I.

Functions of Family Law A. Protective: Protect citizens against harms done them by other citizens B. Facilitative (Organizational): help people organize their lives and affairs in the ways that they prefer C. Arbitral – helps people resolve disputes D. Channeling Function: Family law channels people into social institutions which are thought to serve desirable ends (ex: marriage, parenthood, the societal definition of family) 1. Family Law creates and supports social institutions which are thought to serve desirable ends a. Institutions – “a pattern of expected action of individuals or groups enforced by social sanctions, both positive and negative” 2. Channeling does not force people into these institutions, but offers incentives marriage and divorce are not value free. 3. Limitations a. Limited by the degree of social support the function’s institutions receive i. Ex: marriage and parenthood changing b. Promoting one institution by disadvantaging the alternative can be troubling i. Cohabitation c. Violates the notion that states should be neutral in a moral issues such as family life 4. Indirect/Direct Channeling

II.

Central Dilemma: What is the right amount of state intervention? What is the role of the state in regulating family? A. Are we okay with judges making these decisions or do we leave these decisions to the legislatures? 1. COURTS a. Can’t leave disagreement to popular bodies when minority rights are at issue i. Courts are entrusted with counter-Majoritarian rule 2. LEGISLATURE a. When courts step in too soon to protect minority rights, there can be a powerful backlash against the cause DeShaney – mother brought substantive due process claim after child killed by abuse father when state knew or should have known that child was in danger a. Rationale: i. Due Process Clause does not require states to protect citizens against private actors ii. Child not in custody, otherwise there might have been a duty b. Counter Arguments: i. State created DSS and the impression that the state was going to do the job of protecting the child ii. State granted custody to the father 4. Buck v. Bell- forced sterilization of feeble minded woman (too much intervention) a. Upheld – demonstrates court’s intrusiveness b. Rationale: i. Best interest of the patient and society Feebleminded people sap the resources of society Prevents society from being swamped by incompetence Better for these people (offspring) not to exist because eventually they will commit crimes or starve b/c of imbecility ii. Not detrimental to her health

3.

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c. 1927 – substantive due process claim (gov’t action is challenged regardless of
the correctness of the procedure s used) i. Skinner did not overrule – but started a trail of Supreme Court cases where substantive due process rights were recognized for bodily integrity ii. Unenumerated under 14th d. Fundamental Right 5. Definition of Family for housing code a. Reasonable: define family as those related by blood, marriage, or adoption (also permitted two unrelated persons to live together). It does not have to include all people who want to live together. i. Village of Belle Terre v. Borass, pg. 28  State’s interest: keeping residential areas free of disturbing noises, increased traffic, hazard of moving and parking cars, depriving child of the privilege of quiet and open spaces for play  Not a fundamental right = RBR (restricted unrelated persons from living together, no restrictions for persons related by blood or marriage)  LOOK AT DISSENT for narrowly tailoring, pg. 31 b. Unreasonable: city ordinance limiting ability of extended family members to live together (grandchildren of different parents (ie: cousins) could not live together) – Moore v. City of East Cleveland, pg. 1118 i. Distinguished from Belle Terre Persons related by blood = greater intrusion = less deference  State’s interest – legitimate, but not enough to justify intrusion and not close enough fit  Extended family recognized as a basic value in society – protected by due process BUT still limited: court will look at fit between the interest, must be a compelling state interest that is narrowly tailored 6. Presumption of Paternity – Michael H v. Gerald D, pg. 74 (CA law presuming parenthood by a man if the man is the husband of the mother, lived with the mother at the time of conception and birth is not impotent or sterile – power of biological father to assert parental rights over a child born into a woman’s existing marriage with another man) a. Illegitimacy is not a protected liberty interest i. Scalia looks at history to determine that common law did not protect this interest, in fact historically, the presumption has been to legitimacy ii. “The Due Process Clause affords only those protections ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” 7. Moore, Belle Terre, Michael H Protection of the family instead of protection of the individual and potentially threatening to a family unit a. Protecting institution of marriage/family b. Discouraging alternative institutions

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FORMING FAMILIES UNCONSTITUIONAL RESTRICTIONS ON GETTING MARRIED I. Racial Restrictions – Loving v. Virginia, pg. 58 A. Law prohibited marriages between whites and other racial classifications B. Holding: There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the EPC 1. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness of freedom. 2. Marriage is one of the basic civil rights of man, fundamental to our existence 3. Discuss with same sex marriage II. Economic Restrictions – Zablocki v. Redhail, pg. 62 A. Law prohibited marriages for people who had a prior child and who was under state obligation or order to support the child. Person could only marry after proving that he/she was in compliance with support obligations and that the child covered were not likely to become public charges B. RULE: when a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interest and is closely tailored to effectuate only those interests (compelling state interest that is narrowly tailored) 1. Not every law that regulates marriage is subject to strict scrutiny, the law must substantially interfere with that right C. Reasoning: 1. Law significantly interfered with fundamental right 2. State’s interest not narrowly tailored a. State prevents person from marrying but does not ensure that the money will get to the child b. Other means of requiring support obligations c. Under-inclusive: does not limit financial decisions of parent except the marriage D. Distinguishing (Stevens, concurrence) 1. A classification based on marital status is fundamentally different from a classification which determines who may lawfully enter into marriage relationship E. Summary: Zablocki & Loving: 1. Marriage is a fundamental right subject to Due Process Analysis of 14th Amend 2. If a statute directly and significantly interferes with the right to marry it is subject to SS 3. In order to survive SS analysis, the state mush show a compelling state interest and that the statute must be narrowly tailored to meet that end III. Restrictions for Prison Inmates – Turner v. Safley, pg. 71 A. Law prohibited inmates from marrying unless given permission from superintendent of the prison – permission granted only if compelling interest given (compelling interest seemed to be pregnancy or illegitimate child) B. Prison inmates retain those constitutional rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the correction institution 1. Different Test still a fundamental right, but strict scrutiny does not apply because prison officials have security concerns 2. Holding: failed 3. Test: Whether a prison regulation is reasonably related to a legitimate penological interest

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89INCEST, AGE AND STATE OF MIND RESTRICTIONS INCEST RESTRICTIONS Different laws depending on the jurisdiction – mostly between half and whole relations Not always a direct fit between who can get married and who cannot and the criminal statutes related to the prohibition of sexual relations I. Between half uncle and half niece – Signh, pg. 83 A. Not an unwarranted/unconstitutional extension of the incest prohibition. Extending the prohibition to marriage of half-niece and uncles is consistent with the history and statutory construction of the incest laws in CT 1. Statute did not distinguish between half and full blood relations B. Even if marriage is valid in the state where the marriage took place, there are situations where invalidity in CT is appropriate II. Valid marriage – only prohibits marriage between a man and the daughter of his wife, when the man is married to the mother Back, pg. 89 A. As soon as the mother sought a divorce, the daughter was no long the daughter of the man’s wife AGE RESTRICTIONS I. Constitutional – Statute requiring parental consent of minors A. Strict Scrutiny did not apply b/c minors 1. The power of the state to control the conduct of children reaches beyond the scope of its authority of adults because (instead RBR) a. The peculiar vulnerability of children b. Their inability to make critical decisions in an informed and mature manner c. The importance of the parental role in child-rearing 2. Minors argued that it was arbitrary b/c neutral 3rd party (judges) is in a better position to judge whether a minor is prepared for marriage – presumption that parent acts in the best-interest of the child B. Temporary Infringement- the plaintiffs will be able to marry when they turn 18 C. Benefits of Age Restrictions 1. Avoid children raising children 2. Avoid instability of marriage 3. Competent decision to marriage 4. Corresponds nicely with the end of minimal education 5. Protects rights of parents to make decisions for their children 6. Prohibits marriage between older and younger persons II. AGE & INCEST A. Statute prohibited sexual intercourse between a stepparent and a stepchild, even if the stepchild is an adult – State v. Lowe, handout 1. Whether the statute applied to adult or only minor stepchildren a. Statute unambiguous – as long as the relationship creating the half-blood relationship still existed b. Nothing in the statute differentiated between adult and minor stepchildren 2. Whether the right at issue is a fundamental right? a. Not a fundamental right – RBR – Lawrence – right of consenting adults to engage in sexual activity 3. Does the statute pass RBR? a. State has a legitimate interest to protect the family unit and family relationships

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by one who has no reasonable ground be believing it to be true c. and economic status of the parties sometimes control the character of the freedom and the voluntary attitudes of the parties entering the marriage C. health. Void vs. by one who does not believed it to be true b. made without any intention of performing it. The assertion as fact of the which is not true. RULE: Agreements entered into ante-nuptially between parties which do violence to the accepted conventions and laws of the state and the community are unenforceable as a matter of public policy a. NOT: character. But not really free & voluntary b/c education.STATE OF MIND RESTRICTIONS – Basis for Annulment I. pg. Voidable marriage: the marriage was invalid and one or more parties want it annulled 2. conventions at a given time. Deliberately giving false picture about whether they will consummate the marriage or have children b. Coerced marriage – unable to act as free agent because of a coercive act a. Rule: to be valid a marriage has to be entered into freely and voluntarily 1. A promise. The suppression of a fact by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of that fact. Johnston. unattractive. pg. Voidable Marriage 1. Fraud must go to the essence of the marriage 4. Marriage is presumptively a relationship into which two individuals enter upon freely and voluntarily 1. Fraud – Annulment A. age. dirty. pg. number of prior marriages or divorces 3. After marriage – disrespectful. Lying about religious beliefs i. Man tried to show that marriage was invalid at inception because of an agreement of the parties 1. unshaven.difference between prohibition on beliefs and practices B. ancestry. Void marriage: marriage has s serious defect to legitimacy that would not need an annulment proceeding MONOGAMY AND ITS ALTERNATIVES I. SPLIT: false statement of pregnancy B. Very high burden necessary to invalidate marriage B. Pregnancy by a third party (concealment of a pregnancy) 2. Various definitions of deceit . very nice 2. unsatisfactory sex life. Concealment of impotence c.Deceit is either: a. RULE: Marriage is voidable if consent obtained by fraud 1. Argument that it violates freedom of religion . as a fact. Concealed intent not to go through with a promise to follow secular conclusion of marriage with a religious ceremony considered by the other party essential to relieve intercourse from the stigma of sin d. or d. C. Swensen. unemployed 3. Insanity – most widely recognized holding bases for annulment that one of the partners did not have the capacity to consent to the marriage III. 135 A. 138 1. and in a given place. set aside the law of the land II. Fraud must be “matters that go to the essence of the marriage” a. of that which is not true. Before marriage man was clean shaven bathed. Coercion or duress – Lester. Private individuals may not by agreement. wealth. False representations of venereal disease e. 99 A. Prohibitions against Polygamy are constitutional – Bronson v. Lawrence 5 . The suggestion.

