Family Law Notes

Marianne E Dutton

I. Answer II. Legal Explanation 1. Issue 2. Law (Herein Are the Relevant Rules of Law and More Including Statutory Interpretation) 3. Application (of Law to Facts) 4. Purpose (, Principle, and/or Policy) 5. Analogy (to at Least Two Cases from the Reading Assignments) 6. Conclusion (A Very Brief Summary of the Essence of the Legal Argument) Course Themes y Tension b/w private ordering and state supervision of family life y Focus on larger context in which family law matters arise y Gender issues y Growing importance on ConLaw in family matters State Laws Increasing Uniformity

Uniform laws: Examples y Uniform Marriage and Divorce Act (UMDA) o Adopted in WA y Uniform Child Custody Jurisdiction Act (UCCIA) y Uniform Child Custody Jurisdiction Enforcement Act (UCCIEA) y ALI Principles of the Law of Family Dissolution y Federal Laws: Example o Parental Kidnapping Prevention Act Family Law Changes over the years in response to major social shifts y More divorce y More same sex parents y More kids out of wedlock y More women working y Contraception/privacy laws y More cohabitation Legal effects/reasons for marriage y Torts
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Family Law Notes

Marianne E Dutton

y y y y y y

o Can bring tort suit for wrongful death Trust and estates Survivor benefits Insurance Hospital visitation Spousal support Homestead rights

When to use different analysis for fact pattern y Substantive DP o If the law burdens all equally in exercise of specific rights y EP o If law distinguishes b/w who may and may not exercise a right y Note: rational basis isn¶t used for fundamental rights o Rational means there is no conceivable way the legislature could have found a law to fit a certain objective y Economic legislation is generally upheld under RBR Standards of Analysis A. Standards of Analysis 1. Strict Scrutiny i. Ends ± Government Objective Involved a. Compelling ii. Means ± Relationship Between Ends and How Ends are Accomplished a. Necessary b. Narrowly Tailored iii. Examples a. Race b. Religion c. Ethnicity 2. Intermediate Scrutiny i. Ends ± Government Objective Involved a. Important ii. Means ± Relationship Between Ends and How Ends are Accomplished a. Substantially Related iii. Examples a. Gender

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Family Law Notes

Marianne E Dutton

3. Rational Relationship i. Ends ± Government Objective Involved a. Legitimate or Permissible ii. Means ± Relationship Between Ends and How Ends are Accomplished a. Rationally or Conceivably Related iii. Examples a. Familial Status b. Age c. Disability d. Sexual Orientation e. Wealth

I. What is a family? Baker v State 1999 Vermont pg 10 Same sex marriage or civil unions required by state constitution Held y Vermont legislature was ordered to either allow same-sex marriages, or implement an alternative legal mechanism according similar rights. In 2000, the Legislature complied by instituting civil unions for samesex couples. Issue y Does denying a marriage license violate state constitution? YES y Question is whether prohibition of same-sex marriage amounts to denial of common benefits. y Facts y Three same-sex couples who applied for and were denied marriage licenses y Vermont Constitution¶s Common Benefits Clause Braschi v Stahl Associates Company 1989 pg 15 Defining family for meretricious relationship Held

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living and cooking together as a single housekeeping unit. she dies. fraternity houses. her name was on lease. adoption.Family Law Notes Marianne E Dutton y A lifetime partner is a family member in the context of a long-term relationship characterized by emotional & financial interdependence. Penopscott Area Housing Development v City of Brewer Retarded group home not okay (conflicts with next case) Held 4 . A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood. or multipledwelling houses. Issue y Is the ordinance defining a family constitutional? YES Facts y An ordinance restricted land use to one-family dwellings excluding lodging houses. or marriage. Perhaps same sex legislation would help. or marriage shall be deemed to constitute a family. boarding houses. exclusive of household servants. landlord wants to evict b/c he is just a µlicensee¶ Village of Belle Terre v Boraas USSC 1974 pg 28 Groups living together are NOT a family here by ordinance Held y Upheld the constitutionality of a residential zoning ordinance that limited the number of unrelated individuals who may inhabit a dwelling. y Factors in assessing the relationship o The exclusivity & longevity of the relationship o The level of emotional & financial commitment o How the parties hold themselves out to society Problems here y Serious proof problems deciding if there is a family. like keeping the rent controlled apt after one of them dies? YES Facts y Couple lived together in rent controlled apartment. The ordinance defined family as: o One or more persons related by blood. Issue y Is a meretricious couple allowed any of the rights of a married couple. adoption.

staff would do that. Rationale y The students often ate meals together or in small groups. and they intended to remain in the house as tenants as long as they were enrolled at Glassboro State College.Family Law Notes Marianne E Dutton y Ct. -State Interests: they wanted a low-density area. Facts y Planning to stay there for 4 years (the ordinance was looking for predictability) y Stable. history of oppression. Borough of Glassboro v Vallorosi 1990 pg 34 College Group Home okay b/c 4 yr commitment: predictability Held y Ten unrelated college students sharing a home satisfied a zoning requirement limiting occupancy to families because their occupancy was characterized by "stability" and "permanency" and could be described as the "functional equivalent of a family. Should have tried: y Show a suspect class by showing immutability (eg retardation. they maintained a common checking account from which costs of food and other household expenses were paid. rotating staff. -No perm resident/control when they would come & go. permanent authority figure for unrelated groups y Statement of purpose by the town in the statute was to confine the students in certain areas Griswold v CT 1965 USSC Right to Privacy (first case to recognize as part of the penumbra of rights) 5 . they cooked for each other. race) y Show a history of political powerlessness. -No indiv cooking. determined that the home wouldn't create a traditional family setting. -No central figure. they shared a telephone. single families. they shared the household chores. show the class is discrete Facts y Board from city disapproved & rejected an application for a retarded adult home b/c they wouldn't meet the definition of a family or its equivalent. grocery shopping and yard work. The group-home would be in contrast w/this policy/goal.

makes people more aware and may affect perceptions y Channeling o Creating social institutions. give them incentives. equal rights amendment symbolic statement about relationships b/w men and women. what was CA¶s channeling function when they created the no fault divorce act Schneider Examples (trying to put himself in the position of the legislature) y Normative Characteristics of Marriage o Monogamous.Family Law Notes Marianne E Dutton Held y Supreme Court struck down a law barring the use of contraceptives by married couples Lawrence v Texas 2003 pg 243 Struck down sodomy laws Overruled Bowers v Hardwick Held y A Texas law classifying homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th amendment Schneider. align with good policy that serves desirable ends o Not required that people use them but it is there presence should make them desirable to use o E.g. as voice in which citizens may speak to alter behavior of people  E. The Channeling Function in Family Law pg47 5 Functions of Family Law y Protect citizens from harms done to them by other citizens y Facilitative o Give legal effect to private living arrangements y Arbitral (resolve disputes) y Expressive o Law imparts ideas thru words and symbols. rest on love o H andd W treat each other fairly eetc 6 . permanent.g. so by passing this law. or raising the idea of it. heterosexual.

fault remains factor in awarding spousal support of dividing marital property o Guilty party likely to get less marital property than innocent  Disfavored by ALI. why do we have to learn about fault grounds? y In majority of states. adultery Ask: Is Schneider right? Do these sort of created institutions benefit society better than a free form private ordering system II. adultery etc  Restrict divorce to get kid raised b both  Penalize neglect and abuse How is Channeling Accomplished? y Recognize and endorse institutions o Eg regulated entry and exit to institution y Reward participation in that institution o Eg marital tax deduction o Disfavor competing institutions o Sodomy. prohibit polygamy. homo« y Normative Characteristics of Parenthood o List on slide o HOW? Framework of laws molding and promoting parenthood  Criminalize fornication. but consideration of economic fault ok y Family law in transition o Some fault still serves legitimate role in some aspects of dissolution o Others. no fault are enacted as alternative. cohabitation. incest.Family Law Notes Marianne E Dutton o Should be animated by mutual concern and willing to sacrifice for each other o HOW? Setting a framework of rules  Marriage entry. prostitution. DIVORCE pg 357 If all states have no fault divorce. not replacement to fault grounds y In many states. bigamy. no fault with add¶l safeguards for dept spouses and children Historical Perspective: Terminology 7 .

Evid. The husband claims the wife has verbally abused him for their not having a female child. the husband files for divorce. it may make Mr. Cruelty y 28 states recognize y aka µindignities to person¶ y Traditionally: successive acts of bad treatment over extended period of time o One single act of physical cruelty is not usually enough evidence for divorce unless uber severe y Essentially conduct by one spouse that makes continued cohabitation intolerable Benscoter v Benscoter 1963 pg 359 Cruelty: fault based Held y Just because a spouse is sick is not a ground for divorce.S. The wife has M. Facts y After 20 years of marriage. y Possibility of reconciliation. 8 . Is this a good rule? y It gives Mrs. marriage is in sick and health y The wife's verbal abuse was sporadic & didn't constitute a course of conduct. shows that it is likely the husband is having an affair. they have to remain married y Gives language legal vocabulary for what were essentially moral judgments about marital conduct Fault Based Approaches 1.Family Law Notes Marianne E Dutton y Get from slide Fault Based Approaches Facts y Requires guilty and innocent party y Only innocent party can get a divorce y If both parties are guilty. Benscoter stay w/the wife. if he really wants to leave. Benscoter leverage to get a better financial deal from husband. y Some people will obey the law.

Desertion Crosby v Crosby 1983 pg 363 Held y The law is unconstitutional b/c it violates EP for women.Family Law Notes Marianne E Dutton Hughes v Hughes 1976 pg 360 Cruelty Held y Wife gets a divorce on ground of cruelty. A disposition on the part of the defendant & the paramour to commit adultery and. Adultery To prove adultery. Arnoult v Arnoult 1997 pg 361 Held y Until marriage is terminated. An opportunity to commit the offense. the circdumstantial evidence must clearly establish: a. o He threatened her. b. o He habitually treated her coldly. y Not as strict as Benscoter Facts y Wife wants a divorce on the grounds that: o Husband threw her out of the house. so they didn¶t look at the fault issue here Facts y Voluntary separation by one spouse from the other with the intent not to resume cohabitation without justification or consent from other spouse 9 . separated. adultery can still be committed Facts y H and W married 30 years. then adultery y Can still be raised even when parties are living apart b/c they are still married y Can prove adultery by circumstantial evidence 3. 2.

only awarded to the innocent spouse w/clean hands. Connivance y When one souse procures or consents to the other spouse¶s commission of marital fault o Innocent spouse petitions for fault based divorce o Party allegedly at fault may defend conduct  Asserts that he would never have acted without« 10 . 2. no divorce Held y The ct.Family Law Notes Marianne E Dutton y But. would not do Hs laundry. meals etc Defenses in Fault Based Divorce (not applicable for no-fault) y Fault grounds must be proven by the innocent party y Guilty dspouse will defend and said it was condoned. Recrimination Defense (Clean Hands Doctrine) y If both spouses are guilty of marital misconduct. SOL). Facts y The husband alleges the wife tired to run him over. recrimination. The wife alleged the husband beat her up. cleaning. connived. no divorce. Traditional Principle y Divorce is a privilege. Since they are both at fault. or collusion raised by court 1. didn¶t complain in timely manner (laches. state laws requiring a woman to move wherever the husband chooses to live violate the gender equality aspect of the EPC Constructive desertion y Acts that fall short of physically leaving marital home o 1992 VA case found constructive desertion y Ws willful withdrawal of sex w/o just cause. denied them a divorce. then any fault based divorce action must be dismissed y Divorce can only be granted to innocent spouse Rankin v Rankin 1956 pg 364 Clean Hands Doctrine: Both at fault.

11 . y For men. The husband sues for divorce on ground of cruelty. The husband left the house several times at night to facilitate the adultery.Family Law Notes Marianne E Dutton Sargent v Sargent 1920 pg 367 Connivance defense Held y No divorce. Condonation Defense y If you know about the spouses affair and keep living with them you can say that the adultery was condoned and is no longer an adequate reason for divorce y If they do it again. y The husband: she made me sleep with her. y Condonation=sex forgives all fault. no divorce granted  Connivance defense successfully raised 3. sex is always voluntary. Facts y The wife beat the husband to get him to have sex w/her. Facts y The husband wants a divorce on the ground that the wife was sleeping with the chauffeur. Racist overtones thru case  Court recognized connivance and said if H sees what a reasonable man would not permit to avoid the danger. then he implicitly consented. it is revived y Can be express or implied y Spouse is essentially on temporary probation Willan v Willan 1960 pg 368 Held y No divorce. y The wife's defense: the husband accepted by behavior by sleeping with me. which is a fault ground for divorce. y A spouse may not participate in a course of conduct leading the other spouse to commit an act. Accepts the wife's defense of condonation. The husband failed to "protect" his wife by firing the chauffeur.

describe what the original supports of no fault reform intended to accomplish o They hoped this would reduce the incidence of divorce o Pg 378 CA legislation y Uniform Marriage and Divorce Act pg 370 y UMDA § 302 (pg 379) o Jxn requires domicile 12 . the state is removing channeling function o Might provide for more amicable divorces No-fault Divorce articles y Looking at the Governor¶s Commission report and the Kay article. Now. No-Fault Divorce Hypo for Discussion y Does no fault divorce commit the spouses (a policy of state neutrality) undermined the idea that justice is done in divorce cases? Has law let them down? o By not allowing fault when one spouse does something awful. Collusion Defense y When both parties collude to bring about a bad act upon which one of them will bring a petition for divorce y Court denies b/c no innocent party y One motivation for no fault divorce Fuchs v Fuchs 1946 pg 370 Reopened divorce due to collusion Held y Due to collusion.Family Law Notes Marianne E Dutton 4. Facts y The wife charges the husband w/adultery. This affects financial matters later. the divorce is reopened. y A default judgment is entered against the wife & the couple is divorced. But. the wife dropped her complaint because the husband agreed to give her child custody. The husband counterclaimed against the wife for adultery. the wife seeks to reopen the divorce due to collusion.

Kenik 1989 Living together can still be separate and apart Held y Living separate and apart could occur even when parties still occupied same residence. precommittment theory. impervious to no-fault divorce (Defonzo excerpt.Family Law Notes Marianne E Dutton o Marriage must be irretrievable broken (IB)  180 days living apart OR  Serious marital discord adversely affecting attitude of one or both o If one party denies IB  Court looks at all relevant factors. Contractual Divorce pg 381 State sanctioned prenuptial contracts. including circumstances of filing and prospects of reconciliation y Can make finding of IB or continue for hearing with counseling recommendation or order conciliation conferences y IB finding = no reasonable prospect of reconciliation Adjudicating No fault Divorce In re Marriage of Dennis D. Diosdado) y Covenant marriage adopted in three states y Agree in advance to reasonable steps to preserve marriage if difficulties arise y Restricts your way out 13 . Massar. court also ruled that case can be bifurcated when wife becomes pregnant by paramour during pendency of case Facts y Parties have to be living separate and apart y Court construes that provision to mean that the parties lead separate lives even if they living in the same dwelling y This is a UMDA case.

you can contract divorce. fidelity is wholly irrelevant and inadmissible except in child custody proceedings y The no-fault statute is an absolute bar against this kind of contract Facts y Five years after marriage. provided fair and equitable  If unconscionable. yes. felony. but you can¶t add law to a no fault state. fraud.Family Law Notes Marianne E Dutton o o o o o Mandatory premarital counseling Sign covenant Legal obligation to take these steps Must live apart 2 years for no fault. or Fault (adultery. contrary to public policy b/c under CA no-fault divorce statute. overreaching by party in power may set aside Diosdado v Diosdado 2002 pg391 VAPP: Contract failed b/c against state no-fault statute Held y Court refused to uphold the liquidated damages clause b/c it penalized adultery. W found out H having affair y The separated and got back together and signed contract y Contract: Obligation to Fidelity y Liquidated damages for breach of fidelity etc y Whoever cheats has to leave the house and pay 50K in addition to regular support These two cases together show that. so this is contrary to CA¶s public policy 14 . abandonment. abuses) Massar v Massar 1995 pg 388 Contract upheld Held y Agreement to seek no-fault divorce is enforceable Facts y W waves any claim against H in any action of divorce except no-fault based on living apart 2 years (basically they are waiving the fault claim) o Not executed under duress o Represented by an atty o Public policy doesn¶t prohibit.

extreme and outrageous. Whether cause of action (COA) for abuse can be brought in divorce action y W amends divorce petition to assert claim for IED o Doesn¶t specify whether intentional IED or NIED o TX supreme court held on same day of issued opinion that no COA for NIED o Standard for intentional torts  Intentional.000 for negligent infliction of emotional distress. Sheila Twyman won $15. y Recognized IIED tort y Holds o IIED May be brought by spouse in context of divorce action o Judge must make sure that prop award influenced by a finding of fault is not enhanced by recovery in tort for the same misconduct Policy Discussion re Spousal Emotional Abuse as a Tort pg 403 15 . even after she told him she was uncomfortable with such activities because she had been raped a knifepoint before their marriage. as the NIED is not recognized in the state of Texas. y However. y When the tort action is brought in a divorce proceeding. y Her husband William tried to emotionally coerce his wife into engaging in sadomasochistic bondage activities with her. the Court expressly adopts the tort of intentional infliction of emotional distress and that the tort can be asserted in a divorce proceeding. a spouse cannot recover both tort damages and a disproportionate division of the community estate based on the same conduct.Family Law Notes Marianne E Dutton Tort Claims Cases NOTE: all states: inter-spousal tort recovery eliminated Twyman v Twyman 1993 pg 393 IIED can be asserted in divorce proceeding. ED severe. Issue y Can IIED be grounds for a divorce? YES Facts y In her divorce settlement. reckless. but can¶t recover twice Held y Trial court erred in ruling that a wife can collect for negligent infliction of emotional distress in a divorce proceeding.

