1

I. CONTRACTS AND STATUS: What actually happened in a family situation is often irrelevant bc the peoples interests are more
important than what is right in the particular situation
a. Assumption of Risk: this is associated with the problems of pain/suffering in family law bc when you enter into a
relationship there is an understanding of an assumption of risk that you will get emotionally harmed.
i. “Enter at your own risk”: at the beginning of any personal relationship, some choose to ignore it and others have
“intimacy problems” (which is ironic bc instead of saying these people are safe with their feelings, we term it
“intimacy problems”)
b. Reckless Endangerment:
i. Essentially covers all sorts of situations, but women can use it to ‘rectify’ lies told by men to get them to sleep
with them
ii. i.e. if a guy lies about an STD, you can sue him for endangerment
c. Personal Relationships:
i. In personal relationships, we accept/encourage people to say things that are not necessarily true in hopes that
saying them will help them become true and will make others happy… such as saying I love you when in you
really don’t
ii. TRUTH has a different meaning in the family law context
1. The law is more concerned with the effect the statement has on the situation than whether or not the
statement is true
2. Communication btw families is quite different- not intended to disseminate facts but to tell a story and
invoke empathy
iii. The law is primarily concerned with people not getting emotionally hurt
1. This is why the concept of truth is different in family law- the effect is more important the truth of the
situation/statement
2. Want to encourage people to say certain things so that a familys dependency needs are met
iv. The familiarity and personal nature of family relationships is difficult to try to impose traditional tort or
contract between family members.
d. Problems Encountered so far:
i. Is the truth really important?
1. Yes the truth is important for determining who is at fault and who deserves to pay the ramifications
2. No it is more important how the situation will pan out rather than what actually happened
ii. The law shouldn’t go there
1. Yes it should  a lot of people are getting hurt by these wrongdoings of their family members they
deserve to be redressed
2. No it shouldn’t  it is inappropriate for the law to regulate this personal area
iii. Law cant go there
1. Yes it can  there is a line where a lie or situation starts ti look more and more like extortion
2. No it cant  the judges cant figure out the relationships and facts so there is no purpose to create laws
if no one can figure out how to use them or enforce them
iv. Exchange view of sex
1. Bad women only give sex in return for a promise (this is a bad conceptualization)
2. Good  a lot of what women have to sell is their sexuality and the law shouldn’t take that away from
them
e. Breach of the Promise of Marriage
i. Most states have abolished breach of promise to marry actions through “anti-heart balm statutes”
1. Minority of states still recognize the action under common law
a. GA, Hawaii, Kansas, NC, TX, and WA
b. IL retains this action by statute but limits recoverable damages only to actual damages
f. Contracts between spouses:
i. Law of Dependency often family law is based on the law of dependency and if there is less possibility of
dependency then the courts are more likely to apply traditional k rules to the agreements
ii. A spouse is entitled to compensation for support, apart from rights to community property and the like that
arise from the marital relation itself. Personal performance of a personal duty is created by the K of marriage
does not constitute a new consideration supporting an indebtedness (Borelli v. Brusseau)
iii. Marital duties are owed by the spouses personally and thus cannot be used as consideration for a K.
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iv. Status of being married renders your agreements unenforceable bc you don’t intend for them to be
1. People make promises all the time in a family that they never intend to go through with
v. Once youre married, the original agreement no longer matters, bc you have passed the threshold and changed
the relationship, now dictated by state law norms etc. (Maynard v. Hill)
1. Line is drawn at marriage; thereafter your K’s are treated differently
g. Premarital contracts:
i. Prenuptial agreements are K’s and as such should be evaluated under the same criteria (Simone v. Simone)
ii. Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements
iii. Law of Dependency often family law is based on the law of dependency and if there is less possibility of
dependency then the courts are more likely to apply traditional K rules to the agreements
iv. Postnuptial  many states allow postnuptial agreements when there is a lot of capital at stake and there was a
prenuptial.
v. An agreement is inequitable if it fails to satisfy any one of the following requirements: each spouse has made
fair and freely; and the substantive provisions of the agreements dividing the property upon divorce are fair to
each spouse (In Re Marriage Greenwald- old guy who didn’t want to marry his nurse)
vi. If there are significantly changed circumstances after the execution of an agreement and the agreement as
applied at divorce no longer comports with the reasonable expectations of the parties, an agreement which is
fair at execution may be unfair to the parties at divorce
vii. Requirements for a Prenuptial Agreement:
1. If the K is unconscionable when it was signed then it is likely that it wont be enforced
a. This is very hard standard to meet
2. Full disclosure of financial situations/emotional problems
3. If circumstances were not reasonably foreseen (becoming a paraplegic) then it may not be enforceable
h. Common Law Marriage we still give people the rights of being married bc of their obvious commitment
i. We allow it bc we are concerned about the equal distribution of stuff
ii. People in C/L marriage have the status of marriage in law
iii. Requirements of Common Law marriage:
1. Intent to be married
2. Holding out that you’re married- traditionally having same name
3. Continuous cohabitation
a. IL DOES NOT RECOGNIZE CL MARRIAGE
i. Unmarried Couples Rights:
i. The fact that a man and a woman live together without marriage and engage in a sexual relationship does not
itself invalidate agreements between them relating to their EARNINGS, PROPERTY, OR EXPENSES (Marvin v.
Marvin)
ii. Agreements btw nonmartial partners fail only to the extent that they rest upon consideration of meretricious
sexual services (prostitution). (Marvin)
j. Problems with non-married couples
i. Valuation and efficiency
ii. K for sex
iii. Stability of not promoting marriage
k. State is Concerned with Marriage:
i. Promotes stability in society
ii. Promotes procreation
iii. Marriage makes people happy, so state wants to safeguard this aspect of society
II. Marriage Regulation:
a. Interracial Marriage- the freedom to marry or not marry, a person of another race resides with the individual and cannot
be infringed by the state (Loving v. VA)
b. Limiting Access to Marriage- when a statutory classification significantly interferes with the exercise of a fundamental
right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to
effectuate only those interests (Zablocki v. Redhail)
c. Consent to Marry minors
III. Incest:
a. A lot of statutes don’t make a distinction btw family relations of blood and of law
b. This promotes the family structure
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c.Incest is anti-social  already too dependent on your family; don’t want people to be so exclusive that society loses its
interactive structure
i. People marry their own kind all the time  same religion, race, geographic
d. Why are marriages btw non-blood relatives also prohibited  procedural reasons concerned with what the process was
going to look like
i. To prove that no blood exists would ask questions that are so ugly/unpleasant that we don’t want to disrupt the
family like that
e. Want to explicitly de-sexualize these relationships
i. Sexualize the relationship btw the 2 households; not between the other members (pollute other relationships?)
1. Drawing a line btw family members makes the family relationship less complicated- putting family
members off-limits allows the relationships to develop more smoothly
2. Might be a concern of abuse of power
f. It is difficult enough to break out of the family as it is, with the addition of sexual relations and dependence it becomes
virtually impossible
i. Sexual urges are among the leading forces for breaking out of the family and forming complex social structures
and relationships; which are necessary conditions for civilization
IV. Polygamy (Potter v. Murray City)
a. It is true that activities of individuals, even when religiously based, are often subject to regulation by the states in the
exercise of their undoubted power to promote the health, safety, and general welfare
b. Huts Women  creates jealously; protects against deceit
c. Unequal Loyalty  in a polygamist marriage there is a difference in the commitment btw the parties involved.
i. Not bilateral loyalty but a huge number of marriages that involve an inequality of contributions (not sexually
but otherwise)
d. Marriage = 2 people  Marriage is defined as monogamy  this argument is what I have a problem with bc I don’t buy
the man and woman definition
i. Essence of what marriage is to us it 2 people
ii. Could argue that:
1. Permitting polygamy would be giving some more rights than others- small population of polygamists
compared to gay population
2. Permitting polygamy would be harmful to women bc of unequal position
3. Permitting polygamy would disrupt the interstate record keeping process and disrupt the requirements
for consent and foreclosure- i.e. man could be married to several women all over the country and none
know about it.
V. Gay Marriage:
a. Name Change a request for a name change should not be denied simply bc a judge disputes the wisdom of the request
or disagree with the reason for change based on his or her personal views of philosophy
i. Changing your last name is not the same as getting married, therefore, allowing a lesbian to change her last
name is not saying to society that you are condoning gay marriages
ii. A name change does not give you any legal rights nor status
b. Arguments
i. Due Process Marriage is a substantive due process right (Loving)
1. Suspect Class  classify gays/lesbians as a suspect class (not recognized yet)
a. If you are a protected class under this argument, then almost any regulation loses
b. But they aren’t a protected class thus can discriminate against these people
c. Sex Discrimination  could make the argument that it is a suspect class based on gender  I
cant marry her b cim a woman, but if I was a man I would be able to. That is discrimination
based on sex
i. This argument has been successful
ii. Worked in Hawaii but got overturned by a constitutional amendment voted on by
the citizens
ii. Equal Protection:
1. Fundamental Rights fundamental right, cant apply it one way to a group of people and different to
another
a. May have the rights same as TURNER did.
c. Arguments Against failed in Goodridge
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i. Men and women provides the optimal setting for children