Dissent – Scalia a. Less stability upon death – inheritance c. even though separated from dad for 5 years 2. and obligations conferred by civil marriages to individuals of the same sex who wish to marry is constitutional under MA’s constitution – Goodridge v. Laws may not substantially interfere with the right to marry c. State is a party in every marriage – state identifies the benefits. pg. Children raised in a household where the law is flouted f. Too many figures of authority d. Right to marry is a fundamental right b. Against Best Interest a. Precedent – does not have to have a compelling state interest if the statute is neutral and generally applicable 1. It cannot be the only factor. Communicates a set of ideas/morals/values SAME SEX MARRAIGES I. obligations and protections 2.II. Did not further a legitimate state interest that can justify its intrusion into the person and private life 2. Dept. Argues that numerous laws are for the purpose of furthering the beliefs of its citizens by prohibiting behavior that is “immoral and unacceptable” i. Overruled Bowers 3. Less time with dad b. C. Classifies on account of sex – treats men and women equally b. Does not address the issue of homosexual couples to marry c. Single area of authority – the father 2. Primary purpose of marriage is procreation But statutes do not limit marriage to fertile couples Procreation is not an essential element ii. Evidence of a parent’s polygamous relationships can be considered as one among many other factors regarding the child’s best interest. Whether it is constitutional for a TX Statute to criminalize consensual sexual conduct between two persons of the same sex –Lawrence (states cannot base their sodomy laws on the sex of the persons engaged in those activities) 1. Lost boys – male children will not be able to access the institution of marriage e. pg. of Public Health. Court awarded custody to dad. Reasoning: a. Did not apply strict scrutiny – legitimate state interest is furthered by the statute (failed RBR) b. More parental figures and more sources of nurturing b. 1. privileges. In Best Interest a. Tryon. encourages discrimination) b. RULE: Unconstitutional as a violation of Substantive Due Process a. as required by statute B. Fails RBR a. State’s interest i. Whether polygamous relationships are in the best interest of the child 1. Whether denying the protections. ADD PRECEDENTS Best Interest of the Child and Polygamy – Sanderson v. Concurrence – O’Conner a. Is the state’s interest a legitimate state interest: the moral disapproval of homosexuality is not a legitimate state interest 4. 109 1. Ensures that children are raised in the optimal setting 6 . Preserving the traditional institution of marriage – has been accepted as a legitimate state interest B. TX statute makes homosexuals unequal in the eyes of the law by criminalizing a behavior for homosexuals only (leads to. Court did not make findings as to best interest of child. benefits. 105 A.

But. quasi-suspect classification) 1. Marriage is fundamental right (Loving. right to marry) 3. Goodridge II. 1. Visitor Marriages: One of the members of a couple is temporarily in a state where their marriage is not recognized. BUT fundamental right. but a woman cannot marry a woman 3. but has property in a 7 . B. but for whatever reason (ex: inheritance) the comes in contact with the couple 1. Extra-territorial: when parities have not ever lived in the state. still treated as immutable b/c asking someone to change their religion would inherently go against our fundamental principles of individuals and religions 4. EX: If a same-sex couple is married and one of them passes on. Turner) 2. Important government interest that is substantially related 2. Political Powerlessness a. Immutability a. EX: Loving and Wilson B. Got married in one state. and then subsequently moved to a state where their marriage is not recognized C.depends how the right is characterized a. 1. INTERSTATE REGULATION I. Bowers v.  Ignores the fact that same sex-couples maybe have obligations for children or parents under their care  MA laws do not condition marriage on a demonstration of financial dependence for opposite-sex couples Dealing with a same-sex marriage question Due Process Fundamental Right 1. But. Does not necessarily mean that the Plaintiffs lose. the fundamental right of marriage is between a man and a woman (vs. or traditionally protected interest in two adults engaging in consensual. A. Religion is considered immutable – although people undergo religious conversion. sexual activity EPC – gender classification (intermediate scrutiny. Four Categories of Conflict of Laws with Marriages A. Conserving scarce State resources and private financial resources Not rationally related  Assumes that same-sex couples are less financially dependent on each other. Romer v. Zablocki. Hardwick . Legislation against homosexuals b. No fundamental right for homosexuals to engage in sodomy b. Evans. But this was also true for the women’s movement and the civil rights movement RBR 1. A woman can marry a man. Lawrence. History of Discrimination 2. The best interest of the child standard does not depend on the sexual orientation of the parents iii. Irrelevance of the characteristic to functioning/contribution to society 3. D. EX: same-sex couple visiting another state D. Evasive Marriage: couples intentionally leave and start and marry in another jurisdiction and then return home 1. Not the essence of the complaint 4. It may be strategic benefit EPC – Sexual Orientation as a new suspect classification 1. C. so many NGO’s and cultural icons supporting the cause c. An individuals choices are being constrained a. Migratory Marriages: Parties did not intend to evade the laws of any state.

such as DOMA. Living together as husband and wife 2. Marriage. Will apply to divorce decree 3. present intent to be married a. TEST: Totality of the circumstances 1. in order to regulate conflicts between the laws of different states a. Marriage is not judicial process – administrative b. readings. for federal purposes. States are not required to recognize marriages of same-sex couples C. Difference between marriage license and judgments 1. Place of Celebration Rule: A marriage is valid where performed/celebrated is valid everywhere. Polygamy – no state ever legalized polygamy b. (2) A mutual and open assumption of the marital relationship so as to objectively demonstrate that the parties considered themselves husband and wife. Ake. Repute in the vicinity III. members. 141 A. is between one woman and one man 1. FFC gives Congress the authority to enact legislation. 1. If court finds that a common law marriage did exist.state that does recognize same-sex marriages E. b. Two key elements of the objective evidence needed to determine whether there was a mutual. 121 – couple legally married in MA and them moved to Florida 1. Examples of when the public policy exception has been invoked and successful a. Such cohabitation must be pursued with the habit and repute of marriage and not of an illicit sexual relationship.In re Estate of Love. FFC has only been utilized when judicial processes are at issue a. . Court Proceedings A. Only reversed on abuse of discretion standard B. Choice of Law Provision 1. Cohabitation: i. and. Whether a Common Law Marriage existed is a question of fact . If Congress was not allowed to do this. i. A general reputation in the community that the partied hold themselves out as husband and wife. Difficult to demonstrate that a common law marriage existed B. pg. EX: Texas would have to enforce a judgment by a MA court to require driver to widow of same-sex couple in MA E. UNLESS it violates the strong public policy of the state that had the most significant connection to the spouses and the marriage at the time of marriage 1. States do not have to recognize same-sex marriages. 2. Cohabitation is a necessary component to a CL marriage. DOMA is not a violation of the FFC. . then same rights as other married couples II. pg. followed by B. family. (1) The mutual consent or agreement of the parties to be husband and wife in the present. of other states D. and acquaintances with who the parties associate in their daily lives that the parties actively 8 . then one state’s decision to honor same-sex marriages would essentially create a national policy COMMON LAW MARRIAGE I. Case Law –Wilson v. Interracial marriage II. Incest c. A CL marriage is established by A. DOMA – Defense of Marriage Act A. A marriage-like relationship involves a general and uniform understanding among the neighbors. Counter-Argument: Full Faith and Credit Clause – state must give full faith and credit to the acts. Holding themselves out to the world as such 3. Departure from precedent b/c typically state law would determine the existence of marriage B.

What other facts can you look at to see if the couple manifests that agreement? i. Mutual consent or agreement of the parties to be husband and wife b. Colorado 1. Subjective evidence (evidence the parties themselves can see) d. Affirmative conduct on the part of the couple a. c. Objective evidence (evidence that outsiders can view) ii. Vs. Evidence that the parties made an agreement 9 . C. The burden is on the petitioner to prove each of these elements. Marriage like relationship 2.and purposely hold themselves out as H and W with the mutual present intent that they are H and W. Much harder to figure out (especially in retrospect) whether the parties actually agreed to be married c.

(Penumbra) Numerous rights that are not explicitly stated in the Constitution are still protected a.McGuire v. When still married and still living together . Governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means tat weep unnecessarily broadly and thereby invade the are of protected freedoms 3. What do courts and legislatures have to say about the rights that the married couples can assert against the rest of the world? More rigorously enforced I. pg. Libertarian argument C. 9th Amendment Argument 1. 146 1. Dissent argues that majority does not point out which amendment is violated by this statute 2. Does not apply strict scrutiny B. She got support D. Right to educate a child b. Wife separated from husband without any fault of her own –Conchran Case 1. Appellate Court – The court cannot compel a man to support his wife in a specific way 3. pg. a bill in equity will lie to compel the husband to support the wife without asking for a divorce decree – Earle v. It is the duty of the husband to provide support for the family and the style must align with the means C. CT. Mother-in-law ran the household and refused to let the wife have control over any part of the house – Brewer 1. Secret divorce by husband 2. but husband was very frugal with money and she did not have authority over decisions regarding money 2. 241) 1. married or unmarried to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to whether to bear or beget a child 2. Criminalization on sale and use of contraceptives to married couples – Unconstitutional (Griswold v. What do states and legislatures have to say about rights and obligations towards/between spouses? Marriage is surrounded by a zone of privacy – Privacy that a married couple can assert against the rest of the world 2. Reproductive Choices A. McGuire. If the wife is abandoned without means of support. Married couple living with husband’s mother.REGULATION WITHIN THE MARITAL RELATIONSHIP 1. Even though still married husband had to provide a home for the wife – wife did not forfeit her rights by refusing to live with impossible mother-in-law II. Majority – sees these cases as an interlocking whole i. RULE: Right of individuals. Couple had been married for years. Freedom to associate and privacy in one’s associations d. Husband sends wife away with child – refuses to send child support and maintenance 1. Spousal Obligations A. 9th amendment limits what the federal government can do (does not apply to the states) 2. Earle 2. State does not have a legitimate state interest that is rationally related to the 10 . Baird. 238) 1. Nothing in these precedents (below) gives the court authority to decide about financial matters in the marriage when husband and wife are still living together B. pg. Right to study a particular subject c. Prohibition on sale and use of contraceptives to unmarried couples – Unconstitutional (Eisenstadt v. Wife is entitled to a home corresponding to the circumstances and condition of her human over which she may be permitted to preside as mistress 2. Violates EPC a.

handout 1. followed due process of a compelling state interest narrowly tailored 2. Deterrent for fornication – punishment of unwarranted children for fornication is marginally related to the state’s proffered rationale iii. Can include acts or communications prior to marriage c. pg. Confer a hardship on married women (b/c no requirement that unmarried women have to tell their boyfriends) III. Other Arguments: Spousal Notification Requirement would i. Either spouse can insist on non-disclosure 2. Matters what the marital status of the couple is at the time of testimony b. Casey v. Information privately disclosed between a husband and wife in the confidence of the marital relationship is privileged under the independent rule protecting confidential marital communications i. Planned Parenthood. Give benefit to married men ii. the rest will not because they have really important reasons not to and the law will not foster marital harmony d. Balance of interests – husband vs. Contraceptives are wrong b. Utterances or expressions intended to communicate b. Only lasts until the end of the marriage i. §3209 – a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion i. State cannot compel the spouse to testify 11 . Before. Exception existed for pregnancy that was the result of a sexual assault – woman had to have reported the sexual assault within 90 days of the assault b. Privilege still exists i. Focus on narrow issue of marital/spousal notification a. Barred from admission – even after marriage dissolved c. should be the wife’s because she physically has to bar the child (woman has more liberty at stake) c. Where the interests diverge. RULE: whether the state obligation places a substantial obstacle (undue burden) to women having an abortion a. US. not the married couple D. Health – FDA already regulates drugs ii. Roe. Trammel v.means sought to achieve the interest i. Martial Status: when the communication took place d. Adverse Spousal Testimony – acts or communications witnessed by 3rd parties a. wife i. Marital Communications a. Right of privacy in marriage pertains to the individual. Marital Privileges A. 258 1. Spousal notice is a reasonable requirement to encourage communication between spouses  Rebuttal: majority of wives will notify their husbands. Testifying Spouse can invoke the privilege ii. Rehnquist – state has a legitimate interest i.

