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FAMILY LAW
FAMILY 1) Traditional Approach a) Families related by blood, marriage, or adoption and having a domestic bond b) Domestic Bond i) Resident authority figure (not paid) ii) Permanence and cohesion (one year is not enough) iii) Self-sufficiency and independence (e.g., cooking) c) Policy: Administrable rule for courts to apply—encourages self sufficient families 2) Functional Approach a) Families that are the functional equivalent of a traditional family based on their appearance and conduct b) The test is totality of the circumstances 3) Analysis a) Statutory analysis to determine “family” b) Constitutional analysis to determine if the definition of “family” infringes upon constitutional rights MARRIAGE & MARITAL RELATIONSHIPS 1) Void and Voidable Marriages a) Incest is a void marriage i) Marriage between blood-related people ii) Half-blood uncles and nieces are prohibited b) Polygamy is a void marriage i) Marriage of one man and many wives ii) Immorality View: state cannot condone immoral practices iii) Illegality View: whether moral or not, state cannot condone polygamy because the state has declared it an illegal practice c) Same Sex Marriage is a void marriage i) Marriage of two people of the same sex is void ii) Marriage is limited to union between one man and one woman iii) History and tradition recognize only unions between people of the opposite sex
d) Marriage between minors is voidable i) State statutes requiring parental consent for minors to marry must be rationally related to a legitimate state interest ii) The legitimate state interest is protecting minors and preventing unstable marriages iii) Age restrictions are rationally related to protecting minors and preventing unstable marriages iv) Age restrictions are not complete bars to marriage but are merely limitations to marriage 2) Access to Formal Marriage a) Formal Requirements to Marry i) Marriage license and ii) Solemnization (ceremony)
2 b) Constitutional Questions i) Marriage is a fundamental right ii) A complete deprivation of the right to marry receives strict scrutiny review: The restriction must be narrowly tailored to achieve a compelling state interest iii) A mere delay or limitation on the fundamental right to marry receives intermediate scrutiny review: the delay or limitation must be necessary to achieve an important state interest 3) Engagement Rings a) Engagement rings are conditional gifts b) PA No-Fault Rule i) If marriage does not occur, gift reverts back to the donor ii) Policy: finality and administrability—less emotion and less litigation to determine the difficult question of fault c) Fault Rule i) If donor breaks off the engagement, donee keeps the ring ii) If mutual consent or donee breaks off the engagement, donor keeps the ring iii) Policy: Fairness—encourages people to keep their promises 4) Common Law Marriage a) b) c) d) e) Cohabitation (no set length) Representing to community to be married Showing of intent between parties to be married Ability to enter into a legal relationship (legal capacity) Both parties must be single
5) Prenuptial Agreements a) General Prohibitions in all Prenuptial Agreements i) Prenuptial agreement cannot define the terms of sexual relationships ii) Prenuptial agreements cannot define the terms of custody and child support obligations b) PA Standard i) Prenuptial agreement upheld unless (1) Duress, fraud, or misrepresentation (basic contract principles) (2) Lack of meaningful choice in the creation of the agreement (3) Lack of full and fair disclosure of financial assets ii) Reasonableness of the agreement is not relevant c) Alternative Standard i) Same elements as PA standard but ii) Reasonableness of the agreement is a proper consideration
6) Nonmarital Contracts a) Contract View i) Validity of nonmarital relationship agreements are determined by basic contract principles ii) Nonmarital relationships are the functional equivalent of marriage iii) Contract principles can best serve the parties’ interest once they split up b) Status View i) Parties cannot enter into contracts that change the essential incidents of marriage ii) Marriage is a status and the parties have certain roles that cannot be disturbed
3 7) Duty of Mutual Support: Family Privacy Rule a) There is a duty of mutual support between parties, but that duty should not be determined by courts of law b) There is a zone of privacy where the state cannot intrude c) State can only intervene where there is abuse or neglect 8) Family & Medical Leave Act a) Who Qualifies? i) Any person who has been employed by same employer for at least 12 months ii) Completed at least 1250 hours of service during the previous twelve months b) If yes, employee is entitled to 12 workweeks of leave during any 12-month period to: i) Care for a newborn son or daughter ii) Care for a recently adopted son or daughter iii) Care for the spouse, son, daughter, or parent with serious health condition iv) Recover from a serious health condition that makes the employee unable to perform the functions of his or her position at work 