/c can’t be for financial reasons.] F. Child Custody Modification a. Standards i. Majority 62 1. Petitioner must show: material and substantial change in circumstances since original order AND it would be in child’s best interest. ii. A few states: just best interest iii. UMDA: 1. very strong position against modification 2. Court prohibited from modifying in absence of evidence that child’s present environment endangers seriously the child’s physical, or emotional health. iv. ALI: 1. Standard is: a non-consensual modification requires substantial change in circumstances such that modification is necessary to protect the child’s welfare. (that’s an “and”) 2. more liberal standard for consensual change. 3. Specifies that certain changes are not sufficient to warrant modification (loss of income/employment, remarriage/cohabitation, childcare placement) b. Changes in Circumstances i. Relocation 1. within 4 years, 75% of custodial mothers relocate 2. Ciesluk v. Ciesluk (CO): Mom argues: that by adopting best interest, her right to travel is infringed. Court rejects that and adopts best interest test with each party having equal burden of proof. And court must thoroughly disclose its reasons for ruling. Adopted 9 factors: a. Reasons for relocating b. Reasons for opposing the move c. History/quality of each party’s relationship w/ child d. Educational opportunity in each location e. Advantages of remaining w/ primary caregiver f. Anticipated impact of move on child g. Whether court will be able to fashion a new reasonable parenting time schedule h. Any other factors relevant to child’s best interests 3. Three approaches: a. Elevate the relocating parent’s right to travel over the other competing interests. b. Eliminates the need to balance parents’ competing rights in favor of elevating the child’s welfare to compelling state interest. c. Treats all the competing interests as equal. (Ciesluk) 4. ALI: relocation a. Permit a primary parent to relocate if that parent has been exercising a significant majority of custodial responsibility and has a legitimate reasons for moving. 63 b. Relocation justifies a custody modification only when it “significantly impairs” either parent’s ability to exercise custodial responsibilities. c. Valid purposes for the move include: desire to be closer to a support network, health reason, employment or educational opportunity, protection of a family member, desire to accompany a spouse or domestic partner who lives in, or is pursuing educational or employment ops in the new location, and to improve quality of life. 5. Good Faith: some courts look at good faith in applying best-interest standard. (parent not moving in order to keep other parent away from child.) Exam: Mostly issue-spotting Ex: is the relationship legally recognized, what the consequences would be either way, arguments on both sides (ex: is the child a legal child of both parties) Will need to apply various theories from throughout the course Should know both the rules and be able to make policy arguments as well. Have a sense of different perspectives different states take (but won’t have to know what specific states do what) Exam  3 hours  Open book, all notes, etc.  2 issue spotting o Id legal issues o Analyze/give arguments on both sides o Draw in/apply relevant case law o Compare/contrast facts to cases and what’s the relevance of similarities/differences. o if we learned policy considerations or spectrum of approaches, helpful to explain policy reasons. o Predict outcome – should say if close call or obvious.  USE HEADINGS! o Ex: pre nup and settlement agmt o Voluntariness, procedural fairness, substantive fairness, etc. o Part of grade is organization  Some short answers  Short answers – 1-3 sentence answers. o Largely recall questions o Do you know this or not; as opposed to applying law o Ex: which states have jx over a particular issue o Probably around 10 short answers 64