Family Law – Fall ‘20

8.17.20
Marriage
Do the two video lectures & quizzes for pre nups & same sex
How would you define a family?
 A group of people related by blood or marriage
Substantive requirements for entry into a marriage
 Skipping constitutional cases
 Loving – marriage is a fundamental right
o You cannot restrict marriage on the basis of race
 Recently, cannot restrict on gender
 Zablocki – marriage should not be prohibited or coerced for certain classes of
people based on financial ability to pay child support
o The lower court prohibiting the issue, the SCOTUS said no, this is a
wealth classification trying to affect a fundamental right
 Turner – marriage for prisoners cannot be limited to permission of the prison
supervisor, and then only for compelling reasons
o The state had a law that prisoners cannot marry without permission from
prison supervisor & only for compelling reasons
 Could state prohibit or limit marriage, no, it’s a fundamental right
 Same sex is now a valid marriage
o
 Incest
o Cannot be too closely related
o Texas says void.
 Can never be void, always void
 Might be a crime
o Cannot marry ancestor or descendant by blood or adoption
o Cannot marry brother or sister, whole or ½ by blood or adoption
o Parents’ brother or sister, whole or ½ blood, or adoption (aunt or uncle)
o Son or daughter of brother or sister, by whole or ½ blood or adoption
(niece or nephew)
 See also TFC 2.004 (license application) appears to prohibit
 Current or former stepchild or step parent
 Or son or daughter of parent’s brother or sister by whole or
½ blood or adoption
o In re Adoption of M
 H and W adopt M, later M and H have a child, wish to marry
 M petitions to invalidate adoption
  Court permits
 The court concerned about making the new child legitimate
 Because she was older, less likely H took advantage of her
o No one was opposed... we think
o Israel v. Allen
 H and W marry, H has a son, W has a daughter.
 H adopts W’s daughter. His son never lives with them, he is older.
 Son and Daughter later fall in love and wish to marry.
 In this particular case, son and daughter were not raised in
the same household.
 Court allows
o First cousins
 A marriage valid where celebrated is valid everywhere.
 Full faith and credit – honor marriage in another state
 Sometimes prohibition so strong, cannot overcome
o Void v. voidable
 Void can never become valid
o Why don’t states allow closely related people to marry?
 Genetics
 Awkward dynamics – don’t want family to be a sexual situation
 Worried about particularly older members imposing on younger,
more powerful on less powerful
 Potential abuse
 Hard to divide assets
 Religion, history, morality
 Historically we were trying to marry out to make a bigger tribe
 Bigamy
o Cannot have more than one spouse at a time
 (also criminal consequences)
o Can become a valid marriage – second marriage dissolves
o Brown v. Buhman
 Sisterwives
 Mr. Brown has 4 wives – arguing state bigamy is unconstitutional
 “I conceived first marriage is valid” “the other wives are
religious wives”
o Courts say
 No fundamental right to engage in bigamy
 No fundamental right to religious cohabitation
 Does not violate freedom of religion
  Problem with fraud on the state since state does not
recognize
 Age
o What difference does it make how old you are?
 Different all over the states
 Texas more recently – no one under the age of 18 can marry unless
they’re emancipated (go through the legal emancipation process in
Texas or another state)
 Do not recognize sister state marriages unless they’re
emancipated
 Concerns with sex trafficking
o Kirkpatrick
 Minor, age 15, wants to marry her guitar teacher, age 48.
 Mother consents, they go to Las Vegas since NM would not allow.
 Father finds out, and attempts to annul
 Issue is the right of the parent
 Court holds mother’s consent is sufficient
o In general, very young mothers have trouble with development
 Difficult pregnancies, underweight babies
 Prefrontal development
 Trouble with judgement & decisions
 Executive decision center has not developed yet
o Representing Tom
 His wife forged the documents for consent
 Might be void if the parents don’t actually agree
 An annulment takes away that there ever was a marriage
 What do we do about the misrepresentation of age on the marriage
license
 In Texas it would be void
 Need to sit him down – this isn’t about baseball, you have a child.
 Doesn’t matter if you’re married or not
 He’s still a teenager – probably won’t be able to support the
child anyways
 On the baseball issues – can we get him to play baseball?
 Tells you this is the state regulation of high school sports
o They’re sort of picking on the married individuals –
what difference does that make on his ability to play
baseball
 o Probably not able to play in the spring but worth
challenging the statute
 He could go for an annulment
 Or divorce but then he wouldn’t be able to play because he
has been married
 Capacity
o Need the mental capacity to marry
 You understand the consequences of the actions of marriage in the
general sense
 Don’t want people getting married if they don’t understand what
they’re doing.
o Under influence of alcohol or drugs
o Impotency
 If you know you can’t have kids & you don’t tell your spouse
o Fraud, duress, force
o Mental incapacity
o Concealed divorce w/in 30 days (only voidable for one year)
o Blair v. Blair
 H and W marry, have child. W has child before, tells H he is father.
21 years later, they separate, W sues for divorce, H for annulment
 H argues that W lied, and that he would never have married her if
he knew the first child was not his.
 Court rejects
Important to know Texas rules & Federal rules
8.19.20
Asked people who is married and why
After singles, then it’s unmarried people with kids
Answer
Why do we think we oppose polygamy in the US today?
- Protect the women
- Possible fraud with tax benefits
- Where does his estate go when he dies?
Was there anything that caught my eye in the video?
- Community aspect
- See the other wives as aunts
- Seems to downplay the exploitation of women
Procedural requirements for entry into a marriage
 Most states require a license
o Used to require a blood test
 o AIDS info
o Encourage premarital ed course
 Person conducting the ceremony
o Records the license?
 Most states have a waiting period – 72 hour waiting period
o Cooling down period – if they’re drunk etc.
o Exceptions – if they’re being deployed
 Military, DOD, waiver, premarital ed course within 1 year
 Carbetta
o Parties married by priest, no license.
o Married for 25 years, 4 kids
 He wants an annulment so he doesn’t have to split property or
alimony – child support is always required
 License is for record keeping, does not make marriage void without
a license
 Fault on the priest for not informing them of the license
 Common law – rebuttable presumption is that you can’t sue for divorce
 Putative spouses
o Valid in most states
o Happens when one party is in good faith, one isn’t
 Usually with bigamy
 Husband doesn’t tell new fiancé he already has a wife & they get
married
o Presume more recent marriage valid
8.24.20
Common Law Marriage – more and more states are getting rid of common law
marriage, why did Texas decide to keep it?
 Holding out, rings, documents, tax returns
o If you stop cohabiting, 2 years after separation (2 year statute of
limitations)
Putative Spouse
 Why would most states get rid of the common law marriage?
o Nowadays it’s easy to get to someone who can perform a marriage
o It’s not hard to get, let’s just require it
 But why doesn’t Texas get rid of it? Who is opposed to abolishing
common law marriage?
 Who gets common law married? They tend to be lower income
people, they may not have the filing fees to get a license for a civil
ceremony
  Don’t want to prevent poorer families from marrying –
marriage offers protection, such as homestead, you have the
right to remain homestead
 Reliance – been around a long time
 Bar Question
o Justin Smith & Tiffany Brown
 Moving in together & not having a ceremonial marriage, you do see
some facts, after they moved in together, stated intended to have
church wedding, signed using his last name
o Do these facts establish a common law marriage
 Because of the holding out, we can’t determine the agreement
because one is saying no and one says yes
 Introducing as husband and wife is key to holding out as married
 If not clear on agreement, then look to holding out!
 Common law marriage Bar Question
o What elements must Joe prove to establish that he and Mary were
informally married, and can he prove each element?
 Sometimes refer to each other as mr & mrs smith, call each other
love of my life and soul mate
 Elements
 Agreement, Cohabitation, Holding Out, Capacity?
 Joe smith named her as his spouse and sole beneficiary on
his life insurance application
o Some say yes, some say no, some say it’s a jury question
 Holding out? Yes—Social introductions, life insurance beneficiary
 Love of my life, soul mate, is not necessarily holding out
 Engagement ring could be evidence they’re not married
YET, but some people hold off with a formal ceremony
 Insurance forms, tax returns are VERY good evidence that you’re
married
 Social things are second, how do you introduce yourself,
how do your teachers know you (last name)