Facts y H refuses to provide a µGet¶ in the orthodox jew religion (a bill of divorce that H gives W to allow her to marry again) y He wants to reconcile." as such order would violate husband's right to free exercise of religion. No balancing necessary o Ordered to attempt to amicable resolve differences  Can bargain for consent or refusal to consent to Get or to W consent or refusal to appear before the Beth Din for reconciliation To What Extent Can States Regulate Access to Divorce Bodie v Connecticut 1971 pg 415 Can¶t restrict divorce by ability to pay Issue y Whether the state may impose fees and costs as a precondition to entertaining divorce suits Held: y In view of the basic position of the marriage relationship in our society and the state monopolization of the means for dissolving that 16 .Family Law Notes Marianne E Dutton Religious Restrictions on Divorce Aflalo v Aflala 1996 pg 408 Can¶t compel a religious divorce proceeding Held y Wife seeking dissolution of marriage was not entitled to order compelling husband to grant wife Jewish bill of divorce known as "get. but doesn¶t prohibit bit religious conduct o Law must also have a secular purpose o Then balance competing state and religious interests o Here relief violates the threshold test. he¶ll agree if tribunal (Beth Din) tells him to y Can an order of dissolution be entered which would impact the wife securing a Jewish divorce y Court said they can¶t order the H to agree to a Jewish divorce b/c it violates 1A of free exercise clause (410) o Prohibits gvt reg of religion.

seek judicial dissolution of their marriage Level of scrutiny applied (417) y Under DP 14th. due process of law prohibits a State from denying. b/c the state reqs do cause the costs Sosna v Iowa 1975 pg 418 Durational residency requirements for divorce In all states. The practical effect is the same as Boddie. if W wants legal enforcement. in good faith.Family Law Notes Marianne E Dutton relationship. must have the money. Could argue yes and say only real justice can occur if you have access to the courts. solely because of inability to pay court fees and costs. range from 6 weeks to 2 years Held y Upheld residency requirements for divorce y Appears to be RBR (µIA doesn¶t want to be a divorce mill¶) y But if there is a FR to divorce. but maybe higher (look at language in opinion) Facts y CT state provision under challenge o Parties bringing divorce action pay $60  45 to clerk. among others Is State imposing the cost? Could argue no. State has important interest in regulating the terms on which divorces are granted. 15 to serve D Plaintiffs y Woman who are welfare recipients in CT on behalf of thesmelves and others similarly situation y Since state court is their only avenue for divorce. access to its courts to indigents who. she could be broke b/c of H. so state has monopoly over ability to getting divorce y The fees interfere with the opportunity to be heard o Is there a µright¶ to divorce  What about driver¶s licenses?  You could say that marriage is essential y Site to Loving v Virginia. that¶s a problem Rationale for delay time period 17 . maybe RBR. it¶s like restricting access to their only forum y Using the courts isn¶t voluntary. b/c not every case will entail costs.

PARENTING BEST INTERESTS OF CHILD STANDARD pg 525 18 . if she is guilty she may get notdhing Difonzo pg 421 Discusses the evolution of divorce Amato pg 425 Thinks divorces should be harder to get.Family Law Notes Marianne E Dutton y Delay is not absolute deprivation and may be constitutionally okay Issue y Discriminates against persons who have recently exercised the right to travel Facts y Married in MI. and then leave her y Fault may not benefit women. W moved to IA with kids. Lower court dismissed b. W filed for divorce in IA. Require conceling etc III. Separated in NY. enjoy haing a wife. it didn¶t y No fault results in economic disparities b/w m and w y F no adjustments make.c IA has a 1 year residency requirement. She only lived there a month when she filed Is state trying to affect moral climate via residency requirement? y Are they trying to save their reputation y Local norms via residency requirement Character Reform pg 420 Trends and Concerns y Thought no-fault would increase divorce rate. men would end up in better shape than women y Argument for fault is that gives women a bargaining chip that enables them to demand compensation and raise the kids y No fault lets the guy pursue his career. Lived in NY.

b.Family Law Notes Marianne E Dutton UMDA SECTION 402: BIC pg 436 Court should consider ALL relevant factors. a. Gender Presumption ± Tender Years Doctrine (Not good law in most states) Gender Presumption in favor of the mother during the child's "tender years" (usually up to age 4). religion. including: y The wishes of the child¶s parent(s) as to his custody y The wishes of the child as to his custodian y The interaction and interrelationship of the child with his parents and any other person who may significantly affect the child¶s best interests y The mental and physical health of all involved y Conduct unrelated to child not considered (check this) Chapter 26. Why? Children & women were men's chattels. 20th Cent. Historically: The father was presumed to get custody. c. View: Custody presumption in favor of the mother. medical care y Visitation or Not o Sole physical custody with visitation  Child lives mostly with one and visits the other Applying the BIC Standard: Various Factors 1. Now: Most states have rejected the tender years doctrine: ‡Case: Ex Parte Devine (Alabama 1961) 19 .26 RCW Uniform parentage act Custody Definitions y Sole or Joint y Physical and Legal o Physical  Parent has right to have child live with y Joint physical: kid spends significant time with both o Legal  Right and obligation to make decisions about child¶s upbringing  Schools.

(1) The presumption may hurt the best interests of the child. The lower ct.Family Law Notes Marianne E Dutton (1) (2) (3) (4) ‡Held: Tender years presumption was unconstitutional. Judgment rev'd. granted custody to the mother because the dad wouldn't be able to do "physical things" with his sons. y The kids' increased responsibilities may benefit them.) d. The dad appeals. y Parents do more than play ball with their kids. (Only 1 of 2 states to hold the presumption unconstit. y 3. Mothers are generally the primary caretakers of children. y The disabled person may be able to give more in other areas. 2. ‡ No. Weighing Multiple Factors for BIC pg 532 Hollen v Hollen 2001 20 . Fitness for BIC In re marriage of Carney 1979 pg 525 Disability re BIC standard Held y The physical handicap of a parent is not a factor in a best interests determination. Is the doctrine right: ‡Yes. It avoids destructive custody battles. It protects women from bargaining away $$ to get custody. needs to look at all the circumstances) y Disability is only a factor if it is a MENTAL DISABILITY or if it means the disabled parent will be absent from the home frequently. Facts y Handicapped father. (2) It reinforces the stereotype of women as child rearers & males as irresponsible. (The ct. Custody is an area in which stability & predictability are important. Mother deserted them.

y Where should the white child of the first marriage be placed? With the interracial couple or the white couple? y The lower ct.. personal values and lifestyles be the sole basis for custody decisions y Here more factors weigh for the wife Beth Facts and Court considerations y Child¶s age. health and sex o Legal presumption for mother (tender years doctrine) 3 year old y Determination of parent with continuity of care prior to separation o H rarely visited. Facts y Interracial marriage occurs after the divorce of 2 whites. no interest in custodial parent until allegation of homosexuality y Who has best parenting skills. no custody. willingness and capacity to provide primary child care o Mother provided care y Employment of parent and responsibilities of employment o Mom was rental agent vs dad cop y Both parents physically and mentally healthy y Moral fitness o Neither went to church regularly o Homosexual affair. 21 . untrustworthy testimony o W sexual misconduct not per se grounds for denial of custody y Home. school and community record of child o None specified y No child preference specified 4. wanting to insulate the child from "social stigmatization" gave custody to the white couple. reverses. nor should differences in religion.Family Law Notes Marianne E Dutton Marital fault and custody decisions Held y Marital fault should not be used as a sanction in custody awards. The Sup. cannot give effect to private racial biases. Ct. Race and Ethnicity with BIC pg 538 Palmore v Sidoti 1985 USSC Race not a factor Held y The ct.

he wants them to stay involved with the tribe etc Bartlett Excerpt pg 543 y Rethinking Palmore in terms of the possibility of role policing 5. The court may restrict a parent's First Amendment or parenting rights if that parent's religious practices might harm the child in the future. that's the end of it: The court will defer to the custodial parent's wishes. court followed Palmore and did not use race in it¶s decision to give him custody Issue y Did the trial court err when considering race as a factor in the custody? Facts y H is Native American boozer who used to beat the wife and ignore the kids. The court will restrict a parent's First Amendment or parenting rights only if that parent's religious practices cause actual or substantial harm to the child. Religion in BIC pg 549 Most states use one of these standards: * Actual or substantial harm. * No harm required. he got custody. In short: 22 .Family Law Notes Marianne E Dutton Jones v Jones 1996 pg 540 Ethnicity as a factor (Native American) Custody must be racially neutral Held y Although H was concerned with native things. If the custodial parent objects to the noncustodial parent's religious activities. * Risk of harm. he says kids will be discriminated against if they leave the family farm. The custodial parent's right to influence the religious upbringing of her children is considered exclusive.

" We uphold the judge's factual findings unless they are clearly erroneous . 51 BIC ± religion ± illegal conduct Held 23 . physical or emotional.Family Law Notes Marianne E Dutton y Unless the content of the parent's religious beliefs would threaten the health & well being of the child (see Kendall). praying. Facts y Dad believes Jesus Christ and that those who do not accept the Boston Church of Christ faith are "damned to go to hell" where there will be "weeping and gnashing of teeth.cutting off his son's payes (the curls customarily worn by Orthodox Jewish males) and telling his children that anyone outside the fundamentalist faith was "damned to go to hell" --caused mental and emotional harm to the children Issue Standard of Review y The plaintiff was required to demonstrate "in detail" that exposure to the defendant's religion caused the children "substantial injury. were enough to warrant restrictions on his First Amendment and parenting rights. which were designed to interfere with their Orthodox Jewish religious practices. Pg. the court will not deny custody to a parent merely because their religion is strict. and [would] have a like harmful tendency for the future." Shepp v Shepp 2006 supp. y The court barred the father from sharing his religious beliefs." y The defendant testified that he would like his children to accept Jesus Christ and that he "will never stop trying to save his children. or studying the Bible with his children if those activities would cause the kids to reject their mother or their Jewish identity or cause them emotional distres Note y A court-appointed doctor found that the father's actions -. we review her legal conclusions to ensure they are based on correct legal standards. Kendall v Kendall 1997 Physical acts and verbal threats justify religious restrictions Held y A father's verbal threats and physical acts toward his children.

which requires a compelling government interest. pursuant to Yoder. Teenagers especially are consulted. The Child¶s Preference and BIC Most courts will consider the wishes of the child as to his custodians as described in § 402 of UMDA. we conclude that a court may prohibit a parent from advocating religious beliefs. if acted upon. does not apply where the challenged State action that is claimed to inhibit the free exercise of religion is a generally applicable criminal law y For these reasons. y The Sherbert test. he says he won¶t put daughter in polygamist marriage y Dad said to girl: ³that if you didn¶t practice polygamy or you didn¶t agree with it. However. the second facet of the strict scrutiny test -. this broad language is tempered by the court¶s discretion to determine whether the child has sufficient maturity to express a meaningful preference. However.´ 6. it may do so only where it is established that advocating the prohibited conduct would jeopardize the physical or mental health or safety of the child. which. That being the case. there was no constitutional basis for the state¶s intrusion in the form of the trial court¶s Order placing a prohibition on Father¶s speech.Family Law Notes Marianne E Dutton y The illegality of bigamy/polygamy are balanced with father¶s right of free exercise of religion. Because such harm was not established in this case. but mostly if you didn¶t practice it. McMillen v McMillen 1992 pg 554 Child preference in custody Held 24 . or have a potential for significant social burdens.whether the trial court¶s Order was narrowly tailored to achieve a compelling end --was not implicated Facts y Couple became Mormon before marriage y Excommunicated dad b/c he believes in polygamy y Girl lived with mom after divorce and mom¶s other kids from other marriages y Father wants primary custody. that you were going to hell. would constitute a crime.

J. y There is a great deal of concern as to the stress and strain this puts on the child.B. at no age. y There is a view that. they could tip the scales in favor of one parent or another. y Courts typically look at how child arrived at the preference. whether trial court judgment unsupported by substantial evidence Facts y H appeals from modification decree that terminated his rights of visitation and custody of the two children 25 .B.M. 14 y/o is allowed to choose the custodial parent as long as they are fit. y In this case. should a child¶s wishes be dispositive. v C. Reliance on Mental Health Experts and BIC K.Family Law Notes Marianne E Dutton y Court considered the child¶s preference where the stepfather frightened and upset the child and the child was left unattended after school Note y Child doesn¶t have to tell which parent in open court. court determines that where child¶s wishes were sufficient. See UMDA 404 that provides for two alternatives Facts y GAL can be used to determine what the child¶s preference is as to custody. y In GA. 1989 pg 557 Couple agreed to therapist admissible written report Held y Enough evidence to support modification decree and to award sole custody y Denial of visitation at kids home not supported by evidence Issue Standard of review y Clearly erroneous. y Child is not a party and there is debate as to whether child has a right to a day in court. 7. 11 y/o are allowed to give input.

boarder moved.Family Law Notes Marianne E Dutton y Parties had to undergo counseling by court order y Father went separate and then joint counseling y Parties stipulated that the therapist¶s report would be admissible on the pending motions y After two sessions doc said contact b/w father and kids would be dangerous. dad appealed b/c no substantial evidence to support modification or termination of visitation 8. Counsel for the Child and BIC Schult v Schult 1997 pg 560 Court appt GAL vs Court appt atty Held y Court would not put down a bright line rule. kid got broken leg while Norman was babysitting and W at work Parenting: Alternative Approaches pg 566 1. in and now will marry W y Court appt child atty. mom got custody. here it was okay for atty to advocate differently from GAL y When the court has appted atty and GAL in a dissolution action. father was not trying. the atty for the child may advocate a position different from GAL as long as the trail court determines that it is in BIC to permit such dual conflicting advocacy y The trial court is best to make this determination b/c they can hear both sides Issue y Can an atty representing a minor child in connection with custody advocate a position that is contrary to that of the GAL? Does this conflict with RPC that says atty must advocate position of GAL Facts y Child has history of emotional. W was a nurse. but instead said case by case. psychological and developmental problems y H moved out. Tender Years Presumption 26 . Norman.

Used as gender-neutral a. older wanted to love with dad. daycare ‡Disciplining ‡Educating ‡Teaching elementary skills. Primary Caretaker Presumption Standard: Focus on which parent has done the most for the child.) ‡Arranging for after-school social interaction between peers ‡Arranging baby-sitting. but not today. writing Questions Surrounding Primary Caretaker y What facts are necessary for presumption to arise? y Physical care of child 27 . grooming & dressing ‡Purchasing. eg. reading. Two sons ages 12 and 9.Family Law Notes Marianne E Dutton Pusey v Pusey 1986 pg 566 Tender Years Doctrine shot down Instead function related factors Held y The doctrine was useful when mothers didn¶t work. cleaning & care of clothes ‡Medical care (nursing & trips to the Dr. younger felt the same re both y Social worker said joint custody 2. it is not in BIC for court to arbitrarily apply a presumption in favor of the mother and award custody on that basis y No abuse of discretion. Factors: ‡Preparing & planning of meals ‡Bathing. court had good enough reasons to put older boy with the father y Function related factors o Id of primary caretaker during marriage o Parent with greater flex to care for child o Who kid spend most time with o Stability Issue y Utah uses the tender years doctrine as a tie breaker Facts y Married 12 yrs.

Family Law Notes Marianne E Dutton y Is presumption inapplicable when both parents have been primary caretaker? y How is presumption rebutted? ALI Principles v Primary Caretaker (note 1 pg 590-1) y PCT o Prior division of parental responsibilities o Used to determine which parent will be designated custodian  Right of physical custody superior to that of non custodian  Right of legal custody equal or greater to that of non custodian y ALI o Doesn¶t use terms custodian/non custodian  Implies winner/loser Garska v McCoy 1981 pg 569 Presumption for Primary Caretaker. Joint Custody a. no reason to change her custody y Primary caretaker presumption 3. but this gets rev'd on theory of mother being the primary caretaker. too uncertain. gender neutral Held y BIC is no good b/c it¶s too unpredictable. 28 . gives custody to father. Joint legal custody: Not necessary for parent to be living with kid. c. but must be consulted for kid's major life decisions. Joint residential custody. b. y Court announces the factors list above Facts y Trial ct. Joint physical custody: Kid has to spend a certain amount of time living with each parent. No reasonable basis for negotiations because it is way too unpredictable. y Mom had her parents adopt kid so he could get UMW insurance y Adoption was not mom¶s intent to abandon y Dad habeas petition for custody of son y But no emotional connection to child.

trial courts should look beyond the present and assess the likelihood of future cooperation between the parties. is not a prerequisite for joint custody y In deciding whether to order joint custody in a given case. then joint custody may be ordered. mom acquiesced in what she criticizes now. To achieve such cooperation. read the facts. No abuse of discretion. although desirable. Past Division of Parental Responsibility Young v Hector 1999 en banc pg 579 Relies on ALI principles Held y Mom gets custody. court used gender biased (yeah. trial courts may assist the parties through use of their contempt powers. explaining that a cooperative spirit between parents. If the parties appear reasonably likely to cooperate after the divorce. Issue y Is ability to cooperate mandatory for JC? NO Facts y The parents did not get along/hostile 4. should keep arrangement like it was last 3 years.Family Law Notes Marianne E Dutton Considerations in Joint Custody y Ability to Cooperate y Spousal Abuse y Other Conduct Squires v Squires 1993 pg 574 Ability to cooperate not absolute Held y Affirmed the joint custody award. Focusing on moms economic stability was okay bc it reflected more responsibility attitude about providing for kids o Father decided not to seek FT work Dissent y Dad was primary caretaker. right«) 29 .

but then started traveling and visiting sick brother. ALI Principles of the Law of Family Dissolution pg 588 § 2.08 Allocation of Custodial Responsibility Unless otherwise reolved by agreement of the parents. dad visitation 5. set by a uniform rule of statewide application y To keep siblings together when the court finds that doing so is necessary to their welfare 30 .Family Law Notes Marianne E Dutton Issue y Who was the primary caretaker or responsible parent? Mom y Looked at schedule and fitness of mom o She led brownie troop. or before the filing of the action if they didn¶t live together«except to the extent necessary to achieve one or more of the following objectives y (a) To permit the child to have a relationship with each parent which. he did look for work. in the case of legal parent of parent by estoppel who has performed a reasonable share of parenting functions should be not less than a presumptive amount of the custodial time set by a uniform rule of statewide application y (b) to accommodate the firm and reasonable preferences of a child who has reached a specific age. Mom worked. spent over a year looking for gold in NM y Housekeep watched the kids during this time y Mom was law firm partner y He started spending time with kids when she said she wanted a divorce y GAL recommends mom gets custody. the court should allocate custodial responsibility so that the properotion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the separation. Dad puttered and hunted treasure y He had an affair in new Mexico y No agreement that he would not work. couched a soccer team etc o See slides for more details (4/7/2009) Facts y Housekeeper caring for kids.

schedules. or other circumstances.01(1)(a)&(b) y If parents unable to agree o Court should award custody based on allocation of caretaking responsibility prior to the separation  Replicate division of responsibility when family intact y Deference to arrangement on which parties once agreed ALI Principles on prior caretaking y Rebuttable by specific factors o Prior parental agreement o Child¶s preference o Need to keep sibs together o Harm to the child¶s welfare based on emotional attachment to a parent and the parent¶s ability and availability to meet the child¶s needs o Avoidance of impractical custodial arrangements o Avoid interfering with the child¶s need for stability and the need to deal with parental relocation § 2.12(1)(b) y Race ethnicity of child.Family Law Notes Marianne E Dutton y To avoid an allocation of custodial responsibility that would be exteremely impractical or that would interfere substantially with the child¶s need for stability in light of economic. the cost and difficulty of transporting the child. parent. parents ability to cooperate y To avoid substantial and almost certain harm to the child ALI § 209: Allocation of significant decision making responsibility pg 590 ALI Principles re Custody y If parents agree o Court should enforce agreement  Unless not voluntary or  Would be harmful to the child § 2.08(1)(a)-(g) ALI principles PROHIBIT court from considering y Gender of parent or child 2. or other member of household y Religious practices of parent or child except if harmful to the child 31 . incuding the distance b/w parents residences. physical.

it looks at BIC only. what values to use? New Terminology by Court y Old: Visitation and Custody y New: parenting plan. See the case. work. and residential schedule PARENTING: MODIFICATION (4/9/2009) When court makes the original custody determination. drive a car. health care. But when court modifies custody. school sports. (pg 600 in Wetch). it looks at two things. hard to say what¶s best for a kid: inadequate info. Random Selection: Mnooking pg 591 and other whiners too y Flipping a coin idea b/c of indeterminacy involved in choosing b/w two fit parents probably same as judicial guesswork y Child Custody and Judicial Inadequacy. permission to enlist in military.Family Law Notes Marianne E Dutton y Sexual orientation or extramarital sexual conduct except if it causes harm to the child y Relative earning capacities ALI principles: Allocation of Significant Decision making Responsibility § 209 pg 590 y Examples: Education. but y IF no agreement of sig life decisions o Presumption of allocation of joint decision making to each parent who has been exercising a reasonable share of parenting functions in BIC  Can be overcome (Dom violence. predictions. child abuse. 32 . not BIC) o Who decides and how much?  Allocation of custodial responsibility  Participation in past decision making  Wishes of parents  Ability and cooperation of parents in past decision making 6. parenting functions. sign a contract y Court should enforce agreement.

