1 I. Private Family Choices: Constitutional Protections for the Family and Its Members A.

Evolution of the Right to Privacy Case Meyer v. NE (1923) 14th Amendment DPC Facts Case brought by teacher not parents. Bans teaching foreign language to kids below 8th grade. Ends (Purpose) Means Takeaway Court doesnt re- Court REJECTS Parents have a ject the impor- means. right to control their tant purpose of childs upbringing. need to fully *seems like ratioAmericanize nal basis, but early kids. in evolution

Pierce v. Society of Sisters (1925) 14th Amendment DPC

Oregon Educa- Unreasonably in- Destroys private Same. Both cases tion Act reterferes with lib- schools and teach- dont focus on indiquired ages 8- erty of parents to ers to engage in vidual rights be16 to go to pub-direct childs up- business and pro- cause if so, it would lic school. bringing and ed- fession. be about childs ucation. right. Both are about parents right to liberty/autonomy. Exec. and medical directors arrested for aiding and abetting. Statute criminalized use of contraceptives. Law interferes with Home of the right marital privacy. to privacy = Harlan: DPC of 14th implicit in the concept of ordered liberty-Palko

Griswold v. Conn. (1965) Douglas used penumbra thing-zones of privacy

26

Eisenstadt v. Baird (1972) 14th Amendment EPC

Baird gave lec- 1. Preventing ture about con- premarital sex traceptives at not reasonable BU and gave purpose-men student foam, had been alwhich was lowed conrtra to against a Mass.reduce disease. law. 2. Health-then why not for all.

3. If Griswold pro- Violates EPC behibited ban for cause treats marmarried then same ried and unmarried would apply for differently. Invidious unmarried. and underinclusive. *If straight EPC it Looks like strict would be rational scrutiny; suggests basis b/c marriage fundamental right is not suspect class. Court here *brings in indiv. rt to is skeptical of pur- use contraception. poses and looks to (sneakyRoe) tailoring.

Roe v. Wade (1973) Abortion = fundamental right (strict scrutiny). Restrictions must further a compelling state interest. States interests in (1) protecting womans health and (2) potential life become compelling on time line below. First tri: No restrictions life Planned Parenthood v. Casey (1992) (Ban, w/ life & health exc. for W) Second tri on: Ws health Viability: Potential

Abortion = ? State may act to further its interest in potential life throughout Exceptions: pregnancy. Restrictions subject to limitations below. Funding-never required state to pay for poor womens abortions. Pre-viability Post-viability Minors-parental involvement requirements were permitted. No undue burden State can ban, w/ life & Health exc required health exc. (same as Roe) Undue burden: a regulation with the (1) purpose or (2) effect of placing a substl obstacle in the path of a woman seeking an abortion of a non-viable fetus. Not an undue burden (in Casey): B. Abortion: The 24-hour waiting period Constitutional Framework Parental consent Reporting requirements Undue burden (in Casey): Husband notice (used LARGE fraction test-look at for whom the law is relevant then how many of those women are burdened.) *Got rid of not being able to restrict in 1st tri and gave undue burden framework.

Gonzales v. Carhart (2007) Burdens on Privacy-Partial Birth Abortion Ban (federal statute regulating abortion procedures does not impose an undue burden [Casey] because there are other alternatives available. Ask: Is this ban pre or post viability? If pre-viability ASK if undue burden (1) purpose or (2) effect of placing obstacle -Purpose Prong Level of state interest required [legitimate or rational] Type of state interest(s) recognized 1) regulating medical profession 2) dignity of human life 3) respect for fetal life (not actually preserving it) -How health exception relates to effects prong Kennedy doesnt see a need for health exception. He links to the idea of it not being an undue burden Ginsberg says this alone should make it unconstitutional. -Facial vs. as-applied challenges Can still challenge as applied in certain limited areas. C. Parental Involvement in Abortion D. The Limits of Constitutional Protection for the Family and Its Members Case Deshaney v. Winnebago County Dept of Social Services (1989) 14th Amendment DPC-No violation here. Facts Father beat son causing brain damage. Mother sued County for not protecting son. Rule Holding The govt had no affirmative duty to protect a person from harm by private persons even if state is aware of danger. Except if: 1. state created danger (foster homes) 2. Custodial relationship-prison *DPC protects familys right to privacy from state intruding when not supposed to.

