FAMILY LAW Fall 2010, Professor Marsha Freeman Grade will be based on final exam.

You must be prepared for class which includes being ready to discuss the cases (what the court was looking at, what are the issues, what facts are relevant, what reasoning/law did the court apply and why.) There will be extra points given for participation. There are now minuses back in the grading scale now.

Family Law is about relationships ± spouses, parents/children, partners (same sex and opposite sex).  Many companies provide benefits to partners  It deals with formation/termination of marriage, custody/visitation/support obligations, etc.  It is about constitutional law; it¶s considered a state domain ± federal law becomes involved when the states deprive their citizens of rights; it includes marriage laws, property laws/rights, and parental rights  It also includes contract law, and negotiation/settlement  In family law, you can¶t serve any competent person ± it must be personal service  Different than other law in that it¶s very personal and it¶s about ending usually (e.g., relationships) CHAPTER 1 ± WHAT IS A FAMILY?   Traditional: mother, father, and children (doctrine of exclusivity) Non-traditional: unmarried, same/sex, with/without children/stepchildren, extended members of family, and friends; broader concept of who provides the care

1. Conjugal Baker v. State (p 10) Benefits and protections incident to a marriage: right to receive a portion of the estate of a spouse who dies intestate; protection against disinheritance through elective share provisions; preference in being appointed as personal representative of spouse who dies intestate; right to bring a lawsuit for the wrongful death of a spouse; right to bring an action for loss of consortium; right to workers¶ compensation survivor benefits; right to spousal benefits statutorily guaranteed to public employees, including health, life, disability, and accident insurance; opportunity to be covered as a spouse under group (health and life) insurance policies issued to employee; right to claim evidentiary privilege for marital communications; homestead rights and protections; presumption of joint ownership of property and concomitant right of survivorship; hospital visitation and other rights incident to medical treatment of a family member; and right to receive and the obligation to provide spousal support, maintenance, and property division in the event of separation or divorce. Braschi v. Stahl Associates Company (p 15)  Brief Fact Summary. Two men lived as life partners for over ten years. Upon his partner¶s death appellant was threatened by respondent with eviction based on the theory that he was not a family member as protected by rent control law.  Synopsis of Rule of Law. Without legislative definition, the court determines the definition of family by examining the intent of the legislation. Based on the intent of the rent control law, an expansive definition of family is appropriate.  Facts. Appellant Miguel Braschi lived with Leslie Blanchard in a rent controlled apartment form the summer of 1975 until Blanchard¶s death in September of 1986. Respondent Stahl Associates Co. threatened eviction proceedings against appellant, contending that he was a

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mere licensee with no right to occupy the apartment since only Blanchard was tenant of record. Issue. Is a couple living in a marriage-like relationship but not formally married protected under New York Rent Control law? Held. The purpose of rent control statutes was to address an acute shortage in dwellings that resulted in abnormal increases in rent. The statutes also provided noneviction protection for occupants who are either the surviving spouse of the deceased tenant or some other member of the deceased tenant¶s family. Respondent argues that the family member term should be construed consistently with the state¶s intestacy laws, meaning a relationship of blood, consanguinity or adoption. However, the noneviction protection does not concern succession of real property but rather protects a certain class of occupants from sudden loss of their homes. Respondent¶s interpretation would afford protection for distant blood relatives while denying protection to unmarried lifetime partners. Respondent also contends the family member definition should be guided by a recently enacted noneviction provision of the Rent Stabilization Code, which provides a precise definition of family members based on marital or blood ties. However, the new rent-stabilization system is different than the rent-control system in that the former is a less onerous burden on the property owner. The term family as used in the statute should not be rigidly restricted to those who have formalized their relationship by obtaining, for example, a marriage certificate or an adoption order. This expansive definition includes two adult lifetime partners. Appellant should be afforded the opportunity to prove he and Blanchard had a family household. This it determined by the totality of the relationship, including the exclusive commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services. Discussion. The court determined that based on the purpose of the statute a more expansive definition of family should be applicable. The court also provides a useful list of factors to determine family.

Note (p 19): Braschi involves two issues that can distinguished from one another. One is the extent to which the law should treat same-sex couples as conjugal family members; the other is whether law should extend such recognition to unmarried conjugal partners more generally. 2. Non-Conjugal Canada and other countries have different views than the U.S. Economic family ± a broader concept that encompasses all relatives living in the same household, regardless of how they are related. Groups Village of Belle Terre v. Boraas (p 28) y reasonable to limit households; similar restrictions are contained in homeowner association documents and other leases Penobscot Area Housing Development Corp. v. City of Brewer (p 32) Board from city disapproved & rejected an application for a retarded adult home b/c they wouldn't meet the definition of a family or its equivalent. Ct. determined that the home wouldn't create a traditional family setting. y No perm resident/control when they would come & go. y No central figure, rotating staff. y No indiv cooking, staff would do that. y The reasoning has to do w/a sense of unease b/c unsure whether the criteria is ok.

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y y

State Interests: they wanted a low-density area, single families. The group-home would be in contrast w/this policy/goal. Real interest is to keep the neighborhood nice & they don't want a group home for retarded indivs in the area

Borough of Glassboro v. Vallorosi (p 34)  PROCEDURAL POSTURE: Appellant borough challenged a decision of the Appellate Division (New Jersey), which affirmed lower court rulings denying the borough injunctive relief against appellant homeowners, who owned a dwelling in which a group of ten unrelated college students lived, in a district limited by borough's ordinance to "single housekeeping units" that constituted either a "traditional family unit" or its functional equivalent.  OVERVIEW: Respondent homeowners purchased a home in a district limited by appellant borough's zoning ordinance to families or their functional equivalent. The home was occupied by ten college sophomores who shared housekeeping facilities, paid household expenses through a joint checking account, and planned to continue to reside in the home until they graduated. Borough commenced an action seeking an injunction against the students' use and occupancy of the house. A lower court denied the injunction, and an intermediate appellate court affirmed. The court affirmed, noting that while municipalities were permitted to limit occupancy to "single housekeeping units," the standard for determining whether a use qualified as a single housekeeping unit could not be based on blood, marriage or adoption, but had be functional and capable of being met by either related or unrelated persons. Sufficient credible evidence supported the lower courts' determination that the students did not violate the ordinance. The students' relationship showed stability and permanency and could be described as the functional equivalent of a family, a use permitted by the ordinance.  OUTCOME: The court affirmed the denial of injunctive relief to appellant borough, finding that there was sufficient credible evidence in the record to sustain the lower court's factual finding that occupancy of respondent homeowner's dwelling by unrelated students showed stability, permanency, and could be described as the functional equivalent of a family, a use permitted by the borough's ordinance. CHAPTER 2 ± MARRYING Loving v. Virginia (p 58)  Brief Fact Summary. An African-American woman and a Caucasian man were charged and pled guilty to a Virginia statute banning interracial marriages.  Synopsis of Rule of Law. The Equal Protection Clause calls for strict scrutiny when laws contain classification based upon race. Such laws are only upheld if a legitimate state interest independent of the racial discrimination exists.  Facts. Jeter, an African-American woman, and Loving, a Caucasian man, were married in 1958 in the District of Columbia. Both where residents of Virginia. The couple returned to Virginia and was charged with violating the state ban on interracial marriages. The Lovings pled guilty and were sentenced to a one year suspended sentence so long as they leave the state and not return for twenty-five years.  Issue. Does the Virginia statute prohibiting marriages solely on the basis of racial classification violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment?  Held. The Fourteenth Amendment does not permit the freedom of choice to marry to be restricted by racial discrimination. The State contends that marriage has traditionally been subject to state regulation without federal intervention under the Tenth Amendment, and that the statute has a legitimate purpose in preserving racial integrity. Furthermore, the State claims that the statute punishes both races equally and thus the test under the Equal Protection Clause is if there is a rational basis for a State to treat the interracial marriages

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Discussion. A Wisconsin Statute forced individuals to receive court permission in order to marry if they have a minor issue not in their custody which they are obligated to pay support for. Appellant was unable to receive court permission under the statute and brought suit on behalf of all residents similarly situated. it must be supported by sufficiently important state interests and closely tailored to effectuate only those interests.      differently. It was stipulated that appellee was in arrearage on his payments and his child had been a public ward since birth. Appellee Redhail was unable to enter into a lawful marriage under a Wisconsin statute that did not permit a resident to marry without court permission if he has a minor issue not in his custody which he is obligated to pay support by court order.  Issue. The statute also violates the Due Process Clause by violation the Lovings¶ liberty to marry without due process of law. and unable to make payments. Note. The state had no legitimate independent reason for the invidious racial discrimination. The statute has no legitimate overriding purpose independent of invidious racial discrimination. The application was denied due to appellee¶s failure to obtain the required court order. In its wake. unless Zablocki v. within the State or elsewhere. a county clerk. state must have rational reason for infringement and should not be overly inclusive See note 3 on p 62. courts have overturned numerous other restrictions. Strict scrutiny ± race. state must have important government interest and must be substantially related to that interest Rational basis ± everything else. therefore he was unable to satisfy the requirements for a court order. religion.  Synopsis of Rule of Law. The Equal Protection Clause only permits statues containing racial classifications to be necessary to accomplish a permissible state objective independent of the discrimination. state must have compelling government interest which must be narrowly drawn to achieve only that interest Intermediate scrutiny ± gender. The equal application of a statute containing racial classifications does not remove it from the Fourteenth Amendment¶s subjection of racial classifications to the most rigid scrutiny. therefore the statute violated the Equal Protection Clause. Appellee filed his complaint on behalf of himself and all similarly situated Wisconsin residents. Full faith and credit clause ± every state must respect the records. and speech. Redhail (p 62)  Brief Fact Summary. and judgments of a sister state. In 1972 when appellee was a minor high school student he was found to be the father of a baby girl born out of wedlock and ordered to pay monthly support. Appellee was unemployed and indigent until 1974. acts. If a statute significantly interferes with the exercise of a fundamental constitutional right. Is a Wisconsin statute that provides that members of a certain class of residents cannot marry. it was still subject to strict scrutiny.´  Facts. Such interests are subject to strict scrutiny or ³critical examination. Fall 2010 4 . In 1974 appellee applied for a marriage certificate with appellant Zablocki. The statute allowed court permission only if the marriage applicant submits proof of compliance with the support obligation and additionally demonstrates that the children covered by the support order are not then or likely thereafter to become public charges. Loving was the first case in which the Sup Ct held unconstitutional a state restriction on marrying. without first obtaining a court order granting permission to marry constitutional? Family Law. The Court found that even if the statute punished Caucasian and AfricanAmerican participants equally.

if the individual is unable to meet payments. The Due Process Clause protects the liberty right to marriage. Appellant claims that the statute supports the State¶s interest in counseling the applicant as to the need of fulfilling his prior support obligations and protects the welfare of the out-ofcustody children. Justice Stevens. The second is faulty for two reasons. The Wisconsin Legislature incorrectly assumed that (a) only fathers would be affected by the legislation and (b) they would never marry employed women.         Held. The statute is unconstitutional because it significantly interferes with the exercise of a fundamental right and is not supported by sufficiently important state interests and is not closely tailored to effectuate only those interests. Prison officials testified that generally only a pregnancy or the birth of an illegitimate child where considered compelling. NOTE (p 71): Reasonable restrictions that do not significantly interfere with the right to marry can be imposed by the state. First. and places sufficient burdens and significant intrusions on others. Justice Stewart. The reason for the rule did not have a reasonable relationship to the goals of the penal system. The first claim is faulty because even if counseling is provided there would be no interest in continuing to withhold permission to marry after counseling is completed. Concurrences. However. This case sounds like strict scrutiny. The Missouri Division of Corrections had regulations permitting inmates to marry only with the permission of the superintendent of the prison. this is underinclusive because it limits only the new financial commitments arising out of a marriage and overinclusive because in many cases the income from the new spouse may increase the applicant¶s ability to pay. Turner v. therefore the prisoner¶s constitutional right to marriage was violated. P inmates brought a class action suit for injunctive relief and damages.  Synopsis of Rule of Law. the statute simply prevents marriage without providing any money to the minor children.  Facts. Safley (p 71)  Brief Fact Summary. the State has numerous other means for extracting the payments. The Statute cannot withstand scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Discussion. and protection of the State¶s interests must fall short of not permitting poor people to marry. There is also suggestion that the statute prevents applicants from incurring new support obligations. The majority finds the statute to violate constitutional protections under both the Due Process and Equal Protection Clauses. The statute may only result in more children being born out of wedlock. the present statute absolutely prevents some in the protected class from obtaining the required order. should the restriction be tested under a reasonableness standard? Family Law. Inmates brought suit over a Missouri Corrections regulation that permitted inmates to marry only with permission of the prison superintendent and allowed for approval only when compelling reasons exist. Second. The Concurrences appear to differ mainly on which of these two clauses is more applicable. Previous court decisions have confirmed that the right to marry is protected by the Due Process Clause of the Fourteenth Amendment. Should a different rule apply in a prison forum that does not include marriage as a constitutionally protected right? If the rule burdens prisoner¶s constitutional rights. Although reasonable restrictions that do not significantly interfere with the right to marry may be imposed. The majority¶s reliance on the Equal Protection Clause is misplaced because it is intended to deal only with invidiously discriminatory classifications.  Issue. Fall 2010 5 . The court employs a critical examination of the state interests advanced in support of the statute because the right to marry is of fundamental importance. and allowing for such approval only when there are compelling reasons to do so.

Carole had an adulterous affair with Michael while married to Gerald. Michael. However. with Gerald listed as father on the birth certificate. Coughlin: The court followed the Turner intermediate standard of ³whether the regulation bears a reasonable relationship to legitimate penological interests. Family Law. Carole filed for summary judgment while she was again living with Gerald in New York.   Held.  Facts. Victoria. In April 1984. were married and established a home in California. v. Prison inmates retain those constitutional rights not inconsistent with their status as a prisoner or with legitimate penological objectives. in 1980. with both. In the summer of 1982 Carole and Victoria visited Gerald in New York. instructing her attorneys to remove the summary judgment motion. She conceived a child. (p 74)  Brief Fact Summary. she was entitled to maintain her filial relationship. Carole became involved in an adulterous affair with Michael H. but was likely Michael¶s child. In November of 1982 Michael filed a filiation action in California to establish his paternity and right to visitation. with all of the attendant rights. McGinnis: The court found that preventing inmate/correctional worker intimate relations was a legitimate penological interest and that barring relations with inmates¶ visitors and family was reasonably related to that interest. Multiple elements of marriage that are not inconsistent with the status of a prisoner are sufficient to form a constitutionally protected right to marriage.´ y Akers v. In 1978. The almost complete ban on such marriages is overly broad and not reasonably related to legitimate penological objectives. Carole visited with Michael for several months. Victoria filed a crosscomplaint asserting that if she had more than one psychological or de facto father. Petitioners rely on security and rehabilitation as their support for the reasonable relationship between the rule and correctional goals. and Gerald D.  Synopsis of Rule of Law. duties. Discussion. The next month Carole left Michael. In 1983 the court appointed an attorney and a guardian ad litem to represent Victoria¶s interests. However. In the fall she returned to California. In 1976 Carole D. natural father does not have a constitutional right to paternity over the marital father. were he held Victoria out as his daughter. Michael and the child by guardian ad litem brought suit to establish paternity and a right to visitation. the marriage regulation does not withstand scrutiny. Even under a reasonable relationship test. This is because marriages can lead to violent love triangles and the domination of female prisoners who are overly dependent on male figures.07% probability that Michael was the father. but soon after delivery Carole informed Michael she believed he might be the father. Fall 2010 6 . In 1981 Gerald moved to New York and Carole. The Court did not reach the question of if a higher standard of scrutiny is necessary because it found that the rule did not pass muster under the reasonable relationship test. In August of 1983 she returned to California and again became involved with Michael. Carole and Michael signed a stipulation that Michael was Victoria¶s father. and the three vacationed in Europe. For the next eight months Michael held Victoria out as his daughter. and Victoria had blood tests revealing a 98. An adulterous. and obligations. and the expectation that most inmate marriages will ultimately be consummated remain unaffected by confinement or legitimate correctional goals. Although the right to marry is subject to substantial restriction for prisoners. love triangles can develop without marriage. the Court did state that the regulation may impose an unacceptable constitutional restriction on non-prisoners because they would be unable to marry incarcerated individuals. Gerald has always held the child out to be his daughter. Gerald D. Michael H. A child was born while Carole and Gerald were together. Carole left Michael and took up residence in California with another man. the religious spiritual significance. and the focus on banning mainly the female prisoners from marriage is unacceptable. the expressions of emotional support and public commitment. Notes 1 and 2 (p 74) y Langone v.

The dissent accuses the plurality of being too specific in its search of history to support the right claimed by appellant. In May 1984 Michael and Victoria. The law provides that ³the issue of a wife cohabiting with her husband.´ The presumption may only be rebutted by blood tests. sought visitation rights for Michael pendente lite. However. many decisions would have had a different result. through guardian ad litem. and could be rebutted only by a husband who was incapable of procreation or had no access to his wife during the relative period. finding that Carole and Gerald were cohabiting at the time of conception and birth and that Gerald was neither sterile nor impotent. In 1985 the Superior Court granted the motion for summary judgment. Her claim that a State must recognize multiple fatherhood has no support in history or tradition. protection of Gerald and Carole¶s marital union is an insufficient state interest to support termination of the relationship. but Michael be allowed continued contact with Victoria pursuant to a restricted visitation schedule. Michael must establish not that society has traditionally allowed a natural father in his circumstances to establish paternity. Liberty must include the freedom not to conform. The court concurred. Issue. In October of 1984 Gerald moved for summary judgment on the ground that under California law there were no triable issues of fact as to Victoria¶s paternity. The presumption of legitimacy was fundamental at common law. is conclusively presumed to be a child of the marriage. Historically. This is not a new interest. Presumptive father statute: whenever a child is born during marriage. Carole reconciled with Gerald and they lived together with two more children being born. The plurality¶s decision is striking considering the precedent preventing States from denying important interests to those in situations that do not fit the government¶s narrow view of the family. the husband is presumed to be the father. because Victoria is not illegitimate. and a motion for such tests must be made within two years of the birth by the husband. the marital family has been protected rather than the potential father outside of the marriage.       instructing her attorneys to not file the stipulation. If we had looked to tradition with such specificity in past cases. A court appointed psychologist recommended that Carole retain sole custody. Does the presumption established by the law infringe upon the due process rights of a man who wishes to establish his paternity of a child born to the wife of another man or infringe upon the constitutional right of the child to maintain a relationship with her natural father? Held. many states now permit challenges to this because it¶s unfair (DNA testing brought this about) Family Law. No modern or historical precedent similarly recognizes the power of the natural father to assert parental rights. Discussion. To provide protection to an adulterous natural father is to deny protection to a marital father. Michael contends as a matter of substantive due process that because he has established a parental relationship with Victoria. or by the wife if the natural father has filed an affidavit acknowledging paternity. but that it has traditionally accorded such a father parental rights. who is not impotent or sterile. An omitted concurring opinion agreed in the sense that it objected that the plurality¶s historical analysis might foreclose the identification of future liberty interests. The Court declines to accept Victoria¶s argument that she had no opportunity to rebut the presumption of her legitimacy. The policy rationales were the aversion to declaring children illegitimate and the peace and tranquility of the States and families. Dissent. Fall 2010 7 . Michael¶s interest must be a fundamental liberty to be constitutionally protected. Victoria¶s due process challenge is weaker than Michael¶s. The plurality ignores the developing society in which we live. in that of a parent and a child in their relationship with one another.

Constitutional restrictions on marriage  Incest  Polygamy  Age  Same-sex Singh v. Singh (p 83) Appeal from annulment judgment; they found out they were uncle and half-niece. Court granted annulment, then the couple remarried in California. They then filed a motion to reopen the judgment. Issue is whether a marriage between persons related to one another as half uncle and half niece is incestuous and therefore void. Connecticut court ruled that it was. This state cited a public policy exception to the full faith and credit clause. y NOTE: American courts declare incest a crime; originally it was ecclesiastical courts that did so. Back v. Back (p 89) William Back married a widow with a living daughter; they got divorced and then the man married the stepdaughter and then had four children. After he died, the ex-wife petitioned to share in estate as widow alleging that the marriage was null because it was incestuous. The court said that the affinity relationship ended with the first divorce. Terms  Consanguinity: related by blood  Affinity: related by marriage  Void ab initio: void from the beginning, as if it never happened (action brought by state or third party); generally for incompetence (minor, mental, inability to produce children)  Voidable: option to void the marriage, effective when declared (action brought only by one of the two parties ± e.g., drunk in Vegas)  Parens patriae: state has the obligation to protect children When children are born during a marriage that is later annulled, they are considered born during wedlock even though the marriage is void ab initio. Both voids require a legal decision. Moe v. Dinkins (p 95)  Brief Fact Summary. Ps were prevented from entering into marriage because a New York law required minors to obtain parental consent prior to marriage. Ps brought suit claiming the law violated the Due Process Clause of the United States Constitution.  Synopsis of Rule of Law. Because of the unique position between minors and marriage, the law is examined under a rational relationship test rather than strict scrutiny.  Facts. A New York Domestic Relations Law provided that all male marriage license applicants between 16 and 18 and all female applicants between 14 and 18 must obtain written consent from both parents (that are living). Section 15.3 of the law requires women between the ages of 14 and 16 to obtain judicial approval of the marriage in addition to parental consent. P Raoul Roe, 18, and P Maria Moe, 15, had a one year old son, P Ricardo Roe. Ps live together as a family unit and desire to be married to cement their family unit and remove the stigma of illegitimacy from their son. Maria requested consent from her widowed mother to marry Raoul, but she refused, allegedly because she wished to continue receiving welfare benefits for Maria. Proposed P-intervenors Pedro Doe, 17, and Christina Coe, 15, reside in the home of Pedro¶s father and step-mother. Christina is eight months pregnant with Pedro¶s child. Christina¶s mother refused Christina¶s request to marry Pedro, and arranged for Christina to have an abortion. Christina refused to do so, and consequently her

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mother told her she wished to have nothing more to do with her and was leaving the country to return to the Dominican Republic. Issue. Does the law requiring parental consent to marry deprive Ps of the liberty guaranteed them by the Due Process Clause of the 14th Amendment to the Federal Constitution? Held. The law is constitutional because the State has a legitimate interest in protecting minors from immature decision making. Previous case law has recognized a constitutional liberty interest in marriage, but has not addressed the marriages of minors. The constitutional rights of children cannot be equated with adults for three reasons: a) the peculiar vulnerability of children; (b) the inability to make critical decisions in an informed and mature matter; (c) the importance of the parental role in child-rearing. This law should not be examined under a strict scrutiny standard, but rather it must be determined if there is a rational relationship between the means chosen and the legitimate state interests advanced. The parent consent requirement ensures that at least one mature person will participate in the marriage decision. Because of this and minors¶ lack of experience, perspective, and judgment, the law is rationally related to a legitimate state interest. Ps also allege that the courts as a non-interested party would be in a better position to judge than parents that are potentially biased. However, the law assumes that parents will act in the best interests of their children. Ps also claim that this law should be analogized with contraception and abortion laws, and that the law denies them the means with which to legitimize their children. However, this ignores the fact that the law is only a postponement to the right to marry. NOTES: Court should have found the law invalid for this case because the mother was committing fraud.