Questions to Ask: 1. pg. Does marriage make acceptable other forms of conduct that would otherwise be unacceptable? 2. if the couple is separated j 2. No property interest because too much indeterminacy to create a mandatory duty i. BWS is not a defense on its own – under self-defense 2. PN) ii. opens fire and kids found dead in his car) a. mother makes numerous attempts to get police to put out an arrest warrant or go get kids. Enforcement of Restraining Orders: Whether an individual who obtained a state law restraining order has a constitutionally protected property interest in having the police enforce the restraining order when they have probable cause to believe it has been violated – Procedural Due Process Claim – Town of Castle Rock v. Less serious consequences b. must report within 30 days C. pg. 336 (Permanent restraining order made permanent. Must be property 12 . Requirements for a Protected Property Interest: i. Jurisdictional Rules i. cops do nothing at 2am dad shows up to police station. Has mandatory arrest been effective and what type of entitlements conferred to the married woman? ? ? B. Must be individually conferred. 11 states only allow men to be convicted of rape. seek a warrant. Gonzalez . Whether information regarding Battered Women’s Syndrome is relevant to the objective prong of the self-defense prong People v. Domestic Violence and Marital Rape A. 12 jurisdictions have similar rules to CA (NY. Narrower range of offenses (perpetrator must use force. Marital Rape 1. More of a public good than an individual entitlement c. kids get taken by dad. but not for both prongs  Some jurisdictions allow expert testimony regarding battered women syndrome. Must have mandatory enforcement ii. SUBJECTIVE: Whether the victim actually believe that she needed to use deadly force for self-defense b. NJ. Rape of wife is a distinct crime from rape a. To what extent should a woman’s abuse be considered when she kills her batterer? 3. Humphrey (1996-CA). OBJECTIVE: would a reasonable person in a similar situation and similar knowledge also conclude that killing was necessary for self-defense ii. but cannot testify that the D has battered BWS c. or use reasonable means b. Domestic Violence 1. rather than just the non-consensual requirement) c. Vast majority allow battered woman syndrome evidence. Procedural Requirements – ex: Ohio. Property interests are incidental with no ascertainable monetary value d. 289 a. not conferred on the whole of society and cannot be an announcement of what police officers need to do iii. What did she want police to do? Arrest guy.IV. Objective and Subjective Test for Self-Defense: i.

Sometimes for mental cruelty d. Excessive sexual demands b. Refusal to have sexual relations c. pg. Cruel and barbarous treatment that comprises of actual personal violence or a reasonable apprehension thereof. 359 i. The husband did not have access to the wife during the period of conception ii. Affects how fast divorce can be obtained a. 364 i. alimony. Ordinarily corroborated by facts and circumstances in evidence and/or other witnesses 3. Cruelty: bodily harm or reasonable apprehension of bodily harm that endangers the life. sexual orientation. Physical abuse of children . Courts must look with caution to the testimony of an investigator hired by one spouse to watch the other i. Benefits – Why is fault-based divorce quicker? 1. A prima facia case of adultery can be made out by showing facts or circumstances that lead fairly and necessarily to the conclusion that adultery has been committed (Arnoult. Adultery. or such a course of treatment as endangers life or health and renders cohabitation unsafe (Rankin. B/c no fault requires a certain time requirement for separation B. and custody 3. The blood tests exclude him as a possible father of the child iv. as to justify divorce 2. Psychological Reasons – blame 2. That he was impotent or sterile at the time iii.DIVORCE AND FAMILY BREAK-UP DIVORCE I. Desertion: Mere departure is not sufficient to be grounds for divorce. Wife expressed disappointment in not having a daughter and verbally abused husband – Benscoter v. Burden of proof can be overcome with evidence that: i. not relevant 1. NOT cruelty a. PN. and with such attending circumstances of atrocity. pg. rape or prostitution D. 360 3. 361) 2. Benscoter. Some jurisdictions: show that a spouse has been convicted of adultery. Investigator a. TEST: Totality of the Circumstances i. Unpredictable when court will find cruelty a. Hughes. LA pg.Gender. pg. limb or health and renders cohabitation dangerous 1. Cold and indifferent treatment coupled with ordering wife from home and threatening bodily harm (cursing and physical threats)– Hughes v. Standard: circumstantial evidence b/c the nature of the act of adultery requires that circumstantial evidence will most likely be used to sustain the proponents burden of proof b. Fault – Based Divorce (33 states permit spouses to choose between fault and no-fault divorces) A. LORD MANSFIELD RULE: There is a presumption that the child of a married woman is that of her husband a. Court rejected cruelty argument: inescapable conclusion that husband did not become dissatisfied until she became ill with MS ii. Affects how property is distributed. A single incident of cruelty may be so severe. Husband had to clearly show that he was innocent and injured spouse (evidence of another woman) C. Post-Separation Adultery a. must a cessation of cohabitation without cause or consent with intent to abandon continuing for a period specified in the relevant statute 13 .

neither can clearly be said to be the innocent and injured spouse b. pg. 363 Wife refused to follow husband when he moved i. Must have actually created an opportunity for the marital offense  Sargent. Elements: i. gets dressed.Constructive Desertion: operates like a defense – if proven defeats the spouse’s cause of action AND serves as an alternative ground for divorce (unlike most other divorce defenses) 2. Defenses 1. etc. pg. 14 . Rationale for limiting the defense:  No policy/good purpose served by refusing to grant the divorce v. pg. Rationale: one who consents to misconduct. If both are equally at fault. Adopting the Doctrine of Comparative Rectitude – The party least at fault would be entitled to a divorce iv. Requiring the recrimination to be pleaded by a party rather than raised by the court iii. the grounds for divorce are null b/c the spouse is assumed to have consented to the fault of the defendant spouse a. Others States have limited it by: i. pulled H’s hair. Showing of unwillingness to have sex is not saying that the intercourse was not voluntary (ie still voluntary even with showing of unwillingness) 1. Examples: a. Kreyling) b. If husband’s conduct is so bad that the wife had to leave (Crosby v. purposefully was absent from the home at night and all during the day 3. neither can clearly be said to be the innocent and injured spouse and the law will leave them as they put themselves together a. Connivance: The tacit encouragement of or assent to another's wrongdoing. Exceptions:  When sex is induced by fraud b. Provocation: When Plaintiff Spouse is seeking a divorce and the other spouse (defendant spouse) asserts that PS provoked the D Spouse  Ex: Wife pleaded abandonment. kisses his wife and says goodbye ii. Refusal to have intercourse without contraceptives (Kreyling v. Granting divorce to both spouses ii. Violation of EPC: State Statute stated that a wife is bound to live with her husband and follow him wherever he chooses to reside E. is not injured by it b. Problematic: i. Has been statutorily abolished in 17 states d. Condonation: The false consent that a P gave to a D’s past conduct during their marriage which the P then asserts as a grounds for divorce (forgiveness for antecedent marital offense) a. Recrimination: if both spouses are equally at fault. hires detectives – gave his wife the opportunity to be alone in the car with chauffeur. It must be clear from the evidence that the plaintiff was the injured and innocent spouse i. Wilian. Next morning. if the spouse participated in the course of action leading to the grounds that the spouse alleges for divorce. Kept chauffeur. Sex after alleged cruelty is conclusive evidence of condonation – reinstates wife as wife and shows that wife was forgiven i. H eventually consented. Court has obligation to raise sua sponte c. More than just consents ii. Husband claimed provocation b/c wife had 75 cats (Husband succeeded) 2. 368 – W demanded sex. 367 – H has reason to believe W cheating on him with chauffeur. Crosby.

Similar to criminal cases II. secret agreement to cooperate. D must establish by a preponderance of the evidence that she was suffering from a mental and emotional disorder so as to maker her incompetent and irresponsible for the acts charged against her in the complaint ii. Cohabitation after spouse has learned of the marital offense – court will look at whether the cohabitation was because of logical reasons or because of forgiveness 4. ADD CASE  Didn’t testify so couldn’t decide on credibility – decided for husband b. Judges stopped looking at collusion b/c so common with fault-based divorces 5. pg. Covenant Divorce and the Question of Access A. marital rape c. Bodie v. Relationship patterns – DV. Other evidence of condonation: i. Fushs. Problems with Collusion: i. gets divorced (more like coercion than collusion) c. agreement between the spouses to obtain a divorce a. Expression of forgiveness  Verbalization  Voluntary ii. Collusion: an agreement for one of the spouses to commit or appear to commit or to be represented in court to have committed a marital offense in order for the other spouse to obtain a divorce (fraud on the court).ii. Connecticut 15 . Encourages people not to forgive iii. Burden: Burden of proving mental condition relieving D of responsibility is on the Defendant i. The No-Fault Revolution III. 370: Wife does not contest divorce b/c H says that he will not contest custody of children. Grounds for divorce i. Rationale: Negates culpability i. Insanity a. wife agrees. Religious Divorce. If the insanity resulted in more than 2 years of hospitalization or ‘incurable’ c. Part of the rationale behind No-Fault Divorces b/c recognition that fault based divorces were undermining the judicial system by encouraging perjury ii. Court can raise it sua sponte b.

the entire increase is marital property d. but during a relationship between spouses that immediately proceeded marriage (same for domestic partnerships) ii. Minority – Postema. The party seeking to demonstrate that the particular property acquired during the marriage is nonmarital. Not inheritable 2. Created the business 1 year before the marriage. Majority Rule – Graham. equal (50/50) Division by title is bad . Is it in fact property? (The Identification Question) a. 713  RULE: here an advanced degree is the end product of a concerted family effort.05) i. CO Case  An educational degree. and contribution of both spouses. Cannot be conveyed 3. must trace the property to a nonmarital source i. 698 i. but he got the company certified after marriage – the increase was marital property (go back to look at case)  All due to his work = active efforts of the owner spouse c.b/c typically men had all the titles in their names . involving sacrifice. Burden of Proof: The party that asserts a marital interest bears the burden of producing evidence as to the identity of the property (Innerbichler v. Innerbichler MD.FINANCIAL CONSEQUENCES OF DISSOLUTION Questions to ask: Equitable distribution (fair) v. Marital Property: property acquired during the marriage  Property acquired before the marriage. effort. if the property cannot be traced to a nonmarital source. Another test: passive ownership and increase in value resulting from active efforts of the owner-spouse (ALI 4. unpredictability could leave to settling b/c fear what husband will do 1. pg. Advanced Degrees: i. such as an MBA. pg. ALI 4.Very unfair to stay at home spouse as all property and assets would be working spouse’s name Unpredictability Hard to negotiate if you don’t know what the court will do On the other hand. gifts from 3rd parties are the separate property of the spouses. even if acquired during marriage  Property received in exchange for separate property even if acquired during marriage 16 . 700) b. 2. where in the interest of the nonstudent spouses consists of an equitable claim regarding the degree ii.03. Not Marital Property: inheritances. Not all jurisdictions make this distinction ii. there arises a ‘marital asset” subject to distribution. is not encompassed under even broad views of property 1. Colorado does not – when separate property increases in value. it is considered marital property ii. Cannot be acquired by an expenditure of the marriage  Instead court can compensate for the unfairness by allowing for an assessment of the degree under ‘appropriate employment’ for maintenance Is it marital or non-marital? (The Characterization Question) a. pg.