1. There is no proof that gay marriage is not as good as hetero marriages for raising children
ii. Primary purpose of marriage is procreation (cant say this with a straight face)
1. There is no procreative distinction btw gay couples and hetero couples who know they cant conceive
2. Procreation is not prerequisite for marriage
iii. Homosexuals are less likely to be dependent
1. Irrelevant to determining who can marry bc it’s a fundamental right.
d. State vs. Federal Constitution on Gay Marriage:
i. A state constitution can grant more rights than the federal constitution and still be co-existent with the federal
constitution
ii. After Goodridge 1) nothing could happen, federal constitution remains silent on gay marriage (doesn’t honor
them for federal purposes) or (2) could pass a constitutional amendment- could define marriage (a) as a man and
a woman exclusively or (b) one that would leave room for civil unions
1. OR 11 states could put same-sex ban on their ballot and piggyback it with a civil union ban as well so
that people cant vote for them separately and pass it by at least a 20% margin in every state including
ORR
iii. Goodridge says that you have to call it marriage because marriage carries a social meaning/status
1. A civil union is not the same bc it does not carry the social status
e. Full Faith and Credit Clause:
i. states traditionally do not recognize other states marriages unless they are also valid in that state
1. most states have a clause that if it is void in the home state, it is void regardless of where it took place
2. they say that If it is valid in another state, in this state unless it violates public policy
f. Defense of Marriage Congress is supposed to get involved to facilitate the respect btw the states
i. Theyre not going to do that
ii. Here they are doing the opposite, asking for roadblocks to not respect the others laws with respect to marriage
iii. Federally defines marriage as btw a man and woman
g. IF you view marriage as:
i. STUFF  if you look at marriage as all the stuff (legal benefits) that one gets, it is hard to say that there should be
no gay marriages bc you are being blatantly discriminatory
1.  but if you look at it as a social issue, its easier to dismiss the argument “it just is this”
h. What about Separation of Church and State?
i. Why is marriage still a religious institution if you can get a marriage certificate at the courthouse and never have
to be religiously married?
ii. If you can separate out the ceremonies, why cant you allow everyone a legal marriage, but still let the religions
prohibit the marriages if they want? Seems do-able.
VI. Being Married.
a. Duty of Support- in order to claim that there is a duty to support, the parties must be separated. (McGuire v. McGuire)
Common Law Doctrine of Nonintervention- the state will rarely adjudicate spousal responsibilities in an ongoing
marriage. Thus the obligations are only enforceable after dissolution.
i. While it is the duty of the husband to provide his family with support and means of living- style of support,
requisite lodging, food, clothing, etc, to be such as fits his means, position, and station in life- and for this purpose
the wife has generally the right to use his credit for the purchase of necessitates that does not entitle the wife to
claim the husband is not supporting her within the marriage or neglecting her. (Mcguire v. McGuire)
ii. Enforcing a duty of support on a spouse while the marriage is ongoing would have several problems:
1. Invasion of couples privacy regardless of whether one party consents to it
2. Open the floodgates- where would the court not be allowed to go after this?
3. Enforcement concerns- if its too specific then it will inevitably need to be modified later; if its too vague
then will have to monitor it forever
4. Valuation- WHO DETERMINES when enough support is enough- leave it to the parties to determine
during the marriage.
b. Loss of Consortium.  when of the spouses is responsible for the wreckage in the relationship, then the parties are
not entitled to relief; however, if a third party is responsible for the wreckage, then the spouses have a cause of action
against the third party.
i. In CA, each spouse has a cause of action for loss of consortium as defined, caused by a negligent or intentional
injury to the other spouse by a third party. (Rodriguez v. Bethlehem Steel)
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1. Wife’s damages do not include a loss of her husbands financial support or other items which he is
compensated for so as to guard against double recovery
c. Interspousal Immunity from Torts: has been abolished almost everywhere as violative of public policy
i. Traditional based on metaphorical idea of unity- the man and wife are one person in marriage and law
ii. This immunity has been abolished for intentional torts before non-intentional torts.
d. IIED Against Spouse: courts are split with whether to allow this or not
i. Those courts that allow it, allow you to join it in the divorce proceedings
ii. A spouse should not be allowed to recover tort damages and a disproportionate division of the property based
on the same conduct (Twyman v. Twyman)
iii. Choosing a spouse is essentially choosing who will inflict the emotional distress for your lifetime
1. Has to be outrageous just to be considered by a court- but it is not for the court to decide what is
outrageous
iv. In Twyman the acts were horrible but beyond that it is hard to draw the line at where is a tort and what is normal
for. A relationship to go through
e. Domestic Violence: becomes very clear that a court MUST get involved in these cases
i. While the courts and society want to maintain a level of privacy around the marriage, penetrating that privacy in
DV cases will be worth the cost of the damage to the privacy/marriage of stopping the behavior from continuing
ii. Experiencing and more importantly observing, the violence as a child teaches 3 lessons
1. Those who love you are also those who hit you and those who you love are people you can hit
2. Seeing and experiencing violence in your home establishes the moral rightness of hitting those you love
3. If other means of getting your way, dealing with stress, or expressing yourself do not work, violence is
permissible
iii. Marital Rape- the right to marital privacy protects consensual acts, not violence sexual acts
1. The martial exemption to the rape law lacks a rational basis and therefore violates the Equal
protection Clause of both federal and State constitution (NY state case- People v. Liberta)
2. Marital rape is classified as second degree rape (rape of someone whom you’ve had consensual
relations before)
3. Reasons why Rape and Domestic Violence don’t get reported
a. Embarrassment
b. Victim believes it to be her fault
c. Credibility of accusations
d. Fear of retaliation from perpetrator
e. Privacy concerns
f. Most victims just hope it will go away
g. Economic dependency on perpetrator
h. Loyalty to the perpetrator (Emotional dependency)
f. Family Law Privileges: two different types
i. Communication Privilege applies to communications spoken btw the parties while they were married.
1. Must be said in confidence while they were married (only the 2 can be present from the conversation)
2. Actions are not privileged; only words
3. The communicating spouse holds the privilege and thus can prevent the spouse from testifying against
them
ii. Testimonial Privilege
1. Used to be that either spouse could prevent the testimony of the other person bc it is your spouse
2. Federal law and half the states  now say that the holder of the privilege (person who can invoke it) is
the person who is testifying (now state can drive a wedge btw the parties)
a. Cant prevent the other person from testifying but you yourself can refuse to testify
VII. Family Autonomy.
a. What can you do with your kids.
i. Parent v. Legislature= parents win- parents and children rights are intertwined and having children is part of an
individual liberty of adults
1. Therefore protecting a parents right to raise their kids is like protecting PARENTS LIBERTY (Meyer v.
Nebraska)
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ii. Right to Private Schools- a aprent has a right to send their children to private schools. Under Meyer v. Nebraska a
regulation cannot unreasonably interfere with the liberty of parents and guardians to direct the upbringing and
education of their children (Pierce v. Society of Sisters)
1. RATIONAL BASIS REVIEW
iii. Child Labor- State WINS- even if it is based on religious beliefs, child labor is/can be regulated by the state bc of
the states interest in protecting children from overreaching parents taking advantage of them
1. Childs interest is aligned with the state rather than the parent in this instance (Prince v. Mass)
iv. Amish and Autonomy- the states interest in socializing the children is to make sure they don’t become too
dependent on the state (by having no education); however in the Amish context, they serve as an entire different
community than the rest of society so the states has no interest in socializing them for American society.
Therefore, Amish children are not required to attend school past the 8 th grade (Wisconsin v. Yoder)
v. Parental Decisions- while marriage is still intact, the court will not interfere to make decisions regarding parental
duties (even if there is a prenuptial contract dealing with the exact subject matter.) (Kilgrow v. Kilgrow)
vi. There is a presumption that parents will act in the best interest of the child .
b. Substantive Due Process:
i. Is there a liberty or property interest??
1. Is anyone losing anything here??
ii. What is the risk of erroneous deprivation?
1. What are the chances that the government is depriving someone of something wrongly?
2. Not how bad is the deprivation when you get it
iii. What core values of additional safeguards?
1. Why would more process reduce error of #2?
iv. What is the states interest in not providing process?
c. The Extended Family:
i. Socializing Children- the family socializes children so the state protects the right to socialize your kids (which in
the end benefits the government) The primary aspect of socialization is the environment you lie in, so if you
remove a child from the environment you are stunting socialization (Moore v. City East Cleveland)
1. Creates a hierarchy of potential socializers:
a. Parents trump everyone- presumption
b. Family members trump the state
c. State comes in last
ii. Parens Patrae- much more likely to see an intrusion into parental duties in families at the poverty level who
are receiving some sort of benefit from the state (Wyman v. James)
iii. Divorce: the minute the family falls apart, as in divorce, the state becomes the key player in the relationship btw
the spouses, and the parents and children
VIII. Grounds for Divorce:
a. Three Concepts of Division:
i. Annulment non-legal term; purely religious function a state cant give you an annulment. It says that the
marriage never existed
ii. Separation legal term; the law recognizes that you are still married but living apart. You may be able to get
some temporary relief (maintenance)
iii. Divorce  legal judgement from a court at the divorce, the parties are no longer married. Divorce question is
different from questions of financial arrangements post-divorce.
b. Traditionally Divorce was only Granted by Fault:
i. Adultery
ii. Cruelty
iii. Desertion
iv. Impotence
c. Traditional Defense to Divorce:
i. Insanity
ii. Connivance  both parties agreeing to one of the conditions to get divorced
iii. Condonation  having sex with spouse after it had been established btw the two of you that one of the grounds
for divorce has occurred
iv. Recrimination  both did one of the bad things therefore no divorce- must have clean hands to get a divorce
v. Insanity (also works as a defense)
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d. Divorce is supposed to be an award for the person who is blameless

e. Divorce is supposed to be a punishment for the person who was at fault
f. Most states still have a fault divorce statute (can get a divorce really quickly( mostly used in domestic violence context
g. ADULTRY:
i. Need not be proven beyond a reasonable doubt
ii. Circumstantial evidence required to prove a charge of adultery in a divorce case must show 1) opportunity to
commit the offense and 2) a disposition to commit it
1. While the opportunity to commit adultery is not in itself sufficient to justify a finding of its commission
in the absence of evidence of a disposition to commit it, such a disposition may be inferred from the
conduct of the parties and the surrounding circumstances (Lickle v. Lickle)
iii. Adultry is very hard to prove with direct evidence thus in order to protect the autonomy of a marriage, we don’t
want to encourage people to hire private detectives to catch someone in the act so circumstantial evidence is
enough
h. Cruelty: similar argument as that of IIED for spouses
i. Cruelty is very subjective standard which makes it very hard for the court to consider. (Muhammad v.
Muhammad)
ii. This court has defined cruel and inhuman treatment in this vein conduct endangering life, limb, or health or
creating reasonable apprehension of danger or unnatural and infamous conduct making the marital relation
revolting
iii. If. A spouses action which cause deep personal misery that has no foreseeable end is the gravemen of the action
for divorce by reason of habitual cruel and unusual treatment, we cannot say that the divorce is not warranted
iv. In order for a divorce to be granted on the ground of habitual cruel and inhuman treatment, there must be proof
of systematic and continuous behavior on the part of the offending spouse which goes beyond mere
incompatibility (Parker v. Parker
i. Desertion-
i. Proof o an actual breaking off of matrimonial cohabitation combined with the intent to desert consisttues
desertion as grounds for divorce (Reid v. Reid)
j. Recrimination
i. The doctrine of Recrimination is founded on the basis that the equal guilt of a complainant bars his/her right to
divorce and the principal consideration is that the compliant must come into court with clean hands (Parker v.
Parker)
k. Condonation
i. Grounds that can be condoned: adultery, cruelty, habitual drunkenness and desertion
ii. Condonnation- a spouse who has once condoned a marital transgression by his mate is thereafter barred from
using that transgression as grounds for divorce
iii. An attempt at rehabilitation must be made in good faith for purposes of establishing condonation
iv. Cohabitation by itself is insufficient to invalidate a separation agreement or an accrued claim for divorce
v. An estranged couples attempt at reconciliation even where it involves the brief and isolated resumption of
cohabitation and/or sexual relations after a dissolution action has already commenced does not as a matter of
law preclude an entry of judgment in favor of spouse who originally had an otherwise valid claim for
abandonment (Haymes v. Haymes)
l. No Fault:
i. If refusal of dissolution would amount to a legal perpetuation of a relationship which has ceased to exist in fact,
the petition should be granted
ii. The court should be satisfied that the parties can no longer live together bc their difficulties are so deep and
substantial that no reasonable effort could eradicate them so as to enable the parties to live together in a normal
marital relationship
iii. If no marital partner has made the considered decision that the relationship should be terminated, perhaps it
may properly be said that the marital relationship has broken down
iv. PROBLEMS WITH NO FAULT- only two people in the relationship know if they are really happy or not (bc some
people project contrasting realities)
IX. POSSIBLES FACTORS TO CONSIDER IN JUDGING A DIVORCE
a. Whether they share a bed or not
b. Length of the discord relative to the length of marriage
c. Length of marriage alone
d. Kids
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X. 750 ILCS 5/401-02 IL Dissolution of Marriage Act

a. GROUNDS FOR DIVORCE
i. Impotence
ii. Adultery subsequent to the marriage
iii. Willful desertion for the space of one year
iv. Habitual drunkenness for 2 years
v. Guilty of gross and confirmed habits caused by excessive use of addictive drugs for 2 years or has attempted the
life of the other by poison or other means showing malice, or guilty of extreme and repeated physical or mental
cruelty, or been convicted of a felony or other infamous crime
vi. Infected the other with an STD
b. No Fault
i. Lived separate or apart for 2 continuous years
ii. If lived separate and apart for 6 months and the 2 year requirement can be waived by stipulation of both parties
1. Even get out of the 6 months if you establish  you were trying to get the marriage together by seeing
a therapist/minster etc
a. This creates an incentive to try counseling at least
2. Must also find that the reconciliation would be impracticable and not in the best interest of the family
XI. ECONOMIC INCIDENTS:
a. PROPERTY DIVISION:
i. 750 ILCS 5/503 : Disposition of Property
1. Non-Marital Property:
a. Property acquired by gift, legacy or descent
b. Property acquired in exchange for property acquired BEFORE the marriage or in exchange for
property acquired by gift, legacy or descent
c. Property acquired by a spouse after a judgement or legal separation
d. Property excluded by a valid agreement of the parites
e. Any judgement or property obtained by judgement awarded to a spouse from the other spouse
f. Property acquired before the marriage
g. The increase in value of property acquired by a method listed in paragraphs 1-6 irrespective of
whether the increase results from a contribution of marital property, non-marital property,
personal effort of a spouse, or otherwise subject to the right of reimbursement provided in
subsection c and;
h. Income from property acquired by a method listed in paragraphs 1-7 if the income is not
attributable to the personal effort of a spouse
2. DISTRIBUTION OF PROPERTY:
a. All property acquired by either spouse after the marriage and before a judgement of
dissolution (including no-marital property transferred into some form of co-ownership) is
presumed to be marital property (regardless of whether title is held by one party only)
i. The presumption of marital property is overcome by showing that the property was
acquired by a method listed in subsection (a) of this section.
b. All PENSION BENEFITS acquired by either spouse after the marriage and before a judgement of
dissolution (whether vested or non-vested) are presumed to be marital property
c. All STOCK OPTIONS granted to either spouse after the marriage and before a judgement of
dissolution (whether vested or non-vested) are presumed to be marital property
d. COMMINGLED MARITAL AND NON-MARITAL PROPERTY: shall be treated in the following
manner
i. When one estate of property makes a contribution to another estate of property, or
when a spouse contributes personal effort to non-marital property, the contributing
estate shall be reimbursed from the estate receiving the contribution notwithstanding
any transmutation
e. Factors Relevant to Consider the Distribution:
i. The contribution of each party to the acquisition, preservation, or increase/decrease
in value of the marital or non-marital property, including the contribution of a spouse
as a homemaker or to the family unit;
ii. Dissipation by each party of the marital or non-marital property
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iii. Value of the property assigned to each spouse