Held y No showing of change in circumstances 33 . mental.Family Law Notes Marianne E Dutton 1. Modification ± Change in Circumstances UMDA § 409 Modification for Change in Circumstances y Standard for modifying custody arrangement y DO not modify unless: o On the basis of the facts  Arisen since decree or  Unknown to court at the time o Change in circumstances of child/custodian AND o Modification necessary to serve BIC y Retain Custody Unless o Custodian agrees to modification o Child integrated into petitioners family with custodian consent OR Environment µendangers seriously¶ child AND harm likely  Physical. moral. onerous burden o Regards change as producing some harm to child which must be weighted against likelihood of harm from staying with custodian  Comment: µany change in the child¶s environment may have an adverse effect. emotional health y This section purpose (Comment pg 595) o Designed to maximize finality and thus assure continuity for the child o No earlier than 2 years post decree  Unless environment may endanger seriously child  Comment: this is a safety valve. change in circs affecting BIC. even if the non-custodial parent would better serve the child¶s interest Hassenstab v Hassenstab 1997 pg 596 Modification ± good court rationale here ± only past year really matters Abuse of discretion standard Source of law is state statute Ask: Is mother unfit? If so.

district court dismissed H¶s application to modify Wetch v Wetch 1995 pg 599 Modification ± changes in circumstances What can be considered on appeal? Held y If the previous custody determination was based upon the parties stipulation ant by consideration of the evidence and court made findings.W. mother had lesbian affair. 724. 221 Neb. including pre-divorce conduct and activities y Trial court has broad discretion in admitting evidence or not. What we are interested in is the best interests of the child now and in the immediate future. on appeal will not overturn these decisions on relevancy unless there is abused of discretion y Trial court must evaluate all factors affected BIC of child Issue y Did the trial court err when it entered custody decree for father and didn¶t consider custody evidence relating to conduct and events before the 1994 judgment? YES Facts y M had custody. the trial court must consider all relevant evidence. is of more significance than the behavior prior to that time. and how the custodial parent is behaving now is therefore of greater significance than past behavior when attempting to determine the best interests of the child Issue Facts y Husband wanted kids from mother. 380 N. . . the evidence of the custodial parents behavior during the year or so before the hearing . it appears to us that in determining . also a case involving custody modification.Family Law Notes Marianne E Dutton y Modification of custody not warranted where alleged suicide attempt had occurred 7 years previously and no showing that alleged alcohol abuse had adversely affected child y The Hassenstab court cited Kennedy v. o In cases of this nature. Kennedy. custody of a minor child . . F visitation 34 .2d 300 (1986). in which the Supreme Court had made it clear that it is the present situation that is of primary concern. . . sough counceling. mother tried to commit suicide 7 years before. .

(The previous order had granted liberal visitation rights to Mr. y It was hard on the kid to continue to be moved back & forth between mom & dad. 4 years later changes and gives to dad y Parents are often convinced that if the other parent gets the kids. y 3 types of experts in this case o Suicide experts o Parenting experts o Joe Goldstein: an expert on parent-child separation. 35 . Rose) y The dad had remarried. they will suffer irreparable harm. F didn¶t like this. same for the amendment by the parties y M wanted to move to TN. Jason (the kids) had been w/his dad for one year. Issue Facts y Court first gives custody to mom. (Propounder of the psychological parent theory)  Says:  Ex. in Rose. Now there's a full-time wife/mother to take care of Jason. new agreement signed o Mom got custody and stipulated in agreement to live w/in 60 miles of ND city of Fargo o She moves anyway. court gives custody to dad now y Mother here says domestic violence by dad toward her and the girls y Father says res judicata re issues before divorce and first custody determination Rose v Rose Revisted: The Court Changes its Position pg 602 1989 modification and expert testimony Held y Significant change warrants change in custody for BIC Rationale y The mother is less psychologically stable than the dad. This is a long time in a young child's life.Family Law Notes Marianne E Dutton y Original agreement was agreed to by the parents and the court didn¶t determine the factual underpinning of the custody agreement.

either de facto or de jure. y The Court said the initial burden on the moving party will be to produce evidence that relates to those concerns. (2) the reasons given for the opposition. is not necessarily the one that satisfied one parent or even splits the difference between the parents but the one that will not cause detriment to the child. o In those circumstances the Court concluded that a removal application effectively was a motion for a change in custody to be governed by a changed circumstances inquiry and ultimately by a simple best interests analysis.Family Law Notes Marianne E Dutton 2. by formal or informal agreement. (3) the past history of dealings between move. therefore. (6) whether a visitation and communication schedule can be developed that will allow the 36 . Mother must show good faith reason for moving and that kid won¶t be harmed y The moving party has the burden of making a prima facie case that he/she has a ³good faith reason for the move and that the child will not suffer from it´. (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location. Factors considered y the reasons given for the move. Modification ± Relocation Generally no uniform approach to this by courts Baurers and Lewis 2001 pg 605 Two prong analysis set forth (NJ) standard set here Review is clearly erroneous standard See next case for joint custody and relocation Held y Remanded. health and leisure opportunities at least equal to what is avoided here. (4) whether the child will receive educational. cautioned that this analysis was not applicable in those cases in which true co-parenting exists between the parents who share physical custody. however. y The critical path to a removal disposition. y The Supreme Court.

unless the district court first determines if BIC require a change in primary custody to that parent. Issue Facts y Autistic kid. y So you need to make two motions here y Trial court must consider BIC Facts y H appeals order allowing wife to move from Fargo ND to Missiouri with daughter 9 y. wants to move to where her parents can help care for him y no. District court erred. can¶t afford to be a single mom in NJ w/o normal day care.Family Law Notes Marianne E Dutton noncustodial parent to maintain a full and continuous relationship with the child. his or her preference. (12) any other factor bearing on the child¶s interest. in BIC 37 . that would impair relations with dad y kid¶s wellbeing closely tracks that of custodial parent y to move here: show good faith reason. (7) the likelihood that the custodial parent will continue to foster the child¶s relationship with the non-custodial parent if the move is allowed. There was no motion to change custody. y Both parents agreed to joint custody so this must be given deference. both are considered by court as custodial parents y A parent with joint legal and physical custody may not be granted permission to move with the parties¶ child. (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent.o. (9) if the child is of age. y District court said yes. (11) whether the non-custodial parent has the ability to relocate. (8) the effect of the move on extended family relationships here and in the new location. and that kid will not be harmed«remand Maynard v McNett 2006 ND supp pg 63 Modification ± relocation ± Joint physical and legal custody Held y Reversed.

Fathers Stanley v Illinois USSC 1972 pg 638 Unmarried father should be treated same as married for EP if established a relationship with the kid Held 38 . Ellman and Fabricius Study pg 609 y Study compares kids who parents don¶t relocate more than an hour away and those who do. Modification ± Grandparents visitation Troxel v Granville USSC 2000 pg 621 Constitutional right of parents to rear their kids Held y Statute unconstitutionally interferes with parental rights to make kid decisions y Citing a constitutional right of parents to rear their children. any person can petition for visitation rights at any time ± grant if in BIOTC 4. struck down a Washington state law that allowed any third party to petition state courts for child visitation rights over parental objections. 14 variables measured y Courts should give greater weight to the child¶s separate interests when deciding relocation cases y For mothers who moved away. they find little evidence of reduction in conflict 3. Stevens dissent y Even a fit parent is capable of treating a child like a mere possession y Apply strong presumption that parent can decide. Modification ± Unmarried Parents a.Family Law Notes Marianne E Dutton y Parents have joint legal and physical custody Braver. this statute could be applied fine Facts y WA statute.

y Letting the father petition to adopt the children did not give equal protection because the law gave the father no priority in the adoption and wrongly put the burden on him to show that he was the most suitable of all those who might want custody of the children. Illinois law made children of unwed mothers state charges in that situation. The father's ignorance of that requirement was not a sufficient reason for criticizing the law itself. the unwed father lived intermittently with the mother for 18 years. y A father could petition for custody. widowed. adoption. biological father of a child the right to a hearing to contest his child's adoption. They had three children when the mother died.Family Law Notes Marianne E Dutton y An unwed father who has a developed relationship with his child is entitled to a hearing on his parental fitness before the state may take custody of his child. He needed only to mail a postcard to the registry. without more (like a parent-child relationship) does not give the unmarried. or guardianship. removing him from his parents only where the child's welfare or public safety required it. Lehr v Robinson USSC 1983 pg 641 Father gets rights only if had relationship with the kid first in a reasonable amount of time This is unlike Stanley where parents had lived together after baby born Held y Mere biology. however. and to strengthen the child's family ties whenever possible. y The Illinois law violated equal protection because removing children from an unwed parent who had a relationship with his child did not further the state's interest any more than removing a child from a married father would further the state's interest. and separated fathers. Issue Facts y In Stanley. Divorced. Dissent 39 . were not deprived of their children absent proof of unfitness. y The state's interest was to protect the mental and physical welfare of children and the community. which the state had the burden to show. y No DP violation o The right to receive notice was completely within the father's control.

The biological dad asserts his parental rights. Shapes the child¶s daily routing. The "new father" wants to adopt the child. disciplines the child. The mom marries another man. performs a share of caretaking functions at least as great as the legal parent. and with the consent and encouragement of the legal parent. strikes down the dad's claim. y De facto parent has participated in the child¶s life as a member of the child¶s family. They reside with the child. biological connection important in determining nature of liberty interest Issue y Were the father¶s DP rights violated when he was not contacted when his natural child was put up for adoption? no Facts y A child is born from unmarried parents. BIC y In limited circumstances a child may. that measurable harm would befall the child on the disruption of that relationship. deals with education and medical care (see ALI) y Recognition of de facto parentage lies within the court¶s general equity powers to protect welfare of minors." which would have entitled him to notice of the adoption proceeding y Although the father had lived with the mother before the birth and visited her in the hospital when the child was born. with the legal parent¶s assent.Family Law Notes Marianne E Dutton State had actual notice of his existence. addresses his developmental needs. The Sup Ct. he was not on the birth certificate and paid no support. Unmarried Couples/Psychological Parent Established/De facto and Parent by Estoppel De facto parent: to prevent trauma to the child. Judge has broad discretion to consider any factor that bears on the child¶s best interests 40 . y Father did not enter his name in New York's "putative father registry. which proceeds from the premise that disruption of a child¶s preexisting relationship with nonbiological parent can be harmful to the child and thus warranting state intrusion into the privatrew realm of the family. b. when evaluating a child¶s best interests. have developed a µsignificant preexisting relationship with an adult who is not the child¶s legal parent µthat would allow an inference.

with agreement of a legal parent to form a parent-child relationship OR complete failure or inability of any legal parent to perform caretaking functions  Regularly perform majority of caretaking functions or  Regularly performed share at least as great as parent with whom child primarily lived y Comment: o Requirements µstrict. Stepparent who is primary breadwinner but otherwise doesn¶t act as parent does not satisfy requirements of being de facto o Status is based on activities that involve interaction with the child that direct. when in BIC  Agreement must be entered into PRIOR to child¶s birth.Family Law Notes Marianne E Dutton ALI 2.03(1)(c): De Facto Parent y Not legal parent or parent by estoppel o Lived with child at least 2 years y AND o For reasons primarily other than financial compensation.03(1)(b): Parent by Estoppel y Tho not a legal parent o Parent has lived with child since birth. to avoid unnecessary and inappropriate intrusion into the relationships b/w legal parents and their children o Agreement is to forming parent child relationship.18 De facto. etc ALI § 2. estoppel. or de facto parent under same standards as for legal parents EXCEPT THAT y Should not allocate majority of responsibility to de facto parent over objection of fit legal parent or parent by estoppel 41 . can be inferred frm circumstances and need not be formal ALI 2. legal parent responsibility allocation Court should allocate custodial responsibility to legal parent. parent by estoppel. arrange. each with full parental rights and responsibilities. accepted full and permanent parental responsibilities as part of prior co-parenting agreement with child¶s legal parent(s) to raise child together. but not necessarily full and permanent responsibilities y More difficult to prove than parent by estoppel b/c must demonstrate that performed at least equal share of care-giving functions y EX.

V. different law. but reversed as to visitation y Relying on the experts' testimony. and with the approval of the legal parent. with whom she lived in a familial setting and in respect of whom she claims to have functioned as a psychological parent.Family Law Notes Marianne E Dutton o UNLESS legal parent or estoppel parent has not be performing reasonable share of parenting functions OR o Available alternative would harm the child c. biology.B. See elements TEST after the case Note that in VT. lacked standing to make the petition. Facts y Certification was granted "to determine what legal standard applies to a third party's claim to joint custody and visitation of her former domestic partner's biological children. people at hospital considered both the mother 42 . finding that there were no equitable reasons supporting the application.03(a)(b) Parent by Estoppel below Held y Affirmed as to no joint custody. however.C.g. 2000 NJ pg 649 Lesbian couple De facto parentage When and how a person becomes a psychological parent to a child.B. M. ALI determination of legal parent y 2.C. lived together. v M. was artificially inseminated and gave birth to the subject child y Both were very involved with birth. was an unfit parent and that V.03(1)(a) Legal parent under other state law ± e.J. failed to prove that M.J.'s continued contact with the children is in their best interests.C. undertaken the duties of a parent to a child not related by blood or adoption." PP y The trial court ultimately denied the petition for joint legal custody.B. therefore.C." y V. the majority concluded that V.C. adoption.'s petition for visitation and remanded for proceedings to establish a visitation schedule.C. concerned a lesbian couple where one of them. it reversed the judgment denying V.J. next case. marital presumption in some states for husband V. y The case's decision "is applicable to all persons who have willingly. different result Compare to ALI 2..

After the 11 year relationship ended. then they would hear it. both called some form of mom. (2) that the petitioner and the child lived together in the same household. y Vermont courts have not granted custody or visitation rights to the non-biological parent of a child. The former partner (Dexter) legally adopted a child and they raised the child together. both sets of grandparents recognized. The Supreme Court of Vermont upheld this ruling. and fostered. there was visitation. Co-parents in a civil union. 43 . A superior court ruled that it had no jurisdiction to hear such a claim as the plaintiff had no legal relationship with the child. including contributing towards the child's support. started adoption procedures y The split. Titchenal v Dexter 1997 VT pg 657 In VT. education and development. then the birth mother stopped that and stopped taking money from the other To be a Psychological Parent. and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded. there was a dispute over visitation. y Note that Titchenal thought should couldn¶t adopt the child b/c of some statute Issue Facts y Plaintiff and her former same-sex partner decided to raise a family together. court will only hear case if there is a legal relationship established De facto parent not in VT Held y No jurisdiction to hear such a claim as the plaintiff had no legal relationship with the child. If there had been a civil union.Family Law Notes Marianne E Dutton y Lived together. without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]. however. the petitioner's formation and establishment of a parent-like relationship with the child. dependent relationship parental in nature. got married. one must show: (1) that the biological or adoptive parent consented to. (3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care.

a co-parent agreement is the foundation of a parent by estoppel claim. not enough evidence to show de facto parent y In this jxn the parties were free to adopt. Unlike a de facto parent.03 ALI principles make clear that it¶s not the 3rd party¶s reliance on the words or deeds of the legal parent but the best interests of the child that is the paramount consideration in the parent by estoppel analysis. a parent by estoppel is afforded all of the privileges of a legal parent.03(1) which defines parent to include de facto parents and parents by estoppel see pg 78 in supp for more PP y Trial court awarded sole legal and physical custody to birth mother. specifically found that Ps efforts were not equal in quality/quantity and child would not suffer irreparable harm from the severing of his contact with P y Also said no standing to bring claims for visitation or support order Issue 44 . so it is a most dramatic intrusion into the rights of fit parents to care for their child as they see fit.H. visitation was up to the birth other. private agreement alone does not suffice to create parental rights in one who is not the child¶s biological or adoptive parent Law applied y ALI 2. and as such court declines to adopt the parent by estoppel theory. judge said that P had failed to meet her burden of proving de facto status. This is perhaps why the ALI contemplate that parent by estoppel status is most appropriate where adoption is not legally available or possible.Family Law Notes Marianne E Dutton are entitled to equal parental rights for children born during the civil union. ALI Parent by Estoppel 2. v M. A.P. Mass 2006 supp pg 74 Parent by Estoppel Distinguishes b/w general parenting functions (financial support. home maintenance) and caretaking functions (day to day care) Held pg 81 supp y Trial court did not err in not considering parent by estoppel b/c they could have adopted.

but partner 1 never filed the paperwork. in effect in some form in every state y 2 bases of jxn o Home State o SCSE: significant connection and substantial evidence y A state with jxn may decline to exercise if it determines o It is inconvenient forum AND  Is in BIC that another state assume jxn eg another state is or recently was the child¶s home state.Family Law Notes Marianne E Dutton y Can a person who is neither the biological nor adoptive parent of a minor child may assert custody and support rights as a de facto parent? y If and to what extent court should recognize estoppel principles as creating parental rights where the party claiming such rights is neither biological nor adoptive parent of child and does not meet the criteria of a de facto parent y Did the trial court apply erroneously narrow standards for determining de facto parent status. that the defendant is estopped by her behavior during the relationship and her statements during the litigation from asserting that the plaintiff is not the child¶s de facto parent Facts y Same sex partners agree to have babies with same sperm donor. the other was going to adopt. works and travels a lot. One goes thru the in vitro first and has a baby. and both want parental rights to child they agreed during their relationship to have and coparent y Separated when kid was 18 months 5. UCCJA 1968 y Since 1984. Modification: Jurisdiction Issues pg 663-95 and supp 82-88 a. the one that had the baby feels like she is going it alone y They split because the other works so much. if substantial evidence more readily available in another state etc o Another state more appropriate see section 8 y UCCJA section 8 on jxn  Florida may decline to exercise jxn over an initial custody proceeding if Jane has been wrongfully taken 45 . even when nagged y The other is the working parent for the first year.