9) Torts & Crimes a) Loss of Consortium i) Emotional distress suffered by one spouse who loses the normal company of his or her mate when the mate is physically injured due to the tortious conduct of another ii) Must be married at the time of injury to claim the loss iii) Policy: Emotional losses are recognized b) Interspousal Immunity i) Doctrine of Interspousal immunity is now abrogated in most states, including PA ii) Husbands and wives can now sue each other freely iii) Policy: Marriage is probably already damaged if spouse is committing tort against the other, so why not let them sue the hell out of each other on top of that??? c) Marital Evidentiary Privileges i) Adverse Spousal Testimony (1) Evidence of criminal acts (2) Made in contexts of third persons (3) Witness spouse holds the privilege ii) Marital/Confidential Communications Privilege (1) Private conversations (2) Between two spouses (3) No witnesses present PARENTING 1) Adoption a) General i) Voluntary or involuntary termination of one set of parental rights ii) Creation of a new set of parental rights iii) Best Interest of the Child Standard: Least detrimental available alternatives in light of other alternatives
4 b) Representation of Biological and Adoptive Parents i) Attorney may represent multiple parties in adoption proceeding (1) Attorney must adequately represent the interest of each party and (2) Each party must consent ii) If not, attorney may face sanctions c) Equitable Adoption i) Defined (1) Clear and convincing evidence prospective adopting parent stood in a position exactly equivalent to that of a formally adopted or biological child from an age of tender years ii) Factors (1) How the prospective parents held out the child (2) Treatment of the child (3) Representation to the community (4) Whether the prospective parents support the child (5) How the child is treated on a legal/formal level (documentation such as wills, taxes, and insurance)
d) Consent of Biological Mother Before Adoption Takes Place i) Minority Rule (PA): natural parents have an absolute right to revoke consent anytime before the final decree ii) Minority Rule: Judicial Discretion (1) Court decides the best interests of the child (2) Determines fitness of the biological mother iii) Strict Rule: Absent fraud or duress, and adoption is final e) Abrogation of Adoption i) Negligence or intentional tort of misrepresentation action brought by adoptive parents against adoption agency ii) Duty of Adoption agency (1) Use reasonable efforts to obtain and maintain background information about the child and (2) Disclose the information to prospective adoptive parents iii) Failure to disclose information is the breach iv) Policy: assures the trust between agencies and adoptive parents f) Consent of Unwed Father Before Adoption Takes Place i) General Rules (1) Biological father formally acknowledges paternity (a) Name on birth certificate (b) Putative father registry (2) Judicial acknowledgement of paternity (3) Statutory classification ii) Procedural Due Process. Unwed fathers are entitled to procedural due process if (1) Biological connection with the child and (2) Biological father grasps the opportunity for a custodial, personal, or financial relationship with the child iii) Substantive Due Process Liberty Interest of Unwed Fathers (1) Broad View: liberty interest is that of a father as a parent regardless of marital standard (minority view) (2) Narrow View: no liberty interest of an adulterous, unwed father according to tradition and history
5 iv) PA Standard (1) Irrebuttable presumption that marital father is the biological father (2) Exception: marital father must be married to the mother; once divorced, biological father can assert paternity claim 2) New Reproductive Techniques a) Artificial Insemination by Husband i) There is no issue of paternity ii) No issue of who the parents are b) Artificial Insemination by Donor i) Consensual or Non-Consensual: sperm bank or anonymous donor ii) Husband of woman who is artificially inseminated by donor is the parent of the child iii) Husband’s consent is needed when another seeks to adopt the child c) Surrogacy Arrangements i) Child is procreated by surrogacy ii) Initiated and consented to by the couple iii) Couple is the child’s lawful parents
d) Frozen Embryos i) Frozen Embryos are not quite persons for constitutional purpose but require “special consideration” ii) If the parties to a divorce cannot agree on the disposition of frozen embryos, the respective relative interest in the use or destruction of the embryos must be weight iii) If the party wishing to avoid procreation can show that other available reproductive means exist, that party should prevail iv) Analogy: Roe v. Wade fundamental right to make pregnancy decisions is similar to a fundamental right not to procreate 3) General Duty of Parental Support & Breach a) General Duty i) Food, clothing, & medical care ii) Duty exists until the age of majority iii) No emancipation b) Breach of Duty i) Abuse (1) Parents have a right to direct the upbringing of their children and use reasonable corporal punishment on their children (2) Reasonable Corporal Punishment v. Excessive Force determined by (a) Manner (b) Degree (c) Parental ii) Neglect (1) Failure to provide essentials or failure to supervise (2) Abandonment (3) Emotional neglect: repeated and sustained (4) Medical neglect: disease is life threatening and conventional medicine would give the child a good chance of survival