8.26.20
Chapter 3
Law of the Intact Marriage
 Marriage has changed
o Legitimate children aren’t a big deal, less stigma
o Courts are reluctant to interfere with the relationship of husband/wife
  When a woman married, the husband took over her property and identity
o At common law, husband could beat his wife as long as it was
“reasonable”
 Marital property today
o Common law - If your name is on it, it’s yours
o Community property – doesn’t matter whose name is on it, it’s both of
y’all’s
o Management is either
 Tends to revolve around whose name is on it
 Obligation for spouses to support each other – necessaries
o Medical expenses
McGuire
 They’ve been married 33 yrs at trial
o He was a bachelor & she was a widow
o He had a reputation for being stingy
 During the marriage he accumulates wealth
 She wants court to make him provide her with support
o He doesn’t give her money for clothes, no indoor plumbing, no movies,
but will give her medical care and a phone but no long distance – her kids
lived far away
 She wants some money under her control
 Why doesn’t she just get a divorce?
o It was much more difficult then, you had to prove your spouse was
engaged in one of the things for grounds of divorce
o I guess she would be his beneficiary, so she doesn’t want a divorce
o Stigma attached to divorce
 Goes to court saying these things are necessaries
 Court is reluctant to get involved while parties are still married
o She owns a third interest in 88 acres
o She hasn’t exhausted all of her own assets
 Courts reluctant to order him to pay for things he doesn’t want to
pay for
o They always had this very basic lifestyle
 Not super uncommon for people in this time to be living like this
 Illustrates the principle that spouses have the obligation to provide necessaries
o AND that courts are reluctant to get involved in the marriage relationship
Domestic Violence
 Ted Talk – Crazy Love
 o She said during “im not a victim, I am a strong woman helping him with
his demons”
o How he first hurt her 5 days before her wedding
 He said he was sorry & it was an isolated incident
o He was abused as a child, coping mechanism for stress
 Frequency
o More common than we realize—under reported, maybe half
 Battered Women Syndrome
o Thought to be inaccurate
 Example problem
o Restrict how close he can get within her
o Restrict visitation with the children
o Restrict all communication, texts, calls, emails
o The boyfriend could also get a protective order because he’s received
threats – include provisions for him, her protective order won’t cover him

Unmarried Couples

What is a family? SC hasn’t told us, but they’ll tell you when you’re getting too narrow
Consider skipped cases
 Moreno – classification for food stamps
 Belle Terre – classification for zoning
 Moore – classification for education/zoning

Unmarried Cohabitants
Rise in unmarried cohabitant since 60s – why?
 Birth control pill
 Stigma going away/norms
 Women’s movement
o Single peoplemarried peopleunmarried people (living together)
 Lawrence v. Texas
o Deprivatized sexual conduct
 Unmarried Couples Rights Inter Se
o Marvin Cal 1976
o Lee and Michelle live together 7 years
o Held out as married, she used his last name
o She claims oral contract, he agreed to take care of her, she gave up career
as entertainer, domestic services
 Issues
  Cause of action in contract?
 Cause of action in equity?
 Contract
 Illicit or immoral relationship
o He argues it’s for prostitution but it’s more, has
domestic properties
 Impairs property rights of Lee’s wife
o He was married when he was living with her, but
they did get a divorce
 Not in writing
 Other?
o Equity
o Discourage marriage if allow
 If we allow the remedy then we’re just encouraging common law
marriage – court says they’re fostering non marriage
o Immoral
 Money for sex
o Gift
 That she gave up her career as a gift
o Resurrects common law marriage
Hewitt Ill (1979)
 Parties cohabit, no marriage, 15 years, 3 children, H is children’s dentist, very
successful
o Court refuses to allow divorce
 Public policy
 Immoral
 No common law marriage
 Legislative decision
Cochran case (Cal App 2001)
 Parties have long term relationship over almost 30 years (he is married 2x during
that time), child together, purchased home, but did not actually live together
Familial Benefits – housing, inheritance
Braschi v. Stahl Associates (NY 1989)
 Miguel and Leslie live together as a couple for 11 years. Leslie dies, his name is
on the lease. Rent control permits family members to take over the lease and
remain in apartment.
o Issue: functional equivalent of a family
o Held: yes
  If you act like a family, you can be a family for the purposes of rent
control
o Discussion
 Intent of legislature
 What is a family
 Did they share expenses?
 Did they entertain together?
 Did they vacation together?
 Did people recognize them as together?
North Dakota Fair Housing Council v. Peterson (ND 2001)
 Petersons refuse to rent to unmarried couple
 Issue – does this violate ND Human Rights Act?
o Held: no
 Discussion
o Conflict between a criminal law and the human rights law. Cohabitation is
illegal, but the discrimination
Questions
 What difference should it make if the partners have a certain kind of relationship,
using the factors in Braschi?
 Note Smith v. Fair Empt and Hsg Comm
 Court found that the statute did prohibit discrimination on the basis of marital
status (married v. un married) and that a 1st amend did not apply
o States vary a lot. (from brent’s question)

 Shes not a punitive spouse, there’s no fraud – no bad intent

o She has to be unaware of the problem! An innocent party.
9.2.2020
Clark v. Jeter SCOTUS 1988
 Establishing child support
 Issue – violate equal protection?
o Held – yes, cant treat them differently (marital & non marital children)
o Intermediate standard of review
 Substantial relationship
 Important government objective
o By 1984 CSEA requires 10 yrs s/l for receipt of federal funds
History
 Common law – child of no one, not even mom
 Now very common to have nonmarital child
o Text indicates over 1/3
 Constitution challenges beginning in 60s
o Wrongful death tort actions
o Workmen’s comp
o Welfare, social security benefits
o Inheritance rights
o Support from father
 Uniform Parentage Act –
o Tex Fam Code ch 160
 160.202 No discrimination nonmarital
 160.101 Establish parenthood
 Mother – birth, adjudication, adoption
 Father – presumptions, acknowledgment, adjudication,
adoption, consent to assisted reproduction
 160.204 - Presumptions
o Married – if she’s married, we presume the husband is the father
o Born within 300 days
o Attempted marriage and child born within 300 days
o Marriage after birth and recorded assertion, birth certificate or record
promise to support
o Holding out and supporting child during first 2 years of life
 Establishment of Paternity
o 160.301 et seq Acknowledgement
 Note presume father may sign denial of paternity to avoid having
multiple father claims
o 160.307 Recession of Acknowledgement
 New administrative procedure in 2011
 May rescind before an action affecting the child is initiated,
including an order for child support
o 160.308 Later Challenges
 Only on the basis of fraud, duress or material mistake of fact.
 Must be done before any order affecting the child is issued.
o 160.401 et seq Registry
 Permits a man to register as a putative father, would give rights in
a termination proceeding (relevant re unknown fathers in adoption
in particular)
o 150.501 et seq Genetic testing
 Court will order if one party requests
 Man is rebuttably presumed to be the father if 99% probability,
given prior probability of .5, paternity index of 100 to 1.
  Rebut by showing man is excluded, or another man is the father
 Court may order costs paid
 Court may order family members tested
 Statute of limitations
o 160.606 No limit if no presumed, acknowledged or adjudicated father
o 160.607 if presumed father
o 4 years after birth
o No limit if F and M did not live together or have sex during probable time
of conception,
 Or the F did not commence previously due to mistaken belief that
he was the biological father due to misrepresentation (new in 2011)
 160.608 Paternity by estoppel
o Court may deny genetic testing in certain situations
 Parent in equity – too disruptive to do genetic testing and declare
someone else the father
 160.609 if Acknowledged or Adjudicated Father
o …effective date of acknowledgement of adjudication
 No jury trials 160.632