Three months later AL has home state jxn b/c Jason moved from there w/in last 6 months AND father still lives there c. they separate.Family Law Notes Marianne E Dutton from Ohio (in violation of parental rights under Ohio law)  Florida MUST NOT modify Ohio decree if nmother taken child unlawfully from joint custodian father  Not adopted by all states b. Dad is still in Ohio. then Indiana for three. and J and mom go to Tennessee. They stay in FAL and enroll in school and J takes dance classes. They split. then FLA for three. Home state jxn UCCJA y Child has lived with parental figure for at least 6 months before custody proceeding OR y Child has moved from his home state within the last 6 months AND one parent still lives in that state y It¶s possible to have no homestate jxn if moved from home state and no parent left there y Example: o J lives with mom and dad in AL for 7 years. Significant Connection Jxn UCCJA y Child and parent have significant connection with a state AND there is substantial evidence in that state with respect to the appropriate care for the child (present and future) y Example o J lives with parents in Ohio for 5 years . J and mom go to Wisconsin for four months. o No state court gets jxn b/c she has been out of Ohio for more than 6 months and she hasn¶t been anywhere else that long o Next ask if there is a significant connection to Fla y Is J¶s school and mom¶s job permanent? That would help y Is there enough evidence of their life in Fla that a court could evaluate the education and care-giving arrangements y Dad could still argue still for Ohio since there is also evidence of a significant connection there UCCJEA Uniform Child Custody Jxn and Enforcement Act of 1997 46 .

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y Has the two jxn bases above, homestate beats significant connection y Adopted by all states y Provides that a court with home state jxn has priority over a court with jxn based only on significant connections and substantial evidence y Basically, in practice if a judge starts a proceeding and then learns another state did the same, they talk to each other and decide the more appropriate forum. y If they can¶t decide, priority filing wins y May decline jxn too y Don¶t want to relitigate in other jxns and have forum shopping etc Sec8 says you can decline to exercise jxn over initial custody proceeding if child is wrongfully taken from home states (wrongfully defined under state law) and may not modify the Ohio decree of mother unlawfully took the child from father Parent Kidnapping Protection Act PKPA y States need to give FFC to custody decrees of other states, so this is the gap filler; this holds for modification determinations too, unless jxn has changed y Differening interpretations o Preempts state law; home state court has priority o Doesn¶t dictate basis on which court may assume jxn, but only those which another court must give that court¶s diecision FFC Full faith and credit clause requires states to give nationwide recognition and enforcement to final judgments of other states y Custody decrees are not considered final judgments b/c the court retains jxn to modify in the BIC until they turn 18 1. Interstate custody disputes Chaddick v Monopoli 1998 Home state jxn Second bite at the apple case Held y VA judgment stands. Fla doesn¶t get jxn. The Mass decree does not control, the VA judgment that dad gets the kids stands.
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y According to the UCCJA, the Fla court must defer to a court in another state in a custody dispute if, at the time a petition was filed in Fla, a similar proceeding was pending in a court of another state exercising jxn in substantial conformity with the UCCJA y In future proceedings parties may be present for the phone calls b/w judges of the two states in question, but may not participate in the call Issue y Who has jxn? Does the mom have a right to be present for the phone call b/w the two state courts? NO Was she entitled to a full evidentiary hearing re jxn? NO Facts y Couple married and have kid J. They all live in Mass where they got a divorce and judge set out that she gets the kid, but father gets them in summer y She sends the kids for summer break, but no one knows mom¶s address, she¶s pregnant, and living with a guy. So in Virginia where dad lives now, he gets custody. Mom is in Fla. She gets an atty and tries Va court to no avail to enforce her Mass jxn. Then she tries in Fla to get the Mass order enforced. Should have done this first Thompson v Thompson 1988 Parental kidnapping act was to extend the full faith and credit clause and not to create an entirely new cause of action; can¶t use as grounds in custody dispute; goal is to avoid jxn competition and conflict b/w courts Held y The PKPA does not provide an implied cause of action in federal court to determine which of two conflicting state custody decisions is valid. y If SCSE state exercises jxn despite home state jnx in another state, parent may not sue to set aside SCSE state custody decision on ground that it violates the PKPA y Parent¶s recourse is to seek to enforce the terms of the homesstate decrees in the SCSE state y The context in which the PKPA was enacted -- the existence of jurisdictional deadlocks among the States in custody cases and a nationwide problem of interstate parental kidnapping -- suggests that Congress' principal aim was to extend the requirements of the Full Faith and Credit Clause to custody determinations, and not to create an entirely new cause of action.

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y The language and placement of the Act reinforce this conclusion, in that the Act is an addendum to, and is therefore clearly intended to have the same operative effect as, the federal full faith and credit statute, the Act's heading is "Full faith and credit given to child custody determinations," and, unlike statutes that explicitly confer a right on a specified class of persons, the Act is addressed to States and to state courts. y Moreover, in discussing the congressional rejection of a competing legislative proposal that would have extended the district courts' diversity jurisdiction to custody decree enforcement actions, the PKPA's legislative history provides an unusually clear indication that Congress did not intend the federal courts to play the enforcement role. PP y Distrcit court dismissed for lack of PJ and SMJ; affirmed twice Issue y Does the Parental Kidnapping Prevention Act of 1980 provide a cause of action if two state courts conflict on custody decisions? Facts y PKPA says a sister state has to enforce the custody decisions of another state (so this is when you have homestate jxn in one state and SCJ) y Under the Parental Kidnaping Prevention Act of 1980 (PKPA or Act), States are required to afford full faith and credit to valid child custody determinations entered by a sister State's courts. y CA gave joint custody, but on Wife wants to move to Lousiana; the court granted respondent sole custody pending an investigator's report y She moves with baby and obtained a Louisiana court order enforcing the California decree and awarding her sole custody, the California court, having received and reviewed the investigator's report, entered an order granting sole custody to father y Father came to Lousiana to trying to get the Lousiana decree invalidated and the CA decree enforeced y Without first attempting to enforce the California decree in Louisiana, petitioner filed suit in Federal District Court seeking an order declaring the Louisiana decree invalid and the California decree valid, and enjoining the enforcement of the Louisiana decree. The court dismissed the complaint and the Court of Appeals affirmed on the

49

UCCJEA 1997 Uniform Child Custody Jxn and Enforcement Act y Model statute to replace the UCCJA o Follows PKPA in giving priority to home state court when tow courts have jxn on home state and SCSE bases in custody determinations y Key difference b/w this and UCCJA is that this follows PKPA in giving priority to home state court when two courts have jxn on home state and SCSE in custody dispute y Like the PKA. provided countries meet minimum standards of DP UCCJEA 50 .Family Law Notes Marianne E Dutton ground that petitioner had failed to state a claim upon which relief could be granted. International Custody Disputes Hague Convention y Multilateral treaty signed by at least 50 countries y Applies to kids under 16 y Enumerated defenses: Lawful custodian not execising custody when removeal or retention occurred o Grave risk that return would epose child to harm or intolerable sitiation¶ o Child objects when mature IPKCA y US federal law providing criminal sanctions in support of Hague Convention (Us v Amer) ICARA y International Child Abduction Remedies Act y US federal law providing procedures for implementation of the Hauge Convention in the US (Alonzo) UCCJA y In several states interpreted to apply b/w state and other countries. modification can only be brought in sate that made initial custody determination so long as child or parent involved in that dispute remains in that state Different from UCCJA 2.

another country treated as if state Hague Convention of the Civil Aspects of International Child Abduction see pg 676 y Applies to kids under 16 y Must return child to habitual residence Standard of review y The court articulated that the standard of review for habitual residence determinations under the Hague Convention raise mixed questions of fact and law and therefore should be reviewed de novo. mother was trying to dismiss her own petition in the Utah court. Larson 1997 Fed. Hague Convention is a civil remedy adopted to effect the return of children brought to other countries. Swedish court said Sweden was homestate y District court erred in refusing to grant the mom¶s motion to dismiss her Hague proceeding for the reason that she was in contempt for taking the child. 1. . Hague convention created civil remedy for the return of abducted children whereby the left behind parent can request the state where the child is retained to located etc The dual purposes of the Hague Convention are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State. Art." Hague Convention. Ohlander v. Cir.Family Law Notes Marianne E Dutton y Depending on state. how to determine? Held y Swedish court gets priority. once her Hague petition was filed. and [] to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States. they only should have asked if the father¶s removal of the child was wrongful Facts y Father took child from Sweden to US (Utah) without mom¶s permission 51 . this provides incentives for parents to flee with their kids in hopes of getting a better judgment elsewhere y District court considered if Mom¶s removal of child from Utah was wrongful. Pg 672 Hague Convention Child¶s habitual residence controls which jxn gets priority If habitual residence is in question.

that there was a grave risk in returning the children to Israel under the Article 13(b) exception to the Convention. they moved. signed a lease. denied her motion. Silverman v Silverman 2003 pg 677 Habitual residence/international/Hague affirmative defenses Held y the "habitual residence" of children changed from Minnesota to Israel and the mother failed to show that Israel was "zone of war. marriage is falling apart. Robert appealed." y Settled intent/purpose found in favor of Isreal from children¶s persepctive Standard of review y The court articulated that the standard of review for habitual residence determinations under the Hague Convention raise mixed questions of fact and law and therefore should be reviewed de novo. alternatively. lived with family. lived in Minnesota. that even if Israel was their habitual residence. y Mom filed to dismiss her district court petition y The District Court. Issue PP y Federal district court ruled in favor of Julie on Robert's Hague Convention claim. wife wanted to move to Israel. both had jobs there.Family Law Notes Marianne E Dutton y Mom filed a Hague petition seeking the child's return to Sweden and to determine habitual residence and wrongful removal y She took the child back to Sweden violating court order and was found in contempt y The father then filed a Hague petition in Sweden for return of child to the United States. and subsequently ordered the child's return to United States y The Court of Appeals held that district court abused its discretion in denying the motion to dismiss solely on the basis of the mother's contempt of its order not to remove the child. wife went back to 52 . finding that Minnesota was the "habitual residence" of the children and. married in Seattle. y Reversed on appeal District court gave custody to mother. reversed on appeal Facts y Couple met in Israel. and dismissal of the petition was warranted.

Joan. pursuant to the Hague Convention. CA y Sanctions for failure to pay child support o Can¶t link to visitation (Farmer) Wolf v Wolf 2005 Iowa pg 682 Tortuous intentional interference damages (interference with legal custody arrangement) Held y Affirmative acts by the mother.Family Law Notes Marianne E Dutton y y y y y y y y y Mn to file for bankruptcy. learning hebrew etc H filed in Israeli court for divorce but cancelled the proceeding Wife took the kids to the states for µvacation¶ but kept them there and filed for legal separation and custody in MN Robert filed in Israel a "Request for Return of Abducted Children" with the National Center for Missing and Exploited Children (NCMEC). She comes back a month later and there is an Israeli court order that she not leave the country ( arestraining order) and the kids passports were locked up etc Mom was having an affair in the states. to keep the child away from the father and against court orders shows actual malice and punitive 53 . Wife moves to Mass with kids to live with her boyfriend Father brought suit under International Child Abduction Remedies Act (ICARA) 6. not visitation y Change in custody (Henrickson) y Criminal conviction (Amer) o See also state statutes eg LA. Enforcement of Custody Sanctions for interference by one parent with another parent¶s lawful custodial rights include y Damages in tort (Wolf) o For custody. AZ. they tried to reconcile They both went to US for the bankruptcy proceeding where they said under oath that their residence was MN. tax return said this also Both went back to Israel Kids enrolled in Israeli school.

Family Law Notes Marianne E Dutton damages are allowed (she gave daughter means to get away from the dad) y When one party has primary physical custody. Courts must secure the prompt return of the children wrongfully removed or retained y Habitual residence is defined as the place where he or she has been physically present for an amount of time sufficient for acclimation and 54 . but left and went back to AZ y Court denied her petition and gave custody to Tim y Tim filed civil suit for tortuous interference. The country of the child¶s habitual residence is the property arbiter of the custody dispute. there is an action y Distinguishes b/w legal and physical custody Issue y Can Husband sue for tortuous interference with custody when mom had physical care custody? YES If so. court told them to stay in IA and they agreed. y Under Hague. Father stayed and worked in us b/c mother took the passports. three years of not seeing your child plus atty expenses is worth 25K Facts y Tim and Joan are in custody battle over Ashley (now an adult) y Court award sole custody to Joan and modified to joint later tho primary physical care to Joan y Tim appealed. reversed and he got physical care custody in Iowa y Ashley moved to Arizona with Joan y Tim got habeas decree and got Ashley back for a month and a half when she flew back to AZ y Joan petitioned AZ court for custody and they refused b/c Iowa had jxn y Joan filed in IA next and both she and Ashley went there to testify. joan didn¶t appear but her atty went and moved to dismiss for failure to esatlbish prima facie case (denied) Alonzo v Claudino 2007 NC pg 82 supp Hague convention standards /habitual residence defined Held y The girl goes back to Honduras\. the merits of any underlying custody case are not at issue. are punitive damages available? YES (Woods case) need to show willful and wanton conduct Were the damages excessive? No.

The next year the dad got guardianship and care in Honduras y Dad and kid visited mom in NC. or  That girl objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views. Cir. a week before dad and girls visa was up. Issue y Was the daughter a habitual resident of Honduras at the time the mother she was taken by the mom? NO (mom wouldn¶t have needed to take their passports) Facts y Hague Convention of the Civil Aspects of International Child Abduction and the International Child abduction remedies act (ICARA) ± the implementing legislation in US y F wants return of daughter to Honduras. 1997 55 . supposed to be for 2 years. Kid stayed with mom¶s parents. girl enrolled in school dad worked and got a band account a nod license. where she was abducted by her mom. mom took their passports.Family Law Notes Marianne E Dutton which has a degree of settled purpose from the child¶s perspective (look to the parents intent for choosing the location) y Exceptions: (to be narrowly interpreted) o Must establish by CC evidence that  There was a grave risk that girl¶s return to Honduras would expose her to physical or phych harm or otherwise place her in an intolerable situation  Or that her return would not be permitted by the fundamental principles of the US relation to protecting human rights abd fundamental freedoms o Must be shown by a preponderance of the evidence  This action was not commenced within one year of the abduction and girl is settled in US  Father was not actually exercising the custody rights at the time of retention\. mom took the girl y Dad filed petition for return of girl under Hague Convention US v Amer pg 685 Fed. both were Honduran citizens They had joint parental authority and court gave the mom guardianship and care y Mom went to US.

he was unwilling to return his y children to the United States 56 ." Issue y Did the use of the IPKCA detract from the Hague convention purpose? (NO. Egypt isn¶t a signatory so the IPKCA and so this remedy is not available to the wife) detract means to limit the effectiveness of other countries' participation in the Hague Convention with the United States y H¶s defense was not one of the three available in the Hague convention (he said she was bad mother) y Supervised release provision is okay here b/c it is tailored to the situation at hand (abduction of the kids) y H removed kids to Egypt and got custody there. violation of the IPKCA. He took the kids w/o her knowing. Hague convention created civil remedy for the return of abducted children whereby the left behind parent can request the state where the child is retained to located etc Facts y International Parent Kidnapping Crime Act IPKCA bars parent from removing child from US or retaining a while outside the US for the purpose to obstruct the other parent¶s right in cusody y Ahmed Amer abducted his two children to Egypt and was given custody in an Egyptian court y His wife was previously given custody in a U.Family Law Notes Marianne E Dutton International Parental Kidnapping Criminal Act as alt to Hague when not adopted Held y The IPKCA was enacted to close the enforcement gap with those countries who had not signed the Hague Convention (civil remedy there) y The IPKCA criminalizes the removal of a child to another country with the intent to obstruct parental rights. W got custody in NY. he was arrested on charges of international parental kidnapping in violation of IPKCA y When Ahmed began his supervised release term. The statute punishes individuals for taking a child from the United States to another country. the IPKCA specifically provides that "[the IPKCA] does not detract from the Hague Convention. and also filed a complaint with FBI y Upon Ahmed¶s return to the United States. On its face.S. court.