Covenant marriage ± choice given to couples to enter into a regular marriage or covenant marriage; in exchange for covenant marriage (like lower fees), they covenant that they will wait a certain period of time before they get a divorce Polygamy Bronson v. Swensen (p 99) y Ps contend that this court did not resolve two of the issues they raised in briefing. First, they contend that the court's ruling, which cited case law from the State of Utah and followed controlling Tenth Circuit case law, did not adequately consider their claim that the state has no compelling state interest in prohibiting polygamy because the cited cases had ruled in a ³conclusory fashion´ without sufficient articulation ³supported by facts.´ This contention merely revisits an issue Ps already addressed in their prior memorandums. Therefore, it does not establish grounds to alter or amend under Rule 59(e). y Second, Ps contend that the court's ruling did not address their argument that the United States Supreme Court case Lawrence v. Texas, 539 U.S. 558 (2003) invalidates ³Utah's criminalization of the intimate relationship between Bronson and G. Lee Cook.´ In its Order, the court addressed this issue and noted that ³the laws in question do not preclude [Ps'] private sexual conduct.´ Sanderson v. Tryon (p 105) Polygamous & non-polygamous parent. Ct allows polygamous parent to keep the children, absent any other faults of the mother. Supreme Court of Utah held that a parent¶s practice of polygamy is, taken alone, not a sufficient reason to make a custody award or to permit a meaningful review of a custody award on appeal.

Family Law, Fall 2010


Same-Sex Marriage States can provide broader rights to its citizens. DOMA ± Defense of Marriage Act:  Modifies full faith and credit clause  No state, territory, or possession of the U.S. or Indian tribe, shall be required to give effect to any public act, record or judicial proceeding of any other state, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession, or tribe, or a right or claim arising from such relationship  The problem is that Congress is proscribing the states from giving full faith and credit  States have discretion (shall)  Hasn¶t been directly challenged, likely because of uncertainty of success (by either side) o Scalia is a stickler for language so he might say this isn¶t constitutional Baker v. State (pull entire case)  PROCEDURAL POSTURE: P, three same-sex couples, appealed the Chittenden Superior Court's (Vermont) denial of their cross-motion for judgment on the pleadings and the granting of the motion to dismiss filed by Ds, the State of Vermont and towns, in a suit involving D town's refusal to grant marriage licenses to Ps.  OVERVIEW: Ps, three same-sex couples, were denied marriage licenses from their respective town clerks. Ps brought suit against Ds to compel the issuance of the licenses. The trial court denied Ps' cross-motion for judgment on the pleadings and granted Ds' motions to dismiss. Ps appealed. The court reversed the trial court's judgment and ruled that under the Common Benefits Clause of the Vermont Constitution, Vt. Const. art. VII, ch. 1, D State was constitutionally required to extend to same-sex couples the common benefits and protections that flowed from marriage under Vermont law. The court stated that it did not rule that Ps were entitled to the marriage licenses, but that they were entitled to the same benefits and protections afforded opposite-sex, married couples. The court retained jurisdiction to give the legislature a reasonable time to remedy the constitutional imbalance.  OUTCOME: The court reversed the trial court's judgment and retained jurisdiction pending legislative action because D State was constitutionally required to extend to same-sex couples the common benefits and protections that flowed from marriage under Vermont law.  NOTES: the common benefits clause predates the U.S. constitution and requires the state to provide common benefits and protection to all; court left it to legislature whether to have marriages or civil unions but the benefits had to be the equivalent of marriage ± they ended up calling it a civil partnership o civil unions are not the same as marriage ± just like separate but equal (race) doctrine After Baker v. State (in which we got the first civil unions in the country), the issue became dissolution of these unions. Texas recognized a civil union just ³for the purpose of dissolving´, and the legislature adopted DOMA literally the next day. A Georgia appeals court ruled that Vermont civil union did not create a partnership equivalent to marriage ± Georgia law forbid one of the lesbians from having visitation of her four children. The couple went to Vermont specifically to get hitched in order to get visitation rights again. It didn¶t work per appellate court. New York granted survivor benefits (workers comp) for lesbians and gays after the 9/11 terrorist attack; there were plenty of fights by families though. Goodridge v. Dept of Public Health (p 109)  PROCEDURAL POSTURE: P marriage license applicants sued Ds, the state public health department and commissioner, in the Suffolk Superior Court Department (Massachusetts) for

Family Law, Fall 2010


protecting freedom from unwarranted government intrusion into protected areas of life and freedom to partake in state benefits. ch. Congress's adoption of DOMA was an appropriate exercise of its power under the Full Faith and Credit Clause to regulate conflicts between the laws of different states concerning the validity of same-sex marriages. and the state supreme court granted direct appellate review. (2) ensuring a two-parent family with one parent of each sex for child rearing. 741. 207. OUTCOME: The trial court's summary judgment was vacated.C. The ability to marry someone of the same sex was not a fundamental right under the Due Process Clause.S. Procreation was not a necessary component of civil marriage. due process. What does Virginia do now? This became a huge problem for the state.S.212 violated the Full Faith and Credit Clause. The court disagreed.C. and Fla. The applicants appealed. The court tried to carve out an exception. with a child. moved to Virginia. and the statute was rationally related to the legitimate governmental interest of encouraging the raising of children in homes consisting of a married mother and father. and the matter was remanded to the trial court for entry of judgment. § 1738C. This case is working its way through the court system but is at a stand-still until the child is found. the marriage licensing statute. Miller v. The couple's claims that DOMA violated the Privileges and Immunities and Commerce Clauses lacked merit. Wilson v. the Privileges and Immunities Clause. § 7. nor was homosexuality a suspect class for purposes of the Equal Protection Clause.  OUTCOME: The Attorney General's motion to dismiss was granted. and a ban on same-sex marriage was not justified by the alleged financial independence of same-sex couples. The trial court granted Ds' summary judgment motion and denied that of the applicants. Stat.S. Jenkins (not in book) Lesbian couple.S. forbidding same-sex marriage would not increase opposite-sex marriages in which children were raised. The decision makes some big contributions Family Law. DOMA was therefore subject to rational basis review. Schwarzenegger (not in book) The Perry v. seeking a declaration that the Defense of Marriage Act (DOMA). a lesbian couple who were legally married in Massachusetts. Laws ch. regulatory authority had to be rationally related to a permissible legislative purpose.  a judgment that their exclusion from access to marriage licenses violated Massachusetts law. Under the equality and liberty guarantees. Ake (p 121)  PROCEDURAL POSTURE: Ps. did not permit same-sex couples to marry. 1 U. The state supreme court held Mass. and the Commerce Clause. Chapter 207 was not rationally related to the Commonwealth's asserted rationales for prohibiting same-sex marriage: (1) providing a favorable setting for procreation. Gen.  OVERVIEW: The couple argued that DOMA and ch. a circuit court clerk and the United States Attorney General. Schwarzenegger federal marriage case in San Francisco is a historic ruling that strikes down Prop 8 because it violates the federal Constitution. then wanted divorce. Fall 2010 11 . 28 U. OVERVIEW: The applicants could not obtain marriage licenses because same-sex marriages were not recognized. Perry v. 741. which was stayed for 180 days to allow the legislature to take such action as it deemed appropriate. equal protection. Denials of the applicants' attempts to marry involved individual liberty and equality safeguards of the Massachusetts Constitution.) The court is left with having to recognize the rights of the non-natural mother in order to bring criminal charges against the natural mother for violating the court¶s order. The Attorney General moved to dismiss. One of the women then decided to abscond with the child (and is still missing. Now we have same-sex marriage recognized.212 were unconstitutional. sued Ds. and (3) preserving state and private financial resources.

whether our relationships are the same or different from those of straight people. my answer is: I don't know.are key touchstones of the marriage debate all across the country. the evidence at trial showed that "same-sex parents and opposite-sex parents are of equal quality. which lead to a profound discomfort with gay people in general. The folks fighting marriage for same-sex couples are pushing a lot of fiction. so it's great to have a judge bring a measure of reality back to the conversation.whether gay people are bad for kids. he responded: "Your honor. The trial has made plain that the other side's arguments. even those based on emotion. and the judge could then sort fact from fiction. Indeed. when the judge pressed the lead lawyer for the Proponents about how straight people would be harmed. satisfying relationships and form deep emotional bonds and strong commitments to their partners. and that restricting marriage to different-sex couples ensures that more kids are raised in that kind of household. and judicial acts." Stunning. (p 126) Transsexual case ± if the operation has been completed. but demolished on the facts after a full trial. at which both sides got to present evidence. but it's great to have a federal court reinforce these findings. relationship adjustment and love do not differ depending on whether a couple is same-sex or opposite-sex. and how exactly allowing us to marry would harm heterosexual marriages . Comity: In law. y What sets this case apart is that the court held a full the law. Three of Judge Walker's factual findings stand out. Transsexuals and Marriage M. I don't know. he rejected the assertion that kids need a married mom and dad. J." and "Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents. Instead."  Third.T. If the marriage occurred prior to the operation." State courts addressing challenges to parenting restrictions have come to the same conclusions (based on the same evidence). then it may be considered a void marriage (dependent upon jurisdiction. is a turning point in the national discussion of this issue. To have them not only answered. same-sex couples have happy. the judge held that there is no material difference between same-sex and differentsex relationships: "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. And what an opportunity for us to get the conflicted middle of the American populace to step back and think again about whether there's any real reason to be concerned about allowing us the freedom to marry. v. and its passion on the issue.  First. Fall 2010 12 . are based not on any real harm stemming from allowing us to marry.T. What power the judicial system has for sorting through conflicting claims. comity specifically refers to legal reciprocity²the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation). but on misconceptions about us and our relationships. then a subsequent marriage is generally valid. legislative. Family Law. Standardized measures of relationship satisfaction. Those questions .  Second. particularly by recognizing the validity and effect of their executive. Like opposite-sex couples.) y P¶s capacity to perform sexually as a female was crucial to the court¶s decision. but it's the court's factual findings that are likely to be most important in terms of changing the dialogue in America about marriage. Judge Walker held that the Prop 8 Proponents could not identify any factually verifiable way in which allowing same-sex couples to marry would harm different-sex couples.

if you lived in a state where such a marriage was recognized. The fraud must be extreme and go to the essentials of marriage which in this case it was. So the wife sought an annulment. Such marriages are void ab initio: duress. etc. declared the deed null & void based upon the failure of consideration. so you have to know this and how to use it because courts/judges may look at it for some reason or other in the proceeding. especially since they were married for 10 years.Restrictions on the Procedure for Marrying Rappaport v.  Marriage by captain of a ship is not valid unless the jurisdiction recognizes common law. Johnston (p 138) Court ordered annulment of marriage but husband wanted a dissolution. couple must: o have intent to be or act married.) States that are no-fault will allow you to state grounds for the divorce. fraud. Notes  Most restrictions involve licensing and registration restrictions. lazy.) During the marriage she executed an inter-spousal deed. are NOT enforceable. Billowit v. yet you claim to have a marriage. Soldiers and Sailors Act ± a legal avenue when necessary to get out of leases. lots of protections. which were created & entered into by the married couple before the marriage in order to later invalidate the marriage (declare it null & void). Johnston v. Husband had held himself out as orthodox Jew ± he was not. Lester v. The clerk was indicted for something and this was settled by stipulation by his successor. transferring title to real property she owned prior to the marriage to her name & Donald¶s. etc. Dolitsky (NJ from 1970s. not in book) This is about religious fraud. incapacitation would prevent a divorce. The appellate court reversed and issued judgment of dissolution. and other party must have relied on that misrepresentation ± then fraud will be gross and make the marriage void. coercion. D must have knowingly misrepresented himself to other party. The court dismissed the case holding this was not an issue for federal courts (no state/federal conflict). She testified he was not a prince but a frog (drunk. Lester (p 135) Ante-nuptial agreements. Fall 2010 13 . Katz (p 132) Two couples ± one had been married by the clerk and the other planning to be married ± filed suit alleging a civil rights violation: the clerk required couples to dress appropriately (women could not wear pants) and had to exchange one or more rings. In ³fault states´ there may be a problem in getting divorces. The trial judge.. Now all 50 states permit no-fault divorces (NY was the last. Courts will generally try to find these valid if at all possible. o have a reputation as being married. Common Law Marriage No legally sanctioned event. It reaches until all facets of everyday life. lack of capacity. Just like any other marriage. State of Mind Restrictions The courts care if you been the victim of fraud in getting married. Essential to basic marriage. Religion is more important that the ³frog instead of a prince´ case like Johnston. it would be recognized in another state. after finding the marriage void. without reaching the merits of the case. years ago most states had such provisions but now must do not. and Family Law.  To be considered as common law marriage.

If there had been a previously solemnized marriage in another relationship (i. Bradwell v. y Doctrine of family privacy (which might also be termed the principle of not intervening in ongoing marriages) Gender Roles Graham v. and it contravenes public policy issue. Fall 2010 14 . Orr (p 174) Preference that men support women by requiring alimony.e. they couldn¶t affect the laws of marriage. the state¶s interest is paramount to individuals¶ ability to contract regarding the marriage.) Then Love died and her son challenged the will. If there is an actual marriage. The role of a woman is in the home. third parties could sue for services provided under this doctrine y Anything above the basics is by agreement of the parties (the family) or whatever a court imposes y One of Prof Freeman¶s favorite cases y Marriage laws are complicated because marriage is complicated.. Illinois (p 154) P was denied admission to Illinois bar because she was a woman. there was more interference (or interest) by the court in financial matters as opposed to non-financial matters. These alimony statutes don¶t really say that all men have to pay alimony to all women ± only the ones who are needy. y Until relatively recently. she had no right to make such contracts. (p 152) The pendulum swings a lot these days. Under Michigan law. man is the protector. The court said this was not a valid contract.  o hold yourselves out as married. owning real estate but not tax returns which were not permitted. Each family decides what is necessary. y The court said you can perhaps make your little in-marriage agreements. McGuire (p 146) The trial court ruled in favor of P wife under doctrine of necessaries ± man is responsible for woman¶s basic needs if he marries her ± and said he should provide more money and better life. Sup Ct of NE reversed holding that he did in fact provide the bare basics and that was all that is necessary. McGuire v. Graham (p 151) Agreement between wife and husband that he would quit his job and she would pay him $300/mo to accompany her while traveling. reciprocal beneficiaries. y Paternalism ± woman cannot contract on her own. but the court isn¶t going to get involved to enforce these. CHAPTER 3 . The Supreme Court upheld the denial. but creates a status in which a state is vitally interested. See underlined Family Law. then you cannot be in a common law marriage too In re Estate of Love (p 141) Couple had been together for many years but not solemnly married even though they held themselves out to be married (joint accounts.MARRIAGE Marital Privacy Marriage is not merely a private contract between the parties. Challenges to the Traditional Marriage Model Orr v. y At one time. divorce) then you must do all of these things again. citing public policy.

Can¶t be gender based (not rational. you have to separate. y Court held unconstitutional gender-based alimony. Needy should be man or woman. He filed grievances and then ultimately a lawsuit alleging violation of equal protection. Establishment of protection of individual rights. she appealed. to care for a family member. Changes the entire concept of gender in the law (not just family law. o An ³eligible´ employee is an employee who has been employed by the employer for a least 12 months and worked at least 1. He was informed by his director (Creel) that he would only be allowed 2 weeks. But using gender neutral terms. Family Medical Leave Act   FMLA) applies to your company if you employ over 50 employees within 75 miles of the worksite. or if the employee themselves has serious health condition. McGuire (p 146) Court said it¶s not getting involved in the marriage. He submitted a written request to his supervisor asking for 4 to 8 weeks of paid family sick leave to care for his wife & spend time w/ his family following the birth of the child. Upon accepting discretionary review. Precursor to major changes. however. Dunn v. and if you want us involved.) State still has an interest in marriage. the court agreed to consider the issue of whether parties could enter into an enforceable Family Law. the jury also found that every D except Jill was entitled to qualified immunity. as necessary. the employer cannot alter the leave o Doesn¶t protect that particular job but must be offered another position if they fill your position while you¶re out Employees are required to take their paid time off before unpaid leave kicks in    Reallocation of Duties Within Marriage By Private Contract Edwardson v.) Impetus for legislatures and courts to stop thinking paternalistically. Edwardson (p 201) y PROCEDURAL POSTURE: Appellant wife sought review of the decision by the Court of Appeals (Kentucky) affirming the trial court's judgment denying enforcement of an antenuptial agreement with appellee husband. Knussman v. Court affirmed she was not entitled to immunity but vacated award as too high and remanded for new trial on damages. Fall 2010 15 . Palermo (not in book) More than just about keeping a name. See notes 3 and 4 on p 151. Maryland (p 228) Knussman¶s wife was pregnant & her pregnancy ultimately resulted in her confinement to bed rest in the latter stages.material p 174. Once the leave has been granted or the employee provides approval notice. and at least 50 of your employees work 20 or more work-weeks in the current or preceding calendar year FMLA allows ´eligible´ employees to take off up to 12 work weeks in any 12 month period for the birth or adoption of a child.250 hours FMLA can be taken on an intermittent basis allowing the employee to work on a less than full-time schedule The employer is not allowed to terminate FMLA if the employer falls below 50 employees for those employees currently on leave. it culminates in perverse results. McGuire v. The jury concluded that each D denied Knussman¶s request for leave b/c of his gender. and mostly financial.

a trial court was entitled to modify the parties' agreement to satisfy the necessary standard. Absent fraud. Accordingly. She sought review.y y agreement in advance of their marriage for the amount of maintenance to be paid in the event the marriage was dissolved. The court rejected its previous view that such agreements promoted divorce and held that parties could enter into appropriate agreements provided that they were entered after full disclosure and that the agreement was not unconscionable. Upon a finding of unconscionability. and visitation were not subject to antenuptial agreements. Ample evidence supported the findings of full disclosure of assets and the absence of duress. Wilson. In addition. The court held that in order for an antenuptial agreement to be enforced. The court discarded an earlier approach that permitted evaluating the reasonableness of prenuptial agreements and held that such agreements should be interpreted using the same criteria as applied to other contracts. Thus. y OUTCOME: The court affirmed the order of the superior court sustaining the order dismissing her exceptions to a master's report. ruling the agreement was valid and enforceable and that appellant could not receive alimony pendente lite. which dismissed her exceptions to a master's report upholding the validity of a prenuptial agreement and denied her claim for alimony pendente lite against appellee husband. Questions of child support. the spouses were bound to their agreement. child custody. y OVERVIEW: The superior court affirmed an order of the lower court dismissing appellant wife's exceptions to a master's report that upheld the validity of a prenuptial agreement and denied her claim for alimony pendente lite from appellee husband. 522 (1916) that divorce was promoted by an antenuptial agreement which contemplated such a possibility and adopted the view that parties could enter into appropriate antenuptial agreements.W. there had to be full disclosure at the time the agreement was entered and the agreement had to be free of any material omission or misrepresentation. The court rejected the view set out in Stratton v. 185 S. affirming the order of the lower court. misrepresentation. Applying the same criteria as governed other contracts. was barred from receiving it now. Simeone (p 204) y PROCEDURAL POSTURE: Appellant wife challenged the order of the Superior Court. It rejected appellant's suggestion that the agreement should be voided because she had not consulted with an attorney and ruled that the reasonableness of the agreement was not a proper subject for judicial review. Simeone v. the court reversed the lower courts' decisions and remanded the cause to the trial court for further proceedings. the prenuptial agreement was valid and enforceable. OVERVIEW: Appellant wife challenged the court of appeals' decision affirming the trial court's judgment denying enforcement of an antenuptial agreement with appellee husband. antenuptial agreements could apply only to disposition of property and maintenance. appellant wife. OUTCOME: The court reversed the court of appeals' decision affirming the trial court's judgment denying appellant wife enforcement of an antenuptial agreement with appellee husband. who gave up the right to alimony pendente lite by the terms of the agreement. In addition. the agreement could not be unconscionable at the time enforcement was sought. She claimed the agreement was unreasonable and that she was not informed of the nature of alimony pendente lite when she relinquished it. Family Law. Fall 2010 16 . Appellant asserted that the agreement was not reasonable and that she had not understood the nature of alimony pendente lite when she relinquished it in the agreement. Philadelphia (Pennsylvania). or duress. The court affirmed.