26 Judicial Bypass Harris v. McRae Hyde Amendment- -Just because you have a right, doesnt EveryCasey) involvement lawfunds provide for a judicial bypass parental denies public must confer the right to funds (assistance) to ex(1980-pre 5th Amendment DPC- for medically neces- ercise it. Test: Court must inquire intofederal funding sary abortions except -Court says dont have to worry about Roe life, rape, mature here because not infringing on Whether minor isincest. enough and well-informed enough right. Not stopping her, just not helping her. OR The abortion is in her best interest From Taft (2006) case: No limit to the number of bypasses and minor must be able to try again if her circumstances have changed. If first prong met-court must give bypass. If not, then inquires into second prong. Another case ex.-Ex Parte Anonymous (2001): 17 year old girls showed mature and well-informed. *If statute doesnt allow for judicial bypass, it is unconstitutional.

E. Teen Sexuality and Abstinence-Only Education 1. 42 USC 710 : Abstinence Education Funding requires only promoting: Monogamous relationship Two parents should have sex Cant talk about relationships other than married heterosexuals

2. Cynthia Dailard article: People promoting abstinence only education are comparing apples to oranges because perfect use of abstinence is not accurate because no one knows how many teens will slip and not be abstinent. Abstinence only education increases risky behavior because it does not discuss oral and anal sex so kid dont know the consequences.

3. Foulkes article: Funding for abstinence only education goes largely to minority schools so there is a disproportionate impact on communities of

1 color because they are not getting educated about safe sex and contraceptives. 4. Carey v. Population Services International (US, 1977) Facts Rule Holding NY statute made it a crime -Can only impose a burden Statute was unconstitutional. (1) for anyone to sell or give that is justified by sufficiently -Refer to Daforth case: state contraceptives to minors un- compelling state interest and cant impose a blanket provider 16, (2) for anyone be- is narrowly tailored. sion preventing minors from sides a pharmacist to distrib- -Eisenstadt doesnt apply getting contraception (no ute to people over 16, and because it was for adults prohibition) and no (3) for anyone to advertise and this case is about teens parental/third party veto. or display contraceptives. and states authority over mi--State claimed interest of denors reaches further than creasing sex among teens, with adults. but court says we dont want to assume state sees pregnancy as punishment for sex.

II. Getting Married A. Premarital Contracts Case Facts Simeone v. Simeone Neurosurgeon gave (PA, 1990) nurse the prenup on the night of the wed-Court doesnt want ding. to look into fairness Rule If you sign a prenup, you are bound to it like a regular contract. Court wont look at substance to see if its fair. Holding Now view woman as capable of contracting. Dont look into whether she understood, but still require full and fair disclosure of finances.

26

In Re Marriage of Shanks (IA, 2008)

Second marriage for 3 grounds for invalidating prenup: both and agreed to a 1. Voluntariness- was there an unlawprenup. Man (a ful threat and other party had no rea-Court looks at sub- lawyer) told woman sonable alternative. stantive unconto consult with an at2. Unconscionability scionability. torney. a. Procedural-Is process fair? Opportunity to get lawyer Parties level of knowledge on legal and financial matters Time between when K given and wedding date Use of confusing language or fine print Use of fraud or deception to get assent OR b. Substantive-Does K leave both parties in same financial status as before? Mutual Scope-each has/gets something 3. Disclosure: If other party has knowledge, that is enough.

B. Constitutional Limits on State Regulation of Entry into Marriage Case Facts Rule Holding

Loving v. Virginia VA law prohibited in(1967) ter-racial marriage when one party was Violates EPC andwhite (Pocohantas DPC of 14th. exception 1/16th Native American). Mildred Jeter (black and Richard Loving (white) were married in D.C. and when they returned to VA they were indicted for violating ban on mix marriage.

Apply strict scrutiny because facial racial classification and marriage is a fundamental right.

No legitimate overriding purpose independent of invidious discrimination-violates EPC of 14th. Deprives the Lovings the fundamental right to marry so violation of DPC of 14th.

Zablocki v. Red- Redhail fathered a Not all state regulaThe states interests hail (1978) child when in high tions on marriage are are legitimate and subschool and never paidsubject to strict scruti- stantial BUT the means Violates EPC andchild support. Zabloc- ny. Only regs that sig- to achieve them with DPC of 14th. ki, county clerk, de- nificantly interfere with the statute unnecessarnied him a marriage the decision to marry. ily impinge on the right license because he 1. Analyze extent of in- to marry. hadnt paid support trusion. (Means does not get obligation and child 2. If direct and subhim counseling and was a public charge. stantial interference does not benefit kids) then gets strict scrutiny. Unconstitutional. *footnote: (Califino v. Jobst) didnt forbid from getting married. He just wouldnt get $ for having dependent child if he chose to marry.