Husband lived and worked in a different down. other remedies must be exhausted first. although the legislature says you have to wait two years for a trail court to change it¶s custody determination unless there is a finding that a change is necessary for the child¶s best interests. so if no evidence or if the view of the law was wrong. police were required for visitation. an error has been made o If so.  Standard is clearly erroneous. y Divorced after 15 years y Trial and appellate courts found that the kids had a become attached to their lives in Jamestown and were closer to mom b/c of the living arrangements over the years y Wife wasn¶t letting H visit kids and wanted $20K.Family Law Notes Marianne E Dutton y H wants to use affirmative defense that the children would have been exposed to psychological harm and that the Hague convention allows him allows him to argue that it is against the children¶s rights to deny them an Islamic upbringing Hendrickson v Hendrickson ND 2000 pg 690 Frustration of visitation/alienation syndrome/modification of custody Held y Frustration of visitation does not alone compel a change in custody. y Court ordered the kids custody to the county and ordered them all into therapy 57 . but lived with wife and kids on weekends and holidays etc. and. where the mother was poisoning the children against the father y Two factors considered when modification changing custody: o Has there been a significant change in circumstances since the original divorce decree and custody award? (This is a question of fact and the burden of proving is on the party asserting the change). do those changed circumstances compel or require a change in custody in the best interests of the child? Issue y Should the court change custody from the mom who is extorting the dad for visitation? YES Facts y H and W life in Jamestown. as in this case. Wife lived there with their 4 kids.

you can try this y Requires o You live together at least 2 years for reasons other than financial compensation AND o Have to have the agreement of the parent to form parent/child relationship. to the paying of child support? NO PP y Trial court impermissibly conditioned visition rights upon payment of child support Facts y Divorced couple has 13 year old.03 y Biology adoption marital presumption for H Parent by Estoppel y Co-parenting agreements prior to birth o Lived with child since birth o Full and permanent parental responsibilities o When in BIC you will be named parent by estoppel y Co-parenting after birth De Facto Parent y If you don¶t qualify as legal parent or by estoppel. dad wants to modify visitation and isn¶t paying child support. Guardian Mueller spends time with father and the trial court decides that Diane is the more diffucult parent and defiant and that Mark the husband should get the kids Farmer v Farmer 2000 pg 693 Can¶t tie visitation to child support Held y Visitation and child support are separate issues that are not to be commingled y Trial court abused discretion by tying the two together and making one depend on the other Issue y Can the court tie the visitation and a suspended sentence. OR 58 . Legal parent defined under state law ALI § 2. mom has custody.Family Law Notes Marianne E Dutton y County doesn¶t want the kids.

CT. MT. IN  Factors for Equitable apportionment (broad discretion to judge) y Duration of marriage 59 .Family Law Notes Marianne E Dutton o If there is failure or inability of any legal parent to perform caretaking functions  Regularly perform majority of caretaking functions PROPERTY DIVISION 1.g. Equitable distribution pg 697 Financial Settlements at Divorce y Property o Systems for division of marital assets o UMDA and ALI approaches o Cases y Alimony o Spousal support o Maintenance y Child Support Dividing Marital Assets on Divorce y 3 systems o SP or Title theory o Equitable Distribution  Adopted by 41 states o CP UMDA pg 697 Section 307 Disposition of Property: Alternative A and alternative B y Alt A o Hotchpot approach to marital property  Equitably apportion y Property and assets o Belonging to either or both. however and whenever acquired o Whether title is in one name or both  Applies e.

health. except gifts from 3rd parties and inheritances o During relationship bw spouses prior to marriage if a domestic partner relationship y SP o Before marriage o During marriage  Gifts. inheritances y Comment A: widespread view that marriage alone should not affect the ownership interest that each souse has over property possessed prior to the marriage or received after the marriage by gift or inheritance ALI § 4.03 . station.Marital and SP pg 698 y In CP and C/L jxns y Marital Property o Acquired during marriage. occupation Amount and source of income Vocational skills Liabilities Needs Custodial provisions In addition/in lieu of maintenance Future acquainting of assets and income y Alt A and B o Both alternatives  Property divided w/o regard to marital misconduct ALI § 4.Family Law Notes Marianne E Dutton y y y y y y y y y y Prior marriage Antenuptial agreement Age.05 Enhancement of SP by Marital Labor y Increase in value of SP may be treated as marital property y Increase in value over course of marriage = difference b/w o Market value when acquired or beginning of marriage o Mkt value when sold or end of marriage o Marital ppty is the portion of the increase o Comment b pg 699 y Value of marital labor ALI o Values capital input per ordinary rates of return 60 .

Distinguishing Marital Property (MP) from SP pg 700 As a result. $2. market forces.5 goes to wife Issue Facts y MD law said SP is: acquired b/f marriage etc etc y Considered statutory factor y Appreciation caused by dynamic husband who served as CEO and clearly controlled company was entirely active. the increase in value of the husband¶s business during the marriage. go to pg 703 for factors used in Md court) Held y Affirmed an equal division of marital property. when dividing appreciated separate property. then the MP must be divided. but equitably y Court applied the Marital Sources of Funds Approach 61 . remains separate property. even though he owned only 51% of the company. all remaining gain to capital 2. not necessarily equally. or the efforts of third parties. of a business that he founded just prior to the marriage was marital property valued at $4M. is marital property.Family Law Notes Marianne E Dutton y Quantum meruit approach o Values marital labor input by prevailing compensation rates. known generally as active appreciation. the court must divide the appreciation into two classes. Appreciation caused by marital contributions. Appreciation caused by inflation. and 49% owner also worked ther y Husband was a gambler and pissed thru some of their assets y Thomas v Thomas GA 1989 pg 706 SP and MP classification by court (Equitable distribution factors case) Held y First you have to classify the assets as MP or SP. Innerbichler v Innerbichler MD 2000 Marital property increase in value of non-marital property (If using this case. known generally as passive appreciation.

marital funds reduced the mortgage. reversed spousal support.Family Law Notes Marianne E Dutton o A spouse contributing SP is entitled to an interest in the ppty in the ration of SP investment to total of P and nonMP investment in the property. presumptions Held y Property (trust) can¶t be awarded as spousal support. you get back the same proportion and fair return on the investment Issue y At trial W was given almost all money from house and half the stock sale proceeds. stock purchased during marriage b/c of stock options H had before marriage. conceded by court to be SP Facts y Proceeds from sale of home (marital) and stock in the company where H worked. just and proper approach. and although they didn¶t use the money in the early part of the marriage. bought by her shortly b/f marriage. there is a rebuttalbe presumption that that both spouses have contributed equally to the acquisition of property during the marriage. a trust asset is a property asset and is to be treated as divisible asset. it is presumed to be µjust and proper¶ to divide the property equally y De novo review. want to leave them µon as equal a basis as possible¶ Issue y Did trial court err when they classified the H¶s trust as MP and awarded wife 400/month from the trusts as spousal support? Did the court err in awarding spousal support?YES Facts 62 . so where this applies. it is µjust and proper¶ to divide the interest in both trusts b/w H and W o H got W to leave good job. basically. the remaining property is characterized as marital property and it¶s value is subject to equitable distribution. house in wife¶s name. it is how they financed their retirement o When property is characterized as MP. modify property division y when parties have been married a long time. stock was paid for with some SP money and some MP money In re Marriage of Brown 2008 OR pg 89 supp SP and MP classification by court. the court is more concerned with equitable distribution.

y H and W used a trust asset to finance the construction on new home. bubba wants to live with dad. sold home. adult daughter. y W got the divorce. upon death the trust goes to their living children (daughter would get 1/3) y Trust #2 by H¶s dad to him and sisters y H and W agreed they wouldn¶t rely on trusts for income. the marital home. W got in debt 3. they separated. both are attys. H said they should retire. he convinced wife to quit her job and retire. remanded and subjected to equitable division using enunciated factors y Equitable division allows court to look beyond formal state of title and divest one party of title to achieve an equitable distribution Issue y Did the trial court err in awarding half the interest in the house and land? no Facts y W was awarded divorce on ground of adultery with custody and support for the child. support. one girl. H and his sisters were beneficiary of two trusts created b/f the marriage. some of trust used to pay for girl¶s college. custody. half of H¶s pension. 14 year old son Bubba. etrc etc Comparing the next two cases: y Postema is right to reimbursement 63 .Family Law Notes Marianne E Dutton y H appeals from judgment award to W for spousal support from H¶s interest in 2 family trusts created by H¶s father and grandmother y Married 24 yrs. Dividing Property Equally Ferguson v Ferguson MI 1994 pf 709 Factors in equitable distribution Held y Court enunciated eight factors to be considered by trial courts in equitably dividing the marital estate y Court did have authority to order J to transfer title of W. W was homemaker and beautician. remanded for court to consider the factors y Factors listed on pg 711 y Long marriage. he was ill couldn¶t work FT anymore. but not long after he started getting the money they used it to live on. W didn¶t want to.

both making good money now Valuation of Advanced Degree Methods: y Awarding % share of present value of future earnings due to degree OR y Restitution 64 . and intangibles like emotional and psych burdens. less time to pursue personal interest. at marriage H was accountant with plants to go to law school. alimony is for a need for support which would terminate on remarriage while property entitlement would not Held y Court used Restitution approach (contributions towards the cost of earning the degree b/c spouse should get the contribution towards attainment of that degree y Fairness requires that souse who didn¶t earn advanced degree should be compensated when the advanced degree is the end product of a concerted family efforts o Concerted family effort includes tangibles like supporting the spouse. life style change. W was LPN and going to school for RN. this is minority case) Characterization of claim for compensation involving advanced degree y Court asks o Is it a marital asset subject to property division or instead o Is it a factor in awarding alimony o Here they say marital asset b/c property is one thing.Family Law Notes Marianne E Dutton y Elkus is right to return on investment y See arguments on slide from 4/20/09 slides pg 6 Postema v Postema MI 1991 pg 713 Law degree as an asset (most states use reimbursement alimony. During marriage. H gets law degree. financed thru loans. y W gets an RN job. education. career y Presumable court will ask if a RP in these circ would have expected some form of compensation Issue y Did trial court err when they considered the law degree as MP? Facts y Married 3 years.

therefore. and contributions of non-student spouse toward attainment of degree y Second. calculate sacrifices. this appreciation was a product of the marital relationship. marital property subject to equitable division. and awaiting a decision on PL¶s celebrity status as property. H responsible for actual cost of education Elkus v Elkus NY 1991 pg 719 Celebrity status as property asset (see next case too) Held y Yes. so the trial court can render a decision on the economic portion of the 65 . to share the value as part of an equitable distribution. so as to enable the other spouse who made a direct or indirect contribution to their acquisition. determine what means of compensation would be most appropriate in light of: o Marriage duration (longer marriage you get less b/c you already benefited from the degree) o Financial support while in school  In Postema wife 80% of financial support  Overall division of MP  Other y W financed her own career. held for PL. and. anything in which the other partner has something to do with in terms of contributing to the other¶s success deserves a share Issue y Under NY property law. Really. when the celebrity status came during the marriage? YES PP y In trial court. which comes from this status a divisible item on an economic basis in divorce proceedings.Family Law Notes Marianne E Dutton y First. y The property here is the appreciation in value of her career. To the extent DF's contributions and efforts led to an increase in the value of PL's career. PL and DF are in the middle of trial. is the celebrity status and the wealth. efforts. to the extent that spouse efforts led to enhancement in earning power is product of marital partnership Rationale y Medical licenses have been held to enhance the earning capacity of their holders.

Joint custody of both children. Facts y Parties getting divorced after 17 years. y Additionally. charging amount dissipated against MP share o Disproportionate division Siegel v Siegel NJ 1990 pg 721 Dissipation of marital assets by gambling Held y Gambling losses are excluded from the matrimonial µpot¶ 66 . including money and non-money contributions made by caring for home and family 4. in addition to other duties which he believes made him a contributory factor in her development into an international celebrity y PL seeking dissolution of marriage. PL¶s earnings increased 275 fold from the time of their marriage. at dispute is the split of assets. and remanded back to trial court to continue proceedings and move on to equitable distribution. PL became famous during their marriage. O¶Brien v O¶Brien pg 721 embedded Profession/career can be marital property Held y An interest in a profession or professional career potential is MP which may be represented by direct or indirect contributions of the non-title-holding spouse. Financial Misconduct and Dissipation y Actions/inactions by spouse the diminish property available for distribution y What conduct is dissipation varies y Remedies o Most states include as factors for equitable distribution pg 723 o Include value of dissipated assets in marital estate. DF claims he was PL¶s voice coach for 10 years of the marriage. and a declaratory judgment sought her status as celebrity before the equitable division of the couple¶s assets.Family Law Notes Marianne E Dutton proceedings. Reversed in this court. and sacrificed himself for the marriage.

by themselves. such as intentional waste or a selfish financial impropriety. debt belongs to gambler Gershman v Gershman CT 2008 pg 96 supp When is it dissipation or not? Held y Dissipation in the marital dissolution context requires financial misconduct involving marital assets. do not constitute dissipation. Pensions and Other Deferred Income y Pensions/retirement benefits and home are typically most sig. coupled with a purpose unrelated to the marriage.Family Law Notes Marianne E Dutton Facts y NJ statue says dissipation in value of MP considered in equitable distribution y Here. Poor investment decisions. assets avil. For distribution y Key issue: are the distributable as marital property? y Included are: o Defined contribution plan  Separate account for Ee where periodic contributions are made  Interest accrues o Defined benefits plan  Fixed monthly or annual amt to ee on retirement and rest of life  Er doesn¶t maintain sep account  State retirement system Vocabulary y Vested o When Ee discharge doesn¶t forfeit benefits y Non-vested o Contingent on continued employment y Mature o When Ee on retirement has unconditional right to receive payment 67 . 5.

Issue y Are anticipated renewal commissions on insurance policies sold by spouse during marriage but accruing after dissolution of marriage.Family Law Notes Marianne E Dutton y Non-matured Valuing and Dividing Pensions: y Approach 1 o Present Value (PV) o Contingencies to collection factored in to µreduced to present value¶ calculation o Fraction of present value represents marital contribution to accrued pension benefits o # year pension accrued during marriage/total years during which pension accrued o Ee spouse gets interest and non ee spouse gets off-setting interest o Rejected by Court as unfair y Approach 2 ± Deferred distribution (Laing) o Reserved jxn to trial ct till vest o Not in initial prop distribution Niroo v. 727 Anticipated renewal commissions on insurance are MP Held y Davids interests in renewal income are marital property y Contractually vested rights in renewal commissions are a type of property interest encompassed within the definition of marital property under § 8-201(e) y That an insurance agent has a vested right in commissions on renewal premiums when provided for by contract is well settled y This contractual right was clearly established in the husband's agency contract whereby Penn Life agreed to pay him a stipulated percentage of renewal premiums collected in the future. Niroo MD 1988 pg. he gets income from net profits. MP? yes Facts y H sells life insurance and gets commissions on polices he and agents under him sell y If policies renew. subject to certain conditions (renewal income) 68 .

then the contributions will be returned so it¶s like a savings account) Alimony ± Maintenance ± Spousal Support y Legal financial arrangement b/w separated or divorced couples y Contract with child support o Financial support by non-custodial parent o Different tax consequences UMDA 308 Maintenance (pg 731) 69 .Family Law Notes Marianne E Dutton y This is vested even if dead or disabled b/c it goes to heirs or assigns y Anticipated renewal commissions on insurance policies sold by the husband during the marriage were included as marital property because the husband was entitled to receive the income under a contractual agreement with the insurance company which also provided for the husband's heirs to receive the renewal commissions in the event of his death and allowed the husband to assign the commissions under certain circumstances Laing v Laing Alaska 1987 pg 724 Non-vested pension Held y The court has a preference for reserving jxn as an alternative to valuing non-vested pensions at the time of trial. y Rather. if it¶s not going to vest. the non-employee spouse may seek an order dividing the pension. the court reserves jurisdiction and if the pension vests. y Under this approach. which will be done in the same manner as it would have been if the pension was vested at the time of the divorce y (From elsewhere. a non-vested pension is not considered when the trial court makes its initial property division at the time of the divorce.

AND o 2. up to judicial discretion how much weight to give each.05 Maintenence Compensation for Primary Caretaker¶s Residual Loss in Earnings Capacity o Souse entitled to comp for loss in earning capacity during marriage b/c of primary responsibility for child care o Primary caregiver doesn¶t have to prove income loss (say they made peanuts b/f marriage.Family Law Notes Marianne E Dutton y Presumption against alimony (historical stuff in slide 4/20) y Alimony only if: o 1. Is unable to support him/herself or is custody of child and should work outside the home y Purpose o And (§ 307¶s allocation of property) is to encourage use of property division rather than alimony to meet financial needs of divorcing spouses y If both conditions satisfied court may award alimony. Here assume 0. leaves states to determine. and marital misconduct not considered in UMDA but 41 states do allow (see note on pg731-32) o Financial resources of party seeking maintenance o Time necessary to acquire sufficient education/training to find appropriate employment o Standard of living during marriage o Marriage duration o Age/physical/emotional condition of spouse seeking. it is presumed they didn¶t go for a career b/c kids in the plan) but can rebut: o Presumption of entitlement can be rebutted by evidence that claimant didn¶t provide disproportionate share of the child care o HOW TO CALCULATE o Say 10 year marriage. and o Ability of spouse from whom maintenance is sought to meet his needs while meeting those of ht espouse seeking maintenance ALI 5. W didn¶t work last 7 b/c of kid o Ask what is her expected income after divorce o What is the difference b/w hers and his income o What is the child care durational factor  Not specified in ALI. taking into account several factors. Spouse lacks sufficient property to provide for his/her reasonable needs.02 70 .

o1 state durational factor)  Mult factor 1 by factor 2  (14.14 y (0.667 v 2500/month  Difference is 14.Family Law Notes Marianne E Dutton o Calculate  Multiply child care durational factor by years W had primary child care responsibility  Multiply this by the difference in income y (.14)(2000) = $280/mnth y For how long? ALI doesn¶t say.02)(7) = 0.04) note ALI sys µspousal compensatory payments) Review of Alimony Principles/Reasons/Theories on pg 764 o Need o Status o Rehabilitation o Contribution o Restitution o Compensation for Forgone Opportunities 71 . ALI 5.04 CALC for MUCH WEALTHIER SPOUSE pg 739 o Person married to someone of µsig greater wealth or earning capacity entitled to comp for reduced standard of living if marriage long enough that equity requires o Assume state statute says 8 years qualified as sufficient duration o Calculate: o Factor 1: difference in incomes say 16.01)) Alimony Review: 4 approaches to financial comp at divorce o Reimbursement for contributions to other spouses earning power (Postema) calculation req o Grant of entitlement to some portion of earning power that one spouse helps the other enhance (Elkus) calc required o Compensation for career sacrifices w/o requiring calculation of contribution or sacrifice ALI 5.167 o Factor 2: Durational factor = (yrs marriage)(o. State sets this.05 o Income sharing based solely on length of marriage after a certain period (ALI 5.167)((8)(0.