as guaranteed by U. The putative father failed to enter his name in the State of New York's "putative father registry.´ Stanley v. was also entitled to a hearing. who was born out of wedlock. who was deceased. Very important case about fathers¶ rights. through its statutory adoption scheme. claiming that he had never been shown to have been an unfit parent and that he had been deprived of equal protection of the laws. had not been married. The Court held that P was denied equal protection of the law because all parents were constitutionally entitled to a hearing on their fitness before their children were removed from their custody. Further. The Court reversed the state supreme court's holding and remanded the case to the state supreme court for proceedings not inconsistent with the Court's opinion. Robertson (p 641)  PROCEDURAL POSTURE: On writ of certiorari to the Court of Appeals of New York. finding that the State's interest in caring for P's children was de minimis if P was shown to be a fit father. appellant putative father sought review of an order affirming the dismissal of the father's paternity petition and entering an order of adoption in favor of appellees. XIV. years before Orr v. amend.  OVERVIEW: In a dependency proceeding by the State. D of misconduct: top of pg. An individual who is discharged for misconduct is disqualified from receiving unemployment compensation benefits. XIV were violated by respondent State of Illinois when he was denied a hearing on his parental fitness. Thus. Lehr v. (p 216) Unemployment compensation benefits. Presumption of unfitness for unwed fathers (but not unwed mothers). P filed a petition for writ of certiorari.  OVERVIEW: The putative father lived with the mother before the birth of a daughter. An employer has the burden o proving by the greater weight of the evidence that an employee was discharged for disqualifying misconduct. personal. Inc. Const. or financial relationship with the child and that he waited two years to establish a legal tie. Fall 2010 17 . P. an unwed father. U. The Court granted certiorari and reversed. In that neither the Due Process Clause or the Equal Protection Clause was Family Law.S. See definition p 638-39. amend. XIV. it concluded that the Equal Protection Clause did not prevent a state from according two parents different legal rights where one had a continuous custodial responsibility for the child.S. petitioned for writ of certiorari to the Supreme Court of Illinois challenging its holding that P could be separated from his children in a dependency proceeding on the single fact that he had not been married to the children's dead mother. statute says parent does not include unwed father. State can bring an action for paternity. P appealed from the order." which would have triggered notice to him of pending adoption proceedings. while the other never established a relationship. the children of P unwed father were declared wards of the State. Const. The putative father claimed a right to notice and an opportunity to be heard pursuant to the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  NOTES. Illinois (p 638)  PROCEDURAL POSTURE: P. The Court held that the State of New York adequately protected the putative father's inchoate interest in establishing a relationship with his daughter through the provision of laws authorizing formal marriage.By Public Policy McCourtney v. and through the putative father registry. amend. as an unwed father. Orr. 218. The Supreme Court found that he never had any significant custodial. The intent of the unemployment compensation statute is to assist those who are unemployed ³through no fault of their own.  OUTCOME: The Court granted P's petition for certiorari.S. Imprimis Technology. The state supreme court held that P could properly be separated from his children upon proof of the single fact that he and the children's mother. He claimed that his equal protection rights under U. Const. mother and stepfather.

the Court first held that as accessories. Gen. and charged issues for many people. and the Ninth Amendment's right to retain rights not enumerated in the Constitution. Pierce v. as did the state supreme court.  found to support the putative father's claims. The right of privacy to use birth control measures was found to be a legitimate Family Law. for the most part. we are to focus on the legal aspects of the cases including the decisions and how they got there. to block the adoption of their child simply by withholding consent. the Fifth Amendment's right against selfincrimination. 1958). which was Conn. the Court found a right of privacy implicit in the Third Amendment's prohibition against the quartering of soldiers. but not an unwed father. Ds had standing to challenge the substantive law and to raise the constitutional rights of the married people with whom they had a professional relationship. But it also means the state does get involved in areas it didn¶t use to (e. the judgment of the New York Court of Appeals was affirmed. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counseling. the Fourth Amendment's right of people to be secure in their persons. Connecticut (p 238) Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information. and other medical advice to married couples concerning birth control. violates the 14th Amendment b/c it interferes w/ the liberty of a parent to direct the upbringing & education of their child. along w/ depriving these private schools of their property w/o due process of law. They contended that the application of the accessory statute.e.  In examining the United States Constitution. Such statutes are extremely important and affects your client¶s rights. The appellate court affirmed their convictions. child abuse/domestic abuse. which permits an unwed mother. and other medical treatment. Fall 2010 18 . On further appeal. violated the Fourteenth Amendment. OUTCOME: The Court affirmed the judgment of the New York Court of Appeals. laws requiring attendance in public schools by school-age children).  Ds appealed from their convictions under Conn. Gen. which requires parents to send children b/w the ages of 8 to 16 to public schools in a district where the child lives or be charged w/ a misdemeanor for failure to do so (i.) Disclaimer: Remember that family law is very personal. 1958) as accessories.. Society of Sisters (p 1060) The Compulsory Education Act. Caban v. § 54-196 (rev. NOTES: This is the only avenue for making such a claim ± his lawsuit was not valid in that regard. instruction. Mohammed (not in book)  The NY Domestic Relations Law provision. Doctrine of Family Privacy What goes on in your family stays in your family. which held that the putative father was not denied a right to notice and an opportunity to be heard. § 53-32 (rev.g. Stat. In this class. y See note on p 1061 y Meyer v. you lose all rights including notice. Nebraska was about requiring children to be taught in English language y Prof considers this case just like the other privacy cases Griswold v. political. Stat. If you don¶t use the putative registry. clearly treats unmarried parents differently according to their sex  Gender-based distinctions must serve important governmental objectives & must be substantially related to achievement of those objectives in order to withstand judicial scrutiny under the Equal Protection Clause. to married persons for purposes of preventing conception.

Planned Parenthood of Southeastern Pa. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). Baird was not an authorized distributor of contraceptives. the Court struck down the Massachusetts law but not on privacy grounds. wrote Justice William J. to distribute contraceptives to unmarried men or women.  What does it (and cases like Roe. the law required informed consent and a 24 hour waiting period prior to the procedure. Baird (241) William Baird gave away Emko Vaginal Foam to a woman following his Boston University lecture on birth control and over-population. "If the right of privacy means anything. Occasionally it will be clear that a case subject matter may come back to the court again and again. on a practical level? The court is narrowing the areas in which it will be involved in private lives. for the majority. Casey (p 258) The Pennsylvania legislature amended its abortion control law in 1988 and 1989.Sarah Weddington -. to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to whether to bear or beget a child.Jay Floyd -. Brennan. v." Roe v. These provisions were challenged by several abortion clinics and Family Law. Who can appeal? Governor. married or single. Eisenstadt v. Wade (p 252) Roe. a Texas resident. Massachusetts charged Baird with a felony. the laws of 46 states were affected by the Court's ruling. sought to terminate her pregnancy by abortion. In a 6-to-1 decision. Connecticut) protected by the Fourteenth Amendment. A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus.  The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. After granting certiorari. Roe's attorney -.  Looking at health and safety of mother and then viability of potential life (fetus)  Analogous to regulating (procedures) ok but outlawing is not  If no provision allowing for health and safety of mother. Among the new provisions. the Court concluded that Conn. Jr. The court on its own initiative may take baby steps. Her opponent -. Withholding that right to single persons without a rational basis proved the fatal flaw. per Governor Crist. then unconstitutional NOTE: Florida ban on gay adoptions will no longer be enforced as of today. Thus.could not locate the constitutional hook of her argument for Justice Potter Stewart. The first time. Thus. Under the law.Robert Flowers -. Fall 2010 19 . "it is the right of the individual. Eisenstadt) mean with regard to family law. Gen. the Court did not have to rely on Griswold to invalidate the Massachusetts statute.came under strong questioning from Justices Potter Stewart and Thurgood Marshall. As a result. Weddington sharpened her constitutional argument in the second round. Married couples were entitled to contraception under the Court's Griswold decision. Texas law prohibited abortions except to save the pregnant woman's Her new opponent -. only registered doctors or pharmacists could provide them. DCF? Perhaps the next governor might want to enforce.  The Court held that the law's distinction between single and married individuals failed to satisfy the "rational basis test" of the Fourteenth Amendment's Equal Protection Clause. the ruling for gay marriages will not be appealed either.misfired from the start. only married couples could obtain contraceptives. In California. 1958) was unconstitutional. The 3rd Circuit Court of Appeals has ruled that the statute is unconstitutional. § 53-32 (rev. Stat. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. the Court heard arguments twice. The Court reversed Ds' convictions. Griswold.

New Hampshire maintained that in most if not all cases. N. Fall 2010 20 . Although the courts below chose the most blunt remedy of permanently enjoining the enforcement of the Act and thereby invalidating it entirely.  The Supreme Court held states could require parental consent for a minor¶s abortion (as long as judicial bypass is available). First.S. and because ³people had organized their intimate relationships and made choices that define themselves « in reliance on the availability of abortion in the event contraception should fail. if any.06(a) (2003). What is the alliance and why is that important? The court allowed most of the restrictions but still affirmed Roe¶s right to an abortion. and the case was remanded for further proceedings. Lawrence v. then.  OUTCOME: The judgment of the First Circuit was vacated. Stat. the Court held that this had not been necessary. replacing it with pre. the Act's judicial bypass and the State's "competing harms" statutes should protect both physician and patient when a minor needed an immediate abortion. The State could not require a signed statement from the woman that she had given notice to her husband. petitioners appealed a decision of the Court of Appeals of Texas. Finally. Only a few applications of New Hampshire's parental notification statute would have presented a constitutional problem. Court of Appeals for the First Circuit affirmed a declaration the Act was unconstitutional. 2004). a minor may petition a judge to authorize her physician to perform an abortion without parental notification. Casey abandoned the trimester framework. Texas (p 243)  PROCEDURAL POSTURE: On writ of certiorari. That state law made it a crime for two persons of the same sex to engage in certain intimate sexual conduct. So long as they were faithful to legislative intent. Fourteenth District. A federal appeals court upheld all the provisions except for the husband notification requirement.and post-viability tests for constitutionality.C. Ayotte v. The U. Roe was reaffirmed ± although ³liberty´ replaced ³privacy´ as the alleged constitutional interest ± on the basis of stare decisis (³let the decision stand´).physicians. a person entitled to receive notice may certify that he or she has already been notified. §§ 132:24-132:28 (Supp. Certiorari was granted. notice is not required if the attending abortion provider certifies in the pregnant minor's record that the abortion is necessary to prevent the minor's death and there is insufficient time to provide the required notice.S. require a waiting period between seeking and obtaining an abortion. and require detailed ³informed consent´ including medical information about the abortion. In considering the doctrine of stare Family Law. § 1983.´  NOTES: Some say Casey is even more important than Roe for what Casey did to family privacy.  OVERVIEW: The Parental Notification Prior to Abortion Act allows for three circumstances in which a physician may perform an abortion without notifying the minor's parent. upholding Tex. Rev. Planned Parenthood (p 278)  PROCEDURAL POSTURE: Respondent obstetrician and gynecologist and three reproductive health service clinics brought suit under 42 U. the lower courts could issue a declaratory judgment and an injunction prohibiting the statute's unconstitutional application. New Hampshire conceded that it would be unconstitutional to apply the Act in a manner that subjected minors to significant health risks. Ann. but the courts below found neither of those provisions to protect minors' health did so reliably in all emergencies. was unconstitutional because it failed to provide an emergency health exception.S. § 21. Second. alleging that the Parental Notification Prior to Abortion Act. to avoid the appearance that the Court was vulnerable to political pressure. Penal Code Ann.  OVERVIEW: The state appellate court's decision to uphold the Texas law was based upon the United States Supreme Court decision in Bowers.´ Four justices dissented from Casey¶s ³reaffirmation of Roe.H. prior to the procedure.

Fall 2010 21 . Battered women¶s syndrome is an affirmative defense. The Court further held that there were compelling reasons to overturn Bowers. Their conduct was in private and consensual. The State could not demean their existence or control their destiny by making their private sexual conduct a crime. We¶ve been talking about family privacy and how the doctrine has curtailed the state¶s involvement. which affirmed a trial court judgment convicting D of voluntary manslaughter with personal use of a firearm. Must-arrest laws require police to arrest someone on DV charges if someone is injured.  OVERVIEW: D shot and killed the man with whom she lived. voluntary and involuntary manslaughter. allegedly out of fear that he was going to kill her. The Court also noted that the reasoning and holding of Bowers had been rejected in other nations. The central holding of Bowers demeaned the lives of homosexual persons. The difference in self-defense and BWS is that it¶s not imminent at that the court dragging society kicking and screaming into the next generation. We¶ve talked about the traditional roles and the challenges to those roles. Fifth Appellate District. People v. Vindictive wife argument. Think about all of these cases . the Court held that there was no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there were compelling reasons to do so. enabling victims to bring actions against abusers for such torts as assault. NOTES: Bowers was about sodomy statutes applied to homosexuals. Most states have now abolished interspousal tort immunity. Humphrey (p 289)  PROCEDURAL POSTURE: D appealed from a judgment of the Court of Appeal of California. or is society pushing the court? It varies by case. It is almost a certainty that gay marriage will reach the Supreme Court relatively soon. Inability to recognize DV and the prevalence of it are both shocking. Petitioners were entitled to respect for their private lives. The trial court instructed the jury on second-degree murder. OUTCOME: The judgment of the state appellate court was reversed and remanded.  decisis in the instant case. and self-defense. and there was no showing that the United States' governmental interest was more legitimate or urgent. sanctity/intimacy of marriage argument. it¶s all about power. battery. Hasday article (p 281) Biggest fallacy is that rape is about intimacy ± it¶s not. Lawrence is included in the privacy line of cases because it¶s foreshadowing the question(s) to come. Now we¶re going to switch gears and discuss the doctrine of domestic abuse where the state does get involved to protect the lives/rights of individuals. Perry will be the first (if it gets appealed) based on federal constitution. All of these decisions have been based on state constitutions. Tort and criminal law in relation to family law Prosecution of domestic violence (DV) was and is difficult and the least prosecuted of all crimes. Baker v State and Goodrich have basically been supplanted by the respective states. Petitioners were adults at the time of the alleged offense. Traditional Immunity and Exemption The first marital rape law was in the 1970s doing away with the marital rape exemption (could not be prosecuted for the rape of your wife). stating Family Law. intentional infliction of emotional distress and even false imprisonment. D introduced expert and non-expert testimony tending to prove that her state of mind was affected by battered women's syndrome.

  that an actual and reasonable belief the killing was necessary was a complete defense. The trial court granted D's motion to strike all tortious claims arising more than two years before the date of the complaint. the victim often feels embarrassed. P asserted claims for damages based upon assault and battery. The court also reversed the striking of P's tort claims as barred by the statute of limitations. The evidence was also relevant to D's credibility. To the extent it was relevant. Evidence of battered women's syndrome was relevant to the reasonableness. or psychological expert testimony establishing that the tortuous behavior was of a continuous nature such that the victim could not unilaterally alter (improve) her circumstances. but denial of jury trial on her tort claims was reversed. which vacated an Family Law.  OUTCOME: That part of judgment denying P wife a jury trial on her equitable or property distribution claims was affirmed. psychiatric. Evidence of battered woman¶s syndrome may toll a statute of limitations for tortuous claims where there is medical. and unable to change his/her circumstances during the actual abuse. Additionally. The court affirmed the denial of a jury trial as to P's equitable or property claims but reversed as to the tort claims. negligence. Fall 2010 22 . of D's belief in the need to defend. Giovine v. and property distribution. This applies to same-sex relationships as well ± regardless of gender. that an actual but unreasonable belief was a defense to murder but not voluntary manslaughter. The contrary instruction was prejudicial error because it was reasonably probable that it affected the verdict adversely to D. Mitchell v. OUTCOME: The court reversed the judgment of the court of appeal. P appealed. a continuous wrong resulting in severe emotional and physical damage. In her complaint. and the court affirmed in part and reversed in part. The trial court also ruled that P was not entitled to a jury trial. The limitations period as to P's claims based upon battered women's syndrome was tolled as a result of the insanity caused by D's wrongful conduct. the wife cannot be deemed to be suffering from battered woman¶s syndrome & each act of abuse during the marriage would constitute a separate & distinct cause of action in tort. or psychological expert testimony establishing that the tortuous behavior was of a continuous nature such that the victim could not unilaterally alter (improve) her circumstances?  Holding: Yes. Mitchell (p 306)  PROCEDURAL POSTURE: The former wife challenged a decision from the Middlesex Division of the Probate and Family Court Department (Massachusetts). and that battered women's syndrome was not relevant to the reasonableness of D's state of mind. It¶s only after.  OVERVIEW: P wife sued D husband for divorce. NOTES: The testimony is generally limited to what battered woman syndrome is ± not that it is necessarily appropriate in the case at bar. y In the absence of expert proof. the jury should have been allowed to consider it. psychiatric. subject to the statute of limitations. P sought a jury trial on her claims. she alleged as alternative grounds habitual drunkenness and extreme cruelty. Giovine (p 298)  PROCEDURAL POSTURE: P wife appealed from a judgment of the Superior Court of Atlantic County (New Jersey) that struck from her divorce complaint intentional tort claims against D husband as barred by the statute of limitations and denied P's request for a jury trial on all her claims. The court held that the statute of limitations on P's tort claims pertaining to "battered women syndrome" was tolled provided that P could prove that D's wrongful acts rendered her temporarily insane which resulted in her failure or inability to institute her action prior to the running of the statute of limitations. when there is no abuse that they can act. trapped. as well as the subjective existence.  Issue: Whether evidence of battered woman¶s syndrome may toll a statute of limitations for tortuous claims where there is medical. The court of appeal affirmed D's voluntary manslaughter conviction and the supreme court reversed. it¶s up to the jury to weigh this as all evidence. intentional infliction of emotional distress.

the court determined that Mass. and ex parte orders in this case are allowed Battered women defense is an affirmative defense. and if they have been good it is hard to prove that you still have fear. 209A. at the end of 12 months in order to renew you have to show that you still have a fear. In reversing. Many will look over the order and err on the side of caution. upon the relief request of a party whom the order is being enforced. as well as by her individual experience. Family Law. 209A. it allowed for both prospective and retroactive relief. Gen. P. Gen. Fall 2010 23 . v. An abuse prevention order can ONLY be modified or vacated. the court will look over the information and grant it.  TRO (temporary restraining order). Laws ch. OUTCOME: The judgment was reversed. The wife was permitted to seek a new order within 30 days upon a showing of a continuing need for the order. a judge will order an emergency order of protection is ex parte. & both are relevant to the legal inquiry. Even if the wife's conduct constituted newly discovered evidence. Rel. can only testify what the syndrome is. where it has clearly & convincingly been established upon findings of fact that the order is no longer needed to protect the victim from harm or the reasonable fear of serious harm. Motions to vacate seeking retroactive relief on the ground of newly discovered evidence were not granted unless the evidence was not available at the trial by the exercise of reasonable diligence. 60(b)(2) (1975) and Mass. After the temporary amount of time and if the other party has not come through and disproved the claims. After the motion was extended for one year.  Order of protection have received constitutional challenges saying that because it is ex parte and due process is missing. Laws ch. With respect to the retroactive relief sought.  The renewal of the order is the issue in some cases. The wife's voluntary contact was insufficient to show that the order was not needed to protect the wife from harm or the reasonable fear of serious harm. R. of Canada (1998) -Judge L¶Heurex-Dube concurring: -Going to discuss the value of evolving evidence of ³battered woman syndrome´: -Lavallee case: Accepted that a woman¶s perception of what is reasonable is influenced by her gender. the court determined that the standard for such relief was flexible based on the need for safety in each particular case. R. Further. the court will give her a permanent restraining order. the husband's motion to reconsider or vacate was granted. where it has clearly & convincingly been established upon findings of fact that the order is no longer needed to protect the victim from harm or the reasonable fear of serious harm? Holding: Yes. and the evidence was material. Malott (p 295) Sup. Civ. the evidence merely challenged her credibility. Dom. the court looked to the principals outlined in Mass. P. 60(b)(2). including those pertaining to alimony & custody. Notes  Statutes governing divorce & children born out of wedlock provide that certain orders. Ct. Issue: Whether an abuse prevention order can ONLY be modified or vacated. may be modified upon a showing respectively. OVERVIEW: The wife obtained an abuse prevention order under Mass. With regards to prospective relief. § 3 contemplated the modification of abuse prevention orders. the alleged victim goes to the court and literally says I am in fear and have been attacked. upon the relief request of a party whom the order is being enforced. it is still a factual finding for the jury to see if that person fits the requirements for the BWS. of a substantial or a material & substantial change in circumstances. R.    abuse prevention order entered against the former husband after he filed a motion for reconsideration.