Wallis v. Smith NM App 2001

 M and F have sexual relationship, agree that M will use birth control. M later
decides she wants a child, does not tell F, has a baby. F sues, for fraud, BOC,
conversion and tort.
o F claims harm bc of child support obligation
 Court – no cause of action
o Public Policy
 Doesn’t matter the reason, child needs to be supported
 UOA strict liability for child support
 State interest in parental support
 Both parents must support
 Privacy (don’t want to get into what was said in the bedroom)
 …
Unmarried Parents Rights
Stanley v. Illinois
 M and F live together on and off for 18 years, have 3 children. M dies, children
will be placed with the state. F argues due process and equal protection
violation, married parents and unwed Ms may not have children removed unless
unfit (children aren’t babies, married F will not be going through this)
o Court agrees – F is entitled to hearing
  Allowed to prove he’s a suitable custodian for the kids
 It was normal to presume F was not suitable if they weren’t
married
o Presumption that all unwed fathers are unfit is overbroad, state interest
not served if F is unfit


Michael H. v. Gerald D. SCT 1989

 Both were married, they cheated with each other and got pregnant – asks her to
divorce and marry him
 She says no, they move in, goes to another guy, comes back, then goes back to
her husband
o Michael wants some paternal rights – visitation
o Gerald/Carole say no – too problematic to interrupt in our married family
 Child is 3 – sees therapist & sees all three adults as parents
 Court has to decide whether he has rights to assert his paternity
o Arguments for the child (Victoria)
  There is a notion that children have the right to society with their
biological parent – some right to visitation with him or she won’t
get to know him
o Arguments for Gerald/Carole
 Argue it’s interfering with traditional family unit
 Yet their situation is not typical, she’s a supermodel flying
around the world
o Arguments for Michael
 He did assert his rights, did what court said he needed to do for his
rights to be recognized
 He just wants visitation – to be a father to his daughter
 He asked Carole to marry him and she wasn’t interested
 His rights should be recognized
 Why do we have presumptions?
 How many parents are allowed?

 1. Yes – child born to two married people

o Henry has to show what to rebutt? DNA testing
 o Can Peter come in and assert paternity under the Texas statute? He has 4
years or even longer if he can prove she hid it from him
9.9.20

History of Divorce
 Early Christian ideas, monogamy
 England – no divorce until 1850s
 US – North v. South, East v. West
o And difference over time
 Incidence of divorce
o Rising since after the civil war
o Some increases after wars, some decrease during the depression
 Took off in the 60s and 70s – why?
 People live longer – longer life expectancy
 Couples could choose their fertility – don’t have 15 children
anymore
 Personal fulfillment – what’s best for my family
 What is the state interest in marriage?
 Not the same interest it used to have
Six Stages of Divorce
1. Emotional
2. Legal
3. Economic
4. Co-parenting
5. Community
6. Psychic
 Different ways men and women see marriage
o Men see the couple. Women care about the community.
 Different types of marriage
o Traditional – most happy
o Operatic – not as happy, sort of happy, but not really
o Pursuer-distancer, someone’s pulling, someone’s running
o Disengaged
o Cohesive-individuated
 Conversations with Divorced People
o Some lawyers don’t listen, should ask “how do you want to handle this?”
 Find out what they really want
o Importance of calling someone back immediately
 Everything is a crisis for them, could create more emotional harm
  They appreciate a prompt reply
 Don’t get over committed to too many cases/people
o Didn’t like lady in the grey suit because she was whiny
 Her lawyer didn’t listen to her
 Didn’t feel like she got a fair deal
o Women were more gracious in describing the process and the marriage
itself
 The men seemed angrier with the situation and the process
o What can we do to make the divorce go better for the client?
 Put things in writing
 These are lay people – explain it to them simply
o So much easier when you don’t have kids
 People were happier when they feel like they have a say
 Fault Ground – Adultery
o TFC 6.003
o Issues are evidence and standard of proof
 Could use circumstantial evidence is ok, enough here to show
adultery – motive, opportunity
 Can throw in adultery when splitting up property
o Notes
 Most common reason for divorce (not necessarily most common
ground – no fault)
 Reactions/results from infidelity (whether the marriage recovers)
 Men v. women – men less likely to forgive physical cheating
 Length of marriage
 ?
 Fault – Cruelty
o Some state distinguish physical or mental
o Easiest to use before no fault if friendly divorce
 Examples
 Refusal or excessive demands for sex
 Refusal to speak
 Other Texas Fault Grounds
o Conviction of a Felony (prison at least one year)
o Abandonment (remain away at least one year)
o Confinement in a mental hospital (at least 3 years and unlikely to recover)
 All states went to No Fault
o Insupportability – conflict or discord destroys the legitimate ends of the
marital relationship and prevents reasonable expectation of reconciliation
  Living apart – no cohabitation for at least 3 years
 History of No Fault
o California in the 60s – concern about
 Rising divorce rate
 Acrimonious divorce
 Affect on children
 Made them poor and interfered with functioning and
development
 Separate the issues of fault and money
 Make it easier?
o Early challenges
 Interference with contract
 First amendment – freedom of religion
 Retroactive application
 Unilateral divorce
 Due process, equal protection
 Vagueness
o Change language
 Dissolution
 In re “Name”
 Maintenance
 If we get rid of the loaded terms, it’ll help people
o But people still know what these things are, doesn’t
help
o Some states mini no fault
 Marriage short duration
 No children, real property, support
 Limited debt
 Living Apart – Bennington – Ohio 1978
o H moves to van in driveway, but continues to help W
o Issues of living apart – court says no
 Most courts today would say yes
 How far apart is ok? What if separate bedrooms?
 Compare legal separation
o Not available in Texas
 Commone law – also known as divorce from bed and board
 Parties live separately, support perhaps, but not divorced
 Role of fault
 o Texas allows consideration of fault generally in property division in
divorce cases
o Texas also allows joinder of intentional infliction of emotional distress in
divorce cases
 Feltmeier – Ill 2003
o Shows states split on the issues
o Also policy concerns
 Preserve marital harmony
 Frivolous litigation
 Outrageous is an issue
 Statute of limitations (course of conduct or individual events?)
 Critique of no fault
o Note comments in early part of section re
o Men v. women and power
o Reduce acrimony?
o Reduce perjury?
o Public v. private consequences?
o Divorce too quick and easy?
 Does that say something about marriage?
o Some states move to covenant marriage option
 Limit divorce grounds
 Premarital counseling required
 Parties agree to work on marriage
 Not very popular – why?
 People don’t want to do premarital counseling
 Compare
o European system – lengthy waiting periods if not mutual
 Note TFC
 Waiting period – 60 days
 n/a in annulments or domestic violence
 counseling – court may require
 ADR
o Abritration allowed
o Court must determine the validity of the arbitration agreement
 Mediation
 Parties may agree or court may require (unless domestic
violence)
 May be binding if in writing, signed by parties and attorneys
and prominently indicates not subject to revocation
  Informal settlement conference
 Parties may agree
 Agreements may be binding
 Collaborative law
o Newly adopted in 2011 uniform act
 Title IA
 Definitions
 Collaborative family law participation agreement
o Writing required, signed by parties, intent, nature and
scope, identify lawyers, suspend court activity, agree
to hire neutral and shared experts
o Disqualification of lawyers and law firms
 If represent client in collaborative law proceedings, may not
represent before the tribunal
o Normal for a higher dollar client
 But still available to everyone
9.14.20
Divorce Jurisdiction
 Divisible Divorce
o divorce as to status
 court doesn’t have jurisdiction over both but only as to the
status…?
o divorce as to all other issues:
 property, support, children
 Marriage of Kimura Iowa 1991
o H and W married in Japan in 1965, separate in 1973.
o H moves to US in 1986, is a surgeon with permanent residency.
o Attempts divorce mediation in Japan, unable to complete 1988 files for
divorce in Iowa
 W is in Iowa, never been to Japan
 W objects Court reviews the concept and evolution of divisible
divorce
o Do we have jurisdiction over husband? YES
 Iowa just needs one year of good faith
 Domicile of H – what is domicile?
 Factors here
o Court says we can consider all of this, evidence, cost,
public policy, differences between japan and Iowa
divorce law
 o Maybe she’s better off in Japanese law – they don’t
have no fault for divorce
o Guess is that the divorce will affect their finances
o Also the stigma of divorce in japan?
 Residency requirement
 Sosna v. Iowa SCT
o 1975 H and W married in Michigan 1964, live in NY 67-71
o separate, W moves to Iowa, files for divorce one month later (Iowa
requires a year – they don’t want to be las Vegas, don’t want Iowa to be
the place where you go to get divorced)
 H contests due to one year residency requirement.
 Issue - Const to require one year residency?
 Held - yes
 Discussion
 right to travel
 prior cases - welfare, voting, medical care differences –
o state policy
 avoid divorce mill,
 let the state with interest litigate,
 minimize collateral attack
o court says: delay not deny
 Dissent
 penalty on travel harm to wait one year marriage and divorce right
- strict scrutiny
 Texas Family Code
o 6.301 Residency requirement 6 months in the state 90 days in the county
o 6.302 Non resident spouse may file for divorce
o 6.305 Long arm statute
 court may exercise jurisdiction over nonresident spouse if Texas
was the marital residence within the last 2 years.
o Review Full Faith and Credit Consider foreign divorces and Comity
 Comity -
o Domestic Relations Exception to Diversity J
 Ankenbrandt v. Richards US 1992
o W brings tort suit in federal court against out of state former H and his
female companion for abuse of their children.
o What is the exception?
 Federal courts do not have the power to issue divorce, alimony,
child support or custody decrees N/A to torts,
  so court may not deny jurisdiction on this basis
o Why do we have the exception?
 Court can’t deny on the basis of the family law – not everything
that touches a family is domestic relations – they have jurisdiction
over a tort
o Why would someone want to sue in federal court?
o Abstention doctrine - federal courts may refuse to hear civil cases where
important state policies or interests are at stake.
 Why do the federal courts not see family law?
o It’s state law – federal courts don’t like to use state law to decide
o They probably don’t want to handle family law
 They don’t have time – takes a certain expertise
o Diversity jurisdiction?
 Exception – domestic violence/family law
o Why would someone want to be in federal court?
 They’re appointed not elected
 But they seem to have better credentials
 Divorce Jurisdiction Questions
o 1. H and W marry in Texas, where they live for 10 years. They separate,
and H moves to New Mexico. W stays in Texas.
 Where can H file for divorce?
 H can file either in TX or NM depending on the jurisdiction
requirements
 Which state can adjudicate all issues in the divorce?
 TX – bc wife lives here and H lived there within the last two
years
o 2. H and W marry in Texas, where they live for 10 years. They separate, H
moves to New Mexico and W moves to Illinois. After a year –
 Where can H file for divorce? W?
 H can file either TX or NM, W TX or W, because they reside
somewhere new. H/W can submit to jurisdiction in the
other’s state.
 Which state can adjudicate all issues in the divorce?
 TX bc has jurisdiction over both parties
o 3. H and W marry in the State of Bliss. They travel outside of the US for
work, not having a permanent home in the US. They have driver’s licenses
in Bliss. They have their salaries deposited into a Bliss bank account. They
also have an investment account in Bliss. After 6 years of marriage, W files
 for divorce in Bliss. Does Bliss have jurisdiction to decide all issues in the
divorce?
 They have to be able to have lawsuits decided somewhere. Bliss is
the best of the options. Everything is in Bliss.
 BAR Question
o H’s jurisdiction consistent with personal jurisdiction.
o Long arm statute says if they had intercourse in that state & possible child
was conceived – the state can extend its jurisdiction
 Is this fair?
 Most states would say this is sufficient for custody,
paternity, and something else
 Is the K enforceable?
 No, you can’t contract away your obligations of child
support, or the rights of the child to paternity.
 Will father be able to get custody?
 Welfare of the child is the business of this state
 Must be in the best interest of the child – no. child has never
met dad and child is 14.
9.16.20
Chapter 7 – Financial Consequences of Dissolution
 Property Division
 Discuss unintended consequences of no fault
 General rules
o Historically
 Common Law – title theory
 Community Property – property to “community” – H and W
equally
 If you get a gift or inheritance – that is YOUR separate
property
o Modern Trend – equitable distribution
 But common law states
 Community property states
 Issues to Consider
o Role of fault
 Economic vs. other misconduct
o Role of need
o Role of non-economic contribution
 Housework, child care, household mgmt entertaining
o Marriage as partnership vs. marriage as status
  Texas view
o Presume equal, but may vary
o Just and right division
o May consider fault
 Generally in martial property 4 questions
o Is it property?
o Is it marital?
o Value
o How to divide