Facts o Couple married 70 months. Duration of Marriage Held o The trial court gets wide discretion on matters of duration of spousal support. disability happened after split 72 . o Short marriage. Court must consider totality of the circumstances o Here the court followed the relevant CA statute guidelines (see pg 733) which provides for spousal support in any amount and for any period just and reasonable. not the husband) Issue o Did trial court abuse discretion by terminating lifetime support even tho supported spouse was permanently disabled? NO. needed rehab. PP o Trial court considered length and nature of marriage. Wife not entitled to lifetime support after a 70-month marriage. and o Other factors which the court deems just and equitable o (Time for the state to take care of the wife. couldn¶t bartend anymore. and ruled hubby no longer needed to pay.Family Law Notes Marianne E Dutton o Return on investment o Partnership Alimony: Cases In re Marriage of Wilson CA 1988 pg 732 Trial court discretion. she is permanently disabled from accident 2 years after separation. head doctor said h=she had brain damage. no kids. duration of support. provided the trial court considers the list of circumstances on 733 (GO THRU THIS ANALYSIS ON EXAM STEP BY STEP) o Earning capacity of each o Needs of each o Obligations/assets of each o Marriage duration o Ability of supported spouse to engage in gainful employment w/o detriment to dependent children in his/her custody o Age/health of parties o Standard of living of parties. the infection from dental work. spousal support terminated at 58 months by court order.

to maintain the marital standard of living o (ii) And Wilson. What to do? Facts o Married 20 years. where court denied support to wife who was disabled in an accident. after a long marriage. 73 . 1994) c) To compensate a homemaker for contributions to family well-being not otherwise recognized in the property distribution (Clapp). Issue o Standard of living is higher than reasonable needs here. He says gives W income higher than her reasonable nedds o Duration relates to: o (1) Financial need arising from the marriage o (a)Courts believe that the longer a person is married. o (b) Also more plausible that spouse has benefited from homemaking labors that gave rise to financial disparity o (i) See Clapp. the more plausible it is that her financial disparity is attributable to the marriage. He says wife¶s reasonable needs are met. Because marriage only lasted two years and disparity not attributable to marriage. which discusses the right of both parties. no support even though husband able to pay. H has to pay 2K/ month. award tailored to W at standard of living during marriage d) Entity view: Pooling of emotional and economic resources in marriage makes equality in post-dissolution financial positions appropriate..Family Law Notes Marianne E Dutton Clapp v Clapp VT 1994 pg 734 Duration factor and Reasonable Needs Argument Standard of Living and Permanent Alimony (she can marry and still gets it) Usually terminates on remarriage can be modified w/change of circ tho Held o Here the court uses an income equalization¶ and used standard of living I marriage as factor o Equalized income for one year o H gets to keep increasing share of combined income in future o Award doesn¶t change b/c parties change in incomes b) To balance equities whenever the financial contributions of one spouse enable the other spouse to enhance his or her future earning capacity (Clapp ± Vt.

and the prospects of finding a new spouse decline Support Modification and Cases UMDA 316 Alimony Modification pg 753 o Higher standard o Changed circumstances so substantial and continuing as to make the terms unconscionable pg 753 o To discourage repeated or insubstantial motions for mod UMDA 316 Property Disposition o May not be revoked or modified unless o Condition justifies reopening of j/mt under state law o Ex. the more they rely on the marital commitment because life course becomes harder to change. was paying 625/wk combined. alone. 1991 pg 753 Alimony/child support modification: change in income Held o A material change (Hamilton case) for the standard of modification says that the change can be a change which affects either parent¶s ability to pay or the needs of the minor children o So a fat change in salary is enough to modify Issue o Does an increase in ability to pay of the non-custodial parent¶s ability to pay possibly constitute a material change in circumstances sufficient to justify an increase in support? YES PP o Trial court said that increase in income.C. Fraud o Terminated by death of either party OR remarriage of party receiving maintenance o Unless otherwise agreed in writing or decree Graham v Graham D. his income almost tripled up to 255K per year D¶Ascanio v D¶Ascanio CT 1996 pg 756 74 .Family Law Notes Marianne E Dutton o (c) The older one gets. was insufficient basis to modify a court order for support Facts o 20 year marriage.

the movant must prove that the party receiving alimony was living with another person and second. o Here. and then enforce the terms of the agreement that the parties entered into and the court approved. PP o Trial court won¶t apply modification agreement o Applies cohabitation statute o Change in circ so as to alter the financial needs of the receiving spouse o For equity reasons reduces alimony only to 600  Living w/Dean only altered her financial needs by 100/wk instead of $350  Appellate review of a factual finding.2d 1097 (Okla. therefore.Family Law Notes Marianne E Dutton Two prong test re alimony modification in CT Living with new person Held o The statute imposes upon the movant a two-pronged burden: first. Smith. Remanded to render judgment reducing the plaintiff¶s weekly payment in accordance with the agreement. (This says reduce 350 instead of the reality of 100) Issue o Parties agreed to remove the discretion of the court in adjusting alimony. Can the court disregard? No. is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court. 849 P. the movant must prove that the living arrangement caused a change in circumstances altering the financial needs of the support recipient. or termination of alimony if ³living arrangements cause such a change of circumstances as to alter the financial needs of that party Other Modification Holdings re Cohabitation (1) Courts have also generally recognized that cohabitation may not always alter the financial need of the spousal support recipient. Reversed. with an agreement in place. the only thing the trail court should have done is assess if there was cohabitation.¶¶ Facts o CT statute provides that cohabitation may result in suspension. reduction. 1992) (holding that where no showing was made that wife's expenses decreased during 75 . See Smith v. App.

* A standard which inquires whether an agreement is "involved" in or "contemplates" a nonmarital relationship is vague and unworkable. or to "contemplate" the existence of that relationship. MAINTENANCE: UNMARRIED PARTNERS PG 769 Marvin v Marvin CA 1976 pg 769 Landmark Palimony case ± Unmarried. 825 P. alimony should not be reduced). in light of evidence that payee was still in financial need). in that virtually all agreements between nonmartial partners can be said to be "involved" in some sense in the fact of their mutual sexual relationship. y Adults who voluntarily live together and engage in sexual relations are nonetheless as competent as 76 . * A contract between nonmarital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit consideration of meretrocious sexual services. Nonmarital partners are not entitled to division of community property. because Betty Marvin could have asserted her community property rights but did not. 1991) (finding no error in continuation of alimony during cohabitation. but the courts will instead enforce express agreements between the parties to the extent that these agreements do not rest on an unlawful meretricious consideration.2d 1018 (Colo. o NOTE: court must ascertain expectation of the parties as expressed by words or conduct Rationale * Nonmarital partners may lawfully contract concerning the ownership of property acquired during the relationship. Mitchell.2d 1140 (Me. 1980) (upholding finding that wife's financial conditions had not changed through cohabitation). In re Marriage of Dwyer. or course (Arguments enforcement of this are in the slides on 4/21) Held o 1. Mitchell v. In the absence of an express agreement. o 2. the courts may look to a variety of other remedies in order to protect the parties' lawful expectations. * Awarding the plaintiff some of the property to which Marvin's first wife would be entitled is not counter to public policy. 418 A.Family Law Notes Marianne E Dutton cohabitation. App.

000 to Triola for "rehabilitation purposes" but denied her community property claim for one-half of the $3. she sought financial compensation similar to that available to spouses under California's alimony and community property laws. At first she accepted the $833 per month he sent to support her while she tried to resume her singing and acting career. When the promised checks stopped. she had lived with the rambunctious. Though the couple never married.6 million. she decided to sue him. o After all. o He agreed to support her for life. Issue o Was the live gf entitled to half of whatever he got during relationship? NO PP o Marvin was ordered to pay $104. consider unsonscionablity to address destitution due to enforcement o Is it VAPP? No o Implied theory of contract? Expectations? Court says look at economic integration and if they hold themselves out as couple o Living together would probably say sharing assets etc and give her equitable distribution ALI 6.03 Domestic Parners pg 779 77 . which Marvin had earned during their six years of cohabitation Facts o Marvin was sued by long-time girlfriend Michelle Triola (who called herself Michelle Marvin at the time). hard-drinking actor for six years and had even legally changed her name to Marvin. She gave up entertainment career to be homemaker Enforceability of Palimony Arguments o An express contract would create incentives for clear expression of parties¶ intent o Probably can¶t modify for change in circ b/c jxn of court isn¶t based on dissolution principles but contract theory o Court simply is charged with enforcing according to intent at time of contract o Tho.Family Law Notes Marianne E Dutton any other persons to contract respecting their earnings and property rights.

He said he take care of her for life.06 Compensatory Payments for Domestic Partners pg 782 Enforcement of Palimony Cases Norton v Hoyt RI 2003 pg 776 Promissory estoppel for an adulterous relationship (he promised to support her) Held o See issues for response to elements.c it violates an express mandate of the law or public policy. Doctrine of estoppel has no application to contract that is void b. o Reasonable and justifiable reliance on the promise  Her reliance on the promise was unreasonable. not just money.Family Law Notes Marianne E Dutton o Explicit rejection of K as basis for recognizing claims o Entitled to same compensatory payments ALI make for spouses o Comment b pg 781 o Eiligility effectively based on status of lving together for x time rather than K law o Heading toward system where unmarrieds must expressly opt our of rights and obligations  Burden of showing K on party wishing to avoid o Couple can qualify as domestic partners o Same or opposite sex o If for sig period of time  Share primary residence AND  Life together as a couple 6. 78 . but that can mean a lot of things.03(1) y 13 factors to determine (7)  Maintain common household with their common child for state law determiened period of time (2) y Criteria in (4) ande (5) ALI 6. she knew he was married and that he spent time with wife and kids. Public policy in favor of marriage militates against recognizing support claims arising from adulterous relationships. Issue o Are these elements of Promissory Estoppel in RI met? o Was there a clear and unambiguous promise?  No.

Child Support Enforcement amendments o States have to make advisory guildelines or they lose federal funding for AFDC o Trying to enhance uniformity in child support and gtive judges basis to determine support 4. D said he would leave his wife and marry gf and support her forever o Gail/P met Hoyt. Family Support Act 1988 o Required state guidelines to apply to all cases o Rebuttable presumption 79 . adulterious. reliance on an unclear and ambiguous promise was imprutent o Detriment to promisee caused by the reliance on the promise  She says she left gainful employment as school teacher and gave up marrying someone else at a younger age  Whatever reliance she had is insufficent Facts o 23 year relationship. Not. 1984 Aid to Families with Dependent Children program o Shapes state policy by conditions imposed by the programs through conditions of receiving AFDC assistance to establish numerical guidelines on which to rely in determining child support obligation o These are rebuttable presumptions of the appropriate amount o Judges may deviate only upon a written finding that applying them would be inequitable 2. CHILD SUPPORT Federal Gvt 1. Child Support and Establishment of Paternity Act 1974 o Recipients of public assistance o Must cooperate I establish and enforcing support orders and locating potential obligors o Objectives o Reduce public expenditures on welfare o Help families get support and get off public assistance o Simulate state action for paternity for nonmarital kids 3. She was uber upset. He left.Family Law Notes Marianne E Dutton she knew he was a liar and an adulteror. He said he was divorced. Lavish lifestyle. He kept lying and leading her on. He totally supprted her.

Delaware Melson Formula (slides on 4/21) o 3 states pg 784 o Generally  Calculate parents¶ Basic needs b/f formula applied  Then kids basic needs including child care and meds  Portion of remaining to additional child support ALI Approach o Based on data that indicate how much more income a family necds after divorce to sustain its s predivorced standard of living o Bureau of labor statistics  Eg. Parents with 1 child need 114% of predivorce income for same SOL  CP needs 70% and NCP needs 44%  CP chould get 70%/114%. 50% for >6 y Illinios guidelines on pg 790-1 nt 2 o 3. Income shares o 33 states including WA pg 783 o Prorates support based on each parents % income o Theory  Kid should get same proportion of parents income as if they were still together o Method to Calculate  Add income CP and NCP  Determine % available for support  Add expenditures for med or child care  Prorate total amount b/w parents based on each % share of total o 2. or 61%of the income  NCP should get 44%/114% or 39% of the income o Focuses more directly on post divorce needs than assuming same % of income should be spent on kids before and after Schmidt v Schmidt SD 1989 pg 784 80 . Three Models for Guidelines o 1.Family Law Notes Marianne E Dutton o Any deviation supported must be by findings that applying guidelines would be inequitable 5. Percentage of Income o 14 states and DC pg 784 o Percentagle of NCP income only  Vary by number kids y Example 20% for one kid.

Family Law Notes Marianne E Dutton Two fathers both want custody of their respective kids Net Income and number of Children Affected Approach BIC Held o Court held that although it is in Christian¶s best interest to be with Jody. care. as primary caretaker. but will affirm split custody if supported by compelling reasons Issue o How to decide with two brothers where one¶s BIC is for the kids to be together and with the mom. In re Marriage of Bush Ill 1989 pg 788 Support Valuation when both parents are RICH UMDA § 309(3) pg 784 Held 81 . They did fine apart. and Heather got physical custody of Michael o Heather got her degree and then married Brent moved from Madison to SD. Stephen got Michael for summer. affection and guidance. F paid monthly o F gets a kid. provided appropriate education. pays support for 2 kids o M with higher salary ordered to pay for 1 kid. they let Jody have Christen for the summer. recreation. Doc recommending that primary custody of Christian be awarded to Jody and that Heather get Micheal b/c Stephen was a worse parent o The trial court found that Heather. so this cancels out The Story Here o Heather and Jody marrie.d split had. parental love. JC of their son Christian o Heather married Stephen. and the other would rather be with his dad? Facts o SD is income share state o No deviation of guidelines w/o specific findings o Deviation okay for any financial condition of either parent which would make application of schedule inequitable o Here M was CP for 3 kids. o The two fathers each filed for custody. it is in Christian and Micheal¶s best interest to be with Heather o Splitting custody of minor children is undesirable. split.

but not past 19 Curtis v Klein PN 1995 pg 794 Can selective require some parents to pay for college and not others Held 82 ." and remanded the issue to the trial court for a reasonable monthly support amount. stating that a four-year-old child could not possibly need "more than the average income of most Americans.000 per year for one child. in the context of child support. the court is justified in setting a figure below the statutory child support guideline amount (see text pg 791 for guideline percentages) o And despite the requirement that a court consider a child's station in life. the courts are not required to automatically open the door to a windfall for children where one or both parents have large incomes.Family Law Notes Marianne E Dutton o The court reversed a child-support award of 20 percent of the father's income or $30. even taking into account the lifestyle the children would have absent the dissolution. Rational o Illinois courts. courts will enforce contracts to provide such support o Authority for a court enforcing child support where the parties have agreed to share the cost of college (an action to enforce the agreement as a contract) Issue o In Arizona does father still pay child support as long as she is in college? NO Does she need to be living at home also? Facts o F (findley) and M (Solomon) submit joint petition for o In AZ Termination of support at 18 or until child graduates from high school. but court can enforce express agreement Held o No statute or case law holding parents to a duty to college support in the absence of an agreement. have consistently held that when one or both parents have incomes that are ample to provide the reasonable needs of the parties' children." Solomon v Findley AZ 1991 pg 791 Statute doesn¶t req paying for college.

and unanticipated changes of circumstances (court¶s discretion) o New step kids or new your own kids doesn¶t make a difference (can argue for and against this. substantial. and legislature authorized exclusion of preexisting support order from gross income o Guideline deviation when inequitable o Intended discretion 83 . o Note: modern trend to req support or adult disabled o RBR: no basis for state to provide help to children of unwell parents simply b/c they are divorced Issue o Statute allowing cts to order divorced parents to pay support for adult children attending school violates the equal protection clause bc not an entitlement that all children have Child Support Modification UMDA 316 pg 752-3 o Changed circ so substantial and continuing as to make the terms unconscionable o To discourage repeated or insubstantial motions for modification o Terminated by emancipated child o Not automatically terminated on death of parent obligated to support child Child Support Schemes vary by state o Income Shares o Presumption that amount calc under guidelines is appropriate obligation o Statute permits deviation if o Just finds child support under guidelines would be inequitable.Family Law Notes Marianne E Dutton o Can have a statute that allows courts to order parents to pay for college b/c this is an EP violation. considering specific factors Ainsworth v Ainsworth VT 1990 pg 798 Child support modification standard and subsequent families See below for discussion re this law Held o Standard for modification: real. see slide on 4/23) o Court gets discretion. Not all children have a right to court ordered college support and not all parents are made to do so.

and unanticipated change of circumstances Facts o In this case. How could Ainsworth be contested? o Julie could argue that a statutory deduction from gross income only for a preexisting support order and not a later support order indicates priority to child of prior marriage o Reginald could argue that exclusion from gross income occurs for ht purpose of determining a support obligation at the time of divorce. Should have done both of these) o The court considered all statutory factors here and didn¶t find the evidence weighed enough to tell if the amount was right. New Hampshire. South Dakota. remanded so that trial court explains the process. Issue o Whether there can be a downward modification to pre-existing child support when subsequent family is involved. at that point. but they were considering the couples debt. subsequent family children were step-children. unlikely to have any subsequent support obligations o Majority thinks that person should be able to start a new life o Dissent thinks person should have to take prior obligations to children into account in making decisions Concluding things to remember o Finding support inequitable doesn¶t automatically justify a lower support award o Court must consider all relevant factors o A deliberate and voluntary act that reduces income w/o sufficient reason will not support deviation 84 . Mich.Family Law Notes Marianne E Dutton o Secondary family obligations are voluntary and generally not considered in establishing child support in this state. and Vermont. o The duty to support stepchildren is considered in the guidelines calculation in only four states: Michigan. trial court erred b/c opinion didn¶t explain if they used factors and how they came to the amount. Affirmed trial ct decision that the financial resources of the new spouse of the parent is also relevant consideration. A parent should not be able to rely on second family expenses without consideration of second family income and resources (so the new wife¶s income hadn¶t been considered at trial. YES o State statute pg 799 nt 1 says µreal. substantial.