´ in order to establish that she suffers from ³battered woman syndrome. & that they should seek to understand the evidence being presented to them in order to overcome the myths and stereotypes which we all share.´ -It is possible that those women who are unable to fit themselves w/I the stereotype of a victimized. helpless. w/o relying on old or new stereotypes about battered is possible that those women who are unable to fit themselves within the stereotype of a victimized. fear of retaliation by the man.e. caring for children at home. & they are also still entitled to have their experiences as battered women inform the analysis. which is itself admissible in order to combat the myths & stereotypes which society has about battered women. battered woman will not have their claims to self-defence fairly decided. -The legal inquiry into the moral culpability of a woman who is claiming self-defence must focus on the reasonableness of her actions in the context of her personal experiences. y Note 1 pg. not for the purpose of explaining why she stayed w/ her abuser. y In sum. it should be scrupulously avoided b/c it only serves to undermine the important advancements achieved by the decision in Lavallee. & her experiences as a woman. dependent. women w/ these characteristics are still entitled to have their claims of selfdefence fairly adjudicated. -Finally. all of this should be presented in such a way as to focus on the reasonableness of the woman¶s actions. has led to a new stereotype of the ³battered woman. -Therefore.´ -By emphasizing a woman¶s ³learned helplessness. -These considerations necessarily inform the reasonableness of a woman¶s beliefs or perceptions of her lack of an alternative to the use of deadly force to preserve herself from death or grievous bodily harm. lack of financial support). fear of loosing custody of her children. helpless. Family Law. or women who might have fought back against their abusers on previous occasions. & which do not focus on those characteristics most consistent w/ traditional stereotypes (i.´ the legal debate shifts from the objective rationality of her actions to preserve her own life to those personal inadequacies which apparently explain her failure to flee from her abuser. passive. y Best interest of the children was that they were not to be able to see one parent beating up the other one. 297 y Origins: If you are women in a domestic violence situation the court said that as a mother it is your responsibility to get the children out of that situation so that they don¶t see you getting hurt. he is basically saying that evidence should be introduced for the purpose of explaining the reasonableness of her actions. Fall 2010 24 . -How should these principles be given practical effect in the context of a jury trial of a woman accused of murdering her abuser? -A judge & jury should be told that a battered woman¶s experiences are generally outside the common understanding of the average judge & juror. -Needless to say. dependent. -There are other elements of a woman¶s social context which help to explain her inability to leave her abuser. women who have demonstrated too much strength or initiative. should not be penalized for failing to accord with the stereotypical image of the archetypal battered woman´ y Canada is more progressive in their understanding than the US.-Concerns have been expressed that the treatment of expert evidence on battered women syndrome. lack of job skills. passive. women of color women who are professions. battered woman will not have their claims to self defense fairly decided´ o ³for instance. y Pg. not on her status as a battered woman & her entitlement to claim that she is suffering from ³battered woman syndrome. 296 . y Stereotypes (of battered women) have no place in the courtroom & a judge & jury should be instructed on the relevance of the Battered woman Syndrome evidence.

AND (4) A past or present inability to take any action to improve or alter the situation unilaterally. Laws ch. Family Law. and instead relied upon judicially constructed factors. Gen. cannot rely on other judicially constructed factors. The boy brought the motion to modify after criminal charges against him were dropped.O. The mother testified that she was not sure that the boy and girl had any ongoing relationship. 209A. grounds you had to rely on only those things that happened with in the last 5 years (NY) Pg 305 take a look Vacate order: court order to leave and remain away from a premises and surrendering forthwith any keys to said premises to the P. the court MUST apply these statutory factors & thus. The boy appealed.M. On appeal. the mother of a teenage girl. o The type of relationship.  Mass. Furthermore. 209A. C. defendant. The Brockton Division of the District Court Department (Massachusetts) granted an order of protection. must the court apply these statutory factors?  Holding: Yes. Laws ch. Depending on the jurisdiction (NY) you had to show physical abuse. The appellate court also held that the trial court violated the boys due process rights. Every person in the medical field who are required reporters. could be just partners (2) Physical or psychological abuse perpetrated by the dominant partner to the relationship over an extended period of time. (p 310)  PROCEDURAL POSTURE: Plaintiff. § 1.´  4 statutory factors to adjudge the existence of substantive dating relationship: o The length of time of the relationship. Laws ch. the appellate court found that the trial court erred in failing to follow the factors set out in the statute in determining whether there was a substantive dating relationship. filed a complaint for protection from abuse pursuant to Mass. if you are dealing with people who you believe are in a situation of abuse you are Required to report it to a state agency Cusseaux v.y Mandatory reporter: teachers. the boy argued that the order was improper. Gen. and the state supreme court transferred the case on its own motion. M. v.  OUTCOME: The abuse prevention order was vacated. The trial court denied the motion without holding an evidentiary hearing. Statute: Provides a range of protections & remedies for those ³persons suffering from abuse from an adult or minor family or household member. as he and the girl were not engaged in a substantive dating relationship as defined in Mass. The denial of the right to cross examine witnesses was not a proper exercise of judicial discretion. the length of time elapsed since the termination of the relationship. Pickett 4 part test to state a cause of action for battered woman¶s syndrome: (1) Involvement in a marital or marital-like intimate relationship. § 4 against. and o If the relationship has been terminated by either person. or else you could not get someone out of the house unless they were violent. by refusing to allow him to present evidence and to cross examine the witnesses during the hearing on the question of continuing the temporary order. When a statute contains express factors to be applied in determining the appropriateness of an abuse prevention order. Gen.  Issue: When a statute contains express factors to be applied in determining the appropriateness of an abuse prevention order. 209A.  OVERVIEW: The mother filed the motion for protection after the boy allegedly sexually assaulted the girl. Fall 2010 25 . as well as his statutory rights under Mass. (3) The afore-stated abuse has caused recurring physical or psychological injury over the course of the relationship. a teenage boy. principles. o The frequency of interaction b/w the parties.´ Included w/I the definition of ³family or household member´ are those individuals who are or have been engaged in a ³substantive dating or engagement relationship. § 4. and denied the boy's motion to modify the order.

the victim's consent to the violation of the CPO was effectively revoked. Finally. in Dec." yet defendant stood within at least 10 or 12 feet of the victim.A. U. Defendant tried to approach the victim at work. alleging that the CPO no longer had legal effect when he entered her property in May. Howard in any manner. which was effective for a 12 month period. inference cannot alone meet the P¶s burden. Ba not to assault. because it was satisfied that. y OVERVIEW: Defendant contended that the victim consented to the violation of the CPO when they reconciled shortly after the CPO was issued. The evidence established beyond a reasonable doubt that the victim revoked any consent to violation of the CPO.     In this case. or physically abuse Ms. and she called the police. At this point.´ Also. any consent by the victim did not establish her consent after the relationship ended. where the trial court found that defendant's conduct in the early hours of the morning was willful. Defendant clearly knew that the CPO had not been vacated. Ba. y Facts: Ms. the mother testified that she was ³really not sure. which prohibits such contact. on the facts of the case. Howard¶s consent is a valid defense to all subsequent violations of the Dec. An inference adverse to a D may be properly drawn from his failure to testify in a civil matter such as this. Mr. but here it requires a higher level of evidence (easier to get the domestic order of protection) B. When asked about the nature of the relationship. invalidates the order? Family Law. another clear violation of the CPO. 1999. the judge erred when he ignored the above 4 factors & instead improperly relied upon judicially constructed factors. & prohibited from contacting her in any manner. & the age of the alleged victim While judicial discretion & flexibility are appropriate in applying the statutory D of ³substantive dating relationship. Mr. Ba guilty beyond a reasonable doubt of violating the CPO & sentenced him to 90 days in jail. harass. Howard filed a petition & affidavit for a CPO against her ex-boyfriend of 4 yrs. her home & her workplace. v. Ba was charged w/ one count of violation of a CPO. y Issue: Whether consent to contact while a civil protection order is in effect. Fall 2010 26 . The CPO ordered defendant to "stay at least 100 feet away from the victim. or both. there was sufficient evidence to establish the violation of the CPO. he maintains that Ms. threaten. her home. to stay at least 100 ft away from Ms. Mr. Turner v.S. The CPO ordered Mr. CPO further warned that : Failure to comply punishable as criminal contempt &/or as a criminal misdemeanor & may result in imprisonment for up to 6 months. Ba signed a Consent CPO w/o Admissions. a fine of up to $1K. y Procedural History: The trial judge found Mr.´ they do not relieve a ct of its obligation to apply the legislative criteria. Subsequently. Furthermore. Lewis (p 314) y In many states you can seek a protective order in two ways o Family court/lower court if you are involved in other actions o If you are involved I other actions you can bring it in criminal court. Mr. The appellate court did not reach the issue of a consent defense. even though the CPO ordered defendant not to contact the victim "in any manner. In addition. Ct held: That the abuse prevention order is vacated since there is insufficient evidence in the record to support a finding of a ³substantive dating relationship´ b/w the D & P¶s daughter. the P failed to sustain this burden. 1999 CPO. and her workplace." he went to her home and spoke with her. y OUTCOME: The judgment of the trial court was affirmed. including the fact that a criminal matter has issued. however. (p 318) y PROCEDURAL POSTURE: Defendant petitioned for rehearing of his conviction in the Superior Court of the District of Columbia of violating a civil protection order (CPO). in this case. Howard. Ba appealed.

ruling that no principle of substantive or procedural due process allowed Gonzales to sue a local government for its failure to enforce a restraining order. any consent by Ms. when he approached Ms. Instead." which the police had violated." The District Court dismissed the complaint.. it is a societal value. Moreover. without due process of law. ruling that Gonzales had a "protected property interest in the enforcement of the terms of her restraining order. On appeal. Howard during the Jan. the ct is satisfied that on the facts of this case.. Ba¶s contention that there was insufficient evidence to establish his violation of the CPO is unpersuasive. Gonzales would have needed a "legitimate claim of entitlement" to the benefit. A rehearing by the full appeals court agreed. Howard revoked her consent to violation of the CPO. The Due Process Clause states: "No state shall. rather than to punish the offender. and extending the sentences  Policy of preferred arrest: puts the abuser on notice. which prohibits such contact. The purpose of the CPO proceeding is to protect the moving party. During the night Gonzales's husband murdered all three children and then opened fire inside a police station. that Ms. Mr. where police returned fire and killed him. Fall 2010 27 . In a 7-2 decision. if such consent was possible. A month later. The trial ct found Mr.. Ms. a panel of the Court of Appeals for the Tenth Circuit found that Gonzales had a legitimate procedural due process claim. Indeed. helps the community appreciate the criminal nature of domestic violence. the Court ruled that Gonzales had no constitutionallyprotected property interest in the enforcement of the restraining order. or property. Mr. 2000.y y y y y y Holding: No. which prohibited the husband from seeing Gonzales or their three daughters except during pre-arranged visits. In order to have a "property interest" in a benefit as abstract as enforcement of a restraining order. Gonzales brought a complaint in federal District Court. the evidence establishes. alleging that the Castle Rock police had violated her rights under the Due Process Clause of the Constitution by willfully or negligently refusing to enforce her restraining order. to Mar. liberty. Gonzales repeatedly urged the police to search for and arrest her husband. Finally.  Question: Can the holder of a restraining order bring a procedural due process claim against a local government for its failure to actively enforce the order and protect the holder from violence?  Conclusion: No. he clearly knew that the one yr CPO had not been vacated.deprive any person of life. Ba¶s conduct in violation of the CPO in May was willful.  Courts have gotten better about prosecuting these domestic violence cases. & resulted in a violation of the CPO. Gonzales  Facts of the Case: Jessica Gonzales requested a restraining order against her estranged husband. Thus. The opinion by Justice Antonin Scalia found that state law did not entitle the holder of a restraining order to any specific mandatory action by the police. but the police told her to wait until later that evening and see if her husband brought the children back. At the point in Mar. Howard in May. Howard¶s consent to the violation of the CPO. A state trial court issued the order.. and therefore could not claim that the police had violated her right to due process. Consent to contact while a civil protection order is in effect. Ba unsuccessfully sought to vacate the CPO in Mar. 2000 period would not establish her consent after late Mar. Gonzales's husband abducted the three children. Attorney General¶s Task Force on Family Violence 22-24  Until ³must arrest laws´ came into play. the Court ruled.. however. was effectively revoked. officers were not encouraged to arrest anyone. In this case. DOES NOT invalidate the order. restraining orders only provide Family Law. beyond a reasonable doubt. Town of Castle Rock v.

DISSENT: The issue is not about proper deference to law enforcement but whether there was a property interest in the restraining order. The husband was arrested for violation of the order. Const." Gonzales had no property interest and the Due Process Clause was therefore inapplicable." The Court concluded that since "Colorado has not created such an entitlement.  OUTCOME: The court affirmed the prior ruling in favor of appellee injured party and mother of deceased with the exception of the amount of damages awarded. parents suing on their behalf and on behalf of their daughter. and that appellant was liable for damages. joined by Justice Ruth Bader Ginsburg. parents suing on their behalf and on behalf of their daughter. § 1983 action. did not require the state to repose judgment on matters concerning the right to refuse treatment with anyone but the patient herself. The Court held that a state could choose to defer only to the patient's wishes rather than confide the decision to close family members. It said that the Due Process Clause. The appellate court denied their petition holding that petitioners lacked authority to effectuate the request because there was no clear and convincing evidence of the daughter's desire to have lifesustaining treatment withdrawn as required under the Missouri Living Will statute.  OVERVIEW: Appellee injured party and mother of decedent had been threatened by her husband. Stat.  grounds for arresting the subject of the order.S. amend. from whom she was legally separated and against whom she had a personal order of protection. and was then released. Rev. He subsequently shot at appellee and killed the couple's child. appealed a decision of the Supreme Court of Missouri which denied their petition for a court order directing the withdrawal of their daughter's artificial feeding and hydration equipment. Fall 2010 28 . having determined that appellee showed a special relationship between herself and appellant municipality. XIV. Rotterdam (not in book)  PROCEDURAL POSTURE: Appellant municipality sought review of a wrongful death and personal injury case in which the United States District Court for the Northern District of New York ruled in favor of appellee injured party and mother of deceased in a 42 U. dissented. The court determined that the damage award for wrongful death was excessive and ordered either a new trial or remittitur. HEALTH CARE Cruzan v. There NOTES: Statutes can be evaluated on their face or adjudicated as applied. Note (p 345)  No drop prosecution policies in addition to mandatory arrest laws Raucci v. and that the relationship extended to the couple's son. The Court stated that "This is not the sort of 'entitlement' out of which a property interest is created.C. (1986). § 459. Mo. requested a court order directing the withdrawal of their daughter's artificial feeding and hydration equipment after she was rendered vegetative in an auto accident. Here. Missouri Dept of Health (p 356)  PROCEDURAL POSTURE: Petitioners. Director.010 et seq. Appellant municipality was aware of the situation.S. The specific action to be taken is up to the discretion of the police.  OVERVIEW: Petitioners.S. Justice John Paul Stevens. Family Law. but otherwise affirmed the judgment in favor of appellee. The United States Supreme Court affirmed. The court determined that based on the special relationship appellant was liable for appellee's injuries as well as the death of her son. U. the court said doing nothing is within the discretion of the police. The court determined that appellee had shown a special relationship between herself and the municipality.

it must have jurisdiction over parties (both P and D). New Hope Guild Center (p 350)  Action by husband alleging medical malpractice against psychiatrist treating his wife. there are alternatives including publishing in newspaper Fink v. Constitution did not require the state to repose judgment on matters concerning the right to refuse treatment with anyone but the patient herself. but the trial court gave the decree full faith and credit.g. or in a helpless state and unable to appeal elsewhere for aid. FL is 18 and may include college if parties agree. in NY it is court ordered to age 21 and thru college. however. The court further held that the husband was never domiciled in Nevada because his actions did not manifest his intent to make Nevada his permanent home. the court held that the trial court's order was against the manifest weight of the evidence on the issue of the husband's domicile. Fall 2010 29 . if you cannot locate. Who files (first) typically determines the forum. On appeal. wife ignored service from Nevada (a risky move). which denied the wife's petition to have her husband's Nevada divorce decree declared void. wife committed suicide after three days of crazy behavior. also each jurisdiction has its own formulas for child support and this can vary greatly.  Did husband have a legal duty to provide care for the wife?  RULE: A common law duty exists for a person to summon medical assistance for a spouse where the spouse. DIVORCE / Jurisdiction Before court is able to adjudicate. by reason of being incapacitated or otherwise unable to make a rational decision. obtained a default divorce decree against the wife. it must be personal service and only on the party. OUTCOME: The Court affirmed the judgment denying a court order directing the withdrawal of petitioners' daughter's artificial feeding and hydration equipment because the U.)  What matters is how we get jurisdiction  Court will apply law of the state that has jurisdiction. all states have residency requirements  Generally.  OUTCOME: The court reversed and remanded the trial court's order. Fink (not in book)  Illinois 1976  PROCEDURAL POSTURE: P wife sought review of an order from the Circuit Court of Peoria County (Illinois).  OVERVIEW: The husband vacated his rented room and moved to Nevada. for dissolution.S. the husband. Notes  Courts look at domicile (where you intend your home to be) rather than residency (where you happen to be living)  Full faith and credit ± each state must give full faith and credit to the judgments of other states  Husband moved to Nevada and took a low-income job but did not resign teaching job in Illinois and filed for divorce.. and he moved back to Illinois and married his girlfriend. which denied her petition to have D husband's Nevada divorce decree declared void. The wife filed a petition to have the Nevada divorce decree declared void. While in Nevada. Skylarsky v. it was not entitled to full faith and credit in Illinois. or wherein it is apparent that an adult is as helpless as a newborn. age of majority for end of child support also varies (e. The court also held that because the Nevada decree was void for lack of jurisdiction. however. service in a civil action can be on anyone of a suitable age and description. no matter where they were married or lived longest. husband had been told by doctor to take wife to emergency room and finally decided to do so the next morning but she killed herself before he could. a tenured Illinois teacher. he obtained Family Law.

. she could have done a special appearance just to challenge jurisdiction but instead filed suit in Illinois to set aside the Nevada judgment Court held that wife met her burden overcoming the presumption that his Nevada domicile was bona fide. The case before the court has become moot. 1964.  Issue. ³Any classification that penalizes exercise of the constitutional right to travel is invalid unless it is justified by a compelling governmental interest . as well as the children. the Appellant would eventually gain ³the same opportunity for adjudication.   default judgment. The judgment is affirmed.  Synopsis of Rule of Law. Illinois said Nevada did not have jurisdiction over husband and therefore the divorce was invalid Nevada divorce was ex parte ± other party was not present and did not put in an answer States must give validity when domicile is established. for voting. The Appellant. In analyzing the divorce statute and its durational residency requirement. requires a different resolution of the constitutional issue presented than [decided in previous cases]. . as well as a desire to insulate divorce decrees from the likelihood of collateral attack. 405 U. the Appellant moved to Iowa with her three children.  A state has a right to place requirements on the Appellant¶s divorce because the divorce affects the husband. 618 (1969)]. [Dunn v. 330 (1972)]. the Supreme Court has distinguished this case because the Appellant was not ³irretrievably foreclosed from obtaining some part of what she sought. . every state today has determined as a practical matter that a divorce gotten ex parte by a party in another jurisdiction without the other party putting in an actual answer is not valid o This basically puts an end to ex parte divorces because both parties have to be involved at least somewhat o Must provide notice and opportunity for a full hearing before a fair tribunal Sosna v. A state has an interest in requiring those requesting a divorce be ³genuinely attached´ to the state by a showing that they have met the state¶s durational residency requirements. The couple lived in New York between October 1967 and August 1971 but separated.´ Under the residency requirement. Although the Supreme Court may have struck down durational residency requirements as a qualification for welfare payments. in Michigan. . the Supreme Court applies an ³ad hoc´ balancing test. Whether Iowa¶s divorce residency requirement is constitutional.  Justice Thurgood Marshall. Maricopa County.´ Family Law.S. Iowa¶s state interest in requiring that those who seek a divorce from its courts be genuinely attached to the State. 250 (1974)]. Yes.  Facts.S. [Memorial Hospital v. . The Appellant argued in federal court that the Iowa residency requirement violated the United States Constitution.´  Discussion.  Held. The judgment is affirmed. but they are free to determine what constitutes valid domicile. In August 1972. The Supreme Court of the United States (Supreme Court) has departed from its usual treatment of durational residency cases. the Appellant petitioned for a divorce in the District Court. Thompson. Iowa has an interest in not ³intermeddling in matters in which another State has paramount interest . Fall 2010 30 . Iowa (p 418)  Brief Fact Summary. In Iowa. The Appellant married Michael Sosna on September 5. Carol Sosna¶s (Appellant) request for a divorce was denied because she had not met the one-year residency requirement.S. The District Court dismissed the case for lack of jurisdiction because the Appellant had not met the one-year residency requirement. 415 U.´  Dissent. Blumstein. 394 U. A three-judge court ruled that the Iowa durational residency requirement was constitutional. the wife. [Shapiro v. and for medical care. . The dissenting opinions are as follows:  Justice Byron White.

contract seeking to modify was negotiated and signed in NY. Both children remained with father in NY during the school years and with mother in CA during the summers. y Notes: A state can modify child support only if it has personal jurisdiction over the payor. Father moved to dismiss because CA had no personal jurisdiction on him. The P did not gain any financial benefit from sending his daughter to CA. what you can bring are ancillary issues (enforcement. domestic relations and not from commercial transactions. ruled for father. y Procedural History: Mother sued father in CA seeking sole custody of children and increased child support. an act that one would not reasonably expect would lead to being haled into court in CA. Fall 2010 31 . but because she moved away from NY. P only acquiesced to his child's preference to live in CA. etc. The separation occurred in NY. alimony/child support) cannot be brought in federal court. A forum state cannot claim personal jurisdiction when the cause of action arises from personal. As a practical matter. domestic relations? y Holding/Rule: SCOTUS reversed. Father bought her a one-way ticket to CA and let her go. battery. it will be valid.) Family Law. The "effects test" says that a state has power to exercise personal jurisdiction over a party who causes effects in a state by an act done elsewhere with respect to any cause of action arising from these effects. The other party may be able to challenge it later. opportunity to appear and have a hearing. State court ruled for mother. y If someone goes to Dominican Republic and gets a divorce and no one challenges it.The federal jurisdiction exception for dissolution cases ± y Generally there is federal jurisdiction when you have (1) diversity of parties and sufficient amount in controversy or (2) federal question y Original domestic relations cases (divorce. barring some extraordinary circumstances. such proceedings are rare. y Who can contest ex parte divorce? The moving party is estopped from later claiming invalidity of the divorce. Daughter told father she wanted to move to CA to live with her mother. Personal jurisdiction is determined under the familiar minimum contacts test. A party's knowledge that an action performed outside a forum state will have an impact on a forum state does not establish "purposeful availment".) y This allows the states to stay out of other states¶ issues and not have their own decrees challenged Jurisdiction over the Defendant Kulko v. custody. Ex parte divorces y Home state will inquire into whether the foreign state acquired jurisdiction over the movant. which permits jurisdiction only if the D has purposefully initiated a minimum amount of contact with the forum. y Issues: Does a party's knowledge that an action performed outside a forum state will have an impact on a forum state establish "purposeful availment"? Can a forum state claim personal jurisdiction when the cause of action arises not from the Ds commercial transactions but rather from his personal. but it will dependent on circumstances (time. son secretly left NY to go to CA to live with his mother. Any financial benefit gained was not because she moved to CA. y Reasoning: Parents would be more reticent to enter into amiable visitation agreements if a party subjected himself to personal jurisdiction in whatever state the other party chose to live. Superior Court (p 818) y Facts: Ezra and Sharon Kulko got divorced in NY. Later. etc. no jurisdiction.