6 iii) Dependency (1) Circumstances beyond the parents control (2) Cause the child to lack basics like home, shelter, nutrition, etc. (3) Parents have no opportunity to show whether parenting was proper DISSOLVING THE FAMILY: DIVORCE, FINANCIAL OBLIGATIONS, CUSTODY & VISITATION 1) Fault-Based Divorce a) Divorce historically based on fault for the following grounds i) Adultery ii) Desertion iii) Cruelty iv) Bigamy v) Imprisonment vi) Mental capacity and adjudication of insanity vii) Indignities (catch all) b) Defenses to Fault Based Divorce i) Recrimination: both parties at fault equally ii) Condonation: condoning the fault and behaving like husband and wife iii) Collusion: husband and wife fabricated evidence to get out of the marriage but no real fault present 2) No-Fault Divorce a) Modern theory that has not completely replaced fault divorce i) Bilateral no fault or ii) Unilateral no fault b) Bilateral No-Fault i) Both parties agree that they want a divorce ii) Parties consent, sign an affidavit, wait 90 days c) Unilateral No-Fault i) Two year process ii) One party alleges that the marriage is “irretrievably broken” iii) Irretrievably Broken (1) No reasonable prospect of reconciliation and (2) Separated and apart for at least two years (a) Complete cessation of any cohabitation whether living in the same residence or not (b) Complete cessation of financial, social, and sexual interdependence
d) Prenuptial Agreements & Divorce i) Prenups can cover grounds for divorce—waive party’s right to assert one ground of divorce ii) Prenup that covers the grounds for divorce is not a total deprivation of the right to divorce iii) Strong presumption in favor of the prenup iv) Strong public policy favoring the enforcement of private agreements e) Jurisdiction for Divorce i) General Rule: petitioner must be domiciled in the forum state (1) Domicile determined by the intent to make the forum state the party’s permanent home (2) Physical presence in the forum state
7 ii) Domestic Relations Exception in Federal Courts (1) Federal court will not hear divorce, alimony, or child support claims (2) Domestic relations exception does not apply to case of child abuse iii) Duration of Domicile (1) Statutory period (e.g., one year, six months, etc. before you can obtain a divorce) (2) Duration only delays, does not deprive, the right to divorce (3) Prevents state from becoming a divorce mill (4) Assures that divorce decrees receive full faith and credit iv) Venue (1) Last known marital domicile or (2) ’s residency or (3) ’s residency if ’s residency is unknown v) Foreign Divorces (1) No full faith and credit applies because not a state of the US (2) Recognized under discretionary principles of “comity” (3) If the foreign forum reached the same result as the state would have, the decree should be recognized (4) If one of the parties did not receive procedural due process, no recognition of the decree should follow 3) Alimony a) Payment by one spouse to another after divorce for an indefinite period of time i) Temporary or permanent ii) Fault is considered (e.g., marital misconduct) iii) Test is totality of the circumstances based on statutory factors b) Theories of Awarding Alimony i) Need Based ii) Party Status iii) Contributions iv) Rehabilitation c) Alimony Pendente Lite i) Awarded before a divorce decree and during the course of litigation when one party has no resources ii) Used to give other spouse money to pay the bills iii) Criticisms (1) Makes one party more likely to succeed in alimony action (2) Person receives a remedy before need is established
d) Modification of Alimony Awards i) Change in circumstances ii) Substantial change iii) Continuing change 4) Equitable Distribution of Property a) Valuation and division of marital property after divorce i) Fault is not considered ii) Test is totality of the circumstances based on statutory factors
8 b) Determine if the Item at issue is property i) Traditional Approach (1) Assignable (2) Liquid (ability to sell) (3) Transferable ii) Equitable Approach (1) Concerted family effort test (2) If otherwise intangible or non-quantifiable property is the result of a concerted family effort (e.g., law degree, good will of a business, career & celebrity status), equity works to characterize the thing as property c) Determine if the item at issue is Marital Property or Separate Property i) Separate Property (1) Acquired before marriage (2) Acquired during marriage by one spouse as a gift, bequest, or inheritance ii) Marital Property (1) Acquired during marriage (2) Gifts between spouses during marriage (3) Increase in value of property during marriage (e.g., husband’s antique car is $100,000 before marriage; during marriage it raises to $200,000; marital property is $100,000)