PP o Trial court denied modification b/c appellant failed to prove a substantial and continuing change of circumstances according to the AZ statute. but balances lots of factors and may do so if in BIC o A court must balance a number of factors to determine whether to modify a child support order to reflect a substantial and continuing change of circumstances.Family Law Notes Marianne E Dutton o Ainsworth: reluctance to burden intimate choices post divorce  But parent can¶t automatically reduce a support or obligation. on appeal reversed. how young the kids are so that they may benefit from the parent¶s increased earning after the school etc. trial court decision affirmed. provided in good faith o Strict rule test: earning capacity o Intermediate test: balancing to decide an actual earnings and earning capacity Bender v Bender PA 1982 pg 807 Parent paying support wants to stay home with new baby 85 . even if guideline amount found inequitable. o Standard applied for mod is substantial continuing change of circumstances pg 805 see guidelines here Issue o What standard should a court apply in determining whether NCP¶s voluntary decision to leave work and become FT student? (substantial continuing change of circumstances) constitutes a sufficient change in circumstances to warrant a downward mod of support obligation? See factors considered on pg 806 balancing things like how long the schooling is. Voluntary Termination of Employment tests o Good faith test: actual earnings. specifically he voluntarily left his job for his own ambition and failed to consider the needs of his kids. that court find the decision to persue a law degree reasonable. attempts to protect child of prior marriage Little v Little AZ 1999 pg 804 Voluntary unemployment for school modification of support? Held o Generally the court will not disturb a support order in these cases.

dad has permanent custody. start support proceedings. he can be estopped from denying support duty. since she was 8 months pregnant at that time. tho it¶s not completely disregarded either o Factors considered o Age and maturity of child o Availability and adequacy of pothers to assist o Adequacy of available financial resources o Perception that the welfare of child served y parent at home Issue o Should a court relived a mother who wishes to care at home for kids ant not work from her support obligations to the child that her exhusband has custody of? PP o Appealing an order that suspending wife¶s obligation to support 9 yr old daughter. she decides to be stay at home mom. then must decide what evidence must be presented to establish a cause of action for child support? PP 86 . he actively interfered with girls relationship with natural father Issue o Can a stepparent be equitably estopped from denying the duty to provide child support for minor step-kids after divorcing the natural parent? Does his obligation terminate at divorce? o If not. support order given 6 week hiatus. Bender¶s ability to support the daughter in determining whether Mrs B should be permitted to remain at home with new baby.Family Law Notes Marianne E Dutton Support Modification (nurturing parent doctrine kind of weak) Held o Trial court erred in not considering Mr. note that the child µto be nurtured¶ is not the subject of the support order. remand must consider adequacy of people who might assist wife in caring for baby should she be required to return to work in order to provide support for girl. trial court said she had a right to be a stay at home mother Miller v Miller NJ 1984 pg 809 Stepparents support after divorcing natural parent Equitable Estoppel (this is the general consensus) Held o Yes..

c. affirmed on appeal Facts o Couple marries. support? yep Held o The 14th does not deny the power of the state to treat different classes of persons in different ways. she tricked him and had his baby. pills. Johnson and Louis IA 2002 pg 815 Unmarried parents and college support Held o District court affirmed. assume statute valid and party challenging must show no RATIONAL BASIS for the statute. Facts o Mother had the kid and got support from father. she had his baby and wanted support. supp pg 110 Unmarried parents. is this an EP violation against unmarried parents that they can¶t use that section? PP o Mother appeals courts denial to modify the dads support obligation to include college subsidy. MI court did so. Dubay v Wells US court of appeals 6th cir. reversed on second appeal. bona fide parental relationship. o Paternity ct establishes duty of unmarried parents to support. no kids but W has two girls that live with them for 7 yrs.. affirmed by USSC Facts o Wells told Dubay she was infertile AND on b. the statute¶s purpose is to be sure that minor bastards are provided with support and education Issue o Is the MI Paternity Act constitutional re EP of the 14th? PP o District Ct dismissed his case by FRCP 12b6. 2007. H never adopted them. 87 . another section says court may order to pay college tuition for married parents.Family Law Notes Marianne E Dutton o At trial equitably estopped from denying support duty. failure to state a claim. support denied the request for postsecondary education subsidy o The classification by the legislature is RATIONAL Issue o Statute says parents must pay until kid is 18.

W moved to NUY. upheld on NY appeal. it still could order support payments. so they had no power to extinguish any right. sep in CA. divorce decree granted. he argued the FFC and since NV didn¶t order support blah blah DOMESTIC VIOLENCE pg 291 RCW 26. but sequestered his property w/in the state. Facts o Married 4 years. NY ct didn¶t pave personal jxm over him.Family Law Notes Marianne E Dutton Vanderbilt v Vanderbilt USSC 1957 pg 817 Jurisdiction that can modify support obligations Held o The NV decree to the extent it purported to affect W¶s right to support was void and FFC didn¶t obligate NY to give it recognition o The wife¶s right to support had not been reduced to judgment prior to Hs ex parte divorce o NV didn¶t have jxn over her. which she had until NY law for financial support o A court can¶t adjudicate a personal claim under which is has no jxn Issue o Is the order of support from the NY court (divorce obtained in NV) unconstitutional b/c it contravenes FFC? PP o NY court found that even tho NV ordered divorce decree and it was valid. H filed suit for divorce in NV.50.010 Stat defineitno of domestic violence Lots of info in slides that I didn¶t put in the notes Protection Orders in WA State (slides 4/24) o Sexual assault o A civil or criminal order issued by ct on behalf of assault victim (see slide for how to get one) o Domestic violence o Relationship requirement o Fear/harm requirement o Two legal responses to violence 88 . W didn¶t get notice of process in NV and didn¶t appear before the court o The next year she files for divorce in NY and wants alimony.

household relationship requirement and expiration o Restraining order (Dissolution) Who is eligible? o 16 or older. basis for petition Traditional Immunity and Exemption (Doc of Interspousal Tort Immunity) y Marital rape exemption (must be gender neutral for EP.Family Law Notes Marianne E Dutton  Civil Protection Orders CPO  Mandatory Arrest MA o Anti harassment o Course of conduct requirement o Vulnerable adult o Someone over 60 who has some functional limitation and cant care for the selves or has in-home health care or admitted to facility o 1 year limitation o No contact (Criminal) o Reporting requirement. sexual penetration. WA on Marital Rape y Doesn¶t recognize this except for 1st degree rape (rape involving kidnapping. RBR) o Basis was rooted in privacy o Claimed to facilitate marital reconciliation o Still exists in some form in most states o Vindictive wife argument pg 283 o Claim to privacy reason pg 282 y Modern Marital Rape Exemptions o Gender neutral statutes o RBR review y Vindictive Wife Defense y Arguments for this o Marital privacy o Facilitates marital reconciliation  Fails to consider lasting harm on W  Vindictive wife. under that need parent or guardian o See slide for legal definitions of sexual conduct. threat of deadly force. serious physical injury) 89 .

partly y Since H was asleep. objectively reasonable o Imperfect defense  Releases D from 2nd degree murder  Actual belief that killing was necessary y Fails the reasonable test (objectively unreasonable) o Fear must be of imminent danger to life or great bodily injury. not reasonable battered woman y Court distinguishes perfect and imperfect defense o Complete/perfect defense escapes all charges including 2nd degree murder  Actual and reasonable belief that killing necessary. enhancement b/c of firearm. another 5 years y H was asleep R. W killed H with his gun. can there still be imminent danger for the selfdefense plea b/c he was a wife beater? y Jury must determine what would appear to be necessary to a reasonable person in a similar situation and with similar knowledge Facts y H beat W a lot. 3 years. was convicted of manslaughter.Family Law Notes Marianne E Dutton y Does allow exemption for 3rd degree rape (where victim does not consent) Battered Women¶s Syndrome People v Humphrey CA 1996 pg 289 Self-defense and battered women¶s syndrome Perfect and imperfect defenses explained Lots of explanation of BWS on pg 294 Held y Battered Women¶s syndrome is considered as a part of the reasonableness determination in a self-defense plea y Reasonable person standard. but not future harms Issue y Is battered women¶s syndrome to be considered in a self-defense plea to determine if the killer reasonably believed she was in danger? YES. v Malott (Canada) 1998 pg 295 90 .

Family Law Notes Marianne E Dutton BWS considered in RP test for self defense Held o The experience of a battered woman must now equally inform the objective standard of the RP in relation to self-defense o Judge and jury should be told that BWS is outside the normal understanding of someone who hasn¶t experiences Legal Responses to Violence pg 304 o Civil Protection Orders CPO pg 304 o Mandatory Arrest MA o Preferred over mediation. the more substantial the showing the party seeking relief must make y Modification of PO should be set aside only in the most extraordinary circumstances where it has been clearly and convincingly established that the order is no longer needed to protect the victim from harm of the reasonable fear of serious harm Issue y What is the correct standard to apply when considering modification or termination of an abuse prevention order? (substantial change in 91 . only the parties can do this o ConMA  Insensitive to nuances of domestic setting  Mediate  Arrest could screw up relationship Mitchell v Mitchell Mass 2005 pg 306 Protection Order Modification .Standard Held y Standard for modification of abuse prevention order is flexible: the greater the likelihood that the safety of the protected party may be put at risk by the modification. mediation would assume equal culpability o ProMA  Arrest makes offender aware of seriousness  Life or health of victim more important that attempting to preserve a marriage  A cop can¶t effect a reconciliation.

the courts are instructed to give broad meaning to the term µsubstantial dating relationship to assure that the protective purpose of the statute is realized o The Legislature did NOT intend the statute to apply to acquaintance or stranger violence Issue y Did P fail to meet her burden of establishing the existence of substantive dating or engagement relationship. C. she says not. the length of time elapsed since the termination of the relationship o The Legislature intended to address violence stemming from relationships. which may not be considered traditional family or household associations. like if your neighbor molests you kids. 10 yrs abuse. W got protection order: H moved to vacate and said that W had been contacting him. since this is a domestic relations statute? y Were boys DP rights violated b/c he couldn¶t call witnesses on his behalf or challenge evidence from P? PP o Abuse Protection Order issued against the boy at trial Facts 92 . relegated to anti harassment orders o Sexual assault protection order enacted to fill the gap o Four facts considered when deciding if there existed a substantial dating relationship (as required in the statutory language) o Length of time of the relationship o The type of relationship o The frequency of interaction b/w the parties and o If the relationship has been terminated by either person.M.2004 Mass pg 310 Requirements to obtain an abuse prevention order Substantial dating relationship factors Held o Order of abuse prevention order vacated b/c insufficient evidence in the record to support the necessary substantial dating relationship required by statute o One time offenders.O v M. And.Family Law Notes Marianne E Dutton circumstances) Does abuse need to continue to continue a protection order? NO Facts y H beats W. there is a gap in remedies. 3 police reports.

YES Facts o Unmarried parents. fathers mom has the kid. are still covered by the statute that requires blood relation for abuse prevention order Rationale o Civil protection statutes that address family members ust be equally to all concepts of family as they exist in the reality of our diverse family relationships Issue o Whether the paternal grandparent of a child whose parents were not married is related by blood to the child¶s mother. and thus. has a right to invoke protection from domestic abuse under the statute. 2002. he was arrested. abuse PO against boy. not related by blood. accused of sexually assaulting her. suspended from high school Turner v Lewis Mass 2001 pg 314 Blood relation for Abuse Protection Order (okay if not blood here) Held o Grandmother and mother of the child. mom is a crackhead. pg 831 93 . mother shows up high and wants the kid and winds up beating up grandma CHILD SUPPORT ENFORCEMENT (slides start 5/4) Child Support Generally o All states have guidelines o Gender neutral duty to support (Dubay) o Duty codified under divorce or paternity o Modification o Material or substantial change in circ o UMDA 316: so substantial that to continue the prior agreement would be unconscionable o Not required to be married o Usually step parents support can be terminated at will o Unless estopped from denying duty b/c conduct induced child¶s reliance and dependence Eunique v Powell 9th cir.Family Law Notes Marianne E Dutton y 17 yo boy 15 yr old girl.

atypical facts here too o Compelling interests of the state are having parents support children. she wants to travel internationally for business and pleasure o There is a statute that directs the state to notify the secretary of HHS. Affirmed on appeal. here the father is not being denied his fundamental right to procreate. no strict scrutiny. reasonably related to the rehabilitation thru probation rather than prison. see slide. (over 5K) Issue o Is it unconstitutional to deny this woman a passport for the reason that she owes a bucket of child support? PP o Trial court said it was not unconstitutional. he just has to satisfy the probation conditions Dissent o Less restrictive means possible. although she won¶t pay child support. also it is narrowly tailored to achieve rehabilitation. strict scrutiny here Held o The condition against procreation is narrowly tailored and sought to protect the children. she wants injunctive relief. not narrowly tailored Issue 94 .Family Law Notes Marianne E Dutton No international travel for deadbeat mom. and they did. as long as she is in substantial arrears. and there is a law that then directs the secretary shall refuse to issue a passport to the person in question Wisconsin v Oakley WI 2001 pg 834 Deadbeat dad not allowed to have more kids. RBR Held o International travel is not a fundamental right. no 5th amendment violation b/c no guaranteed liberty to travel internationally. Fact o Eudence Eunique denied passport b/c she hadn¶t paid child support payments in a while (20K). as opposed to interstate travel. rehabilitation thru probation rather than prison. which would have further victimized the kids o Incarceration deprives a person of their fundamental liberty.

he paid twice then stopped. since this is an element of the crime? o Is this civil or criminal??? Criminal contempt is punitive to vindicate the authority of the court? PP o State court order Feiock to support his three kids. whose burden is it to establish this? Is it a DP violation to shift this burden to the dad. now to the USSC 95 . broad discretion granted Hicks v Feiock USSC 1988 pg 839 Conditional v Unconditional penalties Criminal or civil enforcement Held o An unconditional penalty is criminal in nature b/c it is solely and exclusively punitive in character o A conditional penalty. wants to protect the kids from future wrongdoing. 4 moms. he can support none Facts o Dad with 9 kids. prima facie case of contempt for failure to comply with the order. is civil b/c it is specifically designed to compel the doing of some act. next appeal wouldn¶t be heard. the person has it in his power to avoid any penalty. this is a FELONY here o Statute says the court may set aside the sentence and impose any conditions on the probation. by contract. the trial court never did say that the probation would be lifted if the dad paid the back child support. he claimed DP violation. If it would. he stopped. instead of jail. they ordered him again.Family Law Notes Marianne E Dutton o Can a father¶s (felony) probation include having to avoid having another child unless he can support that child and his current kids? YES PP o Trail court gave the condition on probation b/c they thought it better to have him not in prison so that he could support his kids. and if does go to jail. this is the same for someone who is imprisoned until they obey the order b/c they can undo it o Here. refuses to pay child support. Vacated and remanded to determine this Issue o If the dad says he is unable to comply with the support order. they tried again to make him pay. appeals court agreed. then it is civil in nature and not a DP violation.

he quit his job and paid only 500/month. o Child support payments to a person in another state are the functional equivalent to interstate contracts b/ the obligations are µthings¶ in interstate commerce. it is appropriate for congress to enact legislation that will prevent their nonfulfillment Issue o Is the CRSA an unconstitutional exercise of Congress¶ authority under the commerce clause. or substantial affect. but he accepted a job in Michigan and the order was from Georgia . MI court said he has to pay 300/wk. guilty of not paying when he could have. several counts of contempt here US v Bongiorno 1st cir. He didn¶t. ex sought to enforce. where a GA imposed support obligation is owed by MI resident to a child in Mass? NO o Does CRSA violate the 10th amendment protection of federalism since domestic orders are left to the states? NO Commerce Clause o Can be regulated under CC o Activities that involve use of the channels of interstate commerce o Activities that implicate the instrumentalities of interstate commerce including persons or things in the commerce and o Activities that have a substantial relation to. MI got the jxn and authorized garnishment. 1997 pg 842 Interstate enforcement of child support Child support recovery act (CRSA) Held o Affirmed criminal conviction but reversed the civil order of wage garnishment. 5 years probation and a work release agreement which put him in the custody of the jail 12 hours a day 96 . o Then the US charged him with violating the CSRA. interstate commerce o Shubert: Commerce exists where there is a continuous and indivisible stream of intercourse among the states including the transmission of money and communications PP o Father supposed to be incarcerated for not paying 75K.Family Law Notes Marianne E Dutton Facts o He paid sporadically and then stopped.

Family Law Notes Marianne E Dutton o The court also started a civil proceeding. Is there a liberty DP violation? YES PP y District court denied motion to vacate the sentences. according to the mom o Court found he owed like 75K in back support. doc had to pay 5K a month in child support o Dad wants to modify this now. Facts 97 . affirmed on appeal. but he hasn¶t been paying the full amount. fundamental right. court agreed to attach his wages and disburse the proceeds Facts o Child Support Recovery Act (CSRA) is to help fill that gap that occurs when parents flee a state to avoid child support. Restrictions on Marriage Equal Protection Analysis o Id the relevant classifications o Determine the standard of review o Strict scrutiny  Suspect classification  Fundamental right/liberty o Evaluate purpose according to test 3 step process of EP analysis o ID the relevant classification o Determine the standard of review o Evaluate purpose according to test Loving v Virginia pg 59 Miscegenation statute/EP Marriage is fundamental freedom (still don¶t say right) Held y Statutes violate EP of the 14th amendment. cumbersome for state courts to try and extradite etc o W gets custody of the kid. no legitimate overriding purpose y Also deprive the Lovings of liberty w/o DP 14th amendment Issue y Is there an EP violation in the miscegenation statute? Is there invidious discrimination? YES. strict scrutiny for invidious discrimination. Marriage: slide 5/5 pg 57 1.

it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests pg 65 y Every reg by the state that relates in any way to the incidents or prereqs to marriage do not all require strict scrutiny From slide 5/5 y Classification here interferes DIRECTLY and SUBSTANTIALLY with the right to marry Stevens Concurrence y The rich may marry and the poor not Rationale y Statute not narrowly drawn. suspended 25 years. a EP and/or DP violation? YES 98 . and told to move out of state y State said no EP issue b/c both blacks and whites got the same punishment Zablocki v Redhail WI 1978 pg 62 TEST Can¶t use marriage as a collection device for child support payments Marriage is fundamental freedom (still don¶t say right) Held y Strict scrutiny b/c marriage is fundamental right. garnish wages etc y Possibly by allowing the next marriage the person will be in a better financial situation to then actually make the payments for child support Issue y Is requiring WI residents to oblige court order or they can¶t marry. many better ways to ensure that kids are supported. not closely tailored y EP violation Test here: y When a statutory classification significantly interferes with the exercise of a fundamental right. statute is not narrowly tailored to meet the goals of children being supported or more kids being created that aren¶t supported y Under-inclusive re getting parents to support their children from a prior marriage.Family Law Notes Marianne E Dutton y VA statute made it illegal to marry between races and set punishment y Mixed couple living in VA went to DC to be married and returned to VA y Were sentenced each to 1year.