iv. Duration of the marriage
v. Relevant economic circumstances of each spouse when the division of property is to
become effective including the desirability of awarding the family home or the right to
live therein for reasonable periods to the spouse having custody of the children
vi. Any obligations and rights arising from a prior marriage of either party
vii. Any antenuptial agreement of the parties
viii. The age, health, station, occupation, amount and sources of income, vocational skills,
employability, estate, liabilities, and needs of each of the parties
ix. The custodial provisions for any children
x. Whether the apportionment is in lieu of or in addition to maintenance
xi. The reasonable opportunity of each spouse for future acquisition of capital, assets, and
income, and
xii. Tax consequences of the property division upon the respective economic circumstances
of the parties
f. PROPERTY SHALL BE VALUED as of the date of trial or some other date of trial or some other
date as close to the date of trial as is practicable
g. To protect and promote the best interest of the children may set aside portion of the jointly
or separately held estate of the parties in a separate fund or trust for the support,
maintenance, education, and general welfare of any minor
h. Fault is irrelevant in property division.
3. Rise of No-Fault Regimes brought about 2 theories of property division:
a. Property division was supposed to end all personal and emotional ties between the parties
i. Traditionally speaking- concept of alimony kept the parties financially tied together- in
common law states; divorce did not mark the end of the relationships btw the parties
b. Want to let the spouses be self-sufficient
i. These distributions were supposed to make each spouse self-sufficient which would
end the relationship in its entirety
ii. What level of self-sufficiency is acceptable
1. Self-sufficiency in ligit of marital expectations? Or reasonable expectation?
c. Problem with both of these  that it doesn’t work if there are children
d. Perfectly lovely goals when the situation is appropriate, sometimes they might work
4. Average marriage in this country is 7 years
5. Average amount of property at divorce is $25,000
6. Mostly the law of relatively wealthy people
b. EQUITABLE DIVISION:
i. Even in those states that do not require or strongly presume equal division, property acquired with spousal labor
is often DIVIDED EQUALLY at dissolution
ii. Inheritance- even in those states which in principle allow the court to allocate all property owned by the
spouses, property inherited by one spouse during the marriage is treated different from property acquired
through spousal labor
1. Keep inheritances out of marital property to honor the wishes of the giver; thus encouraging gifts
(Pierson v. Pierson)
iii. Pension Plans: when separate plans for each spouse are not in existence, it is only equitable to allow both parties
to reap the benefits of the ones existing retirement plan, to which both parties have materially contributed in
some fashion (Ferguson v. Ferguson)
iv. Commissions Earned during marriage but accruing after dissolution- Commissions are marital property bc it is a
direct result of marital labor (Niroo v. Niroo)
c. NEW PROPERTY:
i. Transmutation Argument if property is co-mingled, it is magically tuned into marital property.
1. Always contingent on the length of the marriage- bc you have to buy the notion tha the property was
considered shared and used accordingly by both the parties
2. The more the value of the house is attributed to the behavior of the spouse, te more likely the
appreciation on that property is more likely to be considered marital property
ii. Pensions (Cohen v. Cohen)
10

1. Reserved Jurisdiction: court retains jurisdiction until the pension matures then it evaluates:
a. Fraction to determine how much is in marital property pot
i. LENGTH of time pension plan existed during the marriage/length of time the employee
invested in pension
2. 503 (b) (2): all pensions that are
3. Immediate Offset- what is the pension worth? The pension is marital property
iii. Goodwill:
1. Goodwill is only divisible at divorce if the state allows the goodwill to be divisible and marketable on its
own
2. IL- enterprise goodwill is divisible but personal goodwill is not
iv. Professional Degrees:
1. Only NY has labeled them property
2. Most states reject the idea that its property: doesn’t seem like property so were not going to count it
3. Its too personal to valuate separately from the person holding them
4. Courts draw the line somewhere btw the insurance commissions and professional degree in Roberts is
goodwill (can be considered property or not depending on state law)
5. Even if state doesn’t include professional degree as property they do end up giving compensatory
alimony which reflects the extra earning capacity
a. The enhanced earning ability of a degree earning spouse may certainly be considered as part
of the marital case (Roberts)
XII. ALIMONY:
a. 750 ILCS 5/504 : Maintenance
i. The court may grant temporary or permanent maintenance award for either spouse in amounts and for periods
of time as the court deems just w/o regard to marital misconduct
ii. Relevant factors to consider:
1. Income and property of each party, including marital property apportioned and non-marital property
apportioned and non-marital property assigned to the party seeking maintenance
2. Needs of each party
3. The present and future earning capacity of each party
4. INDIRECT CONTRIBUTION- any impairment of the present and future earning capacity of the party
seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed
education, training, employment or career opportunities due to the marriage;
5. Time necessary to enable the party seeking maintenance to acquire appropriate education, training,
employment and whether that party is able to support himself or herself through appropriate
employment or is the custodian of a child making it appropriate that the custodian not seek
employment
6. Standard of living established during the marriage
7. Duration of the marriage
8. Age and physical and emotional condition of both parties
9. Tax consequences
10. DIRECT CONTRIBUTION- contributions and services by the party seeking maintenance to the education,
training, career or career potential, or license of the other spouse
11. Any valid agreement of the parties and
12. Any other factor that the court expressly finds to be just and equitable
b. Has she earned a share of what he can earn?
c. Does she deserve a share of it even if she hasn’t earned it?
d. Does she deserve a share of it even if he doesn’t make it?
e. Existing Theories for Alimony:
i. FAULT:
1. Can get in through the backdoor
a. Assholes contribution was monetary but my contribution (emotional) is hard to value and a lot
more costly than his financial contribution
2. Louisiana and TC fault is an absolute bar to alimony
3. This promotes the wrong normative concept of marriage
ii. CONTRIBUTION generally temporary
11

1. DIRECT
a. Contributions to education, training, career potential or license of the other spouse
b. Awarding this is easy if not necessary fully just
c. Don’t trust the market to give us the true value of what was given
i. The market will almost always under compensate the direct contribution of a spouse
d. Del Rosa v. Del Rosa- direct contribution towards a medical degree
i. (1/2 living expenses x length of marriage) – husbands contribution = maintenance
award
1. The shorter the marriage the more comfortable we are to sue this formula
and have a quantified distribution like this
2. INDIRECT: (foregone opportunities)
a. Ex post determination of path could have taken- very sketchy, too speculative
i. Earlier you get married, the harder it is to determine where tou could have been had
you made different choices
ii. Longer you’ve been married the more ridiculous this determination becomes
b. Null set- could end up with a zero contribution then where do you look for maintenance
c. Socialization/discrimination
d. Take care of kids- actually a firect contribution
e. Housekeeping- also direct contribution
f. Opportunity costs-
i. Not working
ii. Professional choices  choosing a career path that is more flexible so they can meet
the needs of the family
3. Double Counting  if can prove both direct and indirect contribution there is a problem of double
counting
iii. STATUS:
1. Standard of living acquired during the marriage
2. Assumes she has no responsibility to support herself or her lifestyle once they are divorced
3. Its absurd to think that we can think that we can keep someone exactly where they were after the
marriage
a. Has to be a change by virtue of the breakup
4. Theoretically impossible to keep both parties at same standard of living
5. Rainwater v. Rainwater- standard of living achieved during marriage
a. First must determine that spouse cannot achieve it on her own
b. In deciding duration and amount of maintenance, must balance relevant factors
6. Generally amounts to a permanent award of maintenance which shoes a prediction that the one spouse
will not be able to independently reach the standard of living established during the marriage and that
the other will be able to continue to contribute to the first spouses support.
iv. NEED:
1. Look to the standard of living accomplished during the marriage (circular argument)
2. Very similar to status argument, but basing it on need is saying she cant meet her standard of living
v. REHABILITATION  generally temporary
1. Leads to conceptual problems
2. Not comfortable with wife living at a standard of living vastly lower than the one she lived in during the
marriage (depending on length of marriage)
3. Based on the past but judge can look to the future as to what is likely to happen
f. WHEN DOES ALIMONY STOP??
i. Remarriage
ii. Death of either spouse
iii. Changed circumstances
iv. Modified- in a way property division cant
v. By the terms of the agreement (temporary maintenance)
vi. Sometimes cohabitation
g. MODIFICATIONS OF MAINTENANCE:
i. Maintenance awards are modifiable both in amount and in duration unless the parties have expressly agreed to
the contrary and the trail court has so ordered
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1. This provides for protection from a long-term lock in

ii. An award until death or remarriage is a prediction that one spouse will never be able to independently
approximate the standard of living established during the marriage and that the other spouse will remain
financially able to contribute to the spouses support (Rainwater v. Rainwater)
iii. This willful failure to rehabilitate does not preclude a spouse from receiving futher maintenance if after the
attributing the spouses maximum earing capacity attainable by diligent efforts that spouse fails to become self
supporting (Hecker v. Hecker)
iv. Where not otherwise provided in the judgement of divorce or in an agreement btw the parties, a recipient
spouses remarriage does not itself automatically terminate alimony (Keller v. O’Brien)
1. Instead, the recipient spouses remarriage make a prima facie case which requires the corut to end
alimony absent proof of some extraordinary circumstances, established by the recipient spouse,
warranting its continuation
v. COHABITATION: general rule: if the parties don’t agree before hand what effect it has, then there is a
presumption that it ends with cohabitation. (Neither will honor a contract around the default rule)
1. IL parties are not allowed to maintain alimony at cohabitation or remarriage even if they want to
a. Obligation automatically dies when wife cohabitates with another
b. Courts will look to situation and favor not awarding maintenance
2. NJ Cohabitation in and of itself does not matter unless the cohabitation affects the economic status of
the spouse (Melletz v. Melletz)
vi. EVAULATING CHANGED CIRCUMSTANCES: The analysis focuses on whether the change in circumstances is
continuing and whether the agreement or decree made explicit provision for the change (Deegan v. Deegan)
1. Good faith basis- is the husband trying to screw the spouse?
2. Primary Purpose test- what was the husbands reasoning in the changed circumstances?
3. Equitable Impact test- does it seem fair to be doing what the husband is doing to his spouse?
XIII. CHILD SUPPORT: Fault is irrelevant, Contribution is irrelevant, Battleground of child support is the status and need of the
children
a. 750 ILCS 5/505 : Child Support
i. Child shall include any children under age 18 or any child under age 19 who is still in high school

XIV. Minimum Amount of Support

Number of Children % of Supporting Party’s
Net Income
1 20%
2 25%
3 32%
4 40%
5 45%
6 or more 50%
i. These guidelines shall be applied unless the court finds the application inappropriate based on the best interests
of the child bc the following relevant factors (court must state reasons for deviating)
1. Financial resources and needs of the child
2. Financial resources and needs of custodial parent
3. Standard of living the child would have enjoyed had the marriage not been dissolved
4. Physical and emotional condition of the child and his educational needs and
5. Financial resources and needs of the non-custodial parent
ii. Net Income= total income from all sources except:
1. Federal income tax
2. State income tax
3. Social security payments
4. Mandatory retirement contributions
5. Union dues
6. Dependent and individual health/hospitalization insurance premiums
7. Prior obligations of support or maintenance actually paid
13