or transferable. Siegel. Financial Misconduct i. 722 e. c. occurring during the marriage and prior to the commencement of the marriage. where in the interest of the nonstudent spouses consists of an equitable claim regarding the degree  Rationale: fairness dictates that a spouse who did not earn an advanced degree be compensated whenever the degrees is the end product of a concerted effort involving sacrifice and effort by both spouses  Examples of concerted family effort: • Financial contributions • Child-rearing responsibilities • Increased share of daily tasks • Management of household and family affairs so spouse can study • Share of emotional and psychological burdens of the educational experience – increased tension/stress in the house • Reduced availability to pursue personal interests • Postponing own educational or career pursuits b. and pensions are basically deferred income d. The property may be tangible or intangible. 724) i. pg. should be considered marital property  Not limited to professions requiring a license or degree ii. RULE: Vested and non-vested pension and retirement benefits are subject to division by a divorce court ii. pg. Advanced Degrees i. 713  RULE: here an advanced degree is the end product of a concerted family effort.e. Tests for dissipation:  Proximity of the expenditure to the breakdown of the marriage  Whether the expenditure was typical of an expenditure made during the course of the marriage  Ex: flying lessons if consistent with marriage expenditures  Whether the expenditure benefited the joint marital enterprise or if it was for the benefit of one spouse to the exclusion of the other  Specific Expenditure  Amount and need iii. which is due in part to the indirect contributions or efforts of the other spouse as homemaker or parent. 719 (took care of the kids. put his career on hold) i. Majority Rule (41 states authorize taking misconduct into account in dividing property at divorce) ii. Debts and Liabilities 17 . involving sacrifice. assignable. Example: Gambling Debt. Celebrity Status. effort. and contribution of both spouses. RULE: Career and/or celebrity status can constitute marital property to the extent that the D’s contributions and efforts led to the an increase in the value of the plaintiff’s career  An increase in the value of separate property of one spouse. pg. Minority – Postema. there arises a ‘marital asset” subject to distribution. pg. Elkus. Pensions and other Deferred Income (Laing. RATIONALE: the statutory definition of marital property does not mandate that it be an asset with an exchange value or be salable. RATIONALE: income earned during the marriage is marital property.

. but most jurisdictions include an order about incurring debt and take it into consideration ii. and that is considered the PV marital value iii. Alternative A – minority of jurisdictions (16 states) Hotchpot  Key feature: Equitably apportion all property. Two-Step Process:  Examination of the sacrifices. pg. But. Reserving Jurisdiction: court reserves jurisdiction until the pension is actually vested. once the pension is vested  Negative: not final  Laing.3. not fatal to a judgment if not considered How much is it worth? (The valuation Question) a. Non-Vested Pensions: Most jurisdictions allow courts to decide whether to apply present value or reserving jurisdiction on a case-by-case basis i. pg. 4. without regard to title  Basically skips question #2: The Characterization Question ii. REACT approach . UMDA § 307.000 pension)  A % of the PV is taken for the % of time the couple was married. contributions. pg. Wife accounted for 80% of financial support while he was in school 2. wife received little reward for her contributions  The sources and extent of financial support given to the degree holder during the years in school 1. Wife furthered her own career but on her own 3. pg. Not technically assets. Valuation Factors: (Postema.Laing. contributions of the nonstudent spouse toward attainment of the degree  Given such sacrifices. 713)  Length of the marriage after the degree was obtained 1. pg. BUT – husband responsible for student debt  The overall division of the party’s marital property ii. i. .000 on a $100. 724  To avoid continuing financial entanglement between former spouses  Spouse files a “qualified domestic court order” so that when the pension vests and matures then the administrator makes automatic payments directly to the non-employee spouse How much should each spouse get? (The Distribution Question) a. 724  Value of asset at date of hearing (date depends on the jurisdiction)  Then an expert determines the probability of vesting (ex: if there is a 50% chance of vesting then the PV would $50. Advanced Degrees i. efforts. 724 – adopted if could not use REACT ii. then the other spouse gets a fraction of each pension payment actually received  Court can determine the value of the pension at the time of the divorce. Alternative B – Majority Rule 18 . parties separated shortly after getting degree. 696 i. a determination of what remedy or means of compensation would most equitably compensate the nonstudent spouse under the facts of the case  (Restitution for the sacrifices – focus on what is necessary to compensate the non-student spouse for the burdens or sacrifices made so that student-spouse could pursue degree) b. Present-Value Approach  Rejected in Laing. efforts.

including the desirability of awarding the family home or the right to live therein for a reasonable period to the spouse having custody of any children  Requires the court to categorize property as marital or non-marital 19 .b. including contribution of a spouse a homemaker  Value of the property set apart to each spouse  Duration of the marriage  Economic circumstances of each spouse when the division of property is to become effective. Fault i. UMDA recommends that marital fault should not be considered in financial division but 15 jurisdictions consider marital fault  Each person gets their own property  Martial property gets divided based on 4 Factors:  Contribution of each spouse to acquisition of the marital property.

pg.I. pg. 6 months prior to marriage submitted application for certification. Contribution to the education. Factors to be considered in determining contribution are as follows: i. A spouse who has made a material contribution toward the acquisition of property which is titled in the name of the other may claim an equitable interest in such jointly accumulated property incident to a divorce proceeding. withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement. Ferguson. Ferguson v. of the proposed distributions f. Distribution of Property and Spousal Support A. When to change title: i. absent equitable factors to the contrary. If contribution toward the acquisition of assets is proven by a divorcing party. The needs of the parties for financial security with due regard to the combination of assets. income. and iii. training. Factors to consider. 700 1. subject to such distributions. 3 months after marriage certification granted i. Voluntary Early Retirement – is it a change in circumstances? a. Courts will typically find a change of circumstances if the court find that it was a good faith decisions to retire and objectively reasonable b. 51% ownership in stock. Tax and other economic consequences. and h. Direct or indirect economic contribution to the acquisition of the property ii. The market value and the emotional value of the assets subject to distribution d. Post-marriage increase in value was marital ii. with equity to both parties. Age B. Health of person iii. Industry ii. The value of assets not ordinarily. such as property brought to the marriage by the parties and property acquired by inheritance or intervivos gift by or to an individual spouse e. D owned 51%. if the company increased in value because of marital labor a.Guidelines: (these factors at least give the lower courts a template to lay out their reasoning) a. Early Retirement 1. or other accomplishment bearing on the earning power of the spouse accumulating the assets b. and contractual or legal consequences to third parties. RULE: Increase in value of company can be considered marital property. Increase in Value of the Company Innerbichler v. decree. 709 . The extent to which property division may. then the court has the authority to divide these jointly accumulated assets  Including – giving title to the non-title holder 20 . Innerbichler MD. Facts: 1 year prior to marriage founded company. quantity of time spent on family duties and duration of the marriage. Substantial contribution to the accumulation of the property. marital 2. The degree to which each spouse has expended. Any other factor which in equity should be considered i. Court will consider i. be utilized to eliminate periodic payments and other potential sources of future friction between the parties g. Contribution to the stability and harmony of the marital and family relationships as measured by the quality. or otherwise c. and earning capacity.

Statute does not prohibit such an award –need is only one of the factors to be considered (relative vs. Family court has broad discretion in determining maintenance and the duration of the support payments– Clapp. Court awarded monthly maintenance to bring her up to her husband’s income d. then intentionally pursued a career in education v. Purpose: a. ability to meet his needs independently. Time necessary to acquire sufficient education or training to enable the party to find appropriate employment  “appropriate employment” in the circumstances of the marriage and individuals.C. Married for 70 months. To compensate a homemaker for contributions to the family well-being. Standard of living established during the marriage  Easier for the court to look back at how the parties lived during the marriage to decide what a person reasonably ‘needs’ – Clapp. pg. “appropriate employment” in the circumstances of the marriage and individuals. only if the spouse: a. pg. Duration of the marriage v. physical and emotional condition of the spouse seeking maintenance vi. Reasonable needs allows the court to balance equities whenever the financial 21 . Even if award is higher than recipient’s reasonable needs i. pg. 732 – Need is not a threshold question a.000 iv.000. Lacks sufficient property to provide for reasonable needs b. what the individuals agreed to in the marriage 3. 734 b. husbands $137. including marital property apportioned to him. pg. Husband made considerably more c. not otherwise recognized in the property distribution 2. without regard for marital misconduct: (but 25 states use marital fault in determining alimony) i. After 20 years of marriage. UMDA § 308: Maintenance. Ability of the spouse for whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance vii. Financial resources of the party seeking maintenance. provision for support of child ii. Each of these factors must be balanced in light of the others – In re Wilson. Discretion a. 2 years before separation. wife injured and disabled – unable to continue work as bartender b. Age. 734 iv. Wife income $45. Policy decision to switch support from husband to society 4. 731: The court may grant an award of maintenance for either spouse. separation iii. Appellate court will only reverse if there is no reasonable basis to support the award c. Amounts and duration should be determined on the following factors. absolute need) ii. Alimony: Courts are instructed to consider alimony and property division together 1. Wife stayed home with daughter. what the individuals agreed to in the marriage (not from UMDA) iii. Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment c.

b. Marriage of specified duration ii. When the marriage was of sufficient duration that equity requires that some portion of the loss be treated as the spouses’ joint responsibility b. The provisions as to property distribution may not be revoked or modified. Obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving the maintenance. Claimant’s earning capacity at dissolution is substantially less than that of the other spouse c. When a parent obligated to pay support dies. pg. but not by the death of a parent obligated to support the child. to the difference between the incomes the spouses are expected to have at dissolution 7. A person married to someone with significantly greater wealth or earning capacity is entitled to compensation for a portion of the loss in the standard of living he/she would otherwise experience i. A spouse should be compensated for the earning-capacity loss arising form his or her disproportionate share during the marriage of the care of children (marital or children of either spouse) b. While under the age of majority. ALI 5. Amount paid in periodic payments determined by applying a percentage. revoked or commuted to a lump sum payment. unless conditions justify reopening of judgment under state law. Entitlement should be determined by a statewide rule that creates a presumption of entitlement if i. Spousal-income disparity 6.04: Compensation for Loss of Marital Living Standard. There have been children. unless otherwise agreed to in writing c. Not enough property at the time of divorce to address inequality 22 . called the child-care durational factor. Should be a statewide presumption when: i. Support.05: Compensation for Primary Caretaker’s Residual Loss in Earnings Capacity a. Provisions for child support are terminated by emancipation of the child. Provisions may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. have lived with claimant for a minimum time period iii. marital or non ii. 8. Part-time b. Barriers to women’s employment i. 752) a.contributions of one spouses enable the other spouse to enhance his or her future earning capacity 5. 746 a. ALI 5. the amount of support may be modified. to the extent just and appropriate in the circumstances. Presumption exists unless court finds that claimant did not provide substantially more than half of the total care of the children d. UMDA § 316: Modification and Termination of Provisions for Maintenance. and Property Disposition (pg. Mommy track ii. Rationale for Alimony a.