Deviations from the standards must be specified and a valid reason. some states provide counsel in termination of parental rights cases or losing custody of children CHAPTER 4 ± DIVORCE TRADITIONAL FAULT GROUNDS / DEFENSES The states promote (good) marriage and protect the weaker spouse in the marriage from being abandoned. While the Court acknowledged Connecticut's interest in conserving limited resources and preventing "frivolous litigation. She filed for a divorce in New Haven County Superior Court. y There is no absolute right to assigned counsel. y Notes: Court will not approve something against public policy. Boddie was not given a hearing because she had not paid the filing fee under Section 52-259 of the Connecticut General Statutes. Connecticut (p 415) y Facts of the Case: Gladys Boddie was a married resident of Connecticut receiving welfare benefits. They alleged that the fee requirement violated the Due Process Clause of the Fourteenth Amendment. etc. The District Court upheld the requirement.Boddie v. Connecticut's refusal to allow Boddie to proceed with her divorce was "a denial of due process" in violation of the Fourteenth Amendment. All states now have no fault divorce. In re Estate of Smiley (not in book) y Whether an indigent P wife in a divorce action or an indigent D wife in a similar action are entitled. In an 8-1 decision. as a matter of constitutional right. The Court recognized the importance of "access to the courts" for Boddie. Family Law. Example: construction in the north will result in higher salary during summer and unemployment during winter. to have the court provide them with counsel or compensate counsel retained by them. An indigent P wife in a divorce action or an indigent D wife in a similar action are NOT entitled. Given her welfare status. Many states still have grounds as an option or use grounds in other functions. as state court was the only method of obtaining a divorce in Connecticut. y Question: Did Connecticut's fee requirement for divorce filings violate the Due Process Clause of the Fourteenth Amendment? y Conclusion: Yes. etc. she was unable to pay the fee." this interest was not a "sufficient countervailing justification. the Court reversed the District Court and held the fee requirement unconstitutional. Boddie and others who were denied divorces under Section 52-259 challenged the fee requirement in the United States District Court for the District of Connecticut." Therefore. as a matter of constitutional right. to have the court provide them with counsel or compensate counsel retained by them? y No. Fall 2010 32 . However. Egregious ± very serious grounds for why one party may be more penalized. Her requests for fee waivers were also denied. whether in a particular case counsel shall be assigned lies instead in the discretion of the court. Boddie appealed to the Supreme Court. NOTES: Counsel is only provided in cases where it¶s a felony/prison is at issue (not misdemeanor and jail time).

Hughes (p 360) y This appeal concerns the sufficiency of evidence presented to sustain a finding by the trial court that D was guilty of cruel treatment toward his wife to entitle her to a separation from bed & board y D denied P¶s accusations & reconvened for a separation in his favor contending the action of P in leaving the domicile on Dec. loss of weight.). What the general grounds are. file with the court. 1966 & physically separated in Mar. nothing) y Constructive abandonment (most divorces generally ended up in this category ± the party seeking divorce had to affirm/attest under oath that the other party refused to have physical relations for over one year) y Prison (sentence) for over three years (even if released earlier) y Adultery (required pictures/physical evidence) o Without evidence. etc. The main indignity that H was complaining about was that his wife expressed her disappointment in failing to have a female child & that she verbally abused him & blamed him for this failure. slurred speech. and then wait one year. Elden amended his petition & alleged that Family money. the client is telling the truth. inhumane treatment) y Abandonment (for one year . and there was possibility he was seeing someone else. etc. verbal. y When you¶re complaining about past events. y NOTES: you have to provide documentation/confirmation of cruelty (like can¶t sleep. y Separation agreement as to all terms of the divorce (including support. you alleged cruelty instead of adultery o All lawyers have to put in an affirmation that to the best of their knowledge. Elden filed an Answer. y The trial judge found the testimony sufficiently convincing to establish that D cursed his wife on many occasions & declared that he didn¶t love either his wife or daughter. she was ill. Patricia filed a Petition for Divorce & Incidental Matters. Fall 2010 33 . or physical. there has to be a significant change in the recent history (whatever the jurisdictional time requirement is) or the court is unlikely to be persuaded.WHAT ARE THE GROUNDS? Cruelty Benscoter v. 1995. 1995. At the time of the hearing. 1995. then either party could use this as grounds for divorce sounds like no fault divorce with a waiting period Hughes v. Both petitions requested a divorce. the P was 39 yrs old & the D was 37 & she was suffering from multiple sclerosis. In Aug. Benscoter (p 359) y The P (H) filed a complaint in divorce on the ground of indignities to the person. In Mar. They were together 15 years.). Arnault (p 361) y Patricia & Elden were married in Aug. This started under domestic cases but has spread to all civil cases (in NY). 18th was w/o cause & constituted abandonment. circumstantial evidence is not enough if you allege adultery Adultery Arnault v. suicide attempts) ± ill health ± explains & excuses a wife¶s conduct & the acts of a spouse resulting from ill health do not furnish a ground for divorce. and were in most states y Cruelty (mental. y The circumstances of the wife (double vision. can¶t walk.

contending that the Louisiana statute was unconstitutional & that she was free from fault. P appealed. Crosby (p 363) y P sued for divorce yet was denied an award of permanent alimony based on her refusal to follow her husband¶s decision to change domiciles. y NOTES: The fact that married people do not get along well together does not justify a divorce. Sargent (p 367) y I DID THIS ONE y Court said the husband did nothing to protect his wife and actually facilitated his wife committing adultery with the chauffeur. in clear violation of the equal protection clauses of the fed. The other party would have to reprove abandonment in such a case. & state constitutions. The trial ct found that P was not completely w/o fault in the divorce & thus. if a party could not prove they were without fault. it must clearly appear from the evidence that the P was the injured & innocent spouse. y NOTES: gender specific statutes are generally unconstitutional TRADITIONAL DEFENSES Recrimination Rankin v. Crosby v. y Ct held: The Louisiana statute is unconstitutional in that it discriminates against women on the sole basis of gender by arbitrarily forcing them to follow husbands wherever they choose to live.) Grounds were about being the innocent spouse. Connivance Sargent v. Rankin on the basis of cruel & barbarous treatment & indignities to the person & was amended to include a charge of desertion.y y Patricia was guilty of adultery. Mrs. Fall 2010 34 . claim you never got notice. Rankin (p 364) y Mr. not entitled to permanent alimony. 5 witnesses testified at trial re 2 incidents of Patricia w/ another man The trial ct found that the circumstantial evidence was sufficient to prove Patricia committed adultery & found Patricia guilty of post-separation adultery NOTES: taking the word of one party stating he had an affair is not grounds ± it could lead to collusion Desertion NOTE: You can reopen default judgments obtained. Rankin instituted an action in divorce against Mrs. for a period of time. but she did not counterclaim for divorce (probably didn¶t want one back in the mid-50s. Because the wife then was granted the divorce. This violated the Louisiana statute which stated that a wife is bound to live w/ her husband & follow him wherever he chooses to reside. The wife¶s testimony was at least corroborated. they would be unlikely to win a divorce. y In a proceeding for divorce on the grounds of indignities. she would be entitled to alimony. Rankin presented evidence that Mr. In defense. Family Law. Rankin used profanity & physical violence against her. The court did not buy the husband¶s testimony (too vague).

Anonymous (p 372) y The husband filed a divorce action against the wife. support. y Where resolution of the divorce disputes cannot be made w/o extensive inquiry by civil courts into the religious law of the parties. One of the negatives is that it may be ³too easy´ to get a divorce. Fuchs is now moving to set aside the default. was sane at the time of the act. Fuchs (p 370) y A final judgment of divorce was rendered in April 1946 in favor of Mr. etc. Aflalo (p 408) y The parties were married in Israel & had one child. y In a divorce action. In this case. The husband presented psychiatric testimony indicating she was able to determine right from wrong. Insanity Anonymous v. y Durham Rule: you have a mental disease and that act in question is a result of that disease. The whole point of no fault divorce was thought to be better because it would theoretically promote harmony in the family unit. visitation. but Henry refused to give Sondra a get. absolute & complete custody of the child. the wife remains a tied woman & may not remarry in the eyes of Jewish law. No fault eliminates the grounds (and incentives for those grounds). Mrs. a party claiming the defense of insanity in order to relieve him/her of responsibility (i. A threat to deprive a mother of her child would be an even more compelling inducement to persuade her to default in a divorce action. Prior to the commencement of that action Mr. Mrs. The wife argued that she was insane when she committed adultery against her husband. Sondra filed for divorce & Henry refused to provide her w/ a ³get. y NOTES: Generally.Collusion Fuchs v. Fuchs claims that Mr. civil cts MAY NOT override a decision of a religious Family Law. Fuchs appeared & denied material allegations of the complaint. (much easier than M¶Naghten rule) NO-FAULT DIVORCES Every state has now adopted no-fault divorces. divorce was his/her fault) MUST prove by a preponderance of the evidence that he/she was insane to overcome the presumption of sanity. & therefore. In this action. not collusion. it DOES eliminate the leverage by the one who didn¶t want the divorce. During a settlement conference. Fall 2010 35 . Fuchs¶ stated that he wanted a divorce & if she would permit him to obtain it he would give her full. The burden of proving mental condition relieving D of responsibility is on D.e. y Court reversed an order denying the D¶s motion to open her default & granted leave to appear & answer. you still must determine custody. There is not as much incentive for the leverage and the divorce will take place anyway. RELIGIOUS RESTRICTIONS Aflalo v. Fuchs had commenced a previous divorce action in which Mrs. a default judgment will not be set aside if you commit collusion. the ct was advised by counsel that the matter was 98% settled. Her sanity is presumed & the presumption MUST be overcome by a contrary showing. It DOES NOT change negotiation of settlement. y M¶Naghten Rule: ability to distinguish right from wrong or understand the nature and quality of the act. Without the get. the court was willing to set it aside because the issue was really coercion.´ which is required by Jewish law in order for the divorce to be final. Fuchs default. Fuchs on Mrs. property.

you must put in there that parent has been advised that he is entitled to legal counsel and have declined and make them initial it) o Jurisdictions have varied requirements regarding rights that must be explained y A good settlement may be close to 40 pages Annulments and Divorces y Difference is that one is void and other is voidable y A third party can bring an action to void a marriage y Voidable is based on competence (age. insanity) y Impotence is generally voidable Covenant Marriage y When you enter into a covenant marriage. FL prohibits it) y If you deviate from statutory language. In many states there is a stipulation in civil divorce decrees that state neither party will stand in the way of a religious divorce.´ which is required by Jewish law in order for the divorce to be final. Grounds for divorce in no-fault divorce states (very short discussion) Keep in mind that uniform acts propose no-fault provisions (irretrievably broken. you have to wait a longer period to get a divorce y It¶s like a choice to check off but many people are not informed as to what it means Family Law. civil cts MAY NOT override a decision of a religious tribunal or adjudicate disputes involving religious doctrine.tribunal or adjudicate disputes involving religious doctrine. without violating the 1st & 14th Amendments. irreconcilable differences) Aflalo v. W/o the get. Fall 2010 36 . Aflalo (p 408) y The parties were married in Israel & had one child. Sondra filed for divorce & Henry refused to provide her w/ a ³get. the biggest reason to include it is to prevent fighting about it later (NY requires it. you must show the court why (to not violate public policy) y If parent represents himself pro so. without violating the 1st & 14th Amendments. Annulments and Separations y Difference between business contracts and stipulations of settlement (annulment or separation) is that the former is at the beginning while the latter is at the end of a relationship y The more vague a document is will result in constant interpretation and bickering y Be detailed and get creative ± what might occur and build in contingencies o Look at ages of children and how they are affected (the parents are fighting over their own rights and the children become pawns) o Be cognizant of changes that kids go thru y States differ in whether or not college for children is included. the wife remains a tied woman & may not remarry in the eyes of Jewish law. Henry didn¶t want a divorce so he took action w/ the Union of Orthodox Rabbis (the Beth Din) to have a hearing on his attempts at reconciliation y Where resolution of the divorce disputes cannot be made w/o extensive inquiry by civil courts into the religious law of the parties. y NOTES: religious tribunal will base its decision on the husband¶s testimony and is part of the problem (gender discrimination).

it was a rebuttable presumption that mother is fit to have custody o Child support was also now mandatory.BEST INTEREST This is the heart of family law practice ± the best interest of the children. Custody/Visitation y We will discuss these in generalities for the most part y In Florida. And the change must be substantial: a child will not be removed from the prior custody of one parent & given to the other unless the material facts & circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change. by itself. this is often the same person but can be different o Some state statutes are very vague while others are more detailed (including health and interests of the child. etc.) o Florida requires a four-hour course and mediation In Re Marriage of Carney (p 525) y William (Pl) & Ellen (Def) were married & had 2 sons. many mothers stayed in bad marriages as a result y Statutory requirements made a huge difference from common law o Tender years doctrine ± in the 70s/80s. Fall 2010 37 . The parties separated shortly afterwards & by written agreement (1972) Ellen relinquished custody of the boys to William. may not be because one of the things they look to is who is the primary care-giver and who is the psychological parent. custody. The accident left him a quadriplegic. alimony y In the present day. we go by the best interest of the child standard o Technically this standard is gender neutral o The factors. Read about the Roses (pp 436-521) y Every other issue related to divorce. so to speak. y HOLDING: A physical handicap that affects a parent¶s ability to participate w/ his children in purely physical activities is NOT a substantial changed circumstance. They are ³third party beneficiaries´ to the contract. mother generally got custody unless father could show that mother was unfit. in order to deny that disabled parent custody y General Rule: It is settled law that to justify ordering a change in custody there must generally be a persuasive showing of changed circumstances affecting the child. y William filed the present action for dissolution of his marriage to Ellen. Ellen moved for an order awarding her immediate custody. we call it ³contact time´ instead of custody and visitation y Most states aim for joint custody y Common law theory of custody ± historically until the 60s or so. y Burden Rule: The burden of showing a sufficient change in circumstances is on the party seeking the change of custody. the father generally was awarded custody (divorced mother could probably not afford to care for her children properly). age. however. which in a decree of divorce awarded P wife half of the assets of a corporation formed during the Family Law. The trial judge ordered that the boys be taken from the custody of their father & that Ellen be allowed to remove them to NY. etc. and in many cases. Pusey (p 566) y PROCEDURAL POSTURE: D husband appealed the order of a trial court (Utah). will be in here Pusey v.

was not an abuse of discretion. Va. not the one with the money. The court reversed the lower court's grant of custody to the father. therefore. who were found to be good parents and who would endeavor to place the interest of their child uppermost. Stat. and overturned those precedents in favor of function related factors. because there was no evidence that she was an unfit parent. if he or she met the minimum. Moreover. Nor was there an explicit finding that the mother intended to abandon the minor child. The wife cross-appealed that portion of the decree that awarded custody of the oldest son to the husband. was invalid. the husband testified that the corporation had borrowed substantial funds but offered no evidence other than his testimony. The court awarded custody of the oldest child to the husband and custody of the other child to the wife and awarded half the corporate assets to the wife.270 manifested the overriding consideration that any custody determination be in the best interest of the child. refused to consent to the adoption. should be denied joint custody due to their hostility and refusal to cooperate with one another. Although § 48-2-15 established the best interests of the child standard for custody disputes. which gave custody of her son to appellee father. y OVERVIEW: The issue was whether parties. Squires v. y OVERVIEW: A custody dispute arose after the mother sought to have her son adopted by the mother's grandparents. The court determined that its earlier caselaw. and. which awarded split custody of the minor children. Ann. Rev. Neither parent was the preferred custodian. Garska v. which demonstrated a maternal preference in custody matters. The court affirmed and found that the husband failed to establish the existence of the loan. and ordered the husband to pay a portion of the wife's attorney fees. It sets some precedents regarding primary caregiver that matters. half of the corporate assets to the wife. Based on the foregoing. Code § 48-2-15 obliterated the presumption that children of tender years should be awarded to the mother. The court found that because the wife's testimony alone was sufficient to establish her need. the property award was without error. and the parents' wishes Family Law. therefore. Ky. OUTCOME: The court affirmed the divorce decree of the trial court. Fall 2010 38 . Squires (p 574) y PROCEDURAL POSTURE: Appellant mother sought review of the judgment of the Court of Appeals (Kentucky) affirming the award of joint custody. the father had little or no emotional contact with the minor child. y OUTCOME: The court reversed the lower court's judgment. the court took review of the case. which granted custody of a minor child to his father. § 403. the court granted custody of the son to the mother. As the appropriate use of joint custody was the subject of considerable debate and there was little uniformity among the trial courts of Kentucky in its application. The trial court conversed with the two minor children in chambers. who was not the child's primary caretaker. and. The lower court improperly removed the minor child from the custody of the mother.270(4). instead of intending to manipulate the welfare system to maximize her child's eligibility for benefits. y NOTES: This case is important. who was the primary caretaker. The husband appealed the property division and attorney fees award. Ann.y y marriage and partial attorney fees. Stat. McCoy (p 569) y PROCEDURAL POSTURE: Appellant mother challenged the order of the Circuit Court of Logan County (West Virginia). the split custody award. Rev. as well as part of her attorney fees. The trial court correctly applied the factors. The court granted discretionary review to address the proper construction and application of Ky. the partial attorney fees award was proper. § 403. while not favored. objective standard for being a fit parent. The court held that W. OVERVIEW: During trial. The father. the child's best interests were served by a presumption in favor of the primary caretaker parent. and the wife cross-appealed the custody award.

who maintained constant steady employment throughout the marriage to support the children (regardless of the amount of her income). Hassenstab v. increased his child support obligations. well-kept. Stat. and the trial court had to determine which form would serve the best interest of the child. Furthermore. the trial court's designation of the mother as custodial parent could not be deemed an abuse of discretion. which also recommended that the mother be named primary custodial parent. The court held that there had been no showing of a material change of circumstances warranting a modification of the custody order because the evidence did not establish any harmful effect on the daughter due to the mother's homosexual relationship. A trial court should then look beyond the present and assess the likelihood of future cooperation between the parents. y OVERVIEW: The father filed an application to modify the prior custody determination by awarding custody of their child to him. Ann. The trial court had to consider those factors set forth in Ky. confident. On review. the evidence did not establish that the child's best interests required a change of custody because it showed that she was happy. which would as nearly as possible replicate the ideal family life and minimize disruption of the life of the child. Evidence showed that the mother had been involved in a homosexual relationship before their divorce. The court also relied on the report of the guardian ad litem. y OUTCOME: The court affirmed the trial court's decision designating the respondent mother as the primary custodial parent of the two minor children. holding given a choice between the mother. the broad array of factors contained in the statute had to be considered appropriately prior to a determination of joint custody or sole custody. y OVERVIEW: The trial court awarded custody of two minor children to the respondent mother. the court affirmed the dismissal of the father's application. Hassenstab (p 596) y PROCEDURAL POSTURE: Appellant father sought review of the order of the District Court for Douglas County (Nebraska).270(1). The daughter expressed a desire to remain in her mother's custody. wellgroomed. and designating the respondent mother as the primary custodial parent of the two minor children. and the father who unilaterally and steadfastly refused to do the same. and attorney's fees for further proceedings. Joint custody had to be accorded the same dignity as sole custody. The district court dismissed the father's application to modify.y were not binding on the trial court. The father testified that she had attempted suicide. MOCK EXAM AT THIS JUNCTURE Family Law. which denied his application to modify custody of their child from appellee mother to him. Fall 2010 39 . distribution of the parties' assets and liabilities. dressed in clean clothes that were appropriate for the weather. but reversed and remanded the court's determination as to rehabilitative alimony. As such. Hector (p 579) y PROCEDURAL POSTURE: Petitioner husband appealed the judgment of dissolution of marriage entered by the Circuit Court for Dade County (Florida). and a "B" student with few discipline problems. Young v. § 403. and awarded the mother attorney fees. The trial court was faced with the task of formulating a custody arrangement. Petitioner contended on appeal that the trial court abused its discretion when it awarded custody of the minor children to the mother. the court affirmed. Rev. y OUTCOME: The court affirmed the judgment denying the father's application to modify the custody order. The court held there was substantial competent evidence to support trial court's discretionary ruling on custody. OUTCOME: The court affirmed the judgment of the appellate court. self-assured. On appeal.