8. Expenditures for repayment of debts that are for income

iii. Federal Advisory Panel on Child Support Guidelines recommended that states should adhere to the following
principles in developing guidelines
1. Both parents should share responsibility for child support
2. Parental subsistence needs should be considered (but child support should virtually never be set at zero)
3. Child support should cover a child’s basic needs while allowing enjoyment of a parents higher standard
of living;
4. Each child has equal right to share in a parents income, subject to factors such as age, income and other
dependents
5. Child support determinations should not depend on gender or the marital status of the parents
6. Guidelines should not create economic disincentives for remarriage or work and
7. Guidelines should encourage the involvement of both parents in the child’s life
iv. REBUTTAL: child support guidelines create a rebuttable presumption of the appropriate award. Courts must
explicitly justify deviations from the guideline amount
v. Empirical evidence suggests a lack of uniformity in judicial application of guidelines in cases of both very high and
very low incomes. Most states have responded to the latter by setting floors below which the guidelines do not
apply.
vi. It is inevitable that the custodial parent will end up benefitting from some sort of shared consumption of the
child support.
vii. The non-custodial father incidentally has less control of his childs upbringing and there is no way around that
1. Therefore it is irrelevant if the father claims that he would not spend that much money on the child if he
were raising it (State v. Hill)
viii. COLLEGE TUITION: most states can require parents to pay for college tuition
1. Minority rules: parents are not required to pay for a college education (Curtis v. Kline)
ix. Children of 2nd Marriage- a noncustodial parent who elects to become responsible for supporting the children of
the marriage does so with the knowledge of a continuing responsibility to the children of the first marriage
(Pohlmann v. pohlmann)
XV. CUSTODY:
a. At divorce the courts will then get involved in the child rearing decisions
b. The parent with physical custody ends up making most of the child rearing decisions
c. Any major decision made regarding the child can be challenged in a way that parental decisions intact families can never
be challenged
d. The parents wishes are entitled to some consideration
e. Comparative income or economic advantage is not a permissible basis for a custody award
i. If you let money into the best interests of the child test, then it will dominate bc it is more objective and this will
control the analysis (bc other things are harder to evaluate)
f. If in fact the custodial parents income is insufficient to provide proper care for the child, the remedy is to award child
support not take away the custody (Burchard v. Gary)
g. Extraordinary circumstances are not a sine qua non of a change in parental custody of a child whether the original award
of custody is made after plenary trial or by adoption of the agreement of the parties without contest and without merging
the agreement in the judgement (Friederwitzer v. Friederwitzer)
h. TYPES OF CUSTODY:
i.LEGAL CUSTODY right to make all parental decisions on the childs behalf
ii.PHYSICAL CUSTODY  right to have the child in your physical presence
iii.SPLIT CUSTODY 2 siblings; one going to one parent and another going to another parent
iv. ALTERNATING  with one parent for a while who has both legal and physical custody and then go to the other
v. JOINT can be either legal (both parents retain the right to make all decisions or physical (actually sharing
physical custody of the kid- living closely together can take a whole variety of forms)
1. Very common to have joint legal custody but not joint physical custody
vi. BEST INTERESTS OF THE CHILD: In determining which parent should have custody of a minor child in a divorce
proceeding, the trial court is bound to consider the best interests of the child (Rowe v. Franklin)
1. Rowe v. Franklin- mother was making a short-term/long-term tradeoff that we encourage in marriages
but she is being judged by taking this tradeoff once they are divorced. This judgement is not ok
vii. It is unconstitutional to consider race in the best interests on the merits, race erases all the merits of the
parties bc it is objective and visible
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viii. In using the best interests if the child standard, timing becomes everything bc the most important part of child
rearing is in making the bonds, and breaking those bonds becomes more and more dangerous the longer
determination is delayed
i. Best Interests of Child:
i. Appropriate: custody or divorce when no one is saying the other is unfit but saying I am better
ii. Not Appropriate: state is removing kids from natural parents to put in foster home- state must prove unfitness by
clear and convincing evidence
iii. Unwed biological fathers- courts are uncertain of whether the hearing should be of unfitness or best interest of
the child hearing
j. 750 ILCS 5/602 : Best Interests of the Child: factors to consider
i. (1) wishes of the childs parent or parents as to his custody;
ii. (2) wishes of the child as to his custodian
1. (a) where there is a child under 14 years of age, but sufficiently matured that he can intelligently express
a voluntary preference for one parent, trial judge is entitled to give that preference such weight as
circumstances warrant and where such child demonstrates a preference for parent who is not primary
caretaker trial judge is entitled to conclude that presumption in favor of primary caretaker is rebutted
(Garska v. McCoy)
iii. (3) interaction and interrelationship of the child with his parent or parents his sibilings and nay other person who
may significantly affect the childs best interest;
iv. (4) adjustment to his home, school, and community
v. (5) Mental and physical health of all individuals involved
vi. (6) Physical violence or threat of physical violence by the childs potential custodian, whether direct against the
child or another person;
vii. (7) Occurrence of ongoing abuse whether directed against child or another person
viii. (8) Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between
the other parent and child
k. When a step-parent as standing, it is presumed to be in best interest of child that the natural parent have the custody of
the child unless the presumption is rebutted by a step-parent
l. The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child
m. Primary Caretaker presumption:
i. The law presumes that it is in the best interests of the child to be placed in the custody of their primary caretaker
if he or she is fit (Garska v. McCoy)
1. Primary caretaker- natural or adoptive parent who until initiation of divorce proceedings has been
primarily responsible for caring and nurturing the child
ii. If the court cannot distinguish which is the primary caretaker, neither parent gets the benefit of the presumption
iii. Where there is a child under 14 years of age but sufficiently matured that he can intelligently express a voluntary
preference for one parent, trial judge is entitled to give that preference such weight as circumstances warrant
and where such child demonstrates a preference for parent who is not primary caretaker, trial judge is entitled to
conclude that presumption in favor of primary caretaker is rebutted
iv. FACTORS TO CONSIDER FROM GARSKA:
1. Preparation of meals
2. Bathing, grooming, dressing
3. Purchasing, cleaning and care of clothes
4. Medical care
5. Arranging for social interactions
6. Arranging for alternative care
7. Putting child to bed at night and attending to in the morning
8. Disciplining the child
9. Teaching elementary skills
n. VISITATION: (more expansive discussion under Parental Rights Section)
i. Visitation doesn’t give substantive rights to make decisions with child
1. Seems like a lesser right than custody but often doesn’t work out to be the case
ii. Perfectly common for people to make up allegations of abuse to distort visitation
1. Big stab at an ex to accuse them of sexual abuse, so it is highly likely that it will be abused
 15

2. Plus it is incredibly hard to prove bc there are only 2 people there and he’s obviously going to deny it
and children make very problematic witness
iii. Higher likelihood that step-fathers are more likely to abuse step-children than natural father
iv. When the parent really believes it they fight incredibly hard to deny time to the other party
v. There are no easy solutions to visitation situations where there are accusations of child abuse or molestation
o. Failure to Pay Child Support:
i. Some states say that a failure to pay child support cannot affect child visitation rights
1. Other states say that it can
XVI. JURISDICTION:
a.Full Faith and Credit:
i. Full faith and credit does have to be given the substantive decision of divorce
1. Under the full faith and credit clause, a court must enforce a support order issued by a foreign court so
long as that court enjoyed personal jurisdiction over the obligor (Mahoney v. St. John)
ii. Full faith and credit does not have to be given to the jurisdiction decision of the courts
iii. Whether a court actually had jurisdiction over a person (usually a domicile determination) can be attacked by
another state
1. If you are there and participate then you cant contest jurisdiction
2. Any decision that a foreign court makes for the financial incidents of divorce are subject to collateral
challenge
iv. Under the Doctrine of Divisible Divorce, due process requires personal jurisdiction over both spouses to resolve
the financial incidents of dissolution, although one can get an ex parte divorce entitled to full faith and credit
1. Thus if you get a default divorce, then the issue of property division is reserved
v. A stage does not violate the constitution in setting a durational residency requirement for jurisdiction over
divorce proceedings
1. A waiting period is permissible bc the restriction is temporary (Sosna v. Iowa)
vi. Just because you get married in a state, without more, does not vest jurisdiction in that state for an action
relating to child support
vii. To find personal jurisdiction in a state on the basis that one of the spouses lives there, would discourage parents
from entering into reasonable visitation agreements
viii. A parent does not purposefully avail himself of the benefits of a state by allowing his children to live in that state
(it is the children that benefit from the state, not their father) (Kulko v. Superior court)
ix. Continuing exclusive jurisdiction by a court that has made an order so long as the state is the child’s state or the
residence of any individual contestant unless a court in another state has modified the order in accordance
with the act
1. Childs state is defined as the state which the child resides
2. For choice of law, the act generally dictates application of the forums law, but specifies the law of the
issuing state for interpreting orders
XVII. MOST CURRENT LAWS: (when two states are trying to assert jurisdiction over custody at the same time)
a. Child support/maintenance: UIFSA
b. Custody: PKPA/ UCCJEA
i. UCCJEA- is the uniform law
ii. PKPA- federal statute
1. Don’t need PKPA if the state has adopted the UCCJEA
2. Key provisions of both are about 2 states claiming custody jurisdiction
XVIII. UIFSA: CHILD SUPPORT AND MAINTENANCE
a. Provides scenarios where minimum contacts should be clear to confer jurisdiction
b. Facilitates interstate enforcement of child support by setting up a hierarchy by which states can modify and which states
can enforce.
c. If the obligor or the obligee or the kid live in the state that originally issued the child support order, that state has
jurisdiction over all parties involved.
d. If two parties live together in a state w/a child, then that state has jurisdiction.
XIX. UCCJEA : § 201. Initial Child Custody Jurisdiction
a. Except as otherwise provided in Section 204, a court of this state has jurisdiction to make an initial child custody
determination only if:
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i. (1) This state is the home state of the child on the date of the commencement of the proceeding, or was the
home state of the child w/in six months before the commencement of the proceeding and the child is absent
from this state but a parent or person acting as a parent continues to live in this state;
ii. (2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the
child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum...and;
1. (A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent,
have a significant connection with this state other than mere physical presence; and
2. (B) Substantial evidence is available in his state concerning the child’s care, protection, training, and
personal relationships;
iii. (3) All courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground
that a court of this state is the more appropriate forum to determine the custody of the child...or
iv. (4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).
b. Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.
c. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody
determination.

XX. § 203. Jurisdiction to Modify Determination

Except as otherwise provided in Section 204, a court of this state may not modify a child-custody determination made by a court of
another state unless a court of this state has jurisdiction to make an initial determination under section 201(a)(1) or (2) and:
(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 202, or that a court of
this state would be a more convenient forum...; or
(2) a court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a
parent do not presently reside in the other state.

- In order to avoid conflicting orders from two different courts, you make the first state retain jurisdiction so long as one of the
parties still lives in the state, thus making their view controlling for as long as possible.

XXI. PATERNAL AND OTHER PARENTAL RIGHTS:

a. Legitimacy Doctrine: based on orderly distribution of property
i. If the father has legally acknowledged the child before the father dies, the state has to treat the child as any
other child
1. The buden isn’t on the state to figure out the paternity issues
2. The state is not then free to say that we don’t like the illegitimate kid
ii. If the father hasn’t legally acknowledged the child then the state can treat them differently
iii. Compelling interest is the states interest in preserving resources and orderly distribution of property
1. What this means is that blood connection in and of itself doesn’t give you constitutional protection,
legal connection gives you constitutional protection.
b. Inheritance by Nonmartial Children:
i. Uniform Parentage Act which is primarily concerned with paternity establishment does not contain a
legitimacy-legitimacy distinction
1. An action to establish a parent and child relationship must be brought the fathers estate is closed in
order for the child to inherit
ii. Uniform Probate Code permits a nonmarital child to inherit interstate from either natural parent if certain
conditions are met:
1. If paternity is established by an adjudication prior to the parents death by clear and convincing evidence
or has been established under the Uniform Parentage act
2. If the natural parent has openly treated the child as his or hers and if the natural parent has not refused
to support the child during the parents lifetime
XXII. PARENTS RIGHTS TO THEIR KIDS:
a. An unmarried father is entitled to a hearing of fitness before his children are deemed wards of the state and/or taken
away from him (Stanley v. IL)
b. If both parents are not equally situated then there is no equal protection violation if the children are taken away from the
person who never spent time with the children (Quillion v. Wolcott)
c. ONLY 2 PARENTS- no where is there recognition of 3 simultaneous legal parents
17