Ferguson Miss 1994

 H and W married 24 years, 2 children, W is homemaker and beautician, H is
repair tech for phone company
o W gets divorce – besides child support, custody
 Gets alimony (lump sum and periodic),
 All of home, contents, 4 acres,
 ½ pension and stock
 H appeals
o This case bc states are leaning more towards community property

 Alimony/Maintenance/spousal Support
 Issues/Theories
o Income sharing – partnership theory
o Need (very important)
o Reimbursement for lost opportunities
o Fault rehabilitation
o Expectations
o Contract – prenup or postnup

Texas – Alimony/Maintenance
 Expanded in 2011
o No alimony until 1995, then very limited, rehabilitative only
 8.051 Eligibility – may receive only if
o Spouse cannot meet reasonable needs and
 Family violence w/in 2 year
 Or while suit pending
 Or spouse incapacitated by disability
 Or married 10 years or more
 Or custodian of disabled child of the marriage
 8.052 Factors
o Financial resources
o Education, empt skills of both, training needed
o Duration of marriage
o Age, empt history, earning ability, physical and emotional condition
o Ability of other spouse to meet needs and pay economic fault
o Contribution to the education, training or
o Earning power of the other
o Prop brought into marriage
o Contribution as homemaker
o Marital misconduct of spouse seeking
o History or pattern of family violence
 Presumption
o Spouse seeking maintenance must seek empt
o Or develop skills to become self supporting
 Duration
o No more than 5 years
 If marriage less than 10 years and family violence
 Or if married 10-20 years
o Not more than 7 years if married 20-30 years
o Not more than 20 years if married 30 or more
o And minimal amount of time needed to earn enough income to meet
minimum reas needs unless
 Exceptions
 Disability
 Care of young child
 Another compelling
 Impediment
 Amount
o Lesser of $5000 or 20% avg mo gross income
o Defines gross income
 Termination
o Death of either party
o Remarriage of oblige
o Cohabitation with romantic partner
 Modification
o Material and substantial change in circumstances
o May not modify for spousal disability that arises after the divorce or
annulment
  Enforcement
o Contempt (but not beyond the time that the code would allow, even if
agreed between the parties)
 Other means to collect debt
 Affirmative defenses
 Lack of ability to pay
 No property to sell or pledge
 Unable to borrow
 Overpayment
o If obligor overpays, oblige must return money
 Available to a putative spouse
 Not available to unmarried cohabitants
 Income Withholding
o General
 Generally allowed,
 For contractual alimony, must be agreed by parties that
withholding is allowed
o Priority
 Current child support, current maintenance
 Child support arrears, spousal support srrears
 Arrearages
o May withhold for arrearages in addition to regular payments up to
(whichever is faster)
o Amount that will discharge arrears in 2 years or less
 20% of the current withholding
 Priority
o P
 Mac
o Less
o Th
o 50
 Procedures on withholding
o Rights
o Writ
o Modification