Parties acknowledged responsibilities to the other vii. even if the parties did not explicitly enter into a K 3. or expenses 2. "as much as he deserved. and engage in a sexual relationship. lacks express contract but the court will imply a contract in order to avoid unfairness 2. The parties may order their economic affairs as they choose. Statements. Implied Contract of Fact: course of dealing between parties leads the court to determine that a contract exists.03 Approach 1. physical intimacy viii. joint assumption of parental functions toward a child 3. Emotional. ALI 6. Severability a. 5. Extent to which relationship changed life in either or both parties vi." the actual value of services performed D. not married to one another. Even if sexual services are part of the contractual consideration a severable portion of the K supported by independent consideration will still be enforced C. Constructive Trust: person who obtained property has equitable duty to share (based on the premise that keeping it would be inequitable or unjust) 4. Economic interdependence or dependence iv. representations made to one another or third parties ii. Vs.Reputation in the community ix.II. and no policy precludes the court from enforcing such agreements 4. c. Majority – recognize express contracts 23 . Determination of Domestic Partnership Factors: Totality of the Circumstances i. Domestic Partners: two persons of the same or opposite sex. Intermingling of finances iii. Most courts rely on contract laws to conclude that cohabitating parties may require financial obligations to one another (unless contracted out) i. Remedies based on living together UNLESS agreement states otherwise i. The fact that a woman and a man live together without marriage. Neither is such an agreement invalid merely because the parties may have contemplated the creation or continuation of a non-marital relationship when they entered it 3. Procreation or adoption. Quantum Meruits: unmarried partner working in the business of the other partner under no express agreement – allowed laboring partner to walk away with something a. Property Claims of Unmarried Cohabitants A. Resulting Trust: One person holds property but it is understood to be done for the interest of both persons 5. Conduct in furtherance of lives together v. does not in itself invalidate agreements between them relating to their earning. ALI Relationship to existing law a. No need to find express or implied agreement to share b. Marvin. Options for the Court 1. The court may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or agreement of partnership or joint venture or some other tacit understanding between the parties. 769 1. who for a significant period of time share primary residence and a life together as a couple a. promises. RULE: Agreements between non-marital partners fail only to the extent that they rest upon a consideration of meretricious sexual services – Marvin v. pg. property. Marriage: public declaration signifies intent to merge financial means B. Participation in a commitment ceremony or registration as domestic partnership x. No state has adopted the ALI approach 2. Implied Contract: where the Plaintiff provides goods or services to the D.

A few – require written contracts 24 .ii.

etc.III. Simple. Chart . Nelson Formula (3 states. 798 i. Excessive Child Support a. best job of balancing needs of parents and children. Judicially enforced – typically only when parents do not live with their children 2. Deviation from the Standards 1. Congress enacted legislation that required states to adopt a formula in order to be eligible for AFDC funding C. RULE: exclusion applies equally to stepchildren and natural children (b/c father has obligation to support step-child even if there is not an order) iv. Income – several round of allocations i. pg. % goes to each child as additional support D. incl. The court can consider second families in child support BUT must also consider the voluntary nature of second families 25 . Flat Percentage of Income a. Basic subsistence need of each adult b. but the court must clearly state the based for the lower order  Reasonable basis exists where both parents have more than enough income to provide for a child ii. The marital status of the parents is not key. it is whether the parent does or does not live with the children B. most sensitive to extreme poverty) a. Facts: both parents make a significant amount of money  Court must consider the standard of living the child would have enjoyed absent parental separation and marital dissolution  BUT the court cannot require excessive child support so that the child (of the custodial parent) can diminish the accumulation of the estate of the noncustodial parents 2. RULE: Court can set a child support order less than the guidelines. Combines the income of both parents b. In re Marriage of Bush. students loans. Other Considerations – Supporting children in a second family a. History 1. Adjusted for the number of children b. Courts were not awarding enough child support b. 788 i. Actual expenditures (mortgage. but crude 2.) not included iii. but not through a support order – Ainsworth. Child Support A. Adjust for extraordinary expenses (ex: special needs education) d. Income Shares (33 jurisdictions. Each parent contributes to this total based on the financial resources of each parent CRS § 14-10-114 3.Basic support obligation based on the number of children and combined income c. Children’s basic needs ii. Colorado) a. pg. Duty to support one’s children is applicable to all parents 1. Three Approaches 1. Typically the court can consider  Preexisting spousal maintenance  $ from public assistance  Cost of health insurance for children ii. Courts used to determine child support like alimony – with a lot or discretion given to courts a. H was supporting his step-child.

Not overly broad  Did not eliminate his ability to procreate  Can satisfy the requirement by making efforts to support his living children (did not require payment of $25.000)  No limit on the number of kids he can have  Condition is temporary – at end of probation 2. 834 ii. Means of ensuring payment a. In lieu of prison time. Public shaming – deadbeat dad websites g. Revocation of drivers license or professional/occupational license h. Employment conditions (requiring him to hold two jobs. Rationale:  Convicted individuals do not enjoy the same degree of liberty as citizens who have not violated the law  The choice to procreate or not is a fundamental liberty interest BUT limitations on fundamental rights for convicted felons on probation are not subject to strict scrutiny iii.) b. Trigger for Enforcement Proceedings a. actual wages ii.v. Most states have these 26 . Limitations:  Not any probation requirement will be upheld simply because it is less onerous than incarceration v. Wage garnishment f. etc. D given 5 years probation (after 3 years in prison) i. Boots on cars e. Revocation – stayed sentence d. Criminal Statute – like WI v. TEST: condition of probation may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to the person’s rehabilitation  A condition is reasonably related to the person’s rehabilitation if it assists the convicted individual in conforming his or her conduct to the law iv. Court can assign potential vs. pg. The court is entitled to deviate from the number if the result would otherwise be inequitable (CO and VT) vi. Intentional Underemployment i. But court can still review the support order E. Can be part of settlement b. Oakley. Oakley i. Child Support Enforcement 1. Child Support Factors 3. Person entitled to child support can initiate i. Enforcement proceedings  Criminal or civil – contempt proceedings  An element of contempt is inability to pay – but courts have been expansive of inability to pay (ex: if someone voluntarily takes a job that does not garner enough wages to make payments) 3. Complicated because of federal and state interests  When mothers fall below the poverty level (states and feds will go after fathers) b. There must be a child support agreement a. Further criminal sanctions c. Cannot have children while on probation unless he can demonstrate that he can support his 9 children and a new child – WI v. Other Issues: a.

then mother wants custody – trial court abused discretion when awarded mother custody b/c focused too heavily on father’s physical disability. Fitness – In re Marriage of Carney. pg. If handicap. frightens. Weight of testimony determined by the judge I. then mother wants custody – trial court abused discretion when awarded mother custody b/c focused too heavily on father’s physical disability. not the emotional connection that he had with his children) i. and community e. The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child B. Special contributions that other members make to the household e. gets in accident. school. The wishes of the child as to his guardian c. The wishes of the child’s parents or parents as to his custody b. Whether the parent’s condition will have a substantial and lasting adverse affect on the best interest of the child f. Pennsylvania – 1992 – McMillen . The mental and physical health of all individuals involved 2. and upsets him  Mother does nothing to prevent this treatment  Mother interferes with sporting and farming activities 2. his siblings and any other person who may significantly affect the child’s best interest d. 525 (father given custody by agreement. order has been modified and each time more time given to father. pg. Burden of showing a sufficient change in circumstances is on the party seeking the change in custody b. A child custody order is modifiable without proof of a substantial change in circumstances where such a modification is in the best interest of the child ii. How he or she has adapted to the disability and manages the problem c. RULE: Expressed wishes not controlling in custody decisions. pg. not the emotional connection that he had with his children) 1. but an important factor that must be carefully considered in determining the best interest of the child 1. 27 . Facts: Originally court awarded primary custody to mother. TC found homes “equally acceptable” but child expressed preference to live with father  Step-father threatens. 554 i. The child’s adjustment to his home. Child’s Preference A. California – 1979 In re Marriage of Carney. gets in accident. How the other members of the household have adjusted to the disability d. UMDA § 402: Best Interest of the Child (pg. The interaction and interrelationship of the child with his parent or parents.CHILD CUSTODY Best Interest Standard A. not okay to have a primia facia evidence of person’s unfitness as a parent II. The Court shall use the following factors in determining the best interest of the child: a. In re Marriage of Carney. Person’s actual and potential physical capabilities b. The health and physical condition of the parent is a factor of minor importance and whenever it is raised the court must weigh it with an informed and open mind ii. pg. 525 (father given custody by agreement. 525 i. 436) 1. A child will not be removed from the prior custody of one parent and given to the other “unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change” ii. Maturing and intelligence must be considered 2. Change in Circumstances a. Physical Handicaps of Parents – Totality of the Circumstances Test a.

588)  Court should allocate custodial responsibility so that proportion 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 parent’s separation. Unconstitutional 3. (Unfit parent: where the primary caretaker fails to provide emotional support. Instead. Putting child to bed at night. A. If the parent is a fit parent.09 i. and dressing iii. Preparing and planning meals ii. cleaning. Arranging alternative care vii. Purchasing.08: Allocation of Custodial Responsibility (pg. Rationale for abolishing Maternal Preference 1. arithmetic d.08 & 2. 569) 1. Factors to determine primary caretaker i.Disciplining child ix. McCoy. Primary Caretaker Presumption a. pg. used as a factor in determining best interest of the child a. v. Parent with greater flexibility to care for child 3. waking child the morning viii. Bathing.B. Stability of the environment that each parent provided B. or nourishing food. RULE: Totality of the Circumstances Test (no longer maternal preference) – Pusey. ALI § 2.Best reflected in ALI § 2. Parent with whom child has spent most of his or her time pending the custody determination (if the time has been significant) 4. If both parents are equally the primary caretakers. then before the filing of the petition  Permit the child have a relationship with each parent 28 . and caring of clothes iv. Particularly problematic when used as tie-breaker C. then the trial court must award custody to the primary caretaker parent ii. routine cleanliness. Arranging for social interaction among peers vi. pg. Primary Caretaker will react with Solomon syndrome – parent will be willing to sacrifice their interest for the best interest of the child e.B) b. Removing child more traumatic for the primary caretaker ii. EMERGING APPROACH – Approximation Approach . RULE: Where one parent can demonstrate with regard to a child of tender years that he or she is clearly the primary caretaker parent. Hearings do not necessarily improve the outcome b/c judges are not particularly adept at determining better parenting iii.III. or if parents never lived together. Medical care v. Gives parties a sense of what the court might do  Allows for better negotiating  Parent who is not the primary caretaker is typically the one more financially well off iv. Alternative (Garska v. then the court must look into parental competency c. Tender Years Presumption A. Rationale: i. grooming. attending to the child in the middle of the night. i. then the court must further determine only whether the primary caretaker parent is a fit parent. Primary caretaker during the marriage – not exclusive factor 2. writing. Teaching elementary skills – reading. the presumption shall not apply – J. TODAY i. 566 1. Out-dated 2. States do not use primary caretaker presumption ii.