d. BIOLOGY: parental rights do not spring full-blown from the biologival connection btw parent and child. They require
relationships more enduring (Lehr v. Robertson)
i. Existence of biological link does not merit equivalent constitutional protection
e. Only when there is no legal determination of parenthood do you look to the biological relationship (MICHAEL H!!)
f. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to
participate in the rearing of his child, his interest in personal contact with his child acquires SUBSTANTIAL PROTECTION
UNDER THE DUE PROCESS CLAUSE!!!!
g. IF FATHER MAKES AN EFFORT WE MIGHT LISTEN TO HIM- if the father grasps the opportunity to develop a relationship
with his kids and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-
child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the federal
constitution will not automatically compel a state to listen to his opinion of where the child’s best interest lies
h. There is A FINITE TIME LIMITATION for the putative father to establish an opportunity interesting his nonmarital child. If
he fails to establish this interest before a third party begins to legalize a new father-child relationship, then the punitive
father may lose any legal rights he may have in his nonmarital child (LEHR)
i. Biology gives a father the chance to establish a relationship which would lead to constitutionally protected rights,
but does not automatically give that constitutional right
i. Relationship with the child matters a lot in determining if the father has made an effort- critical to the constitutional
claim
i. Problems with this:
1. The fathers rights are heavily contingent on the mothers actions to allow him to develop a relationship
with the child
2. When the child is born, no matter what, the mother has invested much more time than the father ever
could so she is ahead of him in the relationship department and thus in the rights department
j. So you had a bit of an affair. A child born during a marriage is PRESUMED TO BE OF THE MARRIAGE. The only people who
can change the paternity of the child of the marriage are the people with legal status as parents (husband and wife).
Therefore if you are sleeping with a married woman and she has a baby, YOU CANNOT CHALLENGE PATERNITY YOURSELF,
you need the mothers help (MICHAEL H!!!)
k. NO BLOOD RELATIONSHIP: a court CANNOT say that a person who has no blood relationship to a child has NO STANDING
to sue for custody (STANLEY V. IL)..
XXIII. SUMMARY:
a.Blood + Emotional relationship – legal relationship = no rights (Michael H)
b.Blood + Emotional Relationship + legal relationship = rights (Stanley/Caban)
c.Blood – emotional relationship + legal relationship = no rights!! (Lehr/Quillain)
d.No Blood + Emotional Relationship + legal Relationship = rights (Roberts)
XXIV. Mother can affect the Amount of Control over her Kids :
a. Sole custody- divorce proceeding which establishes sole custody; or a single mother with absent father
b. In Michael H. mother has to share her rights with someone, so she is choosing Gerald.
c. More mother can keep father out of picture, the more control she has.
d. As strength of father-kid relationship grows, mother’s relative ability to control declines.
e. Once the biological father has a relationship with the child, it is clear that the state can’t take the kids away from the
biological father; but that doesn’t mean that another man can’t assume control over the biological father.
f. Main thing state cares about is that there is a father somewhere.
XXV. 750 ILCS 45/1-13 : Illinois Parentage Act
a. Parent and child relationship’ means the legal relationship
b. Presumed Mother – The parent and child relationship btw a child and the natural mother may be
established by proof of her having given birth to the child or under this act;
c. Presumed Father – A man is presumed to be the natural father of a child if:
i. He and the child’s natural mother are or have been married to each other, and the child is
born or conceived during such marriage;
ii. After the child’s birth, he and the child’s natural mother have married each other, and he is
named, w/his written consent, as the child’s father on the child’s birth certificate;
iii. He and the child’s natural mother have signed an acknowledgement of paternity; or
 18

iv. He and the child’s natural mother have signed an acknowledgement of parentage or, if the
natural father is someone other than one presumed to be the father under this section, an
acknowledgement of parentage and denial of paternity.
d. Rebuttable Presumption – rebutted only by clear and convincing evidence!!
e. Surrogacy Situations – A parent-child relationship may be established in the event if all of the
following conditions are met prior to the birth of the child:
i. The surrogate mother certifies that she is not the biological mother of the child, and that she
is carrying the child of the sperm and egg donor.
ii. The husband, if any, of the surrogate mother certifies that he is not the biological father of
the child and that the child is that of the sperm and egg donor.
iii. The biological mother certifies that she donated the egg from which the child being carried
was conceived.
iv. The biological father certifies that he donated the sperm from which the child being carried
was conceived.
v. A physician licensed to practice medicine certifies that the child being carried by the surrogate
mother is the biological child of the egg and sperm donor, and that neither the surrogate
mother nor the surrogate father is a biological parent of the child being carried.
vi. All certifications are in writing and witnesses by 2 competent adults who are not parties to
the contract.
If these factors are not met, the child is presumed to be the child of the surrogate mother and father;
but can be rebutted by clear and convincing evidence.
XXVI. Statute of Limitations –
a. An action brought by or on behalf of a child to determine who the parents are shall be barred if
brought later than 2 years after the child reaches the age of majority.]
XXVII. Visitation Rights
a. Visitation is determined using the best interests of the child standard. (Hanke v. Hanke)
i. But a noncustodial parent’s right of visitation is a natural right and should be denied only
under extraordinary circumstances, which would include, among other things, a showing that
the visitation would harm the child.
ii. IL statute – parent not granted custody of a child is entitled to reasonable visitation rights
unless a hearing reveals that visitation would seriously endanger the child physically, mentally,
morally, or emotionally.
b. To allow a court to award visitation – a limited form of custody – to a third person would necessarily
impair the parents’ right to custody and control. (Alison D v. Virginia M)
c. Homosexual Couples – While it is presumed that a child’s best interest is served by maintaining the
family’s privacy and autonomy, that presumption must give way where the child has established
strong psychological bonds with a person who, although not a biological parent, has lived with the
child and provided care, nurture, and affection, assuming in the child’s eye a stature like that of a
parent. (JAL v. EPH)
i. Here the parties established before having the baby that both parties should have legal rights
to the child – they consulted an attorney.

d. Where a petitioner who is not biologically related to the child but has established a parent-like
relationship w/the child seeks not to supplant the natural parent, but only to maintain his relationship
w/the child through reasonable visitation or partial custody, his burden to establish standing is easier
to meet. (JAL)
 19

e. Grandparents – So long as a parent adequately cares for his or her children, they will normally be no
reason for the state to inject itself into the private realm of the family to further question the ability
of that parent to make the best decisions concerning the rearing of that parent’s children. (Troxel
v. Granville)
i. Troxel v. Granville → The statutes was breathtakingly broad, and as applied, the statute
ignored the decision making authority of the parents and unconstitutionally infringed on the
parent’s fundamental right to make decisions relating to the child’s care, custody, and rearing.
ii. However, states generally have statutes which give grandparents a right to petition for
visitation.
iii. The decision whether such an intergenerational relationship would be beneficial in any
specific case is for the parent to make in the first instance.
iv.
XXVIII. Stepparents – Stepparents have a legal relationship to the natural parent but no legal relationship to the
child.
a. Custody → In order to obtain custody of a stepchild, one has to prove two things: (1) it is in the best interests of the child
to be in the custody of the nonparent, and (2) the custodial parent is unfit. (Simpson v. Simpson)
i. Still a strong presumption for natural parents.
b. If there has been co-parenting, then step parent will probably lose
c. If there has been disproportionate parenting, the step-parent will probably get visitation.
i. When the step-parent has done the bulk of the parenting.
d. Step parent only takes rights from the parent they were married to – not the noncustodial parent.
XXIX. Traditional rules for allowing standing for step-parents
a. In loco parentis – doesn’t just mean that you act like a parent to the kid (when the biological parent wasn’t there)
b. Divorce initiated by biological parent – assume that anyone initiating the divorce is not acting in the best interests of the
child
i. This ignores that there is no legitimate reason to initiate the divorce that is in the best interests of the child –
would be better to end another marriage rather than subject child to marriage any longer
c. Non-biological father, married to mother at birth (but not the legal father) – (Gerald’s position who did not get benefit of
marital presumption)
i. Child is not a child of the marriage – husband who was never held out as legal father
XXX. Superior Rights Doctrine (In re Roberts)
a. In child-custody disputes it is an accepted assumption that the right or interest of a natural parent in
the care, custody and control of a child is superior to the claim of a third person.
i. Only applies when it is an all-or-nothing case
ii. If it is feasible for the parental rights to be shared, then the courts are more likely to do it.
b. Roberts – A court need not find that the natural parent is unfit or has forfeited his custodial rights
before awarding custody to another person if it is in the best interests of the child
XXXI. Equitable Parent Doctrine
a. If you acted like a parent to the child, we’ll treat you like a parent in law.
b. This doctrine focuses on whether one person has misled the other.
c. Not used very often.
XXXII. De Facto Parent
a. One who assumes the role of parent from day to day and fulfills the child’s physical and
psychological needs.
XXXIII. Child Support Obligation
a. Obligation is essentially a strict liability claim based on blood relation.
b. The statute does not require, nor, we believe, does it permit, consideration of the fault or wrongful conduct of one of the
parents in causing the child’s conception. (L Pamela P v. Frank S)
i. However unfairly respondent may have been treated by petitioner’s failure to allow him an equal voice in the
decision to conceive a child, such a wrong does not rise to the level of a constitutional violation.
 20

1. A man has no right to claim he shouldn’t be the father b/c he didn’t want to be a father.
c. In most states, child support obligations and visitation rights are treated separately and one is not tied to the other.

XXXIV. Challenges to Paternity to Escape Child Support Obligations (Paternity of Cheryl)

a. Challenges to paternity should not be permitted beyond a relatively brief passage of time.
b. Where a father challenges a paternity judgment, courts have pointed to the special needs of children that must be
protected, noting that consideration of what is in a child’s best interests will often weigh more heavily than the genetic
link btw parent and child.
c. Where a father and child have a substantial parent-child relationship and the father has provided the child with consistent
emotional and financial support, an attempt to undo a determination of paternity is potentially devastating to a child who
has considered the man to be the father.
d. A man who has comported himself as a child’s father may be obliged to continue to support the child when he, for the
first time, renounces his apparent paternity in an attempt to avoid court-imposed support obligations.
e. Reasons why Man should be held to his commitment now:
i. Emotional dependence of the child
ii. Need for finality of the child
iii. Financial reliance of the child
iv. Enjoyed the rights of the parent
v. Didn’t investigate his paternity from the beginning (maybe like assumption of risk)
Sum it Up:
- Courts are more likely to base rights on a relationship than basing obligations on a relationship.
- Relationships in and of themselves are not enough to get anything .
- Blood relationships are not enough to ensure relationship rights; it is enough to ensure the obligations
involved.

Surrogacy K: (Johnson v. Calvert)

- Although the act recognizes both genetic consanguinity and giving birth as a means of establishing a mother
and child relationship, when the two means do not coincide in one woman, she who intended to procreate
the child – that is, she who intended to bring about the birth of a child that she intended to raise as her own
– is the natural mother under CA law.
o However, intent is wholly inconsistent w/traditional paternity law.
I. ACQUIRING AND LOSING CHILDREN:
a. ADOPTING CHILDREN: Once a mother signs away her adoption rights, she has no legal relationship
to the child; even if she later marries the biological father (who has custody), the only way she can
regain her parental rights is to legally adopt her own child.
II. 750 ILCS 50/1-9 : Illinois Adoption Act
a. Unfitness:
i. A person shall not be considered an unfit person for the sole reason that the person has
relinquished a child in accordance w/the Abandoned Newborn Infant Protection Act.
ii. Grounds for unfitness: one or more of any of the following:
1. Abandonment of a newborn infant in any setting where the evidence suggests that the
parent intended to relinquish his or her parental rights.
2. Failure to maintain a reasonable degree of interest, concern or responsibility as to the
child’s welfare.
3. Desertion of the child for more than 3 months next preceding the commencement of
the adoption proceedings.
4. Substantial neglect of the child if continuous or repeated.
a. Substantial neglect of any child residing in the household which resulted in the
death of that child.
21

5. Extreme or repeated cruelty to the child.

6. Two or more findings of physical abuse to any child
7. Failure to protect the child from conditions w/in his environment injurious to the
child’s welfare.
8. Other neglect.
9. Depravity – conviction of a list of enumerated crimes
10. Open and notorious adultery or fornication.
11. Habitual drunkenness or addiction to drugs for at least one year prior to
commencement of the unfitness proceeding.
12. Newborns → Failure to demonstrate a reasonable degree of interest, concern or
responsibility as to the welfare of a new born child during the first 30 days after its
birth.
13. Failure by a parent to make reasonable efforts to correct the conditions that were the
basis for the removal of the child from the parent; or to make reasonable progress
toward the return of the child to the parent w/in 9 months after an adjudication of
neglected or abused minor.
14. A child that has been in foster care for 15 of 22 month period unless the child’s parent
can prove by a preponderance of the evidence that it is more likely than not that it
would be in the best interests of the child of the child to be returned to the parent
w/in 6 months of the date for the petition.
15. Evidence of intent to forgo parental rights
16. Repeated or continuous failure by the parents, although physically and financially able,
to provide the child w/adequate food, clothing, and shelter.
17. Finding that at birth, the child’s blood, urine, or meconium contained any amount of
controlled substance.
b. Neglected child – means any child whose parent withholds or denies nourishment or medically
indicated treatment including food or care denied solely on the basis of the present or anticipated
mental or physical impairment as determined by a physician; education is required by law.
III. Time for Taking a Consent or Surrender
a. A consent or surrender taken not less than 72 hours after the birth of the child is irrevocable.
b. Mother – No consent or surrender shall be taken w/in the 72 hour period immediately following the birth of the child.
c. Father – A consent or surrender may be taken before the birth of the child.
i. Such consent can be revoked if, w/in 72 hours after the birth of the child, the father notifies, in writing, the
appropriate agency of the revocation of the consent or surrender.
ii. Such consent becomes irrevocable after the 72 hour window.]
IV. Terminating Parental Rights
a. A state must meet a clear and convincing burden of proof before terminating parental rights.
(Santosky v. Kramer)
b. After a state has established parental unfitness at that initial proceeding, the court may assume at the
dispositional stage that the interests of the child and the natural parents have diverged. (Santosky)
i. But until the state proves unfitness, the child and his parents share a vital interest in
preventing erroneous termination of their natural relationship. (Santosky)
V. Consent to Termination / Adoption
a. The mother of a minor child is required to give consent before a petition to adopt is granted.
b. The consent of the father of the child if he was married to the child’s mother at the time of the child’s conception or birth
is also required.
VI. Adoptive Parents v. Natural Parents = Natural Parents WIN
22

a. The burden is placed on the adoptive parents to establish both the relinquishment and/or unfitness of the natural
parents and the fitness and right to adopt of the adoptive parents. (Baby Richard)
i. Problem with this: it is easy for the biological mother to hide the child from the biological father.
ii. This burden prevents the advantage that the party w/custody of the child has (to just hide and wait). The party
with custody is responsible for notifying everyone else, so their rights to the child could be jeopardized if they try
to manipulate the system.
b. IL requires a good-faith effort to notify the natural parents of the adoption proceedings.
c. Relinquishment of parental rights is not final until the adoption is actually filed. (Scarpetta v. Spence-Chapin Adoption
Service)
d. In using the best interests of the child standard, timing becomes everything b/c the most important part of child rearing
is in making the bonds, and breaking those bonds becomes more and more dangerous the longer the determination is
delayed.
VII. Consent of Unwed Father
a. A state cannot assume that unwed fathers are neglectful and unsuitable parents. (Stanley)
b. An unwed father is entitled to a hearing as to his fitness. (Stanley)