Mani v. Mani NJ 2005

 H and w meet, marry, work together in business for several years. W from a
wealthy family, has substantial income, parties live very well
 H and W retire, H has an affair, w files for divorce, H wants alimony
o Below, alimony of $610/week, based on
 Standard of living
 H’s ability to earn some money
o App Court affirms
 W’s father supplied funds
 H was at fault
 Issue – role of (financial) fault regarding alimony
o Here – consider fault only in the economic sense, did conduct affect the
economic wellbeing of the parties?
 Discussion
o History –
 Divorce from bed and board (separation)
 Civil divorce (very rare)
o Policy for alimony
 Breach of marriage contract
 Share of marriage partnership
 Damages for losses or forgone opps
 Reimbursement for contribution
 Deterrence, punishment of conduct
 Avoid public support of spouse
o List of factors in the statute
 Impliedly allows consideration of fault primary focus on financial
situation
o Court considers authorities, other states
 Economic vs. non-economic fault
  Issue of adultery but found that he did commit adultery
 1. Did trial court err in denying her request for greater share of the community
property?
o Is there economic injury? If we can link the adultery to economic injury,
that will help. But in Texas we are not limited to economic injury.
 2. Spousal maintenance issue?
o Yes, she has a relatively low earning capacity
o It’s a long term marriage, at this point she cant start over – but here in
Texas minimal needs to just be met, so maybe we need some more
information
9.21.20
Special Problems
Changing Circumstances
 Paul – Del 2012
o H and W divorce, H pays alimony
o Terminates is W regularly resides with someone
o W has gentleman friend
o H hires private investigator
o Friend stays with W 25 out of 37 nights
o H moves to terminate alimony
 Below – not regularly reside – not permanent or continuous
 Issue – what factors determine regularly reside
 Held – reverse and remand, look at factors
  Discussion -
o Lower court looked at independent lives, homes, free time activities,
o Here – look at whether they act like a couple that lives together – trash,
keys, etc.
 Notes
o Important difference between property division over time and alimony
o What is the role of sexual relations v roommate?
o Case – W becomes nun after divorce
 May H terminate alimony?
Bankruptcy
 Howard v. Howard (Ky 2011)
o Bankruptcy law provides that debts to a spouse or child under a divorce
decree are non-dischargeable.
 Here – H ordered to pay a lien on a truck. He fails to do so, files
bankruptcy. W is pursued by the lender for the loan on the truck.
o Under previous bankruptcy law, ex-spouse had to participate or object in
the bankruptcy proceeding to the discharge of a debt such as this
o New law does not require spouse to participate
o Thus, since order in a divorce decree, H must pay the debt (or in this case,
reimburse the W)
 Notes
 Some statutory reform in chapter 7 bankruptcies – not
dischargeable if support or other divorce related obligations
Family Home
 Often a major asset of the marriage
 If require sale, may harm children
o Today, often defer sale until children go to college
o Or award home as support, not property division or require pmnt of
mortgage (or part) as support

Pensions and Employee Benefits

 Bender (Conn 2001)
o H has worked as firefighter for 19 years, will be entitled to pension at 25
years, court awarded W ½ of pension to the time of divorce (may reduce
alimony if pension is received), not much property to divide otherwise
 Issues –
 Are unvested pension benefits property subject to division at
divorce?
 How should benefits be divided?
  Held – yes, trial court discretion
 Discussion –
 Consider precedent, other case
 What does a pension represent?
 Difference bet vested and unvested
 Expectancy or deferred compensation
o Value and distribution
 Present value (works best if current offset available, use other
property to offset pension)
 Delay distribution when pension matures, use a fractional amount
of the pension based on length of marriage, length of work service
 Reserve jurisdiction and make a division when the pension actually
matures
o Dissent
 Should not consider unvested pension benefits property, but
should consider in property division
o Note
 Compare this type of pension
 Defined benefit with
 Defined contribution plans
 Notes
o Widely recognized today that vested and unvested pensions are a form of
deferred compensation and may be divided at divorce
o ERISA – pre-empts state law
 Allows for QDROs to divide pensions
o Allows plan administrators to pay directly to spouses
 Later extends principle to other federal empees
 What about military pensions?
o Note COBRA medical coverage available to spouses for up to 36 months
after divorce or legal separation
 Problem – it’s expensive
 Future earnings – degree, license, goodwill
 Goodwill
o Consider professional v. commercial
 Henry’s puffy tacos?
o Marketable v. unmarketable
o Texas view – may divide commercial, not professional, may consider
value of professional in dividing other property
Degree, License, Earning Capacity
 In re marriage of Roberts
o Issue – whether H’s law degree may be considered to be marital property
at divorce
o Held – no
o Discussion
 Degrees do have qualities of property
 Amounts to a division of future earnings
 Reimbursement is allowed here
Notes and Discussion
 What are the qualities of property?
 Why don’t degrees or licenses fit?
 Compare with pensions and goodwill
o Majority and Texas does not allow division of degrees or licenses
o New York does allow division of licenses
o O’Brien case
 Most states do allow reimbursement for expense of education contributed by
spouse, Texas does not
 Consider
o Celebrity status
 Note case of Frederica von Stade Elkus
 Other well known cases in New York
 Marisa Berenson, Joe Piscopo