d) If the property is marital property, determine the Value i) Expert witnesses ii) Present value approach iii) Reserved jurisdiction approach e) Determine the Distribution of Property i) Presumption that there is 50/50 split and then apply the statutory factors ii) No presumption and start with a clean slate using the statutory factors 5) Child Support a) Payment to custodial parent for child rearing purposes i) Child support is payable regardless of marriage ii) Based on biological parentage b) Exceptions or Defenses to Payment i) Parent is not the biological parent ii) Child is emancipated iii) Estrangement iv) Entitlement (1) General Rule: stepparent has no legal obligation to support the stepchild (2) Exception: equitable estoppel dictates that the stepparent who holds the child out as his or her own should be obliged to pay support v) Post Majority Support Obligations (1) General Rule: Court loses jurisdiction over child that reaches the age of majority. Court cannot order parent to pay post majority (e.g., college tuition) (2) Exception: Parties can agree privately for post majority support—enforceable by the court as a contract c) Valuation (PA) i) Income Shares Model ii) Combine both parents income iii) Support is proportionate to the income of each parent
9 d) Modification of Child Support i) Change in circumstances can work to modify child support obligations ii) Change in circumstances must be (1) Material (2) Continuous (3) Involuntary e) Enforcement of Child Support i) Garnishment of Wages ii) Criminal Proceedings iii) Liens or attachments iv) Attachment of assets; liquidate assets 6) Jurisdiction over Alimony, Equitable Distribution, and Child Support a) Jurisdiction Generally i) Long Arm Statutes for personal jurisdiction ii) Minimum contacts with the state iii) State must have a manifest interest in the outcome of the case b) Doctrine of Divisible Divorce i) Obtain divorce in one state under that jurisdiction ii) Divide other claims for alimony, child support, and equitable distribution in other jurisdictions c) Child Support Obligations i) Relocation does not eliminate duty to pay child support ii) Duty to pay does not lapse with passage of time iii) Analogy: third party beneficiary contracts do not lapse—same thing with child support (3rd party)
7) Custody a) Types i) Sole (1) Custodial spouse responsible for raising child (2) Custodial spouse alone has decisionmaking authority (3) Non-custodial has visitation rights ii) Joint Physical (1) Parents share childrearing responsibilities (2) Need not be 50/50 split in duration iii) Joint Legal (1) One parent has sole custody (2) Other parent has visitation rights (3) Both parents share, to the same degree, the decisionmaking responsibilities for schooling and medical decisions b) Custody is always determined in the best interests of the child i) Fitness: Must be a nexus between the fitness problem and the adverse potential effect on the child ii) Child Preference: Age, intellect, maturity, and reasons for the child’s preference iii) Primary Caretaker: Totality test determining the quantity of childrearing that one party takes on iv) Totality of the circumstances considered (1) Sibling’s or other relative’s relationships with the child (2) Religious upbringing usually the duty of the custodial spouse (fundamental right to parenting)
10 8) Visitation a) Parental Visitation i) Nexus between parental behavior and the potential harmful effects on the child ii) Determine whether supervised or unsupervised is appropriate based on the parental behavior (1) Supervised for bad behavior that has potential effects on the child (2) Unsupervised where no nexus exists iii) Termination (1) Incarceration (2) Abuse (3) Neglect (4) Abandonment b) Third Party Visitation i) Grandparents (1) Petition for visitation is best interest of child would be served and (2) Visitation does not interfere with the parent-child relationship ii) Stepparents (1) Best interests of the child would be served and (2) Stepparent stood in loco parentis during the marriage (a) Assumed parental status (b) Had parental responsibilities 9) Modification of Custody & Visitation a) Test is whether modification would be in the best interest of the child b) Relocation Test (PA Gruber) i) Advantages of the relocation ii) Whether it significantly improves the child’s life iii) Integrity of the motives (1) Custodial parent’s motives (2) Non-custodial parent’s motives iv) Availability of realistic visitation arrangements c) Other standards i) Best interest of the child and ii) Substantial and material change in circumstances 10) Discrimination Suit under Family & Medical Leave Act a) has burden to prove prima facie case of discrimination i) Intentional discrimination ii) Discriminatory impact b) has the burden to prove nondiscriminatory reason for termination i) Usually economic downturn ii) Show that other employees were fired as well c) then has burden to show that nondiscriminatory reason was pretextual i) Disprove economic reason of employer ii) Performance reviews iii) Show past business history