VIII. Natural Mother v. Natural Father

a. A mother or a presumed father must consent to an adoption absent a showing by clear and
convincing evidence of that parent’s unfitness. (Adoption of Kelsey S.)
b. The biological connection btw father and child is unique and worthy of constitutional protection if the
father grasps the opportunity to develop that biological connection into a full and enduring
relationship. (Adoption of Kelsey S)
i. For adoptions of infants, this doesn’t seem to answer any questions.
c. Unwed Father → If an unwed father promptly comes forward and demonstrates a full commitment
to his parental responsibilities – emotional, financial, and otherwise – his federal constitutional right
to due process prohibits the termination of his parental relationship absent a showing of his
unfitness as a parent. (Adoption of Kelsey S)
i. Absent such a showing, the child’s well-being is presumptively best served by continuation of
the father’s parental relationship.
ii. This seems to reinforce the mother’s control over the entire situation like in Michael H. The
mother can easily deny the father the chance to make any sort of relationship and thus
control whether the unwed father has a say in anything.
d. If there is no presumed father and the mother consents to adoption, then a best interests of the
child analysis is used to determine the adoption proceedings.
e. Biological father v. Biological Mother and Stepfather → Biological Mother and Stepfather win. (Lehr)
i. Biological mother has veto rights over the wishes of the biological father b/c she is still going
to be in the picture (she doesn’t lose her parental rights to make those decisions).
ii. Veto is not absolute – depends on how much the father has done to establish the relationship
and/or safeguard the potential / existent relationship.
f. Biological father v. Adoptive Parents → mother loses her veto rights when she relinquishes her
parental rights.
IX. Inter-racial Adoptions
a. Acknowledging a preference to place children in adoptive families of their own race is unconstitutional. (But almost
universally done.) (In re DL)
i. Part of what might be being protected is the child’s comfort level w/his surroundings.
b. Congress passed a statute which prohibits the use of race in adoption proceedings.
i. EXCEPT for Native Americans.
c. Some state honor parental autonomy through statutes allowing birth parents to designate the adopters’ religion.
d. Other state require the placement of children w/adoptive parents of the same religious faith, when practicable.
23

e. The UAA § 2-104, lists in order of preference factors an agency should consider in determining a child’s best interests in
the selection of adoptive parents:
i. The previous adoption of a sibling, characteristics requested by the minor’s birth parent or guardian, custody of
the minor for 6 months w/in the preceding 24 months or half the child’s life, and status as relative w/whom child
has established a positive emotional relationship by one who makes a written adoptive request.
ii. After considering these possibilities, the agency can consider other individuals.
f. Alternatively, the child’s parent or guardian can select an adoptive family and place the child directly.
X. Three Ways to Terminate the Parental Rights:
1. Abandonment
2. Voluntary
3. State initiates it

If terminated:
1. No duty to support
a. Very rare case where may still have duty to support if abused.
2. No right to custody
3. No right to visitation
FOSTER PARENTS

Foster Parent v. Natural Parent = Natural Parent WINS

- Whatever liberty interest might otherwise exist in the foster family as an institution, that interest must be
substantially attenuated where the proposed removal from the foster family is to return the child to his
natural parents. (Smith v. OFFER)
- B/c there will be many cases in which children remain in foster care for the statutory period even when their
parents can properly care for them, the presumption that parents are unfit based on 15 out of 22 months in
foster care is not narrowly tailored to achieve the government’s interest. (In re HG)
- Best interests of the child does not apply when the battle is btw the natural parents and the state.

Best interests of the child :

- Appropriate Custody or divorce when no one is saying the other is unfit but are saying I am better.
- Not Appropriate State is removing kids from natural parents to put in foster home – state must prove
unfitness by clear and convincing evidence.
- Unwed biological fathers – courts are uncertain of whether the hearing should be of unfitness or best
interests of the child hearing.

Old Foster Parent v. New Foster Parent

- There is a constitutionally protected liberty interest in the stability and integrity of the relationship btw a
foster mother and foster child. (Rodriguez v. McLoughlin)
- This case is different b/c it presents the issue of whether due process protection extends to a parent-child
relationship which has its origin in state law and contract, but also in which emotional and psychological ties
hoped for in biological families, as well as an expectation of permanency have developed. (b/c foster mother
was in adoption proceedings)
- A prospective adoptive parent who has entered into the proceedings cannot be said to have expected their
relationship w/the child to end.

Liberty interest is recognized in only a discretely identifiable set of foster parents: (Rodriguez v. McLoughlin)
(1) whose foster children’s biological parents’ parental rights have been terminated,
a. Foster Parent v. State only
24

(2) who have cared for their foster children continuously for more than 12 months since the child’s infancy,
and
a. This establishes the makings of a relationship.
(3) who have entered into an adoptive placement agreement for their foster child.
a. Reliance on the fact that relationship was not going to end.

Three distinctions btw Foster relationships and Biological Families: (Rodriguez v. McLoughlin)
o There is generally no biological relationship btw foster parents and foster children.
o There is a virtually unavoidable tension btw the rights of biological parents and those of foster
parents.
o Whatever emotional ties may develop btw foster parent and foster child, the relationship has its
origins, in state law and contractual arrangements.

FAILURES OF THE SYSTEM

- Nothing in the language of the Due Process Clause requires the state to protect the life, liberty, and property
of its citizens against invasion by private actors. (DeShaney v. Winnebago Cty)
- There is no affirmative obligation on the state to ensure that a person’s liberty interests do not come to harm
through other means besides state harm. (DeShaney)
- The state does not become the permanent guarantor of an individual’s safety by having once offered him
shelter. (DeShaney)
- The state does not have an affirmative duty unless it has taken affirmative steps to deprive someone of their
liberty (like in prison or institutions).
o If liability was imposed on the state here, then on the borderline cases, there is going to be a real
disincentive to invest in the case b/c you are essentially buying yourself liability.

CASES/IN CLASS NOTES!!!!:

I. Wildey v. Springs: Breach of Promise to Marry Act & Heart Balm Statutes
a. Sues under Breach of promise to marry Act
b. In a lot of states, you cannot sue for this cause of action-not allowed
c. Statutes that got rid of these statutes- heart balm statutes
i. To protect over zealous lovers- spiteful- we think these lawsuits are spiteful
ii. Protect against blackmail
d. What does “actual damages” mean? Don’t want it to get out of control but what do we
compensate for and what we don’t?
e. Before all you have to prove- is that they broke this promise but this was a cause for
embarrassment before
II. Balfour v. Balfour:
a. Wife sues the husband bc he promised that he would continue to support her if she
stayed in England and he went to India
b. Court says: not all promises are enforceable, not promises are contracts, even
promises as between other people WOULD be contracts, between married people, these
are NOT contracts
c. Why are these two things different?
d. Maybe the spouses don’t intend to be legally bound?
e. When people get married, they understand they are doing a legal act
25

f. By taking something like this seriously saying spouses cannot enter legal obligations- we
are taking away individuals autonomy and their ability to structure risk the way they
want to
Contracts in this way are supposed to respect peoples autonomy

III. Simeone v. Simeone:

a. Prenup issue- having to do with alimony pendente lite
b. To keep her going until there was some final settlement
c. There is no statutory right to alimony- rare that you have a right to alimony in a divorce
d. You have a right to distribution of property but not alimony
e. This contract said you get $200 a week with a cap of $25,000
f. Her arguments:
i. It was duress
ii. Court says they think she’s lying. There is a lot of evidence that this was not
sprung on her at the last minute
iii. What if the judge did believe her? This is still not duress if we say duress we
willingly conflate values of marriage because you are blending the emotional and
legal stuff and we don’t know when we want the law to come in
g. It is not reasonable/discussing the reasonableness
i. Geyer case: there must be full disclosure AND the contract must be reasonable
ii. The majority does not think it (the K) has to be reasonable
iii. BC we assume that people who are free to contract should be able to determine
whether the contract they are entering into is reasonable or not
iv. This could be an issue because every contract would be reviewable all the time
because one party could claim that it was not reasonable
v. THE PARTIES BEFORE THEY SIGN SHOULD FIGURE OUT THE REASONABLENESS
vi. It is pernicious to review these things for reasonableness- bc it is assuming women
cannot contract for themselves/are dumb
vii. Women are capable of figuring out if this is reasonable on their ow

IV. CONTRACT CASES:

a. Maynard v. Hill:
b. Marvin v. Marvin:
c. Whorton v. Dillingham:
d. Blumenthal v. Brewer:
i. Piece of property titled in both of their names
ii. Raised 3 kids- unclear how
iii. Then they break up
iv. Blumenthal sues to make brewer to sell the house- she wants her share
v. Brewer says she wants a share of the other wealth accumulated throughout their
relationship
vi. Court says no, Blumenthal doesn’t have to give you anything
vii. WHY? The Hewitt case they already ruled on
1. Hewitt- pediatric dentist, announced to the world that they were married
but they really weren’t
2. Mrs. Hewitt cannot get anything bc we reject contract kind of thinking
viii. What legislative action controls this decision?
26

ix. The IL supreme court says you can make any type of contract argument you want
but basically it is still COMMON LAW MARRIAGE- and we got rid of this
x. If they wanted to reenforce some sort of common law marriage they would have
What could Brewer could have done to protect herself?
1. Brewer defeated her own claim by talking about how marriage like they were
2. If they had been a straight couple, what did the court want her to do/how could she have
protected herself?
WHY do they say we are not going to have common law marriage?
• They want to encourage actual marriage
• But this is different to say to someone like this- because they couldn’t have gotten married
e. Saying the law cannot help you unless you get married

CONSTITUTIONAL LAW: Constitutional Law: there is an overlap between constitutional law and family
law, constitutional dimension
I. Due Process:
II. Procedural:
a. Is there a private interest at stake?
b. Risk of erroneous deprivation
c. Value of additional safeguards
d. Interest of government
III. Substantive:
a. “those privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men” -Meyer v. Nebraska
b. “basic values implicit in the concept of order liberty” -Palko v. Connecticut
c. “[Due process represents] the balance which our Nation, built upon postulates of respect
for the liberty of the individual, has struck between that liberty and the demands of
organized society” -Griswald v. Connecticut
IV. Equal Protection:
a. All opticians must get a license
i. Rationale: to make sure liars and cheats do not give fake eye exams
b. All African American opticians must get a license
i. Rationale: Research shows that African-Americans are particularly unlikely to go to
optometrist school, therefore we want to make sure that African American
opticians are qualified
c. All opticians must post vote before 9 AM or after 5 PM
i. Rationale: optical services are in great demand and opticians offices should remain
open regular hours on election day
V. CONSTITUTIONAL CASES:
a. Loving v. Virginia:
i. Court spent more time on the equal protection clause
ii. As an equal protection matter, what was wrong with the statute?
iii. The statute did not care if Native Americans married African Americans- they just
did not want Whites to marry any other race
iv. Statute was a problem: the court did not just say this
v. Court adds due process argument: court says marriage is a substantive
due process right.
vi. Says that marriage is a fundamental party of life and part of our understanding of
what liberty and autonomy is
vii. It is a case about marriage
THEN
b. Zablocki v. Redhail
i. Tried to get married in Wisconsin but he couldnt- bc why?
27

ii. If you’re behind on your child support you cannot get married- you must
establish you can demonstrate that your child will not become a public charge and
the courts approval
iii. It said, this is a marriage thing, and marriage is something important here and
there is a disparate impact between rich and poor
iv. We are going to apply a stricter scrutiny- this isn’t race, this is marriage so
this is something of constitutional magnitude.
v. The court cites Loving and Maynard (about someone suing that you can get
divorced)- so show that this is a constitutional issue
vi. Skinner- cant sterilize people who have low IQ’s- what does this have to do with
marriage though?
vii. Says this statute about proving you can pay for your existing children- is both over
and under inclusive
1. Over inclusive? Marriage could be able to help you pay for your child
2. Under Inclusive? Preventing his right to marry does not prevent him having
another child.
3. Court says we can tell there is something important about marriage here
because of these cases (above) and also,
4. Griswold- married people have the right to use contraception, cannot say
spouses cannot use birth control
5. Eisenstadt- contraception being distributed to single people, have this right
6. Roe- women have right to terminate pregnancy in the first trimester
viii. Why does the court cite these 3 cases?
a. Limiting having children is not central to marriage
b. These cases are all about Sex
c. And what does that have to do with loving, Maynard, Skinner?
d. If were talking about marriage we are talking about sex
ix. These cases were right to privacy cases- what is wrong with this?