Hollan. 590)  Unless otherwise agreed by parties. i. daily schedules and ability of parents to cooperate with the schedule ii. Some states presume that joint custody is in the best interest if both parents favor it Race. pg.09 Allocation of Significant Decision-making Responsibility (pg. Gender. 584 b. 532) a. but found to be good parents – award joint custody c. To accommodate the firm and reasonable preferences of a child who has reached a specific age  To keep siblings together when the court finds that doing so is necessary to their welfare  To avoid allocation of custodial responsibility that would be extremely impracticable or that would interfere with child’s need for stability in light of economic. Best Interest Factors (from Hollan v. the court should allocate decision making responsibility to one parent. physical. RULE: Individualized determination of whether joint or sole custody serves the child’s best interest – Squires. pg. 540)  29 . joint custody is the next best available option d. possible exception:  DV – rebuttable presumption that DV perpetrator should not have custody 2. in light of the following:  The allocation of parental responsibility  The level of each parent’s participation in past decisionmaking on behalf of the child  The wishes of the parents  The level of ability and cooperation the parents have demonstrated in past decision-making on behalf of the child  WV has adopted this approach  Approximate the proportion of time that the parent spent with the child prior to the divorce proceeding 2. and Sexual Orientation (in Child Custody) 1. One factor is not enough. cite evidence to each factor. A decision to grant custody to a parent cannot be based solely on race or on protecting the child from social stigma. Must make particular finding that joint custody is in the best interest of the child e. in accordance with the child’s best interests. Ethnicity. Religion. Race and Ethnicity a. Rationale: it is much easier to modify joint custody than sole custody i. JOINT CUSTODY a. or to two parents jointly. Private racial prejudices do not justify a state decision removing custody of a child from its mother (Palmore v Sidoti. TC placed too much weight on ‘moral fitness’ and ignored the voluminous evidence for the other factors (Hollan – mother shared a bed with another woman) b. or other circumstances. g. and state which parent weighs in favor of the factor c. Procedure rule: TC must engage in each of the factors. Assumption that it is in the best interest of a child to be brought up by two parents who are married to each other. When parents are hostile and refuse to cooperate.IV. including distance between homes. ALI § 2. RULE: Court must weigh all the factors: i.

health. and will have a similar harmful tendency in the future (Kendall. directly or indirectly. Trial Court’s decision upheld:  Parents could not promote alienation of either parent  Dad could not take children to church or bible study IF it promotes rejection of their mother or their own Jewish identity  Dad cannot share religious beliefs if those beliefs cause children significant emotional distress about their mom or themselves  Dad can have pictures of Jesus on wall and celebrate Christian holidays 30 .  Wholly uncorroborated testimony of parent is insufficient  Substantial harm is considered a form of strict scrutiny  Acknowledge that an infringement is in place (1st amendment) and you need a justification of substantial harm to uphold the infringement  Hybrid right – right of parents to educate their children in religion (Care. TEST: Whether. A court can consider the matter of race as it relates to a child’s ethnic heritage. and control of children) + religion (or some other right)  In practice. Harm: a likely source of proof of substantial harm by implication could be derived from testimony as to the child’s general demeanor. Court also cited strong family support on father’s side. 548) i.that father had suffered prejudice. schoolwork. Kendall – harm found  Father shaved son’s religious sideburns  Would not let his son wear the Jewish garb  Took children to services where it was taught that they and their Mom would burn in hell  Opposes children being taught about the Holocaust  Child had strong Jewish identity and efforts to change damaged son iii. exposure to two different parental religions is so disturbing to a child as to cause substantial injury. in particular circumstances. but the law cannot. The Constitution cannot control such prejudices but neither can it tolerate them. or outlook. custody. pg. No issue as to either party’s devotion to child. appetite. Mother appealed custody decision granting Native American father custody of the children on the grounds that the TC improperly considered race. Religion a. Assumptions:  Parent not part of the heritage will not develop the link  White women doesn’t have culture – or the child will be exposed to the majority culture anyways 3. give them effect. attitude. and will be able to better deal with the needs of child when they are discriminated against  Not the sole reason. hybrid rights are subject even stricter scrutiny ii. Private biases may be outside the reach of the law. (Jones. but mother’s lifestyle (marriage to a black man) would subject the child to environmental pressures and suffer for social stigmatization ii. iii. physical or emotional. pg. ii. b. 541) i. and which parent is more prepared to expose the child to it.

V. 596 b/c mother was suicidal but previously. GENERAL RULE: Custody of a minor child will not be modified unless there has been a material change of circumstances showing that the custodial parent is unfit or that the best interests of the minor child require such action a. In deciding a change in custody motion. the custodian agrees to the modification ii. IF court has jurisdictions under UCCJA. New Evidence: Res judicata should not be used to bar the court from considering relevant evidence bearing on considerations of what is in the child’s best interest (Wetch. 595 a. the court shall not modify UNLESS the court finds based on facts that have arise since the decree or that were unknown to the court at the time of the entry of the prior decree that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. 596 – mother in homosexual relationship. mental. pg. and the harm likely to be caused by a change in the environment c. mental. pg. No motion to modify may be made earlier than 2 years after its date. moral. Evidence of custodial parent’s behavior during the year or so before the hearing or motion to modify is more significant that the behavior prior to that time i. Change in Circumstances 1. Modification and Relocation A. Court shall retain the custodian UNLESS i. UNLESS court permits it based on a reason to believe the child’s present environment may endanger seriously his physical. pg. UMDA § 409: Modification. Do the changed circumstances require in the best interest of the child that custody be modified? 3. pg. not currently) b. Attorney Fees: assessed to party seeking modification if court finds purpose was to harass 2. 599) i. the trial court MUST consider all relative evidence. 599) i. The child’s present environment endangers seriously his physical. father filed motion to modify) 4. Rationale: court interested in best interest of the child now and in the immediate future (relevant in Hassenstab. Courts can consider facts prior to decree if there was fraud or misrepresentation iii. pg. and emotional health. including pre-divorce conduct and activities (10 States) ii. Permit modification on facts that existed at the time but were unknown to the court 31 . moral or emotional health b. Two Part Test: (Wetch. Has there been a material change in circumstances since entry of the original divorce decree? If yes. RULE: Sexual Activities of Parents a. ii. A parent’s sexual activity is insufficient to establish a material change in circumstances justifying a change in custody absent a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity (Hassenstab. The child has been integrated into the family of the petitioner with consent of the custodian iii. Evidence of Change of Circumstances a. if the previous custody placement was based upon the parties’ stipulation and by consideration of the evidence and court made finding.

Court must consider all the relevant factors to determine what arrangement will serve the child’s best interest. Lewis. should be reserved for paramount interests i. Good faith reason for the move ii. Work schedule would preclude visitation ii. New Mexico – CO adopts a. education. Both parents share equally the burden of demonstrating how the child’s best interest will be served.B. b. CO rejected this approach b/c ‘compelling state interest’ is too high of a burden. Education or health care unavailable in new location iii. but that the change will negatively affect the child. Examples: i. (not too onerous of a burden – moving for extended family. Too high of a burden – doesn’t protect the interests of the parents ii. 605 32 . noncustodial parent’s right to parent. Child taken away from extended family 4. who has had time to contemplate the issues. Not considered a change in circumstances UNLESS the move would have detrimental effect on the child b. Short of preventing harm. Minnesota Approach: Child’s Welfare is a compelling state interest that trumps parent’s right to travel a.Two Prong Test: a. No majority rule 2. not just that visitation will change. 21 factors: pg. The move will not inimical to the child’s interest iii. pg. Then the burden is on the noncustodial parent to produce evidence. Should include a visitation proposal iv. best interest of the child (to be raised by both parents. opportunities for child) 3. Trilemna: custodial parent’s right to move. Relocation – parents contest the relocation or the parenting time suggested by the relocating parent 1. should initially produce evidence to establish a prima facie i. The party seeking to move. etc) b. the best interest standard is insufficient to serve as a compelling state interest (It is only when the BIC is preventing harm to a child that it should be elevated over a parent’s rights) 6. One Approach from Baures v. Wyoming Approach: Higher priority on the Constitutional Right of parent to travel a. CO rejected b/c presumption to custodial parent 5. 605 .

613) b. 618) b. Religious restrictions/requirements a. RULE: In order to justify restrictions on a parent’s right to inculcate religious beliefs in their children. or emotional health B. GENERAL RULE: the child’s welfare is given paramount consideration and the right of the noncustodial parent to reasonable visitation is clearly favored (Elderidge. mental. that visitation would endanger seriously the child’s physical . Examples of Restrictions: 1. 2. or emotional health 3. Each parent must be free to provide religious exposure and instruction as the parent sees fit. pg. Supervised Visitations – when one parent’s conduct has been particularly egregious 2. UNLESS  The challenged beliefs or conducts of the parent are demonstrated to present a substantial threat of present or future. Mere unsubstantiated predications of a vying parent C. Environment of noncustodial parent – visits have to take place in specified location. physical or emotional harm to the child in the absence of the proposed restriction  Needs to be least restrictive? 33 . 613) 1. UMDA § 407: Visitation (pg. Refrain from drugs and/or alcohol 6. Both parents have right to visit their child a. moral. 612) 1. during any and all period of legal custody or visitation without restriction. Majority Rule: i. pg. Not “serious endangerment to the child” to necessitate a court order prohibiting the presence of the mother’s lesbian partner during overnight visits (Elderidge. the party seeking the restriction must demonstrate by competent evidence that the belief or practice of the party to be restricted actually presents a substantial threat of present or future physical or emotional harm to the particular child or children involved in the absence of the proposed restriction and that the restriction is the least intrusive means to prevent the specified harm (Zummo. Only restricted if the court finds that visitation would seriously endanger the child’s physical. Court may modify an order granting or denying visitation rights whenever modification would serve the child’s best interest but the court shall not restrict a parent’s visitation rights UNLESS the court finds that the visitation would endanger seriously the child’s physical. or emotional health. pg.VI. moral. Presence of homosexual partner a. mental. No overnight visits 3. after a hearing. 3rd party restrictions 4. mental. moral. outside of the home 5. The noncustodial parent’s visitation may be limited or eliminated if there is definite evidence that to permit the right would jeopardize the child in either a physical or moral way 2. Visitation A. A parent not granted custody of a child is entitled to reasonable visitation rights UNLESS the court finds.

H served while visiting children in Iowa  Not a personal jurisdiction issue  H argued that Iowa did have SMJ iii. Dissolution A. US 418) i. Different than durational residency requirement (ex: welfare. but no personal jurisdiction over the D to grant divorce 1. Iowa. Statute is Constitutional ii. Iowa – 1 year (Sosna v. 48 states have durational residency requirements like this B.JURISDICTION Choice of Law & Jurisdiction: two separate issues. voting) that have not been upheld  Those laws were not okay b/c their purpose was for budgetary purposes which does not outweigh constitutional claims of individuals iii. but they got constructive notice. Ex Parte Divorces (Nevada ) – when a state has subject-matter jurisdiction over the P. NC – 2 lovers leave NC to go to LV long enough to divorce their spouses in NC and get married. Iowa agreed with H based on statute that requires petitioner to live in the state for at least 1 year before filing for divorce b. ii. Neither of the NC spouses were served. Supreme Court: i. If at least one party is domiciled in a state. don’t get them confused Choice of Law: Which law should apply to the dispute Jurisdiction: Personal Jurisdiction: does the forum have authority over the respondent? Subject-Matter Jurisdiction: does the forum have authority over the dispute? I. or file in home-state jurisdiction)  States interest in not meddling in affairs where other states have an (greater) interest c. Separated and W moved to Iowa with the kids. Lovers marry and return to NC. a state court can grant a divorce decree even if it doesn’t have personal jurisdiction over the other spouse. NV did not have personal J over them. Here. Full Faith and Credit 34 . Residency Requirements 1. RULE: Residency requirements before a person can get a divorce in that state are constitutional because a state has a right to require that the petitioner have at least some attachment to the state before the state is compelled to get involved v. Petitioner not denied right to divorce. as long as the other spouse had adequate notice (Williams v. About a year after separation and a month after moving to Iowa. States may require residency requirements for subject-matter jurisdiction a. H & W married and lived in NY. NC did not recognize the divorce. just temporarily precluded from seeking divorce in Iowa (delay. not denial)  There is a difference between denial of a right and a delay of a right iv. W filed for divorce in Iowa. punished for bigamy) 2. Rationale:  Judicial resources – states don’t want to spend the $ on divorces when the parties do not have a substantial connection to the dispute  Reduce forum shopping  Fairness to the parties  Appellant not foreclosed from divorcing (just had to wait a year.