Family Law Notes Marianne E Dutton Facts y Wisconsin tried to make a statute that provided that people who had been married. Instead. Inmate civilian marriages were not a problem. male inmates show no problems with marriage. y Time and place regs for marriage are okay Issue y What standard should be used in reviewing a statute that impinges on the fundamental right to marry for prisoners? o Prison reasons for the statute are security (love triangle fights) and the well being of female prisoners who are too dependent on male figures Facts y Missouri reg permits an inmate to marry only in compelling circumstances which would be a baby on the way. used reasonable relationship test y Statute is not reasonable related to the interests presented by prison: security and affects on women prisoners self reliance. before this inmates could marry In the Notes pg 74 y Four factors of reasonableness in Langone v Coughlin o The statute not reasonably related to the stated goal o No alt means for the person to be married o With deference to prison. court found that accommodating the inmates right to marry would not jeopardize the security o No ready alternative to the fundamental right to marry 99 . divorced. other alternatives available with a de minimsis burden y Rehabilitation goal is overbroad. and subject to court imposed child support could not marry until they proved that they were keeping up with the child support payments y Criminal penalties if you marry w/o permission Turner v Safely 1987 Justice O¶Connor pg 71 Marriage is a fundamental right for prisoners too: strict scrutiny Applied Zabloki test Held y Facially Invalid. prison was being paternal re female inmates even before this ant not approving marriages.

tradition protects fatherhood in all respects y Tradition is not the end all. Brennan says the liberty protected is fatherhood. Michael H. vacation in Europe. not the adulterous third person Facts y Carole. the natural father. Victoria. both would go out of the country on business y Carole has affair with neighbor. Tomas. not just one type of fatherhood (which would be in the marriage). constitutional? YES because the relationship b/w Michael. y Has a baby. married Gerald.Family Law Notes Marianne E Dutton Michael H. model. moved to CA. and the daughter. the liberty in question is that of a paternal father. but then tells Michael it might be his. but only H and W can do this. the claim that a state must recognize multiple fatherhood has no support in the history of the traditions of this country Brennan dissent y Marriage is not decisive in answering the question whether the constitutional protects the parental relationship in this case y This result squashes the liberty that consists of the µfreedom not to conform. implicit in the concept of ordered liberty. to provide protection for the adulterous natural father is to deny protection to the marital father. is not one protected in our nation¶s history y Can challenge the law with blood tests w/in two years of birth. DNA tests confirmed y Gerald moves to NY for business. Carole stays in CA y Carole visits Michael in St. today we can conclusively determine parenthood and there is no need for statutes that make illegitimate children legitimate Issue y Is the CA law that provides that the issue of a wife who lives with her fertile husband is presumed a marital child. Says it¶s Gerald and holds that out to the world. Oil guy. when the mother is married and living with her husband. rooted in our history and tradition y Here. and return to Scott in CA 100 . they hold the kid out as his y She goes bac to CA where she lives with Scott in the spring y In summer she goes to Gerald in NY. v Gerald D USSC 1989 Scalia pg 74 How many legal fathers can you have? Held y The liberty must be both fundamental and traditionally protected in our society.

Traditional Restrictions on Marriage a. they got remarried b/c no laws against that y Civil statute sets out the degrees or relationship that are not permissible. annulment in 1984. so there must be strict construction y The whole-blood and half-blood distinctions are not in the statute. Incest Singh v Singh 1990 Ct. but told atty not to file it y Carole moves back with Gerald and has two more kids y Guardian ad litem sought visitation rights for M y M challenges CA statute that says the marital dad is the father 2. and the criminal statute refers back to that. pg 83 Half blood uncle niece can¶t marry (Wife¶s mother was Husbands half sister) Held y Half-blood uncle/niece is prohibited by the incest statute. so strict construction would not allow an uncle to marry his half niece Back v Back 1910 Iowa pg 89 101 . Mother/daughter want to have filial relationship with all rights with both guys y Carole signed paper saying M was father. Trial court declined to open the annulment judgment y H and W got married and then found out they were related (uncle and niece). y Precedent in this state is Skinner that says brother/sister includes half bloods y The case with the CA statute is different b/c is uses the term half blood and can be construed differently than here y This state is following the ecclesiastical law set forth in 1702 in Catalano Issue y Is the courts interpretation of the incest statute to include half blood relationships an unwarranted extension of the law? NO Facts y Couple married in 1983.Family Law Notes Marianne E Dutton y Michael files action in CQ court to establish paternity and visition rights y Guardian ad litem for kid. then they found out she was half niece.

perspective and judgment necessary to make important affirmative choices with potentially serious consequences y The illigitimacy of the child is a temporary situation at worst. They can marry in a rfew years and fix it. mom won¶t give permission b/c it will interfere with her welfare benefits 102 . so still? Is the second wife a widow or not? Facts y Back Married Dirke.Family Law Notes Marianne E Dutton Relationship of affinity ends when marriage ends Held y Marriage became valid when the mother died and the relationship of affinity b/w her daughter and ex was valid at that point Issue y Is the marriage of Back to his divorced wife¶s daughter incestuous and void? The wife is dead now. a widow. Age Moe v Dinkins 1992 Judicial approval case for girls 14-16 who want to marry No strict scrutiny b/c this is minors and fundamental right RBR Held y Parental consent requirement by the state is rationally related to the state¶s legitimate interest in light of the fact that minors often lack the experience. who lived with her daughter y They divorced and he married the daughter and had 4 kids b. Rights and benefits from marriage are only temporarily suspended y The power of the state to control the conduct of children reaches beyond the scope of authority over adults y Section 15 (parental consent) gets RBR y Legitimate state interests are met Issue y Does parental consent violate DP liberty? y Parental consent regulations say that for males that want to marry b/w 16 ± 18 and females b/w 14 ± 18 must have parental consent first y For girls b/w 14 and 16 they also need judicial consent Facts y Couple is pregnant and wants to marry.

Same sex marriage slides from 5/7 Does process matter when it comes to devisive social matters? Should be resolved in courts? Legislatures? What¶s the role of states and fed gvt here? Nat¶ Pride at Work Inc Supp 30 103 . BIC must also be considered. morality is but on of the BIC factors Issue y Can children be taken from an otherwise fit and property parent solely for the reason that the parent practices plural marriage Facts y Child custody over kid from polygamous relationship y Wife left and joined another polygamous relationship. husband abandoned the practice.Family Law Notes Marianne E Dutton Bronson v Swenson District Court UT 2005 pg 100 Polygamy strict scrutiny b/c religion Held y Monogamy is a fundamental value and woven into the fabric of our society and it the bedrock of our society y Reynolds is the controlling case where polygamy criminal conviction upheld by the USSC Issue y Is polygamy an unconstitutional infringement on free exercise clause of the 1A Facts y Wanted to take a second wife y Utah has bigamy statute y Utah constitution required by enabling act to join the union to make polygamy illegal Sanderson v Tryon 1997 Utah pg 105 Polygamist custody dispute Held y The existence of a polygamist relationship is not sufficient to to support a custody award to the other parent. husband got custoday c.

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Yes, providing benefits violates the constitution see slide Doesn¶t just prevent marriage but also goes to domestic partners reciveing benefits Defense of Marriage Act DOMA No state, territory or possession of the US or tribes shall be required to give effect to any public act etc respecting a relationship b/w persons of the same sex that is treated as marriage under the laws of other state or right or claim arising from such relationship Affects how states respond to this issue This came up in context of Wilson case (same sex) who sued Ashcroft and FLa court clerk and claimed FL was required to recognize their marriage; DOMA, they said, unconstitutional Fla statute similar b/c it says they won¶t recognize marriages of this kind from other states Federal act States not required to recognize same sex marriage from another state; and they define what marriage and spouse mean in a legislative or executive branch action. RCW 26.09.430 Shared Parenting (relocation notification) A PERSON WITH WHOM THE CHILD RESIDES A MAJORITY OF THE TIME SHALL NTOIFY EVERY OTHER PERSON INTITLED TO RESIDENTIAL TIME OR VISITTION WITH THE CHILD UNDER A COURT ORDER IF THE PERSO INTENDS TO RELOCATE RCW 26.09.240 Third party visitation (1) A person other than a parent may petition the court for visitation with a child at any time or may intervene in a pending dissolution, legal separation, or modification of parenting plan proceeding RCW 26.10.160 Visitation Rights for Anyone in BIC (3) Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the BIC whether or not there has been a change in circumstances Marriage Benefits Under the Law Trusts and estates o right to receive intestate share of estate
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o spousal preferences: to be appointed a personal representative of a spouse who dies intestate Torts o can bring suit for wrongful death o bring action for loss of consortium o right to workers comp survivor benefits Evidence o Right to claim evidentiary privilege of marital communication Property o Homestead rights & protections (protection of home from creditors) o Depending on state, presumption of joint ownership of property and concomitant right of survivorship Other rights o Hospital visitation & others rights incident to medical treatment of family members Separation and Divorce o Right to receive & obligation to provide o Spousal support o Maintenance o Property Other Statutory Rights: Insurance o Right to spousal benefits that are guaranteed by state statute to public employees, including health, life, disability & accident insurance o Right to be covered as spouse under group life insurance policies issued to employee o Opportunity to be covered as insured spouse under individual health insurance policy See Slide for Core Questions on same sex marriage Goodridge v Dept of Public Health Mass 109 2003 pg 106 Same sex marriage; RBR (no permissive legislative objective here) 3 partners in a civil marriage (the third is the state) Held o No constitutionally (in the state of Mass) adequate reason for denying civil marriage to same sex individuals (Lawrence left this question open) o BUT, the marriage statute that exists can¶t be construed to mean marriage includes same sex marriage (reasons on 111) b/c of historical reasons o Cited as support from USSC
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Family Law Notes

Marianne E Dutton

o The US Supreme Court affirmed that the core concept of common human dignity protected by the 14A to US Const precludes govt intrusion into the deeply personal realms of consensual adult expressions of intimacy and one's choice of an intimate partner. o Reaffirmed central role that decisions whether to marry or have children bear in shaping one¶s identity o Mass constitution is more protective of personal liberty and equality o NOTE this does not prevent anyone from refusing to perform a same sex cereomony Issue o Whether, consistent with the Mass constitution, Commonwealth may deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry? NO PP Facts o 14 individuals, 5 counties, wanted to marry same sex partner o publicly affirm commitment & secure legal protections & benefits of married couples & kids

In re Marriage Cases CA 2008 supp 10 (4-3) Marriage is FR and it¶s an EP violation to have a statutory ban saying otherwise Prop 208 Held o 1. Statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny o 2. California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying o NOTE: Prop 8 does not disturb that part of the court's holding that gay men and lesbians constitute a Suspect Class for purposes of equal protection under Art. I § 7 Issue

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gay is not a suspect class. the DP clause protects FRs rooted in deeply in nations history and tradition slides go thru challenges to this re EP etc and compelling interests etc and CA prop 8 law and their constitution Held o Holding in Lawrence held marriage to be a FR. See slide. Ct.Family Law Notes Marianne E Dutton Wilson v Ake US Dist. o rationally related o Adopting the Ps view re FFC would mean that any given state can make national policy. Fla 2005 pg 121 DOMA FR are those rights that are µimplicit in the concept of ordered liberty. Same sex marriage not guaranteed by 14th b/c not rooted in our history and tradition. Mich Sup Ct 2008 [ Supp 30] Taking even benefits away from same sex couples after amending constitution to forbid gay marriage Held 107 . so not a fundamental right. This is different from Goodrich. Gov of Mich. which is the role of the legislature o RBR here: Encouraging child raising in homes w/ married o mother and father is legit state interests. DP and EP of 14th. so may be that¶s the difference Under RBR they have a legis interest Nat¶l Pride at Work Inc v. Why did the arguments work in Goodridge? That was under state constitution. the PI of the and Commerce Clause of USC PP Facts o Lesbian couple married in Mass Why would FFC clause not be violated by DOMA? Court dismisses citing Baker. such that neither liberty nor justice would exist if they were sacrificed. no strict scrutiny o Courts would be deciding a FR. Issue o Are the DOMA and Fla statutes that won¶t recognize the valid Mass marriage unconstitutional b/c they violate the FFC. Gay not suspect class. but no court has recongnize that this right includes the right to marry a person of gthe same sex.

.e. the language in the amendment provided that µTo secure the benefits marriage.g.for society«between a man and a woman Issue o Whether an amendment to the Michigan state constitution prohibiting recognition of same-sex marriages or any "union" that is "similar" to marriage also prohibits public employers in the state from conferring benefits on the same-sex partners of their employees. i. They determined that it¶s okay for legislativei branch to ast in this area and it is consistent with their equivelant of the bill of rights International slides Prenuptial Agreements Agreements in context of Marriage Generally o Most states: marriage constitutes a legal status based upon contract o 3 parties to every marriage. YES International Perspectives Canada Sex discrimination as opposed to sexual orientation discrimination Which branch should make these decisions.Family Law Notes Marianne E Dutton o Providing benefits would violate the state constitution. anti-discrimination laws y Arguably marriage moving toward contract Pre-marital or Prenuptial agreements 108 . In Canada they had leg and judiciary working together. state can prescribe o Age of marriage o Procedures for valid marriage o Duties & obligations created by marriage o Grounds for the dissolution Status vs Contract y Status relationships are controlled by law y Contract relationships controlled by agreement y Arguably employment is moving towards a status relationship o More limits on freedom to contract  E..

the couple had each been married before and wanted to make an agreement for the amount of support payments in the event of a divorce o She was getting $75 a week from previous marriage which would end if she married again. this agreement would have hubby 2 pay that and some insurance things too Edwardson y In certain states they undergo µspecial scrutiny¶ y They look closer than a normal contract y There was a binding 75 year old precident not to recognize these agreements y Court decided to go ahead and enforce 109 . Here the state reserves the right to intervene Edwardson v Edwardson KY 1990 pg 201 Reallocation of duties in marriage by private contract (antenuptial agreement) and Standard used Held o Antenuptial agreements are valid o Special scrutiny requires full disclosure.Family Law Notes Marianne E Dutton y PNA or PMA prenup and postnups y What is permissible and what is not to put into these y Have to start by asking whether there is a contract or a status relationship y How far is a court going to intervene in interpreting a contract? y In most states marriage constitutes a legal status based on contract (slide now) Marriage moving closer to a contract than status b/c as seen in today¶s reading. parent child relationships are more on status side. courts are upholding However. agreement free of any material omission or misrepresentation o Terms may not be unconscioinalbe at the time enforcement is sought Issue Facts o 75 years before the court would not allow these agreements if they provided for forward looking to separation after marriage (Stratton) o Here. and you see that in the cases today where they don¶t let you contract out of child support and custody etc.

no counsel for her to inform her of rights she was giving up o She says she didn¶t know about PMA until that day (adverse circumstances so void if true) Uniform PMA Act pg 215 re spousal support 110 . PMA valid Issue o Were terms of PMA binding on W w/o regard to whether she fully understood the terms prior to execution? YES PP o Lower court held the agreement valid at the time of execution Facts o Nurse (23) married neurosurgeon (39) o Nurse unemployed. no atty sought.Family Law Notes Marianne E Dutton y The terms may not be unconscionable AT THE TIME ENFORCEMENT IS SOUGHT. he has 90K salary and 300K assets o Asked her to sign PMA on wedding day. as opposed to upon execution y The validity of most contracts doesn¶t usually depend on full disclosure unless you can characterize as fraud. just and reasonable o Can rebut the presumption of recitations by assertion of fraud or misrepresentation--clear and convincing evidence o W foreclosed from asserting PMA not reasonable o Misrepresentation in financial assets (antique car colln)? No. o Barred from receiving APL. is this requirement sufficient for a would be spouse who is dying to get married? Simeone v Simeone PA 1990 pg 204 Marriage contract upheld Held o Contract is valid o Independent counsel claim²had oppty o Parties¶ knowledge and bargain¶s reasonableness not proper subjects for judicial review o BUT reasonableness inquiry is permitted (only) re full and fair disclosure of the financial positions of the parties o Can claim material misrepresentation in the inducement for entering PMA o PMA recited that each of parties considered agreement fair. ongoing negotiations. o Duress (wedding day execution)? No.

custody. until divorce decree issued & property distribution finalized Strategic implications for spouses Purpose: financial Continuum drawn on the board Contract ----------------------------------------------.Status Engagement spousal support (child support.e. visitation o Rationale in comment o Promote amicable divorce o Must follow basic principles of contract law to be enforceable o Courts more strictly scrutinize child-related issues under parens patriae o Court will also enter a divorce decree o Enforceability and modifications subject of litigation Alimony Pendente Lite Alimony pending the litigation Money to spouse to allow spouse to sustain him or herself during litigation Terminates upon the end of the litigation I.Family Law Notes Marianne E Dutton o Allows parties to contract re spousal support o SPLIT IN AUTHORITY o Some states don¶t allow PMA to control o Some allow if agreement meets certain conditions or circumstances Separation Agreements o Agreement of the parties at the time of divorcing o These are allowed by UMDA 306(a) o Property division. custody. alimony.. child support. visitiation) Don¶t forget predictability as discussed earlier re agreements See slide Property Division and Maintenance UMDA 306(b) o Standard of court review for property division and maintenance? 111 .

308 (maintenance) More slides and cases on these on 5/12 slides 112 . not binding on court y Standard of review for child support? o Whether contract is unsatisfactory y Apply UMDA §309 standards for child support [Comment] y If SA is unconscionable o Court can ask the parties to revise it o Court can establish terms based on §§307 (property distribution). including knowledge when made  Standard for determining unconscionability y Used in the commercial context Child Support. Custody + Visitation UMDA (d) y Treated differently.Family Law Notes Marianne E Dutton o Unconscionability o SA terms binding on the court for property division maintenance o Unless court finds unconscionable  When unconscionable? y May look to time of enforcement (Comment) y Court may look to economic circumstances of parties resulting from SA y May look to other relevant evidence.

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