Punitive Spouse Doctrine: if you legitimately thought you were married and most likely it wasn’t
(bc the person is married to someone else or something)
• I thought I was married and it was legitimate for me to think that I was married so I should be
treated as I was married
• Courts will evaluate this claim saying “treat me as a spouse”
• BUT who gets penalized?
• The first wife- hasn’t actually earned her entitlement by marriage

McGuire Standard: “The living standards of a family are a matter of concern to the
household and not for the courts to determine”
• What did mrs. McGuire want/why did she sue? She wanted maintenance and support aka money
from her husband
• What is your argument she should be entitled to that: part of being married is taking care of
people
• Why else is she entitled to this stuff?
• They money is still his- even if she may have a right to it after divorce- she cannot just write a check
from his account
Why might courts not want to do this?
28

3. Maybe it seems petty- shouldn’t be bringing this into the court system?
4. Not courts job to determine living standards
5. Enforcement question or valuation question: what is the content in a duty to support someone-
what is the standard of that duty?
6. Floodgates- we would be dealing with petty disputes all the time- but not really bc this does not
happen very often
McGuire also:
• Necessaries Doctrine: spouse goes to merchant and buys something that we might see as
“necessary” and then the merchant sues the other spouse for the money
 Very ill enforced doctrine
 Today when it is used-> hospitals against spouses, if there is no insurance, the couple usually has
interest

CASE: Legal Unity and Loss of Consortium: WRONGFUL DEATH

Rodriguez v. Bethlehem Steel, Supp:
• Not that much different from wildley
• She is suing for the loss of companionship that was going to come along with marriage- not
just sex
• This gives rise to an action for Loss of Consortium- parents, siblings, friends, there is not cause of
action, cannot bring suit
• But we allow it for spouses to bring a cause of action- if you hurt B you also hurt A if you are the
tortfeasor- but this is ONLY for married people
**it is the state saying, if you hurt A you hurt B**
What you get by being married is ancillary rights to collect: originally it only covered death,
now what it has morphed into is that it is NOT ONLY if the spouse dies, but if the spouse is disabled so
that they key functions of marriage cannot be performed

Courts Concerns:
Legal unity
Concerned about avoidance fraud- the only time you would sue if there was insurance
Family privacy? Courts would be coming into the marriage
Discourage disintegration
**all of these have been debunked**

Spousal immunity: not allowing spouses to sue each other:

7. Intentional infliction of emotional distress? We are not going to buy these doctrines of unity if
they are inflicting emotional harm on each other
8. What is the difference between a spouse hitting another spouse and a spouse intentionally
inflicting distress on another?
9. If you were that coerced into that behavior, it is because the marriage was so important to her

The decision to marry someone is somewhat who are you choosing to intentionally inflict emotional
distress onto??
• We are treating this as a longterm thing- a friend might say see you later
• At once it gives her a cause of action bc it was mean to do bc she couldn’t do anything but at the
same time, she chose this

We will not recognize a cause of action against married people- but for the reasons we suggested
• IIED claim must be outrageous what he said
• Between spouses, this seems to be asking what judges don’t want to do- be part of a fight a married
couple is having

DIVORCE:
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Mohammed v. Mohammed:
• Couple moved to religious place in Mississippi and wife says “it is extremely cruel for me to live
there”
• Defenses: she never felt that she was in danger and HE was never cruel to her, she just didn’t like
the situation
• cant point to anything he did that was actually extremely “cruel”

All Tradition Grounds for Divorce (above) were replaced by: Irreconcilable Differences:
10. If only one party says irreconcilable differences: 6 months living apart by one of the parties is
considered irreconcilable differences
11. Unilateral divorce: it was difficult to get here but why?
12. The state supports marriage and wants it to work out
13. Thought that everyone will divorce simply because they can- but history suggests this is not
true- divorce rate flattened out at around 1980
14. People lied before under traditional grounds of divorce just so they could get divorced- obvious
fabrications but they worked bc why would the court want to keep them together

No Fault Regime:
• We are implementing a system NOT rooted in fault: this was more paternalistic than the
fault regime;
• it was a therapy regime, it was in hopes that once these people got therapy, they would
realize what they were doing and not want a divorce
• Similar to youth regimes, to help turn it around and change their ways
• This led to cases like RILEY

Riley v. Riley:
• 60 year old man in a 40 year marriage and he eventually meets someone else and wants a divorce
• Wife says: no you dont, you’ll regret it. There is no reason for you to get a divorce, were fine
• Trial court: says stay married
• Appellate Court: lets tell him he might be able to be divorced but there is a 3 month trial period to
see if it’ll work with his wife
• How would you respond if you were Mr. Riley’s Attorney?
 Why would 3 months help? They would be married for 3 years
 Strain on him- this is kind of inhumane to make him live with her
 What is the problem with forcing people into therapy? It doesn’t work bc they don’t want to do it
• cant force people into therapy
• Court in Riley also says: it does not want courts to look at objective evidence, it was the court
to look at subjective evidence
 Objective evidence of marital breakdown would be: not sleeping in the same bed, obvious to third
parties
 Subjective: what the parties themselves say, one of the parties saying ‘this is broken’
• Why do courts have to see that youre not getting along?- maybe we don’t trust the objective
evidence at all
• We want subjective evidence that the marriage is broken down- we worry about credibility problems
but do we think Mr. Riley was lying? The courts job is not to determine whether or not someone is
lying or not
• Judges dont like getting inside the relationship they are evaluating
• We just let people leave- but what is the problem with this? There can be a lot of collateral damage
Ask for the states help

Moving to System of: Irreconcilable Differences:

• The divorce should end all personal and economic ties
• Severing those ties is appropriate because both spouses can provide for themselves independently
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15. We need to figure out to do with the stuff- harder when there is more stuff and children

Fault regime helped women more than the No fault regime:

• Women could help themselves financially
• Women weren’t left alone at the end of this process

Four Big Questions for Property Division:

• How much property is subject to division

• How should it be divided

750 ILCS 503 D
Look at each party contribution, dissipation of assets, duration of the marriage (the longer the
marriage the more the parties have to share)
• What counts as property?
• How should it be valued?

What is Marital Property and What is not?:

• The grandfather clock that I own when I get married
• Not marital property
• Same as #1 except it was broken when I got married. My spouse worked on it and increased its
value by $1000
• no, marital property
• What about spouse and his labor? The increase in value is subject to reimbursement under
503 (a) (7))
• The clock stays as non marital property but the labor might get reimbursed for the value of his
services
• The grandfather clock I brought with my paycheck after I got married
• The grandfather clock I inherited from my father after I was married
• The grandfather clock my spouse gave me for my birthday after we were married
Not marital property- presumption is not but question about intent

Hypo:
• A bought a house in 2006 for $200k ($40K down, pay back $2K/year in equity)
• Married B in 2008
• A and B Divorce Final in 2018
• Value at Divorce: $250,000 (put in $20,000 during the marriage, $4k before marriage, what A paid)
 What is B’s claim to the equity in the house?
There is a commingling provision- certain property was so used by both that its identity has
merged from being owned by one to being owned by both
What else could he make a claim? A portion of the $20,000 that was put into the house was B’s if
the whole house is A’s
Part of the increase in value of 50K from the 200K- this increase in value was while they were
married so this should count as marital property
 What is A’s claim to the house?
A could claim everything by stating it was bought before the marriage and this is non-marital
property: my house, I get it
Arneault v. Arneault: HOW MARITAL PROPERTY SHOULD BE DIVIDED
• This case is about HOW marital property should be divided (everything he had earned, he earned
after they had gotten married so it was all martial property)
• Trial court said: divide 65, 35. He gets 65 and she gets 35- why does this make sense to the trial
court? He is so much more responsible for this money than she is, is this unjust?
• No because she did somewhat take care of the children, but they started to pay people to do this
31

• Why is what she did worth half of what he made?- she didn’t earn it in the sense of she did X, Y and
Z, the answer is more “bc thats what marriage is”
• Appellate court: what they are doing is defining marriage by saying 50/50. There is a strong
50/50 presumption in the states
• Its really hard to pinpoint why Mrs. Arneault is entitled to 50% and not 35%- but it is because
marriage is supposed to be this equal sharing
• The most common stray from the 50/50 paradigm in IL: he is more likely to earn more in the future,
then they will be more likely to give the lower earning spouse more
• Default rule of 50/50- who might benefit by this new standard?
 Much easier to predict what a court will do- who does this benefit?
 This might help people who earned less money during the marriage- invested in non market work
(aka work that has to be done in a household

Property Distribution at Divorce:

• Equitable distribution
A) marital property- unmodified presumption for 50/50 split- can be overcome
B) Hotchpot: COURTS LOOK AT EVERYTHING, no marital property- everything is just done equitably.
Less of a presumption that it should be 50/50
• Community property:
• a) only property earned during the marriage is community property
• b) other states: stuff brought into the marriage is also called community property- less
adherence to 50/50

INSURANCE POLICIES AND SUCH!!!!!!!

Niroo
A. Wife claims commission on insurance policy was marital property
1. Policies were sold during the marriage and there is expectation that the policies are going
to continue to generate income b/c most people renew
2. Husband says this is too speculative and too personal b/c not everyone is gong to renew
and they don’t have to be renewed so they shouldn’t be split
3. He could argue that she shouldn’t get share of what he will be earning 5 years from date
of dissolution, but they are product of labor during the marriage and income from work during marriage is
marital property so this argument likely wouldn’t hold up
4. He relies more on the speculative argument
B. Court says to this:
1. Statistics undermine the argument that they are speculative and the stats show how likely
they are to be renewed and industry itself puts a present value on these commissions
a. It matters that can put reliable present value on
commissions b/c it is easier to call it marital property
C. D also took out loan and collateral was the future income on the commissions
1. If industry didn’t think the commission had real value they wouldn’t have
accepted it as collateral
2. Wife argues that the debt that he incurred was used for family expenses
and his expensive lifestyle
3. She is making dissipation of assets argument
a. Dissipation of assets- deplete marital funds
4. This dissipation of assets argument is weak b/c this is too much work for the court and the court doesn’t
want to get involved in determining a dissipation of assets so this argument only becomes
relevant when it goes to benefit of someone outside the marriage, do it in anticipation of the divorce,
or if someone is spending exorbitant amount of money but none of these are happening here
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D. Stuff that can come in later can still be marital property and significant marital debt has to be
divided too

COMMINGLING OF PROPERTY!!!!!!
E. Comingling
1. When property is so comingled that lost identity as individual property
2. Issue when someone puts inheritance in joint savings account and couple spends money
from that account
a. To determine if the inheritance is marital property court might look at objective
factors such as access to the account or what types of things they were buying and subjective factor of
intent of parties
b. Courts more likely to say a tangible thing is not marital property but money is
harder
3. Variable most important to determine if comingled
a. How long the couple was married
i. Courts have view of marriage between equals and mutuality of obligation the
longer the marriage is
F. Husband then turns to personal argument
1. Court says not that personal b/c anyone can make the call telling a Policyholder to renew
and it was not specific to his abilities or SKILLS