Allen v. y OVERVIEW: By stipulated agreement in 1993. Fall 2010 40 . and awarded mother counsel fees. y OVERVIEW: Father instituted proceedings to obtain custody of three infant children in order to preserve his parental rights because mother allegedly engaged in a campaign to alienate him from the children and to ultimately defeat his legal rights. Family Law. the court held that the best interests of the children were served by remaining together in mother's custody with the parties abiding by the visitation schedule established by the trial court. specifically excluding any evidence of the parties' conduct prior to the 1994 amended judgment. On appeal. changing custody of the parties' two minor daughters from the mother to D father. and court allowed only for remarriage or couldn¶t find a job where they lived. the district court was required to consider all relevant evidence. y OUTCOME: The court reversed the district court's judgment and refusal to consider earlier evidence in making its determination on modification of custody. The matter was resolved by stipulated agreement. denied father's requests regarding visitation. and awarded counsel fees to mother in father's action to obtain custody of the children. the mother moved with the children to Tennessee without permission of the father or the district court. the trial court did not abuse its discretion in its award of counsel fees. which awarded custody of father's three minor children to respondent mother. This has changed over the years. The father argued that the doctrine of res judicata precluded the district court from considering the custody-related evidence predating the 1994 amended judgment. Sidoti (p 538) y PROCEDURAL POSTURE: Certiorari was granted to the District Court of Appeal of Florida. The father sought custody a year later when the mother wanted to move with the children to Tennessee. The court disagreed and reversed the district court's judgment. The court held that. the mother received custody of the children. The following summer. Mother maintained that father had shown no genuine parental interest in the children and that any interest was inappropriate and harmful. Farrow (not in book) y PROCEDURAL POSTURE: Petitioner father appealed a judgment of the Supreme Court of New York County (New York). including pre-divorce conduct in deciding a change in custody motion. Many states say custodial parent¶s happiness is what matters ± children will be happier if custodial parent is happier. The mother appealed. Palmore v. where the original custody award was based upon agreement by the parties without evidentiary hearing or fact-finding by the district court. Wetch (p 599) y PROCEDURAL POSTURE: P mother appealed the judgment of the District Court for Cass County (North Dakota). which affirmed without opinion an order of a trial court divesting petitioner mother of the custody of her child and awarding custody of the child to respondent father because of the mother's remarriage to a member of a minority. These allegations were brought on by father's sexual relationship with mother's adult daughter and alleged abusive relationship with the parties' minor daughter. Second District. Wetch v. and father's action lacked merit. As father's resources far outpaced mother's resources. y NOTES: Relocation used to be that you had to have permission of other spouse or court. y OUTCOME: The court affirmed the judgment of the trial court that denied father's request for custody of his three minor children. The district court granted the father's motion for change in custody. The trial court awarded custody of the minors to mother. but restricting her to reside within a certain area. and an amended judgment was entered permitting the mother to retain custody of the children. The court found that father's had a demonstrated inability to understand the effect of his words and deeds upon the emotional well being of the children. set forth terms of visitation. The mother contended that the district court erred in refusing to consider custody-related evidence predating a previous custody decree.

y OUTCOME: The court affirmed an order that awarded custody of the parties' minor children to the father. NOTES: This was all about race ± the 14th amendment does away with government imposed discrimination. The court cited the trial court's findings regarding the stability of the family atmosphere in which the children were being raised in the father's custody. While the Court found that the State of Florida had a substantial governmental interest for purposes of the Equal Protection Clause in protecting the interests of children. such an interest could not support the State's toleration of prejudices based on race. holding that the Fourteenth Amendment would not brook such governmentally-imposed discrimination based on race. continuing jurisdiction over the determination until either (1) that court determines that neither the child. Marshall County (South Dakota). The mother sought review and the court affirmed. or (2) that court or a court of another State determines that the child. and personal relationships. and the father's ongoing recovery from alcoholism. y OVERVIEW: The mother and father sought a divorce on grounds of mental cruelty. nor any person acting as a parent has a significant connection with the State that made the original order and that substantial evidence is no longer available in the State concerning the child's care. the child's parents. protection. while the father alleged that the child would be damaged by being raised in a racially mixed household. The United States Supreme Court reversed. OUTCOME: The Court reversed the judgment upholding an order divesting the mother of custody of her child. Uniform Child Custody Jurisdiction and Enforcement Act (CCJEA) y The courts of those states must communicate and determine which state has the most significant connections to the child. The mother was remarried to a man of a different race. Jones v. the court said that it was compelled to uphold the award unless the trial court's findings of fact were clearly erroneous. Kraemer. Jones (p 538) y PROCEDURAL POSTURE: Appellant mother sought review of a decision by the Circuit Court of the Fifth Judicial Circuit.y y y OVERVIEW: A mother challenging a state court order divesting her of custody of her child contended that. training. rather than the mother. which granted custody of the parties' minor children to appellee father. Family Law. The court noted that the primary consideration in a child custody proceeding was the welfare of the children. Thus. The court also said that the trial court had broad discretion regarding the custody award and that the award could have been reversed only for an abuse of that discretion. the Fla Ct of Appeals said the Court did not directly tell them to reinstate the original custody decree. Fall 2010 41 . Although the US Sup Ct reversed. Shelley v. The trial court determined that there was no question as to the parental qualifications of the mother or her new husband and was entirely forthcoming as to race being the rationale for its holding. because both the father and children were Native American. The court also noted that. contrary to the trial court's findings. awarded custody of the parties' minor children to the father. The trial court. and any person acting as a parent do not presently reside in the State that initially made the child custody order. the child's parents. A court which has made a child-custody determination consistent with UCCJEA has exclusive. the father showed a greater sensitivity for the children to be exposed to their racial heritage. The court held that the trial court did not clearly err when it found that the father was likely to be the better parent in the long run. The reality of private biases and the possible injury such biases could inflict on a child were determined by the Court not to be permissible considerations for removal of an infant child from its mother. it was not in her pre-school child's best interests to be removed from her custody. contrary to the recommendation of a psychologist. The mere act of the court being asked to intervene makes it a state action.

This is not a case of religious freedom. they won¶t allow one parent to negatively affect the relationship of the other parent via religion. understanding that their children would be raised in the Jewish faith. awarded joint custody of the children and division of the marital property. and entered an order restricting each parent's ability to indoctrinate the children in a manner promoting their alienation or rejection of the other parent. holding that its finding that the harm to the children by exposure to defendant husband's religious beliefs was so substantial as to warrant a limitation on defendant's religious freedom was supported by substantial evidence. The trial court found that the child's best interests would be served most appropriately by placing the child in the custody of appellant because of the child's desire to live with appellant as well as the fact that each home was a suitable environment. the division of the marital estate. McMillen (p 554) y PROCEDURAL POSTURE: Appellant. in divorce proceedings. a trial court awarded general custody of the child to appellant. y OVERVIEW: Plaintiff wife. were married. which vacated a trial court's award to him of the general custody of his son. 553. y OVERVIEW: Appellant father and appellee mother were divorced.Indian Child Welfare Act (ICWA) y Protects Indian children from being displaced from reservation in adoption proceedings. a divorced father. and denial of attorney fees were within its discretion. On appeal. who was Jewish. he was frightening them with not only they would but also their mother would be going to hell if they did not practice his religion. By vacating the trial court's judgment. First. this is not about religion but rather the harm that it was causing. Six years later. Both parties appealed. the general custody of appellant's son remained with appellee mother. the court affirmed the judgment. The record showed that Family Law. and should be used in conjunction with everything that they know. Plaintiff challenged the award of joint custody. The judgment of the court below was reversed on appeal and the trial court's order was reinstated. Defendant argued that the judgment burdened his free exercise of religion. Fall 2010 42 . the court found no abuse of discretion in the amount of weight afforded the child's preference. The custody order was vacated by the court below. and defendant husband. and denied attorney's fees to plaintiff. holding that the order was supported by substantial evidence and that the order was intended for a wholly secular purpose: limiting the emotional harm to the children caused by negative messages presented by defendant's religion. and the denial of attorney fees. protects their rights to know of their heritage. were also within its discretion. 67 pg. y OUTCOME: The court affirmed the judgment of the lower court. The child repeatedly and steadfastly expressed his preference to live with appellant. the division of property. This was considered substantial harm because he was doing more than exposing them. sought review of the judgment of the superior court (Pennsylvania). y NOTES: Most of the time courts do not want to be in the position to saying that you can¶ t expose your children to your religion. The court further held that the lower court's award of joint custody. The family court granted divorce. The court further held that the lower court's award of joint custody was within its discretion because plaintiff had not shown any conflict other than inability to reconcile religious differences. The division of the marital estate. McMillen v. Kendall v. Kendall (p 549) y PROCEDURAL POSTURE: Plaintiff wife and defendant husband both appealed the judgment of the Norfolk Division of the Probate and Family Court (Massachusetts) which placed restrictions upon sharing of their respective religious beliefs with their minor children. and denial of attorney fees. The psychological harm was that he was terrifying the children. who was Catholic. Appellee was originally given primary custody of the couple's child. Para. Plaintiff filed for divorce after defendant joined a fundamentalist Christian church and after she adopted Orthodox Judaism.

Appellant claimed it was an abuse of discretion to permit appellee child's attorney to advocate a position regarding custody contrary to that of appellant. The standard for a modification of custody is a substantial change in circumstances²many courts do not consider age as a substantial change.y y y y y y y y the child's preference to live with his father was supported by more than sufficient good reasons. Turning to the child¶s preference may be a way to avoid this agony as much as it is an objective way to decide what is best for the child. NOTES: Most judges do not ask leading questions. appellant testified as a witness and advocated granting custody to appellee mother. it was permissible for appellant and appellee child's attorney to advocate different positions. appellant guardian ad litem was appointed for appellee child at the request of appellee mother and the trial court also appointed an attorney to represent appellee child. The appellate court affirmed the judgment and the court affirmed. OUTCOME: The judgment of the court below. to get an idea of what is happening. Fall 2010 43 . 556 #1 The growing trend toward recognizing the rights of children might suggest that the right answer is yes. What they do or don¶t act. #2 the uniform probate code. At trial. then the temptation to maximize happiness by allowing the child¶s preference to control seems almost irresistible. Schult (p 560) y PROCEDURAL POSTURE: Appellant guardian ad litem challenged a judgment of the Appellate Court (Connecticut). Attorneys can insist on being present. The trial court overruled appellant's objections to the position advocated by appellee child's attorney and granted custody to appellee grandmother. Very few directly interview the children. and what is good or bad for them. which vacated a trial court's award of child custody to appellant father. The trial court's finding that the best interests of a child would be served most appropriately by placing the child in the custody of appellant was not an abuse of discretion because both parent's homes were suitable and because child preferred to live with father. it is still a difficult question to listen to children. and both want custody. y OVERVIEW: During a bitterly contested divorce. In reality the court looks for consistency and stability for the children. which affirmed the granting of sole custody of appellee child to appellee grandmother. Moreover. Children are generally never questions in open court. knows they will tell mom and dad. generally in judge¶s chambers. they try and elicit answers about their life. Every jurisdiction has a preference on this. was reversed and the trial court's order was reinstated. the court should give preference to the child¶s issue. what is your life like with mom or dad. Notes pg. If a child knows that mom and dad¶s attys are standing behind me it is a chilling effect. the court held it was not an abuse of discretion for the trial Family Law. Appellee child's attorney argued that custody should be granted to appellee grandmother. Certainly in a situation where the parents are equally fit to assume custody. Because the case was difficult and there were concerns about child abuse if appellee child was returned to appellee mother. y The only review here is the abuse of discretion Schult v. the court found no abuse of discretion in the trial court's conclusion that the child's best interests would be served more appropriately by placing him in his father's custody because the child's preference tipped the evidentiary scale in favor of appellant. The court held that because the trial court determined it was in the best interests of appellee child. Rose v. when and how. section 5-206 gives a minor of 14 years or more the right to ³nominate´ his guardian unless his choice is ³clearly contrary to the best interest of the minor´ The older the children get the harder it will be to tell them where to live. Florida says around the age of 12. Rose: y the courts decide y court did not really like Steve.

The court of appeals failed to identify any legal or factual error by the trial court that constituted an abuse of discretion and failed to establish how its ordered modification would cure the trial court's supposed error. It was not the function of an appellate court to tweak a visitation order in the hopes of achieving a more reasonable result than the trial court. or was there evidence the child had been. in the best interest of the child. Appellant then moved the trial court to expand her visitation. such action was not required under the circumstances of the case. y OVERVIEW: The father challenged an order that prohibited him from taking his children to religious services other than those of the Jewish faith during periods of lawful visitation. challenged an order from a trial court (Pennsylvania). The court may modify visitation. The evidence supported a reasonable conclusion that unrestricted overnight visitation was in the child's best interests. y OVERVIEW: The court of appeals modified the trial court's visitation order to prohibit the presence of appellant's partner in the home during the child's overnight visitation with appellant. When no error in the trial court's ruling was evident from the record. The court held that although ordinarily the attorney should look to the guardian. y OUTCOME: The judgment of the court of appeals was reversed and the judgment of the trial court was reinstated because there was no evidence the trial court abused its discretion in entering the visitation order modified by the court of appeals. harmed as the result of the trial court's order. Zummo v. The trial court held that it was in the children's best interests to preserve the stability of their religious beliefs. OUTCOME: The court affirmed the granting of custody of appellee child to appellee grandmother. On review. Zummo (p 618) y PROCEDURAL POSTURE: Appellant. or would be. subject to physical or emotional harm from overnight stays with appellant while appellant's partner was present in the home. a divorced father. Eldridge (p 613) y PROCEDURAL POSTURE: Subsequent to the parties' divorce. or would be. NOTES: Court is going to look at what is the obligation to the child. Appellant argued that the trial court erred in relying on an oral prenuptial agreement. the Tennessee court of appeals reversed. which prohibited appellant from taking his children to religious services contrary to the Jewish faith during periods of lawful custody or visitation. and that the order violated his constitutional rights and constituted an abuse of discretion. Fall 2010 44 . Appellant argued that the order violated his constitutional rights. The trial court allowed appellant unrestricted overnight visitation with the parties' older child. Eldridge v. custody of their children was awarded to appellee. The trial court also based its order on the fact that the father's practice of Catholicism was sporadic while appellee mother's practice of Judaism was active. There was no evidence in the record that the child had been. and during the marriage the children were raised as Jews. The trial court did not abuse its discretion by allowing the attorney for appellee child to advocate a position adverse to that of appellant guardian ad litem. or was there evidence that the child's moral well-being would be jeopardized if the trial court's visitation order were implemented. based on substantial/material change in circumstances. The supreme court granted review. the appellate court reversed the order because the decision to give the oral prenuptial Family Law. Appellate courts corrected errors. finding an abuse of discretion by the trial court. Uniform Marriage and Divorce Act Page 612 Both parents should have relationships with the children when possible. Rejecting the precedential authority cited by the lower court. The parties had orally agreed prior to marriage that any children would be raised as Jews.y y court to hear both positions. the trial court's ruling had to stand. The trial court's order was in the child's best interests.

and when she lost there. The Florida judge communicated with the Virginia judge and dismissed petitioner's action pursuant to the Uniform Child Custody Jurisdiction Act. Fla. y NOTES: there is a presumption today. The supreme court clarified in detail the procedural and substantive requirements for a court to give its removal approval and established a 12 factor test to determine whether the move was inimical to the child's interests. Petitioner moved to Florida. Therefore. Section 9:2-2's purpose was to preserve the familial relationship rights of the noncustodial parent and the child. 61. with respondent father to have summer visitation rights. Chaddick v. 61. The burden was on the custodial parent. which she refused to provide. Family Law. Petitioner sent the children to respondent in Virginia. sought redress in a Florida court. Const. Fall 2010 45 . y OUTCOME: The supreme court reversed the judgment and remanded the matter for further proceedings consonant with their opinion. it could not be bargained away. and was receiving special treatment in New Jersey. Baures v. P described the special programs available there.J.1302 -61. and the Florida judge had dismissed the petition under the Uniform Child Custody Jurisdiction Act. that if you can meet the two prongs. I specifically preserved the essential religious freedom of individuals.y agreement any significance was constitutionally impermissible. including the right to shape the lives of their children.1348 (1997). The supreme court remanded for the trial court to follow the enunciated tests and procedure.The Florida supreme court affirmed the trial court's dismissal of the petition under the circumstances of the case. Stat. a form of autism. D father objected to the move.S. y OVERVIEW: The parents were divorced. Stat. The supreme court disapproved of the conflicting case and approved the district court's decision. P wanted to move to Wisconsin to live near her parents. Holding that U. ch. related to the communication between a Florida judge and a judge in Virginia.1348 (1997). Fla. while a parent's religious freedom might yield to compelling interests. not an independent prong. § 9:2-2 required the courts to approve the removal. Petitioner cooperated in Virginia. N. holding that the constitutionally recognized parental authority was not extinguished by divorce. the appellate court held that. The Supreme Court of New Jersey granted certification. y OVERVIEW: Petitioner mother sought review of two cases in direct conflict.1302 -61. ch. P's financial picture was tight. The court held that parental authority included the right to pursue whatever course of religious indoctrination that a parent saw fit to engage in during periods of lawful custody or visitation. who both had the same family law cause before them. amend. which was granted. Appellate Division (New Jersey) judgment affirmed the denial of P custodial mother's request to remove herself and her child out of New Jersey after D noncustodial father objected. P was receiving physical help from her parents. to prove two things: a good faith motive and that the move was not inimical to the interests of the child. Visitation was but one element. Petitioner was awarded custody of two children by a Massachusetts court. and respondent to Virginia. but her parents' home was Wisconsin. Their child had pervasive developmental disorder. Lewis (p 605) y PROCEDURAL POSTURE: A Superior Court. relocation will be granted. Monopoli (p 665) y PROCEDURAL POSTURE: Petitioner mother sought review of the decision of the Fifth District Court of Appeal (Florida) where the court dismissed her petition in an action for custody of her two children. A Virginia court had awarded custody to respondent father. Respondent filed a change of custody motion with a Virginia court. including in Florida. who sought to relocate. P appealed. OUTCOME: The court vacated that part of the order that prohibited the father from taking his children to religious services contrary to the Jewish faith. but an airline would not permit them to travel back to Florida without petitioner's address. Ann. Stat.

under the provisions of a statute of the first state. Rev. custody. Granville (p 621) y PROCEDURAL POSTURE: On writ of certiorari to the Supreme Court of Washington. the court held that Wash. Rev. The court concluded that the Due Process Clause of the United States Constitution did not permit a state to infringe on the fundamental right of parents to make child rearing decisions. The state superior court failed to accord the determination of respondent. any material weight. Congress cannot make state law. Mother voluntarily appeared in Virginia court after father filed suit. reversing an order which granted their petition for visitation of the grandchildren. like marriage. and holding that Wash. so every state has its own policy on distribution of assets. The court granted certiorari. The court will weigh a number of factors ECONOMICS OF DISSOLUTION y y y The family is the key instrument of the distribution of wealth in this family.10. Types of Distribution y Marital property ± all property acquired during marriage by either party regardless of type [ON EXAM] y Most states exclude property brought into the marriage. y OVERVIEW: Petitioner grandparents petitioned a Washington Superior Court for the right to visit their grandchildren. which reversed the order of visitation entered by the superior court. etc. courts. it may be adopted in full or in part or not at all by the individual states. gifts to one.10. y OUTCOME: Judgment affirmed. The court found that the visitation order was an unconstitutional infringement on respondent's fundamental right to make decisions concerning the care. Statutes are actually law while uniform acts are not unless adopted. Respondent mother opposed the petition. a fit custodial parent. custody.160(3). as applied in this case. y NOTES: This case is about standing ± the federal constitution requires this statute to be unconstitutional as it interferes with a parent¶s rights.160(3) unconstitutionally interfered with the fundamental rights of parents to rear their children. This subjected her to Virginia jurisdiction. Many states. She should have appeared specially and contested Virginia¶s jurisdiction to begin with. Divorce is the major determinant of who lives in poverty. thought this case says no one but parents can have standing. inheritance Family Law. was unconstitutional. The case ultimately reached the Washington Supreme Court.y y OUTCOME: The state supreme court approved of the district court's dismissal of petitioner mother's action for child custody. She isn¶t entitled to a second bite of the apple (in Florida after Virginia ruled against her). Code § 26. and control of her two daughters. Troxel v. Divorce. Accordingly. Uniform act ± a model (promulgated by a uniform commission) that is not law. and failed to accord significant weight to respondent's already having offered meaningful visitation to petitioners. where a sister state court had granted custody to respondent father because. This is not the case. is controlled by states. Code § 26. and control of her two daughters. lawyers. the visitation order in this case was an unconstitutional infringement on respondent's fundamental right to make decisions concerning the care. the sister state had exercised its jurisdiction in substantial conformity with that statute NOTES: Another act was the Federal Parental Kidnapping Prevention Act (FPKPA). Fall 2010 46 . announced a presumption in favor of grandparent visitation. petitioners appealed the judgment of the state supreme court.

y Term ³special equity´ was created to describe a vested interest in property brought into the marriage or acquired during the marriage because of contribution of services or funds over and above normal marital duties. based on need and ability to pay Child support ± distribution of family assets to provide for care of child At common law. Some states are vague while others are specific about support. The periodic alimony award was reasonable given the parties' income. The lump sum award was clearly within the trial court's discretion and was justified as part of an equitable distribution of the parties' property acquired during their marriage. the district court concluded that the award of attorney's fees was improper because the wife had the ability to pay for the services of her attorney. Fall 2010 47 . y The term ³special equity´ has also been used to justify an award of lump sum alimony. which reversed the trial court's award to petitioner wife of respondent husband's undivided one-half interest in their marital home as lump sum alimony. Property Distribution Canakaris v. y OVERVIEW: In a dissolution proceeding ending a 33-year marriage. y OUTCOME: The court quashed the district court's decision reversing petitioner's award of an undivided one-half interest in the marital home as lump sum alimony. and reinstated the trial court's judgment because it was reasonable and within the trial court's discretion y District court reversed this final judgment. $ 500 weekly permanent periodic alimony. based upon evidence. the award of permanent periodic alimony. The district court reversed. Lump Sum Alimony y District court in the instant decision held that the award of the husband's one-half interest to the wife as lump sum alimony was inappropriate because she had no ³special equity´ in the marital home. the award of attorney's fees was proper to avoid an inequitable diminution of the fiscal sums granted petitioner. age and education. some jurisdictions require courts to state which factors are considered. there was no divorce.´ y Finally. the trial court awarded petitioner wife respondent husband's undivided one-half interest in their marital home as lump sum alimony.´ y It remanded the periodic alimony award to the trial court for the limited purpose of ³determining.y y Alimony ± distribution of family income to a spouse. and attorney's fees. Petitioner helped respondent in his profession and business and maintained the home while he became successful in his careers. the needs of the wife. This vested interest is not alimony. Finally. and attorney's fees. Canakaris (not in book) y PROCEDURAL POSTURE: The court reviewed a decision of the First District Court of Appeal (Florida). When employed in this context. No rule of law dictated the property disposition and alimony terms. States use a list of factors that they MAY consider. standard of living. and attorney's fees. y Although the statutory prohibitions underlying the formulation of the special equity doctrine no longer exist. the award of permanent periodic alimony. the trial judge had discretion to establish equitable terms. it concerns only whether the equities of the case justify a lump sum Family Law. this vested interest aspect of the doctrine remains a viable part of our case law. The court reversed the district court and reinstated the trial court's judgment. and the totality of financial circumstances. length of the marriage. holding the award of the marital home as lump sum alimony improper because ³(a) review of the record reveals no special equity of the wife in the marital home.

or assisted her husband in accumulating. permanent periodic alimony is subject to modification upon a substantial change of circumstances. health. y The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. a lump award should be made only in those instances where some special equities might require it or make it advisable. rather. and the value of the parties' estates. y The criteria to be used in establishing this need include the parties' earning ability. but her contribution has given her an interest in it. rehabilitative alimony. either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills. it is necessary to define its purpose in order to distinguish it from permanent periodic alimony. permanent periodic alimony. y y y Has been overturned by the supreme court. property. Fall 2010 48 . A lump sum allowance of permanent alimony is not ³fit. The term ³special equity´ should not be used when considering lump sum alimony. a vested special equity in property. but that test requires a determination of whether there is logic and justification for the result. and financial ability of the other spouse to make such payment without substantially endangering his or her economic status Although the award of lump sum alimony is not dependent upon a finding of a prior vested right. y Once instituted. where the wife may have brought to the marriage. The property interest or lien concept of ³special equity´ is entirely distinct from the determination of parties' equities in a lump sum alimony award. Special Equity: interest in separate property of the spouse at the divorce which you acquire by contribution to the spouses separate property Not a marital asset. and an award of exclusive possession of property. equitable and just´ unless the husband is in a position to make payment of the sum so granted over and above the requirements attendant upon the maintenance of his business or employment . . . the standard of living enjoyed during its course. y The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse.y y y y y y award. age. child support. provided the evidence reflects: a justification for such lump sum payment. A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage. y The trial court's discretionary power is subject only to the test of reasonableness. It may consist of real or personal property. Judicial Discretion of the Trial Judge y The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose. y General rule: permanent periodic alimony is terminated upon the death of either spouse or the remarriage of the receiving spouse. the duration of the marriage. it should be used only when analyzing a vested property interest of a spouse Ordinarily . or may be a monetary award payable in installments Permanent Periodic Alimony y Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. y Although rehabilitative alimony is not at issue in these proceedings. and may be converted to rehabilitative alimony if the circumstances warrant such a change in the alimony scheme. Family Law. for instance. including lump sum alimony. education. there does arise upon the entry of a final judgment of a lump sum award a vested right which is neither terminable upon a spouse's remarriage or death nor subject to modification.