Financial matters (alimony and child support) are not valid if no personal jurisdiction over the other spouse) – divisible divorce 35 .a. Only the divorce decree is entitled to interstate recognition b.

daughter said she wanted to go live in CA with W. NV grants the divorce ii.  W also went to Haiti and got a divorce decree there  About a year after W left. Most states have adopted statutes that give them jurisdiction over any matters that do not violate the US or state constitutions a. Vanderbilt . H and W lived in NY and had 2 kids. Vandebilt v. Must have personal jurisdiction 1.H goes to NV files for divorce – W not served & no notice i. so H bought her a one-way ticket to CA. or property distribution have to undertake the standard minimum contact analysis to determine whether the forum has personal jurisdiction over the Respondent spouse under the Long Arm Statute b. A year later. Kulko v. State courts who are entertaining an action for child support. After separation. alimony. They separated. No right to extinguish W’s right to support without personal jurisdiction a. States can assert quasi in rem jurisdiction as an alternative to personal jurisdiction a. it did not have the power to take away her right to support B. Minimum Contacts i. In rem jurisdiction 1. Chronology not important a. Supreme Court held for W – A court cannot adjudicate a personal claim or obligation UNLESS it has personal jurisdiction  NV did not have PF over the W. Estin – order for alimony came before 2. State can only impose financial obligations in regards to the property in the state C.  H appeared specially and argued that CA didn’t have personal jurisdiction over him: ii. grant her custody.II. but NY ordered H to pay W alimony iii. Financial Matters A. Rule: Personal Jurisdiction requires: 36 . The property in the state must be related to the subject of the litigation in order for the state to have in rem b. and increase H’s CS payments. and W agreed that H would have custody of kids and W would get small amount of child support for the visitation time she had with the kids. Superior Court of CA i. Long-Arm Jurisdiction 1. W files for separation & alimony in NY  NY did not have PJ  NY sequestered property in NY and got quasi in rem jurisdiction  H objected – FF&CC compelled NY to treat NV divorce as final  NY agreed that decree was valid. W moved to CA. US Supreme Court – Minimum Contacts  Although H got personal service in CA  No minimum contacts with CA  CA courts said that they had PJ over H b/c minimum contacts were established when H bought one-way ticket for daughter to move to CA and consented to her moving  SCT reversed—NO MINIMUM CONTACTS HERE c. Estin i. Son eventually came too  So then W brought suit in CA to enter the Haiti divorce decree. Vanderbilt – the order for alimony came after ii.

Enforcement of Financial Decisions 1. D must have a sufficient connection with the forum state to make it fair for D to have to defend an action in the forum state  Acquiescence to a child’s desire to live in the forum state with the other parent does NOT suffice as minimum contacts and thus does NOT confer jurisdiction over the H in CA  No commercial interests  Not availing himself of the responsibilities and privileges. protections of CA laws  No reasonable expectation of being haled into court in CA D. Order can be enforced without relitigation  No independent de novo review iv. Notice that an action was brought in the forum state AND ii. incl. Brenkle 37 . Order must have been valid (issuing court must have had PJ over D) ii. Elements: i. specific basis:  Causing child to live in other state  Having lived in the other state with child iii. but not modify  Parties can file a written consent. Issuing Court Retains jurisdiction  No other court can modify the orders  Other jurisdictions can enforce. UIFSA – Procedural Framework for enforcing support obligations entered in another jurisdiction (does not create the duty of support) a.i. Provides for personal jurisdiction over the non-resident D spouse up to the Constitutional limits in Kulko. allowing another court to exercise jurisdiction over the modification b.

If a court has jurisdiction over UCCJEA. Parents would kidnap their own children. Child custody orders can be modified. Does not require i. HOME STATE: state where the child lives with a parent (or a person acting as a parent) for at least 6 consecutive months immediately before the commencement of the proceeding i. final jurisdiction c. Personal Jurisdiction a. W moved to FL with children. medical and education c. Parents cannot relitigate child custody issues in another state. or a person acting as a parent. SIGNIFICANT CONNECTION i. he filed a custody petition in VA b/c Mom would not give Dad her address in FL which was necessary to purchase an airline ticket to send the kids back to FL 38 . and get a new child custody order 3. For children who are abandoned. Where the child and at least one parent. Adopted by every state. UCCJEA supplants a PJ analysis b. Only on a temporary basis and in emergency circumstances  Only lasts long enough to resolve the dispute.II. Chaddick – H&W divorced in MA. PKPA – made custody orders subject to Full Faith and Credit B. H moved to VA and got summer custody. Child Custody orders can only be modified by state with continuing. If all other states with better jurisdictional grounds deny jurisdiction ii. has significant connection with the state. EMERGENCY i. so not considered final 2. Court with jurisdiction can relinquish dispute to allow another state with more significant connections with child d. Child Custody A.at the end of Dad’s summer visitation. but child has moved within last 6 months. 1993. and there is available in the state substantial evidence about the child’s care. relationship. Child physically present in the state 4. or otherwise neglected or threatened with abuse ii. then the court has enough 3.only get to lower priority basis for jurisdiction if states decline jurisdiction or if the child moves around (Home state has the exclusive right to choose whether or not to exercise jurisdiction. 1. INITIAL CUSTODY DISPUTE: Prioritized List . OR if no other state is a home state or has a significant connection d. Continuing Final Jurisdiction a. before any other state has the option – or if child has not home state) a. Notice and Opportunity to be heard e. 2. but one parent still lives in that state b. except MA 2. Not final. Problems 1. so not enforceable in other jurisdictions under the FF&CC a. just because they did not like the first determination. State with original custody determination retains jurisdiction UNLESS i. provide for the safety and well-being and then jurisdiction would get transferred i. DEFAULT – any state that the parent’s file i. All parties have moved b. Personal jurisdiction over respondent parent C. Requires i. OR the state that used to be the child’s home state. UCCJEA (tried to fix PKPA and UCCJA) 1. take them to a new jurisdiction.

It is also up to the judge’s discretion to determine if a hearing is necessary to determine jurisdiction or not e. He did what he was supposed to do by contacting the VA judge c. the FL judge determined that VA judge had already decided all the issues. must stay the proceeding and communicate with the other court to avoid jurisdictional conflicts b.VA court ruled against mom and kept custody with dad b. but C of A affirmed b. March 1995. April 1995. But after speaking with the VA judge. and that VA had jurisdiction. Congressional intent. remedy inapplicability of the FFC – to make FFC applicable to custody decrees 39 . Did it create a federal claim? a. And even if a court has jurisdiction under UCCJA.Mom then filed a petition in FL seeking to enforce the Mass decree c.a. She appealed again 5. this does not change the outcome in this case d. The UCCJA requires that a judge. it may decline to exercise it if it finds that it is an inconvenient forum to do so c. Holding: a. Does not create a federal claim b. Home-State (florida) would have jurisdiction D. VA court granted custody to Dad b. And even though such phone calls should be completed in front of the parties in the future. She argued that under the UCCJA and PKPA VA did not have jurisdiction b/c Mass still had jurisdiction over the custody order a. So FL judge dismissed the case a. No private remedy c. upon learning that a proceeding regarding custody of a child is pending in another state. If decided under UCCJEA – then the decision would have been different. Thompson – PKPA 1. Mom appealed this dismissal in FL. And in the future a judge should make it clear why the sister state was or was not exercising proper jurisdiction under the UCCJA 6. not FL 4. Rule: a. Mom then retained a VA atty to contest the VA court’s jurisdiction to hear the custody petition 3. The FL judge did not err b.

Stanley’s interests are significant enough to warrant a hearing as to his unfitness before children are removed from his custody ii. Holding: MA’s child labor laws which prohibit the child from handing out religious pamphlets does not infringe on the parent’s liberty interest in bringing the child up in a religion. Prince. The parent’s liberty to bring up the child in the way he should go. The right to practice religion does not include the right to  Expose child to communicable diseases c. Stanley’s interest in retaining custody of his children is cognizable and substantial b. The child’s freedom to preach the gospel b. Biology alone without meaningful involvement is not sufficient to 40 . and 9th) 1. Delineating the boundaries of Parental Rights A. nor the child’s right to freedom of religion. regulating or prohibiting the child’s labor and in other ways i. must be proven unfit with due process of law before the state can remove the children from the home. RULE: Parents have a fundamental right to care. then the constitutional protections are not triggered. If Stanley is a fit father. Two liberties at stake: i. 2. B. May lessen the evils that the legislation was trying to avoid. but does forestall them d. custody. wed or unwed. and physical welfare of the minor and the best interests of the community ii. To strengthen the minor’s family ties whenever possible c. pg. Who is the parent? Who is entitled to the fundamental right? (Stanley pg. Unwed Fathers who have not developed a relationship with the child a. as against a claim of religious liberty (Prince – Jehovah Witness child handing out pamphlets at night with aunt in violation of child labor laws) a. Pierce. 638) 1. Most unmarried fathers are unsuitable and neglectful (state argument)  But all unmarried fathers are not in this category  Might be that most unmarried fathers are unfit  Speed & efficiency are not sufficient interests in light of the interests of unmarried fathers in retaining custody of their children ii. Not nullified b/c parent grounds decision on religious grounds ii. Protect the moral. 641) i. State’s Role: as parens patriae state may restrict the parent’s control by requiring school attendance. and control of the child (Stanley. Presence of guardian i. which can mean teaching certain tenets and practices of their faith ii. emotional. mothers or fathers. Meyer) (protected by Due Process. RULE: Parents. .PARENS PATRIAE III. State’s Interests: . mental.  BUT. RULE: If the only connection is biological. Unwed Fathers who have created a relationship with his children a. the State then undermines its won articulated goals by removing the children from his custody b. HOLDING: IL’s Statute is unconstitutional b/c it violates Due Process i.Legitimate State Interests i. BUT means do not fit the ends i. . EPC. But family is not beyond regulation in the public interest. (Lehr. Existence and nonexistence of a substantial relationship between the parent and the child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child  An established relationship demonstrates a commitment to the interests of the child ii.