Pensions
A. Types
1. Different contribution plans:
a. Know how much putting into pension and sitting in separate
account w/ name on it
b. 401(k)
c. Usually employer has matched it in some way
d. Tax free and accrues interest so IRS allows this to encourage
people to save for retirement
2. Defined benefit plans:
a. Know how much getting out
b. Don’t contribute something every month but employer
promises to pay something every month when retired
c. State employees (cops, teachers, judges, etc.)
d. Get it for the rest of the life so need actuarial table to
determine person’s life expectancy and this is how it would be divided at
time of divorce
3. Immediate offset:
a. Current value of contribution plan divided at time of divorce
b. Current value of defined plan divided at time of divorce
c. Advantage is that court doesn’t have to be involved again and
parties are no longer tied to each other
4. Reserved jurisdiction:
a. Not going to divide up until worker actually retires
b. Advantage is that immediate offset is speculative and this is
more definitive amount
33

5. Biggest predictor if court does immediate offset or reserved

jurisdiction is how far away retirement is (further away more likely to do immediate
offset b/c pension is smaller, there is longer period of time that parties are tied and court is
involved, and aren’t relying on the money as much b/c it is far away)
B. Terminology
1. Vesting- when employee becomes entitled to pension even if
employee can’t get it for years
a. Sometimes employer contribution won’t vest until year 10 and
the employee only entitled to employer portion if they continue to work for 10 years
2. Maturation- when employee starts receiving pension
C. Usually the most/second most valuable asset (house is other valuable)
D. Pension shares
1. Marital share:
a. Length of time pension existed while marriage lasted/length
of time pension took to mature
b. If married in 1990, pension started 1995, divorced 2010,
retired 2015
i. 15 years (19952010)/20 years (1995 2015)=
percentage of pension that is marital property
E. Qualified Domestic Relations Order (QDRO)
1. If defined benefit plan, order from family court judge that directs to
pension administrator that half of the disbursement has to go to the other spouse
when it comes time to disperse
2. Instead of using QDRO can offset the value of the pension w/
something else
3. Don’t tie parties together if do this work upfront so sometimes this is the
best option especially when parties are older and closer to retirement

V. Dividing property generally

A. First issue is what goes in marital pot
1. Bank accounts
2. Real estate
3. Pensions
4. Personal property
5. Insurance commissions/other future income earned during marriage
B. Then courts add everything in the pot and divide it equally
1. This is hard b/c can’t liquidate pension, can’t split house in half
2. Norm is to say custodial parent gets the house and the non-custodial parent gets the
pension b/c this is most convenient split of the property
a. This could be problematic for the custodial parent b/c the yearly expenses for the
house are likely too high for the custodian on just their income alone and a large portion of people overbuy
b. Also has to invest in house over time (repairs) so the house
absorbs money as it goes but the pension is only going to appreciate value as it goes
c. This is often not the best deal but is the deal that parties think
make the most sense and the courts are going to respect the parties’ wishes
d. Sometimes this is the best option to avoid attorneys fees b/c
time consuming for lawyers to figure out how much everything is worth and to
help divide the property after selling the house and dividing the pension
34

MAINTENANCE QUESTIONS:
Maintenance Questions:
• Has she earned a share of what he can earn?
• Does she deserve a share of what he can earn even if she hasn’t earned it (no direct contribution,
no putting up with grumpiness, no unjust enrichment)
• Does she deserve it even if he doesn’t want to make it?

Traditional justifications for Maintenance: 504 a

16.Fault: currently gone from maintenance
17.Contribution: in statute-
1. Direct:
a12: contributions and services by the party seeking maintenance to the education, training,
career or career potential or license of the other spouse
2. Indirect
A4: any impairment of the present and future earning capacity of the party seeking
maintenance due to that party devoting time to domestic duties or having forgone or
delayed education, training, employment or career opportunities
18.Status:
1. A7: the standard of living established during the marriage
19.Need:
1. A2: the needs of each party
20.Rehabilitation:
The time necessary to enable the party seeking maintenance to acquire the appropriate education,
training, and employment and whether that party is able to support himself or herself though
appropriate employment or any parental responsibility arrangement and its effect on the party
seeking employment\

PARENT CHILD ISH:

Constitutional Rights
End of horizontal relationship section: spouse-like
Meyer v. Nebraska:
• Who sued who?
• Parents sued Nebraska because they hired someone to teach the kids German
• Statute said cannot teach a language before 8th grade
• The statute was enforced against the teacher and parents sued saying you cannot keep the guy
from teaching our kid German
• Parents sued saying the state could not do this

What was the purpose of this law?

21. We care about some shared value system
22. It is through English we are going to communicate our shared values

Court is protecting the parents liberty

Pierce v. Soc. of Sisters:

• Said kids had to go to public school
• Court said you cant do that because the decision on how to educate your child- the parents have the
“right coupled with the high duty to raise their children as they want”
• Why would they want to say they have a “duty”?
35

• Parents have a duty to child and to the state

• State might benefit from parents having to socialize their children (burden is off the state and
parents might be better at it)

20 years pass: what happens- between pierce and prince?

23. 1924-44
24. The great depression happens
25. What happens to Due process doctrine?

Prince v. Mass:
• Parents have this liberty interest in socializing their child
• Giving out “Watchtower”- Jehovahs witnesses
• Child labor laws- were charging for “Watchtower”
State sues Prince (guardian of the child)
26. Langue state used in Prince: “a democratic society rests for its continuance upon the
healthy, well-rounded growth of you people into full maturity as citizens”
Parens Patriac: court uses this phrase
• What does this mean?
• State has uber authority
• Also things such as wildlife
• State has an interest in protecting the child.

Yoder v. Wisconsin:
• Statute in Yoder required: compulsory school from 14-16
• Amish wanted to pull them out after 8th grade- had to teach them how to be amish
• Amish do not want their kids to go to high school
• We want to be the ones to socialize them
What is the difference between prince and Yoder?
• Court in prince refused to take testimony and hear her argument
• Wiped religion out of the trial in Prince
• The court in Yoder hear the testimony

Constitutional Parent-Child Relationship:

• Have right to socialize their children as they want as long as that does not impede on the states
making sure the children are okay

No equity
No jurisdiction:
27. Floodgates argument
28. Enforcement argument

Procedural Due Process: BALANCING TEST

• Is there a privacy interest (liberty or property)?
Is this a really big deprivation of liberty or property?- if the state is going to throw you in jail, yes
but if it’s something small probably not
• What is the risk of erroneous deprivation?
• What is the value of additional safeguards?
Could be pretty high if facts could lead to a different outcome
Facts can be applied easily
• What is the states interest in not providing additional process?

Why cant the IRS garnish your wages bc they think you underpaid by $50?
36

• What would you try to prove?

• Want some opportunity to be heard- bc you are taking something of mine that you cannot take
• What is the risk of erroneous deprivation?
• What are the chances that the IRS is screwing up and it actually is your $50?

Parham v. J.R.,
Who is trying to deprive the child of his liberty?
• Parents for bringing child to the facility
• And state
• Both have the same kind of interest
• State can say they are protecting the child by putting the child in the facility
• Liberty interest that both parents and state have in depriving child of liberty interest

Erroneous Deprivation in this case?

• Committing a child who doesn’t deserve to be committed
• Court says that this is not that high in this instance- why?
• Think that most of the children that come have to be there-why? Bc the parents bring them to the
facility
• Parents act in the best interest of the child

Court talks majority about value of additional safeguards:

• Why does the court think that additional safeguards- the hearing the plaintiffs are asking for- will not
help that much?
• Bc the doctor is usually the one in charge of asking questions- not just relying on the facts presented
• Resists process because the court doesn’t think there is a better decision made by this hearing
• It was worried about the hearing- we are putting a hearing in the middle of an in-tact family and this
could do damage to the relationship

Court was also worried about one other problem in the process itself:
• You might be dissuaded from going to the hearing in the first place bc of the process itself and might
not commit a child that should be because it doesn’t trust the process
• State doesn’t have a legitimate interest in the parents being hurt but does have an interest in the
children being hurt
• State always has an interest in protecting a child.

Court is concerned about overall:

• Not particularly good at getting result
• Process itself damaging
• Dissuade legit admissions

Once the parents divorce, these sacred interest, the decisions ultimately get made by a court, why?-
we can no longer trust these parents to act in the best interest of their children??:
• Court makes best interest of the child decisions
• Maybe parents can be vindictive?
• Maybe being selfish by getting back at ex spouse?
• Sometimes these disputes are just hard

CUSTODY OF CHILDREN
How would you decide who would get custody of a child? Best interest of the child standard
602.5 b and 602.5 c
• No violence
• Drug use/responsible
37

• Home-nice-stability
• Loving
• Income
• Presence with child
• Stability
• Age
• Values
• Physical ability

Buchard v. Garay,:
• Mom where the father said he wasn’t the father
• Establishes paternity
• Moves in and then moves out
• Then he sues her for full custody of child
Lower court: awards it to him
29. He had more income than her
30. There was no bad stuff with either one
31. Court said he would have a better life at home with step mom
Court says no, Why?
• Court says you cannot use income as a factor- but child support doesn’t fully take care of that
Should income not matter in the best interest of the child standard?

3/6:
Buchard (continued):
• Money should not determine custody
• What if there is a strong bond between one of the children and the child?
• The child had already been with the father for four years
• What is wrong with the trial court giving to the father bc of the bond with the child?
Long term? It would deter people from appealing bc the outcome would be the same every time
There would be no way to appeal it and get it reversed
Not monetary—> this will be dealt with through child support
2 to 3 reasons why she should be able to retain:
• Relocation by itself should not deter custody
• What incentives are we creating if we say it should go to him?
• In the long run she will have a more stable career
• Going to law school might actually be good for the child? This would be a good example for him
• What lessons are we teaching kids- role model side that can be argued in the best interest of the
child
• This doesn’t seem fair: I am going to law school and this is not in the best interest of my child?

2 reasons why he should be able to retain:

• Majority of the family is in Ohio and there are people around for support
• Might be disruptive for child bc she is not there a lot

Both the courts don’t apply the best interest of the child test and once removed the appellate court
said they would not let them do it that way—> reviewed it under a fairness test

Garska v. McCoy:
• Gives three reasons
• 1) reliance
38

• 2) not easily abused

• 3) easily applied
• Trial court: awarded custody to the dad bc he had a better educational level, financially, seemed to
be less of a mess than the mom
• Possible that this was statutory rape- bc he was living and in the relationship with the mother (slept
with the girlfriends daughter?) but this is not relevant if we are just trying to find in the best interest
of the child
• Tender Years Presumption: mothers should get custody of children of tender years bc they are
better with children of tender years
• Supreme Court gets it back: we are not using tender years presumption OR best interest of the child
standard
• We want something that the parties can rely on
• What does the court mean by saying having a rule in which parties can rely on??
Who would rely on the primary caretaker standard?
Court is concerned about that the rule that the parties can rely on in UNDERSTANDING how it will
apply and what the RESULT will be
• Why do we want a clear rule?
more likely to go to court if its an unclear rule
If there is a clear rule, why will you not go to court if you’re going to lose? Waste of time/money and
if the rule is clear then you can see that
Bright-line rules DECREASE litigation.- no point in litigating if you know what the outcome is
going to be
• Why would this court be concerned with reliance?
• Much better for children than a rule that encourages litigation

Things divided at divorce:

• Property
• Future earnings
• Childs share of wealth
• Custody (the only thing that is not monetary)
• Risk adverse- don’t want to risk anything- if you don’t want to risk custody, you trade off other
things in order to not risk custody
• This would commodify a relationship/the child
• It didn’t want one party to put the other party in a place that they would trade money for custody
Why does this court feel that judges actually cant apply a best interest of the child standard very well?
This is subjective and judges are not that good at it because its subjective- they don’t know what
they’re doing

Palmore v. Sodoti:
• White woman divorces white man
• White woman marries black man
• Court says: cannot use best interest of the child standard to say race is not in best interest of the
child
• In the foster care situation, where things can be decided with best interest of child standard- when is
it allowed to use race?
• Its going to have a huge effect on a child and will play a role in the Childs experience
• Focus on the children not onto the adults

Moving Cases:
Burgess/Judd:
Why might a primary caretaker want to move? job, getting re-married, go back to family or other
sources of support, new house
39

What is an illegitimate reason for wanting to move? Spite

Why would the custodial parent want to Block a move?

32. Interfere with their relationship with their kids

What is an illegitimate reason for a parent to block a move? Spite

Burgess:
• What was the holding? Probably could move but why?
• Who had to prove what? He had to prove something to prevent her from moving, must show it is
necessary for the kids benefit for him to block moving
• For the most part, courts assume a move is legitimate
• A lot of parents in this situation do what they want to do, they will stay bc they want their kids to
have a relationship with the other parent

Decision making time: In order to modify a custody determination, you’re not allowed to change a
decision making responsibility plan for over 2 years
• Only exception is serious endangerment

Parenting time: may be modified at any time with a showing of changed circumstances