Question certified answered in the negative. is marital property subject to equitable distribution. there were only two types of property. y PROCEDURAL POSTURE: Defendant appealed the decision of the Appellate Division of the Supreme Court in the Second Judicial Department (New York). as so modified. N. marital and separate. and. during which time plaintiff attended medical school and received a license to practice medicine. defendant's salary contributed to the couple's expenses during this time. no matter who earns the money in the marriage they are marital funds. entered in Westchester County. and (f) awarding expert witness fees to defendant's expert. 1985. Daronco. and counsel fees to defendant's counsel. with costs to defendant. The court held that according to the Equitable Distribution Law. which was the only asset the parties had at time of the filing of their divorce.800 as her equitable share of said medical degree and license. Defendant worked while plaintiff took full-time medical school classes. (c) decreeing that the medical school degree and license to practice medicine obtained by plaintiff during the marriage are marital property and subject to equitable distribution. y OUTCOME: The decision that a medical license was not a marital asset was reversed because the statute stated that marital assets were either separate or marital assets and a license to practice medicine acquired during the marriage was an asset as considered by the statute.. not return of funds advanced. Florida is now an equitable distribution state. 1985 properly made?" y DISPOSITION: Order modified. The following question was certified by the Appellate Division: "Was the order of this court dated February 11. inter alia.Y. y Ct held: (1) license to practice medicine. Excludes property that was inherited. Second Department. O¶Brien (not in book) y PRIOR HISTORY: Cross appeals. y OVERVIEW: Plaintiff and defendant divorced after being married over nine years. acquired during marriage. The Appellate Division remitted the matter to Supreme Court for further proceedings. affirmed a judgment of the Supreme Court at Special Term (Richard J. which modified. as so modified. for further proceedings in accordance with the opinion herein and. (d). (2) working spouse is entitled to equitable portion of license. (3) there was no suggestion that wife was guilty of fault sufficient to shock conscience of court. gifts and awards (personal injury) Bought with marital funds. Dom. entered February 11. Fall 2010 49 . and (4) awarded expert witness fees. Marital property: all property acquired during the marriage by either spouse regardless of title. (4) Appellate Division's affirmance of award of counsel fees Family Law. (e) directing plaintiff to maintain a life insurance policy for the benefit of defendant to insure the payment of the $ 188. (d) making a distributive award to defendant in the total sum of $ 188. and case remitted to the Appellate Division. affirmed. J. (2) made the distributive award to defendant. opn 114 Misc 2d 233). by permission of the Appellate Division of the Supreme Court in the Second Judicial Department.800. Case is the precursor of equitable distribution ³special equity´.y y y y y Gave a non titled spouse and interest in the separate property of the spouse. as required for fault to be proper consideration in equitable distribution of marital property. Rel. on the law. (3) directed plaintiff to maintain a life insurance policy for the benefit of defendant. The modification consisted of deleting the decretal paragraphs which (1) decreed that said medical degree and license are marital property subject to equitable distribution. which reversed the trial court's holding that plaintiff's license to practice medicine was a marital asset in a divorce case. Law § 236(B)(c). and the court held that the medical license was a valuable property right and part of the marital estate. (b) granting defendant maintenance arrears against plaintiff. from an order of said court. O¶Brien v. (a) granting a divorce to defendant wife.

and (5) wife was entitled to award for fees of expert witness who evaluated husband's medical license. Florida does not consider a degree marital property but what matters is how the state will divide the property by contribution. MOST STATE DO NOT FOLLOW O¶BRIEN. This case was a huge shift away from this. defined marital property as anything that contributes to the enhanced earning capacity of the marriage. dirt´. The parties separated shortly after the husband's graduation. including Family Law. Then when we divide it. Fall 2010 50 . The court remanded the matter to the trial court and held that the trial court had to consider the law degree in a property distribution.y y y y y y y y y y y y y y was not an abuse of discretion. ³pick up and handle. the trial court valued the husband's law degree and divided it to equalize the property settlement between the parties. so she gave up her ability to have a permanent teaching position. Equitable distribution is the distribution of the marital assets. until he starts using we don¶t currently have an amount. we look at marital property to see what assets they are then we look at how to divide it. and the stress of the husband's law school education. CELEBRITY STATUS BUT THEY WILL LOOK AT THE CONTRIBUTION OF THE MARRIAGE AND MAY DIVIDE IT THE SAME. it is not constant. before this case it was considered only tangible things. and contributions toward attainment of the degree. efforts. 2. Once it has been argued and split you can¶t go back. a new license has no present value. not based on need. we don¶t have to value it separately. New license v. and entitltemen to the marital assets Alimony: ability to pay and the need. then they have to talk about how to value it. Postema v. if you don¶t get your master¶s degree within 5 years you lose your teaching license.. Both the husband and wife appealed. where the degree was the product of a concerted family effort. and no matter what state you are in. That¶s what the NY court was looking at. it is an entitltement it is NOT alimony. Concept of contribution: determines how something should be valued. old license. DEGREES. a trial court had to consider equitable principles. doesn¶t depend who makes the most money. The parties moved to another city for the husband's education. which concerned a property settlement that was issued as part of the wife and husband's divorce proceedings. Alimony can change. The wife postponed her education. As part of the divorce action. not as part of a determination of alimony. they challenged the value placed on the husband's law degree. took on most of the domestic duties. merged into the marriage. NOTES: Before O¶brien there had been many cases on what could be considered marital property. He says that she should only be paid back what she had put in Court says that marriage is an economic partnership. old license: would be valued as income. The trial court had to take into account the sacrifices. y OVERVIEW: A wife supported her husband while he attended law school. Receiver would rather get the money in an equitable distribution split. How should it be valued? NY has very strict teaching requirements. What is marital property? Enhanced earning capacity. Specifically. However. Postema (p 713) y PROCEDURAL POSTURE: Plaintiff wife and defendant husband challenged the decision of a trial court (Michigan). You can get a distribution of the assets on Monday and then get remarried on Tuesday and nothing will change. rather than looking only to the commercial value of the degree. Criteria for Equitable distribution: 1. They decided that medical license is marital property in NY.

the sources and extent of the student's financial support. and plaintiff moved for an order determining that plaintiff's celebrity status and any income derived from it did not constitute marital property subject equitable distribution. y OUTCOME: Judgment ruling plaintiff's celebrity status was not marital property subject to equitable distribution was reversed. Elkus (p 719) y PROCEDURAL POSTURE: Defendant appealed the judgment of the Supreme Court of New York County (New York) ruling that plaintiff's celebrity status was not marital property subject to equitable distribution. 61.y y y the length of marriage after attainment of the degree. that should determine the status of the enterprise as marital property.- See separate document for text Dividing Property Equitably Ferguson v. and (2) Given such sacrifices. On appeal. and the case was remanded to the trial court for further divorce proceedings. The degree=marital property but when they value it they do not follow enhanced earning potential. a determination of NOTES: The holding in Postema is the minority rule. Professional good will: enhances the earning capacity of the marriage. The Postema court calls it the end product of a concerted family effort. Cts in a majority of states have held that educational degrees don¶t constitute marital property. Elkus v. Fall 2010 51 . They are saying that the law degree was marital property. they are looking at a present split only.student spouse toward attainment of the degree.075 Equitable distribution of marital assets and liabilities. Ferguson (p 709) y PROCEDURAL POSTURE: Appellant husband sought review of a final judgment of divorce entered by the Newton County Chancery Court (Mississippi). Extending it to celebrity status. holding that plaintiff's celebrity status was the same as a that of a licensed professional and subject to equitable distribution. the trial court's decision ruling that plaintiff's celebrity status was not marital property was reversed. and the overall division of the marital property. efforts. y OVERVIEW: Plaintiff and defendant divorced. together with custody and support of the minor child. These are minority views. because plaintiff's success was attributable in part to defendant's contributions y NOTES: Ct held: It is the nature & extent of the contribution by the spouse seeking equitable distribution. The trial court determined that plaintiff's celebrity status was not marital property and defendant appealed. Family Law. They do not value it the same way the NY court would have: they weren¶t looking at future amounts. whether licensed or otherwise. what she put in. and denying the husband's counterclaim for divorce and custody of the child. Consequently. where you have a good reputation. & contributions of the non. Furthermore. defendant argued that plaintiff's increased celebrity status was due in part to defendant's sacrifices and should be included in their marital property. rather than the nature of the career. The court agreed. They are extending the concept of what marital property is to anything that contributes to the enhanced earnings of the marriage: here her talent. the court held that the appreciation of plaintiff's career that resulted from defendant's contribution was also marital property subject to equitable distribution. awarding a divorce to appellee wife. efforts. they were looking at what she had put in. & contributions. The other spouse contributes substantially. OUTCOME: The court remanded to property division determination to the trial court for reconsideration of the value of the husband's law degree based on equitable principles Ct¶s TEST for valuation: Any valuation of a non-student spouse¶s equitable claim involving an advanced degree involves a 2 step analysis: (1) An examination of the sacrifices.

child support. together w/ custody & support of the minor child. Defendant's gambling indebtedness was evidenced by a note from him to a closely-held corporation of which he was an equal one-third shareholder. Defendant husband incurred a casino gambling loss before plaintiff wife filed the divorce complaint. y OVERVIEW: The issue before the court was one of first impression. custody. he wanted this to be considered marital debt because he brought it in when they were married. together with custody and support of the minor child. en banc. fell within the matrimonial "pot" as a credit to distributable assets. and alimony. The chancellor denied the husband's requests and awarded the wife a divorce. He has incurred a substantial amount of debt.y y y OVERVIEW: The wife filed for divorce on the grounds of adultery and requested permanent custody of the minor child. purportedly for "losses" which had already been sustained. The court held that the charge of adultery was established by clear and convincing evidence and that the chancellor's finding that the husband was morally unfit to be a parent was not an abuse of discretion. The court adopted guidelines to aid chancellors in the division of marital property under the equitable property division method. division method. or whether it equated with a "dissipation" of funds to be borne solely by defendant who placed the family treasury at risk. The court affirmed the awards for divorce and custody. which included the wife's interests in the retirement and pension plans. OUTCOME: The court affirmed the granting of a divorce to the wife. the court required that defendant fully assume the gambling indebtedness. but also where they positioned themselves. W/ adoption of guidelines to aid judges in division of marital prop. reversed the award of marital assets. Siegel y PROCEDURAL POSTURE: The court (New Jersey) considered a question of res nova of whether defendant husband's gambling losses incurred before the filing of the divorce complaint by plaintiff wife. Note: Mississippi in 1994 first steps into equitable distribution. Affirms the granting of a divorce to the wife. To require that plaintiff assume any of the indebtedness would have resulted in inequity. this Ct reversed the award of marital assets & remands the case to the chancery ct to re-evaluate the marital division in light of these guidelines. but after the marriage had already deteriorated to a terminal level. Fall 2010 52 . The court. especially since this ct is unconvinced of the actuality of the alleged losses. Ct held: The debt belongs to the gambler. The note was executed 10 days after the complaint for divorce was filed. and remanded to the chancery court to re-evaluate the property division in light of the guidelines NOTE: Ct held that the chancellor was w/I his authority to order Billy to effect a transfer of title to Linda to the marital home & the surrounding 4 acres to accomplish an equitable division. Previously the court denied defendant's application to compel plaintiff to execute a joint income tax return during the year in which the debt was incurred. The courts do not like people who come into the court with unclean hands. The court adopted guidelines for the equitable division of marital property and remanded for a re-evaluation of the marital division. and also sought custody of the child. y OUTCOME: The court required defendant husband to fully assume his gambling indebtedness because it would have been inequitable for plaintiff wife to assume responsibility for defendant's debt. In light of the circumstances. Defendant. or else it is just one person Family Law. with full knowledge of that ruling. under the equitable prop. The chancellor's judgment also included a division of marital property and future interests in the husband's retirement and pension plans. y NOTES: Requiring D to fully assume the gambling indebtedness not only places the parties where they belong. w/o offset or credit. then forged plaintiff's signature to the return. affirmed in part and reversed in part. but after the marriage was irreparably fractured. The husband denied the adultery charge. Need to look at a concerted family effort. counterclaimed for divorce based on habitual cruel and inhuman treatment. Siegel v. or P¶s knowledge of them assuming its occurrence.

it is not a gift. these states do not recognize tenancy by the entirety y Equitable distribution . property that is separate remains separate. Courts don¶t like the idea that you are not being truthful to the court. but there are some tax consequences. proponent for selling and splitting.started out as common law. when the house is sold he gets stuck with the capital gains tax because the IRS says that in order to avoid paying capital gains tax you would have had to lived in the house 2 of the 5 years before the sale. Tax situation: if the house is not your primary residence you will lose ³homestead´ and if you sell it 10 years later after everyone moved out and the kid is 18 but the husband has moved out. NM. NOT A GIFT Distribution of property is an entitlement. As long as you remain on the note you are liable. they will get slammed with fees. y If the other party is not buying them out and the one party is staying on the note. Third Judicial District. usually for long term marriages and the more needy spouse will keep the same status as they had before WHERE THERE IS MONEY TO DO SO  Rehabilitation: similar to concept of need but it is aimed at the short term and not the long term. Marital home: most of the time the marital home will either stay with the person who has the children if they can keep it up.squandering what they brought in. and still referred to as common law distribution or equitable distribution even though it¶s all codified now. it can be sold and divided. If the other person defaults the creditors will come after you. Capital gains have to be offset in the settlement agreement.  Based on o The ability to pay on the part of one spouse o The need on the part of the other spouse  YOU have to have both parts  Status of the marriage. you do not want to foster dependence allowing the needier spouse to move on  Can depend on the length of the marriage and can replace the status  Recipient spouse receives an earned benefit. NV. ID. Fall 2010 53 . regarding property division in a divorce action. in community property you don¶t. spouses can leave their half to heirs. you have to show the contribution to increase value. can¶t harm other party).  ISSUE: Is non-vested pension a material property for purposes of property distribution?  OVERVIEW: The husband claimed that the property distribution award in the divorce action was improper because the wife's award included a full credit for the husband's nonvested pension. no matter the agreement. different states handle it differently y Community property ± started out as statutory law. only in 8 states today (AZ. only 3 of those states have strict community property (literally a 50/50 split). at death. standard of living. property acquired during the marriage or merged during the marriage. TX. and WA). The court affirmed the property distribution award but reversed and remanded the Family Law. CA. LA. y being on the note and liable y capital gains tax issue Alimony  Distribution of income between the two spouses. Laing (p 724)  PROCEDURAL POSTURE: Appellant former husband sought review of a decision in favor of appellee former wife by the Superior Court of the State of Alaska. and if they have not lived there in 2 of the 5 years preceding the sale. creditors can attach separately owned property Laing v. whoever is titled owner is the manager of the property and can do whatever but they act in a fiduciary capacity (must act in good faith. less protection to creditors.

applied.C. Pensions are governed by ERISA (employment retirement income security act) which is a very strict law.S. Fall 2010 54 . The wife's premarital land was properly considered in the property distribution and the husband was correctly ordered to temporarily make the payments on the property to prevent its foreclosure. 10 U.S. Thus. Mansell (not in book)  PROCEDURAL POSTURE: Appellant husband. not on how much he might have received. requiring the trial court to redistribute the assets in light of the pension's improper distribution.S. QDROs are a two-step process: (1) get a pension evaluator during divorce stage to value the anticipated amount of the pension (future = at the time of vesting/retirement). This court went with reserved jurisdiction (the majority view today) ± the pension will not be distributed until and unless it vests. (2) the evaluator sends his evaluation to the plan administrator who tells the court how it must be paid out (lump sum payments or monthly payments).S.C. including any amount waived in order to receive disability benefits. Disposable retirement pay was defined as the total retirement pay minus certain deductions. but you still may use a QDRO. The spouse doesn¶t like this because then they Family Law. NOTES: It is marital property. a former spouse could receive up to 50 percent of disposable military retirement pay. then the title holder is entitled to it as well as the spouse could then get his/her share. consistent with the federal Uniformed Services Former Spouses' Protection Act. could treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans' disability benefits. OUTCOME: The court affirmed the decision for the wife as it related to the property distribution award. § 1408. which determined that state courts. Under the statute. as it applied to the Employee Retirement Income Security Act of 1974. A good family law attorney does not do this.  NOTES: Service members injured during service may elect to swap out 20% of pension with disability payments (which are non-taxable). the non-titled spouse has to have the same type of distribution as the titled spouse. This is signed by the court and is part of the divorce decree.  OUTCOME: The court reversed the judgment and held that the clear language of federal Uniformed Services Former Spouses' Protection Act exempted that portion of the retirement pay that a service member waived in order to receive disability benefits from the amount of divisible retirement pay upon divorce.  OVERVIEW: The court reversed a judgment. § 1408. Remember that vested pensions are divisible. Mansell v. the court stated that the clear language of the statute could not be ignored. the parties will agree then on what the split will be. which held that the portion of military retirement pay waived by service member in order to receive disability benefits was divisible marital property under the Uniformed Services Former Spouses' Protection Act. The court held that the clear language of the statute exempted portions of retirement pay waived in order to receive disability benefits from the divisible amount. sought review of judgment from the Court of Appeal of California. typically this doesn¶t occur until the title holder retires. 10 U. The court held that the pension was a marital asset to be divided by how much the husband was to receive. the trial court either had to retain jurisdiction for distribution when the pension was paid or issue a qualified domestic relations order if the Retirement Equity Act of 1984. the court cannot tell the plan administrator how to distribute. then you have to determine how to value it: present value or reserved jurisdiction? Present value is too speculative. Instead. use a QDRO ± qualified domestic relations order. but reversed the judgment for the wife regarding the distribution of the nonvested pension.  award regarding the pension. a retired military service member. Fifth Appellate District. While recognizing the possible inequities of this provision to former spouses. There was sufficient evidence to support the value of the real property based on the parties' stipulations and the finding of the wife's declining health. Remember this is not coming from the pension ± it¶s not being distributed. it¶s actually an offset. The court rejected arguments that the savings clause or the broad purposes of the act required a different interpretation.

room/board. and the father sought review of the judgment which required him to pay $ 250 monthly child support for the other two boys. Today there are child support guidelines in every jurisdiction o These are always about the parents¶ ability to pay and income o There are certain standards but can vary greatly o Expendable income is after normal deductions o Later children from a subsequent relationship generally doesn¶t lessen your obligation to the first children. the custodial parent generally still provides support to the child. and is an entitlement. unless they can prove the custodial parent is abusing the child support Generalizations: even after it theoretically ends (depends on state ± 18-21. Subsequently. Florida and other states say a court cannot impose college costs. some jurisdictions will take them into consideration and divide it more equitably (public policy that none of the children should be deprived) Policy is that child should be able to live in style they would have had if the marriage had remained intact. he made a motion to modify the provisions in the divorce decree. The motion further requested that child Family Law.. because a different reading would do violence to the Act's plain language and ignore much of the legislative history. At the divorce hearing. New York and other states do include college expenses. He requested custody of the oldest son and that all three boys be permitted to reside with him during the summer months. US Sup Ct was held that (1) the Act pre-empted the application of state community property or equitable distribution law to military retirement pay that is waived by a retiree in order to receive veterans' disability benefits. pursuant to a court order.). Schmidt (p 784)  PROCEDURAL POSTURE: P mother sought review of the judgment of the Circuit Court of the Fourth Judicial Circuit of Moody County (South Dakota). CHILD SUPPORT This is distributing the assets of the family for the benefit of the children. first. child is required to take loans. the Federal Government will make direct payments of retirement pay to a retiree's former spouse. Fall 2010 55 . NOTE: Children are entitled from support from the disability portion of military pay even though spouses are not entitled to spousal support from it. they agreed that the mother would receive custody of the three boys. Policies: child support is meant to provide all around general support and the non-custodial parent is not entitled to an accounting. etc.would not get a percentage of that 20%. even if they are away at college. which awarded a change in custody of the eldest of three boys to D father. On remand. By stipulation. even though such a reading might inflict economic harm on many former spouses of military retirees. Child support is not meant to necessarily provide equal support but is meant to deflate some of the costs of raising the children. books. (2) the Act could not be read merely as a garnishment statute designed solely to set out the circumstances under which.     Custodial parent generally has far higher expenses than non-custodial parent. college. grants. o There is a basic clause that says both parents agree to pay half the costs of a state school including tuition. etc. the windfall is that the custodial parent also benefits   Schmidt v. Deviation from the child support order must be explained to the court which must approve.  OVERVIEW: The father and mother had three children and later divorced. The father was ordered to pay $ 375 monthly child support. the trial court awarded custody of the boys to the mother. and (3) the Act must be read literally. the State Appeals Court said this was not about McCarthy but was a contract case in which the husband had agreed.