  How do you divide softshell?
o Community property in TX  Presumptively 50/50
 Does it matter she inherited $1M?
o Common law – maybe H should get a little more
 Look at earning capacity & age of the parties
 What if she has a boyfriend?
o Equitable distribution  If she’s cheating – maybe H should get a little
more
9.23.20
Child Support
Needs/Costs of children
 Children make up a large % of poor
 Costs – direct and indirect variables
o Number of children in family
o Two parent income
o Parent SES
o Also, birth intervals, age of mother
 % of family expenditures fairly consistent (of income)
o 1 child is 25-30%
o 2 children 37-45%
o 3 or more 50%
 % increase as children get older
o For one child
 26% age 0-6
 36% age 6-12
 38% age 12-18
Theories of Child Support
 Cost sharing
 Income sharing (what we have in the US)
 Income/household standard of living =
o Historically courts use discretion/list of factors
 Problem – inconsistent, tend to be too low
 Congress mandates guidelines in 1984 for AFDC Title IV
 Guideline types
o Income share model
 Child shares in the income of both parents
 Calculation
o Look at both parents’ incomes, calculate child
support, assign a share to each parent (most states)
 o Income % model (Texas, about 10 total)
 Looks at income of non-custodial parent, awards % to custodial
parent
o Melson formula (Delaware, 3 states)
 Complicated
 Determine minimum needs of child and parents, divide between
parents and children, then calculate % of each…
Texas guidelines
 Application of Guidelines to Net Resources
o Now up to $7500/mo (will go up for inflation) ($9000)
 1 child – 20%
 2 children – 25%
 3 children – 30%
 4 children – 35%
 5 or more children – 40%
 Other factors
o Court may consider other factors to vary from the guideline in 154.123 –
very extensive list
 Age, needs, possession and access, un- and under- employment,
alimony, school beyond high school, health care, travel, debts, cash
flow, etc.
o Parties may agree to other terms 154.124
 Court must find best interest
 Terms are not enforceable as contract, but as court order
o For wealthy parents 154.126
 May go over the child support guidelines, but not above the proven
needs of the child
 Problem
o Suppose
o F net income $4000/mo
o M net income of $2000/mo
 2 children ages 6 and 10
 Minimum needs of children are $2000/mo, and minimum needs of
each parent are $1500 each mo
 Find a way to figure out a proportional child support – F end
up paying $1250 a mo
 In a melson – she would give $500, he would pay $1500
o What is F net income of $8000/mo?
 Issues
 o What is net income?
o 154.062
 Includes wages, salary, dividends, commissions, tips, rental
income, retirement, trust, pensions, etc.
 Does not include:
 Some public benefits, return of capital, accounts receivable,
or property tax…
o Health Insurance
 Presume obligor will provide
 This is an addition to child support
 Court will render a medical support order
 Parent who can most reasonably (reasonable cost is no more than
9% of obligor’s resources, may divide cost between several
children) supply health insurance will be ordered to do so, then re-
allocate child support
o CHIP program – if child doesn’t have insurance
 Issue – they run out of money half way through the year
o Duties of Employers
 Disabled Child
o Parents may be required to support disabled child after 18th birthday (if
knowledge of disability prior to that time) 154.302
o Adult child may decide access to parents
o Child support may be paid to the other parent, or to a caretaker, or to
child him or herself
o Factors -
 Needs (directly related to disability), extent of disability, provision
of supervision and care, resources of parties, the child and other
resources
 Termination of child Support
o Marriage or emancipation of minor
o Death of child
o Child is 18 and no longer in secondary school
o Enlistment of child in armed forces
o Marriage or remarriage of parents (unless other conservator of child)
 Note – TX does not permit court order for higher education, although parents
may agree otherwise
o Partial termination (more than one child)
 Court should provide in order
 Should remain in compliance with guidelines
 o Child support obligation does not terminate on death of oblige
 May order to be paid to another person
o Child support obligation does not terminate on death of obligor
 Acceleration, may make claim with the estate
o Court may order life insurance policy on obligor’s life
 Retroactive Support may be allowed
o Factors
 Mother notify, identify father and establish paternity, father had
knowledge of probable paternity, financial hardship, actual support
provided
 Rebuttable presumption – that child support should not be more
than 4 years of what would have been due under the guidelines
 Statute of limitations – may not be filed more than 4 years of what
would have been due under the guidelines
 …
o Support is not conditioned on access
 New spouses’ resources or needs are not considered in determined
child support, or modification
 Intentional un or under employment
 …
 Children in multiple households
o 154.128 formula
 Total number of children, apply guidelines
 Divide the amount, compute a credit for those who are not before
the court
 Determine net resources by applying the credit
 Apply guideline for children before the court
 Or. Use the chart 154.129
 Problem 5-21.
o In TX? He can’t do that. Not how child support works.
 5-27.
o Court should not agree to this. Parent is trying to trade off lack of custody
for child support
 4-7.
o Look at the guidelines! If it’s too low, don’t take it, if it’s too high, will this
be sustainable?
 4-9.
o This is a case of intentional unemployment – court will say he needs to go
back to the job with higher income
9.28.20

Modification
 Material and substantial change in circumstances
 More than 3 years since award and more than 20% or more than $100 change in
what guidelines would require

Child Support Enforcement Amendments 1984, followed by Family Support Act 1988
 Mandatory wage withholding
 Employer responsibilities
 States must establish guidelines
 Permit withholding of tax refunds
 Liens
 Credit reporting
 Statute of limitations re-paternity 18+
Texas Enforcement Techniques
1. Criminal (not used frequently)
a. Can use criminal incentive in certain situations
b. Texas Penal Code 25.05
c. Federal Criminal Nonsupport – if they’re wasting away in jail, they’re not
supporting the child
Oakley
 Has nine kids with 4 different mothers, does not keep up with child support,
criminal charges because intentional court imposes probation, with condition
that he not have more children until child support paid
o Issue – constitutionality of condition
o Held – ok
o Discussion – could not procreate if in prison
 F can meet condition by attempts to support children
o Dissent – coerces abortion, creates a wealth based classification, and is
unworkable in a practical sense
2. Termination of Parental Rights
a. Failure to support for a year, requires ability
3. Judgment of arrears
a. Court may enter a $ judgment
b. May not reduce arrearages
i. (federal law prohibits retroactive modification or reduction of child
support payments)
ii. Interest at 6% accrues
 4. …
5. Liens
a. Required by federal law PRWORA 1996
i. Liens must arise by operation of law
ii. Liens in one state may be enforced in another
iii. Covers all propert of obligors – bank accounts, life insure policies,
personal property, tort remedies, etc
iv. All property except homestead
v. Also provides for levy or foreclosure
6. Withholding
a. Most common, not much litigated
b. Must be order if obligor is employed, although not required to be
delivered to employer if good cause or agmt
i. May also withhold extra for arrearages
c. …
7. Contempt
a. Criminal – punitive, definite sentence, fine to state, doing a forbidden act
b. Civil – coercive, incentive, may purge the contempt, fine to oblige, failure
to do a required act
8. Licenses
a. All types of licenses – drivers, professional, recreational, vehicle
registration – may petition for suspension
b. Must be 90 days in arrears

Defenses
 Statute of limitations
 Contempt 2 years after child becomes adult or when order terminates
 Confirm judgment for arrearages or cumulative money judgment 10 years after
child becomes an adult or when the order terminates
o Affirmative Defenses
 Actual possession and support of the child, oblige voluntarily
surrendered
 For contempt – actual inability to support, lack property to be sold,
mortgaged, attempted to borrow, no legal source to borrow
 Actual support paid (but not non-conforming payments)
Question 9