father left room.3. not after birth ii. pg. Grandparents sue for visitation rights. Never offered to marry mother e. Father learned of adoption with change of venue notice f. Child told guidance counselor at school ii. no evidence of malevolent infliction of pain or an attempt to terrorize his daughter c. Testified that it was painful iii. filed Paternity Action in another county ii. pg. got a gun. Fathers who have been ID’d as fathers on birth certificate iv. knowingly. and hold themselves out to be the father v. Fathers who live openly with mother and child. Did not address whether a showing of harm was required for the court to intervene in 3rd party visitation c. The State’s Role in Child Protection A. FACTS: i. Abuse: attempting to cause or intentionally. and then walked by daughter – no issue as to the facts a. Laws allow parents to administer corporal punishment .Chronister. Registered in putative father registry ii. 1195) – later that same day. Fathers who were married to the mother before child was 6 months old d. 621 – M & F never married. Third Party 1. AFTER adoption case filed in Ulster County. as a policy matter. The EPC does not prevent a state from according two parents different legal rights c. F commits suicide. Father in this case did not fit one of these categories i. pg. Not Abuse – Outside the Protection of the State 1. Court’s Opinion i. daughter and father’s girlfriend. b. Testified that she was frightened and intimidated b. Visitation order that the lower court ordered was unconstitutional b. or recklessly causing bodily injury or serious bodily injury. Name not on birth certificate iv. how a parent should choose to discipline his or her child. finding that the father’s act were intended to be just punishment.” ii. Severity of injury – i. Visited M and child at hospital at birth iii. 2. Court focused on intent. Statute must give deference (“some special weight”) to parent’s won determination IV. Bodily injury: impairment of physical condition or substantial pain  This case – pain was temporary 41 . Did not provide financial support v. Did not approve the behavior but “not fur us (the court) to dictate. NY Statute does not require notice to a putative father or a hearing in adoption cases UNLESS i. Father beat 16 year-old with a belt (Chronister. ADD: Quillion Caban Present day law: Presumption of father?? C. Lived with M prior to birth. i. bestow parental rights and obligations on a parent. discussion with father. 1195 2. Fathers who have been adjudicated to be the father iii. Troxel. Fathers who have been ID’d as the father in a sworn statement by the mother vi. Corporal Punishment a. Majority Rule: Unconstitutional as applied in this case a.

or abandonment (Doe 11th Cir. not just ‘undesirable parental behavior’  Imminent Danger  Does not mean that child has to be actually harmed  Imminent – must be near or impending. Use of force allowed if i. RULE: Child may be taken into custody if law enforcement officer or authorized agent. or mental distress or gross degradation. Two documented reports of severe sexual abuse involving John Doe  One involved a disabled family member  Both involved extremely young children ii. or mental distress e. neglect.” B. Where the force is not designed to cause or known to create a substantial risk of causing death. Parents may use corporal punishment to discipline their children so long as the force used is not designed or known to create a substantial risk of death. courts may decide whether an objectively imminent danger justified the state’s removal of a child without prior judicial authorization iv. The actor is a parent and. likelihood. This case: the government interest is high: paramount interest of protecting children ii. unless there is not reasonable time to safely obtain the authorization – tips constitutional balance away from the state’s paramount interest in child safety 2. DHS worker received report of John Doe’s criminal history – lewd and lascivious behavior around children iii. and immediacy to the child  After considering all relevant factors. Removal of a Child – Potential Abuse 1. DHS worker responded almost immediately after the facts brought to her attention  Interviewed both parents and children  Spoke with her supervisor b. State must show by a preponderance of evidence that i. neglected. serious bodily injury. 2003) i. has probable cause to support a finding that: the child has been abused. The force is used for the purposes of safeguarding or promoting the welfare of a minor. or abandoned. or emotional condition has been impaired or is in imminent danger of being impaired  Must be actual harm (or imminent danger). serious bodily injury. including  Preventing or punishment of his misconduct iii. DUE PROCESS is a flexible concept and what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been effected by the government action. mental. Courts should be able to consider all relevant circumstances  State’s reasonableness in responding to the perceived danger  Objective nature. The sole focus of a due process analysis in an emergency removal should not be whether there is time to obtain a court order iii. Basis for Removal – Domestic Violence (Nicholson) a. disfigurement. i. Parent argues that it violated their due process rights to have the child removed without a court order c. extreme pain. ii. Did not cause bruises d. or is suffering from or is in imminent danger of illness or injury as a result of abuse. Child’s physical. extreme pain. disfigurement. not merely possible 42 . 2nd Circuit Rule that requires judicial authorization to remove a child in an emergency circumstance.

under the circumstances then and there existing met the stand of the reasonable and prudent person in similar circumstances d. File a Petition & have hearing:  Blanket presumption never intended – court must look at facts: whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal  Must balance that risk against the harm removal might bring. NOT enough: i. Objective Parent Standard: would a reasonable and prudent parent have acted so. If insufficient time to file a petition. temporary removal of a child from a home before a petition is filed is permissible if 3 elements are satisfied:  Parent must be absent  Or if present. yet allowed him to return several times and lacked awareness of any impact of violence on the children  Where children were exposed to regular and continuous extremely violent conduct. or failed to act. Does the fact that the child witnessed such abuse suffice to demonstrate that ‘removal is necessary’ or that ‘removal was in the child’s best interests’ or must the child protective agency offer additional. Can injury that results to a child who has witnessed DV constitute a risk to the child’s health? – ie: grounds for removal i. must have been asked and refused to consent to removal  Child must appear to suffer from abuse of neglect to the extent that immediate removal is necessary to avoid imminent danger to the child’s life or health  Insufficient time to file a petition and hold a preliminary hearing f.ii. The actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship  Link – casual connection btwn the basis for the neglect petition and the circumstances that allegedly produce child’s impairment (or imminent danger of impairment)  Impairment (under NY law) must be clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care towards the child  Minimum Degree of Care: Failure to exercise a minimum degree of care is necessarily dependent on facts such as the severity and frequency of the violence. requiring official intervention and caseworkers testified to fear and distress of children c. and must determine factually which course is in the child’s best interest ii. particularized evidence to justify 43 . Child has been exposed to that violence e. Parent has been victim of DV ii. and the resources and options available to her  Risks attendant to:  Leaving – if batterer has threatened to kill her if she does  Staying and suffering continued abuse  Seeking assistance through governmental channels – potentially increasing danger to herself or her kids  Criminal prosecution against abuser  Relocation  Examples of when neglect may be appropriate in DV case  Mother acknowledged that children knew of DV and had reason to be afraid of him.

but cannot make their children be likewise ii. supervision.” a. and well developed Criminal Charges – CS treatment that fails 3. M denied that she had done anything to place the child at risk i. . mental or emotional impairment or there is a substantial risk of such impairment as a consequence of such failure c. Foster (sister) 3. Child ill for 17 days but received no medical treatment 4. Only change – M said she’d get the child a pediatrician ii. First Amendment Claim: Absolutely protects religious beliefs. religiously motivated conduct “remains subject to regulation for the protection of society. Brought improper food for child – food that the child was allergic to e. Facts b. D. OLD TEST: to determine if government regulation of religious conduct is violative of the 1st amendment. but high IQ and able to function well to meet her own needs c. Neglect adjudication in 1998 – failure to thrive i. Parents can be martyrs. at the time of the termination proceeding. particularized evidence Termination of Parental Rights (Pope. M did not have custody of the child at the time of the termination proceedings i. After receiving services i. The court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to the parent 2. Defense – exemption in other areas of the statutes that allow for CS treatment. or discipline from parent . Still lacks understanding of the seriousness of the child’s condition – Feb 1998 iii. RULE: prayer treatment will be accommodated as an acceptable means of attending to the needs of a child only insofar as serious physical harm or illness is not at risk. Prince – parents have no right to free exercise of religion at the price of a child’s life iii. Charged with involuntary manslaughter and felony child endangerment 5. 1217) 1. removal? i. There is a showing of a past adjudication of neglect AND ii. not a medical condition d. parental rights may still be terminated if i. 7. Children receiving treatment by prayer shall not “for that reason alone” considered abuse and neglected 6. Juvenile has sustained some physical. happy. Doctors – due to lack of proper care of child. i. Juvenile has not. IF no evidence of neglect at the time of the proceeding. To prove neglect in a termination: b. D&N: i. the gravity of the state’s interest must be balanced against the severity of the religious imposition. Standard: Clear and convincing evidence i. M dearly loves child b.C. But no evidence that with all M’s efforts she will ever be able to provide for the child in a way that would allow the child to grow up healthy. or ii. Is not provided necessary medical care AND iii. Blamed removal of child on Ms. . but court held that there was no legislative intent to allow prayer along in life-threatening circumstances a. M had personality disorder with seriously disturbed thinking. No progress made ii. Must other additional. Felony liability for failure to seek medical care for a seriously ill child is a compelling state interest 44 . Difficult b/c: a. “received proper care.

or emotional reasons cannot be educated in regular classes but can benefit by special services and programs 6. The purpose of the child neglect statute is to promote the best interest of allegedly neglected children. and children dirty. Not necessary for health or life i. in need of clean clothes and a bath b. Jurisdiction: a. In the absence of danger to the physical or emotional health of a child. and not intentionally designed to oppress religious practice. Surgery would not cure the disease a. Presumption of Best Interest: 1. physical. B. The free exercise of religious beliefs is constitutionally protected against any infringement. the state should be cautious in intervening. custody. Child a. Fundamental liberty interests of the parents in the care. Medically there is no harm in waiting 4. Grounded in either neglect or “physically handicapped” b. Does not go to school – exempted from school for the last 6 years b/c facial disfigurement b. NEW TEST: If the state regulation is neutral. Only mitigate the cosmetic injury b. Poverty as a showing of neglect (DG. Religious practices that are inimical or detrimental to public health or welfare are not constitutionally protected against infringement  Conduct remains subject to regulation for the protection of society. ii. iii. Parents regularly visited the kids throughout the process C. who because of mental. Will allow surgery. State intervention is justified only after it is demonstrated that the need arises form some act or failure to act on the part of the parent which endangers the welfare of the child a. Employment Division. Has not seriously affected his general health 3. Two of the children at grandmother’s. generally applicable. DHS did not contact parents re: reunification until October. provided that the parent is not unfit a. then the regulation is not violative of the First Amendment. Social development problems 5. Mother is a Jehovah Witness and will not consent to a surgery b/c it requires a blood transfusion a. All four taken into custody on that day iii. Courts have unequivocally upheld the power of the State to authorize 45 . these interests are presumptively served by being with a parent. Medical Decisions (Sampson) 1. The Hardest Choices A. 15 years old c. All the evidence of parental housekeeping and child care was gathered on that one day c. First Amendment Arguments: i. Grandmother died i. or the significant threat thereto.b. Should the Court exercise its authority to compel the surgery? a. and management of the their child does not evaporate simply because they have not been model parents b. when the dispositional hearing was to take place d. House in deplorable state. (Smith v.  Free to believe is absolute. two others at home of M&D ii. Family Court has jurisdiction Handicapped child: a child. TG etc) 1. 1990) V. but not blood transfusion and doctors say it is too risky to perform surgery without blood transfusion 2.

Court refused to defer the decision to the son when he reached majority age. and guardian ignored the developmental and psychological factors stemming from his deformity. the administration of a blood transfusion over the religious objections of the parent where blood transfusion was shown to be necessary for the preservation of the minor’s life or the success of needed surgery b. which the court deemed to be of the utmost importance Holding: a. Facts: no immediate threat. Risk to Life i. Potential Good vs. RULE: It is not necessary for a child’s life to be in danger before this court may act to safeguard his health or general welfare  Surgeons. happy existence b. no material effect on life expectancy  Dangerous procedure and involves considerable risk ii. Adjudicated the child (Kevin) as neglected and ordered Mother to provide her son for the surgery 46 .7. and refused to allow Mother’s religious views to stand in the way of attaining a chance at a normal. mother.

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