OUTCOME: The court affirmed in part and reversed and remanded in part the judgment. Murray (p 791) NOTE: Unexercised stock options have been held to constitute part of ³gross income´ for purposes of calculating child support obligations. The court affirmed in part the judgment. Fall 2010 56 . The trial court abused its discretion when it ordered appellant to place child support arrearages in a trust fund for the child because the order was not legally justified under Ill. y OVERVIEW: Appellant father and cross-appellant mother disputed the trial court's finding as to appellant's status in a medical partnership and the inclusion of goodwill in the valuation of the partnership. In re Marriage of Bush (p 788) y PROCEDURAL POSTURE: Appellant father and cross-appellant mother sought review of an order from the Circuit Court of McLean County (Illinois). par. The court affirmed valuation of a partnership interest because testimony from the two experts presented conflicting opinions which justified the court's decision. no limit so all ex-spouses can do this no matter how many you have. Stat. Family Law. the court affirmed in part and reversed and remanded in part. 503(g) (1987) and Ill. Murray v. What about when a paying parent reduces his income voluntarily? The court has the ability to impute the income he could theoretically still make. y Anyone who has been married to someone 10 years or more is entitled to collect on his social security. The concept of windfall varies with circumstances. On appeal. the jurisdiction is reserved until the actual distribution.. NOTES: y Court shall determine the minimum amount of support by using guidelines. The trial court's decision to deny a contempt finding was not against the manifest weight of the evidence. as such. ³visitation´ is not a term used in Florida anymore ± now it¶s ³contact time´. constituted an abuse of discretion. custody. This is a protection that ordinarily would have to be paid out of welfare. Evidence was also presented that the son was having problems in school and had gotten into minor trouble with the law. custody. The court held that it was an abuse of discretion to order appellant to place support arrearages in a trust and that the denial of a contempt order was not against the manifest weight of the evidence. The son testified that he preferred to live with his father. Rev. 510 (1987). The trial court's overall award of 20 percent of appellant's net income was excessive for a child of such tender years and. holding that the trial court did not err in finding that the best interests of the son required modification of custody because it was evident that he was having problems while in his mother's custody and preferred to live with his father. the court will generally reduce the child support. regardless if there is actual need. it¶s up to 50% of what he collects. assuming they collect more on his than on her own. which awarded a change in custody of the eldest of three boys to the father and required him to pay $ 250 monthly child support for his other two boys. which entered a joint custody order between the parents and decided child support. y OUTCOME: The court affirmed in part and reversed and remanded in part an order involving the issues of child support. The trial court awarded a change of custody of the son to the father and required the father to pay $ 250 monthly child support for the other two boys. and visitation in a case between appellant father and cross-appellant mother. The parties also appealed on issues relating to child support. Stat. ch. Rev. Also. 40. it may not be a windfall if the custodial parent doesn¶t have the same level of income. y NOTES: Some states look just at the non-custodial parents¶ income and ability to pay. y Unvested pensions are valued at present value. If it¶s involuntarily. ch. and visitation. support obligations be modified accordingly. par.

y OUTCOME: The court reversed the order modifying the prior alimony and support orders and remanded the case for further consideration.) The trial court also denied the separate breach of contract agreement because it was merged in the divorce decree = a catch-22. Ps filed a breach of contract action against D after their attempt to enforce the provision in divorce court failed. D contended that any agreement with P former wife was merged into their dissolution decree and that the obligation to perform the agreement ended when P daughter reached majority. On appeal. Fall 2010 57 . you have to include enforcement of it. The court reversed and remanded the trial court's order.Solomon v. The court approved the court of appeals' judgment in favor of Ps. which modified prior alimony and child support orders after ruling that an increase in appellee father's income was. His salary increased. where there was a material increase in the father's financial resources. The court of appeals reversed the trial court's dismissal and D sought review. The issue on appeal was whether the provision in question merged into the decree of dissolution so as to bar a separate claim for breach of contract. The trial court ruled that the increased income was an insufficient basis upon which to modify the support order. A material change in either the father's income or in the needs of the children and the mother could be the basis for modification of the support order. Findley (p 791) y PROCEDURAL POSTURE: D former husband sought review of a judgment from the Court of Appeals (Arizona). y NOTES: modification requires substantial change in circumstances. The post-majority educational support provision did not merge into the dissolution decree and was enforceable as a contract claim against D former husband because a divorce court did not have authority to enforce it. y OUTCOME: The court approved the judgment in favor of Ps. former wife and daughter. former wife and daughter. The trial court granted D's motion to dismiss. that he did not increase his standard of living without also increasing his children's standard of living. Graham (p 753) y PROCEDURAL POSTURE: Appellant mother challenged an order of the Superior Court of the District of Columbia. which allowed Ps. The trial court could act to ensure. y OVERVIEW: D former husband and P former wife incorporated a provision for post-majority educational support for P daughter into their divorce decree. the mother argued that the trial court applied an incorrect legal standard. y OVERVIEW: A father was ordered to pay alimony and child support. The court concluded that the provision retained its independent nature and was enforceable as a contract claim because the divorce court did not have authority to enforce it. This is a contract case ± the provision was merged into the divorce decree. Merger y Contract + judgment of divorce y The agreement (stipulation of settlement) merges into the judgment of divorce y This allows contempt action rather than a separate plenary action for specific performance y You can actually still bring both Graham v. y NOTES: Where you include college expenses. Family Law. The trial court denied the contempt action because it no longer had jurisdiction (child was no longer a minor. It held that the procedure followed by the trial court did not comport with the standard for modification. and the mother filed a motion for increased support payments. to pursue their claim for post-majority educational support in contract. an insufficient basis upon which to modify the orders. by itself. The court found that the post-majority educational support provision did not merge into the dissolution decree. The appellate court remanded finding that the provision did not merge into the decree.

Although the trial court decided that the husband was not obligated to support his stepson. 273A. Laws ch. It was irrelevant whether the father was supporting a natural or stepchild.Note (p 755) y Court held that advanced age and medical condition was reasonable change in circumstances warranting a reduction in alimony obligations. Mass. In those jurisdictions that do. she would have had to go to the other Family Law. and (5) the child did not forfeit child support because the custodial parent did not take immediate measures to enforce delinquent child support obligations. Laws ch. Mass. because the stepparent support statute created a general obligation of support. Fall 2010 58 . The court reversed and remanded. y OVERVIEW: The mother sought increased child support under the guidelines because the original award was more than 15 percent lower than an amount calculated under the guidelines. (4) Alaska was authorized to pursue the action on the mother's behalf. (2) UIFSA could be applied retroactively in the case. The court held that (1) the father's substantive rights were protected under both the Uniform Interstate Family Support Act (UIFSA). The father urged that the child support obligation had ended and that the district court could not enforce the Alaska judgment absent an independent finding that the father owed a duty of support. they will also look at the new spouse¶s income as well. y OUTCOME: The court reversed the judgment that awarded the mother less than the amount calculated under the guidelines for the father's support of the parties' children to avoid an inequitable result. Brenckle (p 825) y PROCEDURAL POSTURE: Petitioner Alaskan officials filed suit for child support enforcement against D father. (3) UIFSA required no independent review by a Massachusetts court whether the father owed a duty of support to the child as an Alaska court had already made that determination. Gen. it ordered him to pay the mother and their two natural children less than the guideline amount to avoid an inequitable result. y NOTES: It depends on jurisdiction if ³after´ children (whether natural or step) alleviates your support obligation to the previous children. The court remanded for more precise findings. The trial court had discretion to deviate from child support amounts calculated under the guidelines based on the father's expenses in supporting his second family because support payments were excludable from income used to determine the primary support obligation. y OVERVIEW: The father's divorce decree assessed child support payments against the father. The mother did not press for payment until the child enrolled in college. The trial court abused its discretion in finding that the strict application of the guidelines would have been inequitable because. Under UIFSA. Ainsworth (p 798) y PROCEDURAL POSTURE: P mother challenged the judgment of the Caledonia Superior Court (Vermont) that awarded her less than the amount calculated under the guidelines for D father's support of the parties' children to avoid an inequitable result. it didn¶t matter that mother did not pursue arrearages ± she could not waive the child¶s right to it. y OUTCOME: The judgment was affirmed and the matter was remanded to the trial court for such other proceedings as were necessary to enforce the judgment. and the Uniform Reciprocal Enforcement Security Act (URESA). Child Support Enforcement v. y NOTES: UCCJEA and UPKPA started out as uniform acts and have been adopted by each state. Ainsworth v. Gen. its conclusions did not specify the reasons for the amount of support awarded or show consideration of the statutory factors. A Massachusetts district court denied the father's motion to dismiss or for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. and the father appealed. which were to be paid until the child reached majority and to continue if the child enrolled in a post-secondary educational program. 209D. Prior to this uniform act. although it had evidence of the parties' incomes and expenses.

27. Child Support y Guidelines from state statutes y Also number of federal laws y UIFSA adopted by all states means that you can enforce child support from anywhere any where else y Drivers license revocation is a huge deterrent for nonpayment of child support State Dept of Revenue v. Code Civ.5 shifted to the alleged contemnor the burden of persuasion rather than simply the burden of production in showing inability to comply.27. Hicks v. was unconstitutional. Know these three statutes. It is interstate enforcement. Appellee filed suit and contended that § 25. Fourth Appellate District. you can lose your license to practice. Feiock (p 839) y PROCEDURAL POSTURE: D was charged with contempt for failing to make court-ordered child support payments. Division Three. you have due process rights. If you have a professional license and are behind in child support. This can be worked out if you agree to pay. the court affirmed only the part of the judgment that held that Alaska Stat. D claimed that he was financially unable to make the payments. Anchorage. the proceeding was civil and the statute was constitutionally valid. If so. However. On appeal. y OVERVIEW: The state court of appeals determined that the legislative presumption violated the Due Process Clause. y OUTCOME: The judgment was vacated and remanded. Criminal contempt is punitive in nature. and that the state appellate court erred when it determined the contempt proceedings were quasi-criminal. reversed. You can still go to jail either way. y NOTES: The purpose of this case is the distinction between civil and criminal contempt. which granted summary judgment in favor of appellee obligor father and held that Alaska Stat. what they stand for and what they mean. The prosecutor claimed that the trial court erred when it ruled that whether an individual was able to comply with a court order was an element of the offense of contempt rather than an affirmative defense to the charge.246 was unconstitutional. you may not. very expensive. The Court held that it could not depart from the state appellate court's resolution of the state law issues. Third Judicial District.246. The trial court granted summary judgment in favor of appellee. in civil.y state to file an action ± very time consuming. § 25. y OVERVIEW: Appellant state notified appellee obligor father that his driver's license was to be suspended. In criminal case. § 1209.27. § 25. but otherwise you can¶t work. that Cal.246(i) did not prevent appellee from seeking judicial relief based on inability to pay. unless he complied with a child support payment order. they can get arrested. which provided for the suspension of delinquent child support obligors' driver's licenses. Now she is represented by the state attorney¶s office who files the necessary papers in the home state. pursuant to Alaska Stat. NOTES: If someone has warrant out for failure to pay child support and they are driving cross country and get stopped. Civil contempt is considered remedial in nature ± all they have to do is comply and they can get out. The state appellate court should have determined whether the contempt judgment would have been purged by D paying off his arrearage. § 25. the state appellate court erred when it sustained D's challenge to the statute under the Due Process Clause simply because it concluded that the contempt proceeding was quasicriminal as a matter of state law. The court reversed and remanded and Family Law. Beans (NOT IN BOOK) y PROCEDURAL POSTURE: Appellant state sought review of an order of the Superior Court of the State of Alaska. Proc. it¶s simply an enforcement process handled remotely. The Court of Appeals of California.246. Fall 2010 59 .27. The state trial court held that state law presumed that D remained able to comply with the terms of the order and found him to be in contempt.

where the lien is granted to the debtor's former spouse under a divorce decree that extinguishes all previous interests the parties had in the property. y NOTES: this is simply a deferred interest in her own property. and the divorce decree created the parties' interests in the property at the same time it created the lien.y y held that the statute clearly articulated a legitimate public policy for targeting the driver's licenses of delinquent obligors because appellant needed to collect child support from all obligors.S. Among other things. Supreme Court reversed because a debtor who did not possess an interest in property before a lien attached could not avoid the fixing of a lien on that interest. y OUTCOME: The court reversed because respondent could not avoid the fixing of a lien on an interest that he did not possess before the lien attached. y OVERVIEW: When petitioner Farrey and respondent Sanderfoot divorced. respondent received title to the marital home and was ordered to pay petitioner a sum of money secured by a lien against the home. The sanction of losing a license was rational. To secure the award. and as soon as appellee began to comply with a payment agreement. y ISSUE: whether § 522(f) of the Bankruptcy Code allows a debtor to avoid the fixing of a lien on a homestead. It is an effective tool. OUTCOME: The court reversed the order. because it did not require payment beyond appellee's best efforts. and remanded to the trial court. The court held that the statute. a Wisconsin court awarded each one-half of their marital estate. was constitutional. There was no right to a jury trial because appellee was permitted to have a judge review his claims. § 522(f)(1) by claiming a state homestead exemption. When the parties were divorced. Fall 2010 60 . and in no event secures more than the value of the nondebtor spouse's former interest. y Petitioner's former spouse could not avoid a lien created by the divorce decree on the marital home by applying a state homestead exemption in bankruptcy. y HOLDING: We hold that it does not.S. The Bankruptcy Court denied his motion to avoid Farrey's lien. Does the state have a rational basis to pass this ordinance to revoke a driver¶s license for failure to pay child support? Yes.C. Sanderfoot (not in book) y PROCEDURAL POSTURE: Petitioner appealed a judgment from the United States Court of Appeals for the Seventh Circuit affirming the district court's ruling that under 11 U. respondent former spouse could use a state homestead exemption in bankruptcy to avoid a lien created by the divorce decree on the marital home. The appellate court affirmed the district court's ruling that the lien was avoidable. You can¶t discharge your debts to your ex-spouse by filing bankruptcy. Appellee was not denied due process or equal protection of the laws because appellant could not have required payments beyond his best efforts. Respondent filed bankruptcy and sought to avoid petitioner's lien under 11 U. Sanderfoot did not pay Farrey and subsequently filed for bankruptcy.S. Family Law.S. which allowed appellant state to suspend delinquent child support obligors' driver's licenses.C. listing the marital home and real estate as exempt homestead property. § 522(f)(1). The holder of the debt doesn¶t care who has to pay. NOTES: what standard did they apply? Rational basis. The U. Bankruptcy y One spouse may end up liable for all of the joint debts (joint and severable liability) if one spouse files for bankruptcy. Sanderfoot v. a warrant from one state will be useful in another state. which granted summary judgment in favor of appellee obligor father. then appellant was to release his license.S. respondent did not possess his interest before the lien attached. the decree awarded Farrey's interest in the family home and real estate to Sanderfoot and ordered him to make payments to Farrey to equalize their net marital assets. Because the divorce decree created the parties' interests in the marital home at the same time it created the lien against the property. the court granted Farrey a lien against Sanderfoot's real property. Even without UIFSA.

The city can¶t tell you who the family is as long as there is a relation. even if the owner was not involved. and everyone works as a team. y Supreme Court reversed and said this ordinance was too intrusive. mediation can be appealed generally o Collaborative lawyering ± big C is an agreement drawn up by parties and their lawyers that they agree there should be a negotiated resolution without litigation. coaches. generally not appealable. third party facilitator who will mediate between the parties who may or may not be represented. Fall 2010 61 . although you need to know the basics Moore v. Alternative Dispute Resolution y There are three different methods o Arbitration ± agree that decision will be binding. City of East Cleveland (p 1118) y Grandmother had her son and grandchild along with another child (a cousin) living in public housing. he only mediates. if one of the parties withdraws and wants to litigate instead. these agreements usually require the attorney to withdraw as well and not represent that party. Even though the city had legitimate interests. There is some concern about a party¶s right to counsel. Miscellaneous y State has a lot of power and with it a responsibility to protect people. This is a form of taking. You generally can¶t say who can live with you.y y One person who try to ³buy out´ the other or separate the debt somehow to avoid this type of situation Bankruptcy is specialized so you should probably refer to an attorney who handles that area. Similar to someone using a car and committing a crime ± the car is impounded. but ABA has stated this is not at issue here. y NOTES: In public housing. court of appeals affirmed and Ohio sup ct denied review. etc. Family Law. the mediator cannot tell them their rights. y Once it gets involved. the entire family is evicted. not as popular in family law for that reason o Mediation ± Florida requires mediation before a court will get involved. they bring in mental and financial health experts. the ordinance did not serve those interests. the state doesn¶t like to leave. if anyone in the household commits a crime. but you can limit how many people. Little c is all the programs involved. city ordinance prohibited the cousin as not a ³family member´ and the grandmother was fined and jailed. The usual judicial deference is not applicable here.

but some key cases may show up in the multiple choice section. Generally. explore both and come to a conclusion. Family Law.MOCK EXAM What are the issues? What are the rules of law for each issue? Apply the rules to the facts. case names are not important. Fall 2010 62 . custody. you don¶t have to argue them.FAMILY LAW . or support State court y Jurisdiction Unfitness y Best interest of the child Alternatives/collaborative If you are told certain things in the fact pattern. Long-term residence = domicile y Jurisdiction y Ex parte y Time duration Competency = void or voidable (annulment) y What makes it void? y What makes it voidable? y Which is appropriate in this case? (apply it to the facts) Grounds or no fault jurisdiction y What does it mean? y What grounds does she need? Common law marriage y Intent y Duration y Hold themselves out as married Constitutionality Consanguinity / affinity Full faith and credit Presumptive father statute y Putative father registry Adoption/due process Federal jurisdiction exception y No original action in federal court for divorce. If there are two sides.

know what we went over y Unmarried fathers y Adoption and family privacy and the progression.400 characters y 30 m/c worth 40 points. challenges to those roles. Castle Rock y Health care.5x11 piece of paper on both sides. it now has contact time o Different approaches o Modification standard y UCCJEA y UFKPA y UIFSA y Property distribution. based on short fact patterns You may bring in an outline y One 8. if there is a counter argument to be made. add facts. Cruzan case y Dissolution of marriage y Jurisdiction y Access to courts and limitations y Traditional grounds and defenses y Religion y Custody and support o Standard for original decree o Florida no longer has custody and visiting. the application is what you have to focus on mostly o On scratch paper. y Gender and the law y Private contract y Family and Medical Leave Act.FINAL EXAM y Three hour time limitation y Comprehensive over whole semester y 1 essay worth 60 points o Spot the issues. don¶t forget counter-arguments and conclusions o Limit of 2 bluebooks. battered women syndrome. make it. Fall 2010 63 . Casey now more important than Roe y Tort and criminal law. Orr v Orr. examsoft limit is 14. it must be handwritten in blue ink. essentially you have written the essay. and then choose the most appropriate to the facts. list the issues (leave space). degrees y Contribution to marital assets y Alimony o Standards o Ability to pay on one side and need on the other Family Law. can¶t put burden on marriage itself y Traditional restrictions y Same sex marriage. states have acted based on state constitutions y Common law marriage elements y Roles. state the rule or rules. legal obligations to violence. it must be your own work y This should be a study tool instead of a crutch during the exam y This is merely a ³comfort zone´ and won¶t work in place of knowing the material EXAM REVIEW y Constitutionality of marriage restrictions. special equity case y Differences in marital property and valuation. add rules. and apply the facts.

jurisdiction. disability. Fall 2010 64 . how to value.y y y y y y o Equitable distribution (entitlement) What constitutes property Pensions. deferred assets Child support o Know basics and guidelines o Understand what you can and can¶t discharge o Can¶t get out of child support by filing bankruptcy o Revoking licenses Nontraditional families Alternate dispute resolution Abuse and neglect Family Law.

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