Interstate Enforcement
 Kulko US 1978
 H and W divorce ,W has visitation in Cal, H has custody in NY, during marriage
live in NY
 Later children move to Cal to live with W, W brings action to modify child
support and custody in Cal
o Issues – Juris over H?
o Held – no
o Below – Yes (h consent children moving CA)
o Discussion
 Sufficient connection to CA
 H did not have enough connection related to the matter?
 Reasonableness
 Not sufficient –
 H visited 2x to CA
 Paties married in CA
 H oermit children to visit 3 mos each year CA
o SCT goes further
 Not sufficient that H allowed daughter to move to CA, or that H
received a financial benefit when daughter moved
 H has no commercial connection, and fairness would lead to NY
court
 …
o The system is intended to provide efficiency
 Allows for standard forms
 Allows for electronic communications
 Allows for depos and testimony by phone
o Enforcement of out of state judgments
 Registration
 Direct notice to an employer for registration?
 Modification of out of state judgments
o Requires registration
 And none of the parties live in the state TFC
 Or parties agree on a record (above)
 One party may request modification if all are in different states, but
must “play an away game”
o Example
 Parties divorce in Texas, child support order entered. Mom and
child move to Iowa, Dad moves to Michigan. Mom wants to
modify child support.
  She may register the order in Iowa or Michigan for
enforcement.
 If she wants modification, she must go to Michigan. Iowa cannot be
modifying jurisdiction unless Dad would agree.
 Also note – if all parties move to the same state, that state
has authority
o Duty of party obtaining a modification to notify the original tribunal and
all interested tribunals – sanctions if fail to do so
 Question 12
o How long must I reside in TX before I can file for divorce in TX?
 6 mo in the state, 90 days in the county.
o How long must I wait before I can marry Samantha after the divorce?
 30 days
o Are the two key provisions of the premarital agreement enforceable?
 Child support provision is not enforceable – can do that in a prenup
 They can waive future support from each other
o If the court orders me to pay support for charley,
 For how long can the court require the payments to continue?
 Until he’s 18
 Once the court sets the amount of the payments, can that amount
be changed in the future?
 Can the support obligation to charley be discharged in bankruptcy?
o What else do I tell bob?
 You’ve still got to take care of your kids, even if you like your new
family better
 Question 2
o H and W married and lived in TX. 3 children. W makes $20k, court
ordered her to pay $10k.
o All kids in private school and youngest child has special medical
condition.
 Did court err in ordering $10k a mo?
 Yes, they can only order __% of her income for the 3
children…
o 30% with 3 children… of $9k?? (how much bc of
inflation)?
 Parties can agree to have the support added for private
school & the medical stuff
o We need findings to deviate from the norm – court
did not have any findings
  What options are available to Frank to collect Judy’s delinquent
child support payments?
 Criminal
 Termination of parental rights
 Judgment of arrears – “back support”
 Bond or security
 Liens – if she has any wealth
o 4mo is not a long time to miss payments
o Don’t want to suspend her law license bc then she
won’t be working
 Wage withholding – could attach a withholding to that
 Civil contempt
Chapter 7 Child Custody
 Two basic ideas about custody
o Should resolve issues in favor of
 Best interest of child
o Parents should be able to raise children free of government intrusion
 How do children differ from adults?
o In terms of psychology
 When you aren’t there, you don’t exist
 Kids see things differently than adults – adults make the decisions
o Less able to delay gratification
o More ego centric in outlook
 World revolves around them – think the divorce is their fault
o Do not necessarily see relationships in terms of blood ties, able to love
many adults
 Case with 3 adults raising them, kids can do this
o Need stability at least for the first several years
 TFC 153.001
o Policy – children have frequent and continuing contact with both parents,
have a safe and stable, nonviolent environment, and that both parents are
encouraged to share in the rights and duties of raising their child
 Policy of every state
 In terms of language – when im in TX, we don’t use custody we use
conservatorship
 The people who are visitors are possessory conservators
 History
o Child belongs to the father
 Children were a benefit bc they would work in the family business
 o Later, after Industrial Revolution, change ideas about children, become
more sentimental – why?
 Switch to “tender years” doctrine – children of tender years belong
with their mother – this would go way beyond breast feeding years
– later stricken as gender-based discrimination in many states
 But NOW kids can’t work in factories and they have to go to
school
 Used to think of them as little adults – but now we see them
differently
o Most states have gotten rid of “tender years” because
it favors mothers
 Prohibits discrimination on the basis of gender or marital status
 More modern trend are preferences
o Primary caretaker presumption – which parent was primary caretaker,
continue to provide stability for children (factors in determining primary
caretaker), mothers groups tend to favor
o Joint custody presumption – lots of varieties of this, tends to be favored by
fathers’ rights groups – is the modern trend
 Cases discuss constitutional issue
o Palmore v. Sidoti – SCT 1984
 H and W divorce, W has custody of three yr old child
 W remarries, new H is Black, father sues for modification
 Court holds violates equal protection
 Clear that trial court-based decision on race alone,
o Looked at issues such as embarrassment, social
pressure, stigma
o Did not look at other family present, other factors
o Sagar v. Sagar – Mass App 2003
 Parties disagree about the timing of a Hindu ritual for young child,
court refuses to interfere at this time, absent harm to child or
parental agreement.
 Fitness Factors – sexual orientation and conduct
o Fulk – Miss App 2002
 H and W divorce, H has custody, W has no income, unstable
(physical abuse & lost her job) relationship with another woman –
very limited visitation (1hr a week at mcdonalds)
 W appeals
 Court oks custody, rejects very limited visitation
 o Discusses issues of W’s same sex affair, H’s
“disturbing” incidents
 Notes – state have 3 approaches on sexual
orientation and unfitness – presume unfit
irrebuttably, presume unfit but rebuttable, or
nexus – show harm to child (majority view)
o Although instability in M’s life, doesn’t mean she
can’t see her child, particularly because the child is so
young
 Careers:
o Rowe v. Franklin – Ohio App 1995
 H and W divorce, W has custody, W moves to Ky, H petitions for
modification, courts oks, W appeals
 Here – court below in error
 Discussion – both parents fit, W airline pilot, enrolls in law
school, H unemployed
o Court in error on a few points – child’s adjustment,
links to community mother’s timetable, etc
 Notes
 Gender roles
o Was the trial court biased? What if dad was in mom’s
position? possibly
 Day care – step parent care
 Wealth
 Domestic violence:
o Consider domestic violence within the past 2 year
o No JMC if credible evidence of abuse, neglect, sexual abuse, of child or
abuse of other parent
 May consider family violence for visitation
 Rebuttable presumption not in best interest of child to have
unsupervised visitation if history or pattern of family
violence
 (issue of credible evidence, issue of pattern or history – may
use protective order history)
 Physical disability
o Most cases on issues of parents who becomes
 Paraplegic, quadriplegic, stroke, epileptic, deaf, blind, etc.
 Look at how old the child is
  How is the parent handling their disability – how does it
affect everyone
 How long have they had this disability
 Is there a danger to the child?
 Some TFC provisions
o Court must appoint at least one managing conservator, may appoint one
or more possessory conservators
 Agreed parenting plan
 Parties may agree on parenting plan, but court must find in
child’s best interest and if approved, it is enforced as a
judgment, not a contract
o Parties may agree to binding arbitration, court or parties may go to
binding mediation
 Should not order mediation if family violence history
 Collaborative law allowed if parties and attorneys agree
 Previously child over 12 could designate primary custodian
with the court
o Why repeal?
 …
 Parenting Plans
o Parenting Coordinator
 In general counselors, they’re confidential!
 Submit reports, but only on whether they should keep working or
not
o Facilitator is not confidential
 More of a monitor – can report to court what’s going on
 Who’s complying and who isn’t
 Question 7
o Child support
o The parents have a semi violent relationship – domestic violent
background
 Karen seeks sole managing conservatorship
 In general, the court may not order joint custody with parties with
domestic violence history
 Look for best interest of the child
 Question 11
o Court says “daughter is very young” – gave conservatorship to mom
 Didn’t consider that father took care of her even though he doesn’t
have a lot of money
  Court is making a preference for the mother for a young child – this
is the tender years doctrine – impermissible
 Father has been the primary caretaker, no harm has been
done
 Custody Intact Family Question
o Disagree how to raise a child, then get a divorce
o M religious – contribute half of savings to group, refrain from “frivolous”
activities, forgo conventional medical treatments
10.7.20
 Joint Custody
o Bell v. Bell – Alaska 1990
 H and W cooperate and alternate custody weekly with child. Court
later awards W sole custody because parents cannot work together.
They did cooperate on all issues except day care.
 Court here reverses and remands, since court in error that parties
could not cooperate.
 Appellate court says should award custody bc they do agree
usually, just this one thing.
o Different types
o Physical v. legal
o Short v. long term
o Free access or by agreement
 States vary
 Court option
 Presumption – joint custody
 …
o Pros of joint physical custody
 Continued contact with both parents
 Evens out pressure on both parents children do not have to choose
 Always some conflict, no better or worse
 May help with support and involvement
 May reduce litigation
o Cons of joint physical custody
 Parents must be more cooperative
 More to fight about
 Less stable for children, particularly young
 Compromise by courts?
 Less final
 Not necessarily in child’s best interest
  Custody blackmail
 One would say I would go for joint if I don’t have to pay
child support
 Courts want both parents to support and be present
o Parenting plan for JMC
 Parties mat agree to JMC and file a parenting plan with the court
 Must designate primary residence conservator
 Geographic limits, if any
o If one moves, redo parenting plan
 Rights and duties of parties
 Minimize disruption to childs life
 Best interest of child
 If court enters, enforce as a judgment, not a contract
o Court Ordered JMC
 Court may order, if in best interest – presumption – even if parties
don’t agree
 Consider factors
o Needs of child
o Parents ability to put child first
o Parents encourage positive relationship with the other
parent
o Both parties participate in rearing child
o Geographic proximity
o Child preference for child 12 year plus
 Contents similar to agreed order re:
 Primary residence, geographic limits,
minimize disruption, etc.
 If parties do not agree, …
o Standard Possession Order
 Generally two versions, one for parents who live 100 miles apart or
less, and one for parents who live 100 miles apart or more
 Parents who live less than 100 mi apart every other
weekend. Fri at 6pm to sun at 6pm
o Thursdays 6-8, except on possession weekends, from
Thursday 6pm to sun 6pm
 Alternate spring break
 30 days in summer
o No more than 2 blocks
o At least 7 days in a block,
 o Other parent may visit on weekend
 Other parent may reserve some days
o …
o Other visitation issues
 Abuse and neglect
 Hanke – Md. App 1992
o Parties divorce, M has custody. Father committed
sexual and physical abuse of step daughter (age 11).
o Trial court eventually awards F unsupervised
visitation, unsupervised overnight visitation and
custody (on hold) of 4-year-old child
 M moves to Ky, does not cooperate with
visitation, trial court annoyed.
o On appeal – clear error to give F custody and
unsupervised visitation given the history
o TFC 153.004
 Court may not have access if family violence within 2 years unless
 Would not endanger child, in best interest and may impose
conditions
o Supervision
o Exchange of child in protected setting
o No alcohol or drugs
o Treatment program
 Rebuttable presumption that unsupervised visitation is not
in the best interest of the child if previous or present history
of child neglect or physical or sexual abuse of child, parent
or spouse
o Visitation Issue – payment of child support
 Turner – Tenn App 1995
 Parties divorce, high conflict post divorce
 F is behind in child support, requests reduction, maintains is
unable to pay
o Also some conflict re harassment, etc.
o Court cuts off F’s visitation rights until child support
paid
 Held – cant do this!! Impermissible
o Visitation is not designed to be punitive or
conditioned on the payment of child support
 o No evidence that the children are better off without
visitation until child support is paid
o Question 11
 History of abuse
 H says he was laid off but employer has record of resignation
where he used to make $20
 Err in intentionally underemployed?
o Yes
 Err in sole conservatorship to mom?
o No
 She gave 3 specific examples, serious enough
to merit making the mother sole conservator
 H should still be able to visit
 Not her fault the police report isn’t specific
10.14.20
Non-parent visitation and custody
 Grandparents
o Troxel v. Granville – US 2000
 M and F live together, do not marry. They have two children,
separate, F lives with his parents. He has weekend visitation,
children spend weekends with him, his parents, and with aunts,
uncles, cousins in the area.
 F commits suicide, visits continue, M remarries, tries to form new
family (new H has 2 children, she has 3 from previous marriage,
the two with this relationship and she and new H have a child).
 M want to limit grandparernt visitation, perhaps one
afternoon a month.
o Trial court awards visitation – one weekend per
month, one week in summer
 Discussion – plurality
 Do we elevate parental rights over other parties? Yes
 Parents have a fundamental right to raise children free of
govt interference
o Should give deference to parents
o Should presume that parents act in the best interest of
children
o This is a mere disagreement between the parent and
the grandparents on what is the best interest of the
children
 o No particular consideration given to M’s opinion,
should be more imp than gparents
 Thus, state statute is unconst in way it was
applied to M
 2 concurring opinions agree statute unconst
 Dissent
o Court is not considering the child’s interest as a
separate and important interest, similar to Michael H
v Gerald D
o They’re assuming the child’s interest is the same as
the M and they’re wrong.
o Beth R v. donna M
 Parties are lesbian couple live together, π works, ∆ artificially
inseminated, has 2 children.
 Parties go to Canada to marry and have a ceremony, send
birth announcements as a couple, live with, held out as a
family, gave children π’s last name
 Π place ∆ and children on health insurance, act as parents
together
 ∆ wants to end marriage,
o Held – π may have rights
o Discussion
 Compare Alison D v. Virginia M
 Did not allow visitation
 Equitable estoppel defense
 Holding out, accepting health insurance
 Marriage
 2 trips to Canada, 2 marriage licenses,
finally accomplished
 Best interest of the child
o Note
 Concept today of “second parent”
 Here, she should’ve adopted the
children but it may not have been
possible at the time
 Texas Law – Grandparents
o Only has standing if parent is
 Incompetent
 Dead
  Incarcerated
 Doesn’t have access bc of abuse/neglect
o Grandparents may not request access if – could seek custody or adoption
 Both biological parents are
 Dead
 Have had rights terminated
 Have waived their rights; or
 Child has been adopted (other than step parent)

10.19.20
 Family Law Armageddon
o What made the situation worse besides the environment?
 The media portrayal – they jumped on this
 Everyone knew who she was – because of all the publicity
 Her father – made things worse
 He initially insisted the child was being abused
 On the other hand – if the child was being abused & the
judge was so insistent on overnight visits with the dad –
then his reaction wasn’t far off
o He was suspicious
 His constant lawsuits had the reverse effect – people thought worse
of him than better
o What factors could’ve been avoided to prevent trauma in the kids
 Court didn’t take into consideration the guardian ad litem – the
best interest of the child should be considered
 The mom was real sexist – that the daughter shouldn’t be apart
from the mom overnight until she was 5
 Child Abuse and Neglect
o Factors
o Privacy
o Predisposition of parent (family history neglect or abuse)
o Crisis/stress in the family
o Lack of support/resources in the family
o Child is perceived as a problem
o History
 Mary Ellen McCormack – 1874 – NYSCPCC
 (based on the concepts of the SPCA)
10.28.20
 CPS Problem
 o Nurse & psychologist have to report or they could lose their license
o Grandmother could possibly have standing – physical visible injuries
 Temination of Parental Rights
o Standard of Proof
 Santosky v. Kramer US 1982
 NY Law permitted termination of parental rights by
preponderance of the evidence standard  after this case it
is not clear and convincing
 Discussion
o Interest of parents
o Risk of error – worried about poverty
 Dissent – are we not weighing the parents’ rights over the
child’s?
o Parents right to counsel
 Lassiter SCT 1981
 Held that parents are not entitled to court appointed counsel
in all termination proceedings
o The court balanced all three interests
 Private
 Govt
 …?
o TFC
 Termination can arise in different contexts
 Parent v. parent (usually step parent adopt)
 Parent v. other relatives (unfitness)
 Parent v. adoption agency (usually agree, to facilitate
adoption)
 Parent v. state (abuse or neglect)
 H abandonment before birth/abandon mother, no support since
birth
 IJ parental punishment – failure to follow court orders, keep child
in school, assist in runaway
 Not used much
 K voluntary affidavit
 …
 N O constructive abandonment after placement with DFPS and
failure to visit, or show able to care for child, or follow orders
regarding return to MC
 P use of controlled substance in manner than endangers the child
  Q confinement in prison more than 2 years
 R cause child to be born addicted to alcohol or controlled substance
 T murder, attempted murder or solicitation to murder
 And in the best interest of the child
 Termination of Biological Father Rights
o Failure to respond after being served
o Failure to register in paternity registry and/or cannot be found by due
diligence
o Registered with paternity registry, but cannot be found with due diligence
 Termination: inability to care for child
o Parents with mental or emotional problems
o No culpability of parent is required
o DFPS must make reasonable efforts to return child to parent
 Termination – policy result of sexual assault, may terminate
parental rights of the person committing the assault
 …
 Affidavit of Waiver of Interest – usually in adoption situation
o …
 Ad Litem and others TFC 107
o Ad Litem – court appointed attorney
o AAL – attorney to represent the child
 (mandatory in government termination cases)
o GAL – may be non-attorney CASA volunteer, or other non-attorney
professional (mandatory in government termination cases)
o Court will not appoint 2 attorneys, GAL attorney and a AAL attorney, one
attorney may serve in the dual role, or an attorney can be a CASA
volunteer, but not action as a lawyer

11.2.20
 Who may adopt?
o Any single or married adult may adopt
 Children with both parents rights terminated
 Children with one parent rights terminated and the other parent is
married to the adopting parent (step parent adoption)
 Children who are in the care custody and control of a former step
parent for
 6 mo if non-terminated parent consents
 12mo if non-terminated parent does not consent
 Consents (distinct from termination)
 Look at the recording…