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Turner v. Safely MO ban marriage for Right to marry does The almost complete (1987) inmates unless grant- exist in prison. ban is not reasonably ed permission by surelated to legitimate Ban is unconsti- perintendant. Only *Recognize constitu- penological objectives tutional. given permission for ational right can be limit-of security (love triangle compelling reason, ie. ed to reason related to claim) and rehabilitation Pregnancy or illegiti- confinement. (interferes with womenmate child. s rehab). *This law is overinclusive

C. Substantive Restrictions on Marital Relationship 1. Same Sex Case Goodridge v. Dept of Public Health (MA, 2003) Facts Rule Holding Same sex couples Marriage is a civil right Limiting protections, bring case as violation protected from certain benefits, and obligaof EPC and DPC of interferences and pro- tions of marriage to th 14 . (State Constitu- vides benefits for soci- same sex couples viotion often more protec- ety and individual. lates individual liberty tive than federal) *tip toe around sexual and equality protected orientation is a sus- by Mass. Constitution. pect class -rational basis w/bite Kerrigan v. Eight same sex cou- Unlike Goodridge, dis- Ps suffered cognizable Comm. of Public ples denied marriage cuss level of scrutiny = injury by only being alHealth (Conn. licenses. suspect class = exlowed civil unions since 2008) DPC and EPC viola- ceedingly persuasive they were declared untion of 14th. justification worthy to marry. -tradition alone can never be reason for discrimination

Gill v. Office of DOMA-federal law; Rational basis w/bite Personnel Man- whether it violates agement (2010) EPC within DPC of 5th Amendment.

Interests failed rational basis -procreation -defending institution of traditional hetero marriage -defending notion of morality -preserving resourceslegit interest but cant justify as a way to save money.

2. Incest-VOID marriage NY LAW-whether relatives are legitimate or illegitimate: o Ancestor and descendant o Brother and sister (half or whole blood) o Uncle/niece or aunt/nephew o (includes adoptive and step) Consanguinity-blood relations (aunts, uncles, cousins, ancestor/defendant, adoptive, siblings) Affinity-relationship by marriage (step daughter and step father)

In Re Adoption of M (NJ, 1998) Facts: Adoptive daughter pregnant by her adoptive father and wants to marry him Rule/Holding: Must vacate adoption because considered blood relative. Incest prohibited: procreation, power-structure, criminal laws prohibit incest. 3. Bigamy-VOID marriage NY LAW-If former spouse is still living unless marriage has been annulled or dissolved.

State v. Holm (Utah, 2006) Facts: Holm has one legal marriage and two religious marriages. One is to a minor. He sues for religious discrimination under state constitution and violating Lawrence under Federal constitution.

26 Rule/Holding: Previous case (Renyolds) ban on polygamy does not violate const. and Lawrence was for individuals not minors. This is an abuse of institution of marriage. No EPC violation because law is facially neutral in regards to religion. 4. Age-VOIDABLE marriage NY LAW-allowed to marry at 18 o Under 14: prohibited o 14-16: need judicial approval AND both parents consent o 16-18: need both parents consent (or guardian; if parent missing then ok just from one parent)

Kilpatrick v. District Court (NV, 2003) Facts: 15 year old wants to marry 48 year old guitar teacher and mother approves. Father upset that he doesnt get a say. Rule/Holding: NV law only requires one parent consent and judicial approval. Marriage is a fundamental right and father can still parent even after daughter is emancipated. 5. Fraud-VOIDABLE marriage Party A: (1) knowing, material (in relation to idea of inducing marriage), false misrepresentation + (2) intent to induce reliance Party B: (1) ignorant to falsity, (2) justifiably relied, (3) proximate injury

Blair v. Blair (MO, 2004) Facts: Wife led husband to believe the child was his and now he wants to annul marriage. Rule/Holding: Applying test court finds he would have married her anyways so annulment denied. 6. NY LAW has FIVE categories of VOIDABLE marriages due to incapacity: Under age of legal consent (18) Incapable of consenting for want of understanding Incapable of entering into the married state from physical cause Consent by force, duress, or fraud Has been incurably mentally ill for a period of 5 or more years. III. Common Law Marriage; Being Married; Regulation of the Intact Marriage A. Common Law Marriage Look at totality of circumstances Elements of common law marriage (all must be met):

1 1. Capacity-have to be able to be married 2. Present agreement-can be inferred; doesnt have to be explicit 3. Cohabitation-live like a married couple, sexual relationship or equivalent intimacy (prolonged cohabitation is not required) 4. Hold selves out to community as married Jennings v. Hurt (NY, 1991) NY looks to SC law. Must have sufficient evidence to claim a common law marriage. Court looked to friend testimonies, tax returns, and Hurt signed a paternity acknowledgment. No common law marriage found.

B. Duty of Support McGuire v. McGuire (NE, 1953)-Court doesnt intervene too much because of privacy. Rule: As long as home is maintained and parties are living as husband and wife, support is being carried out. Holding: Wife had her own source of income so no additional support obligations. (If living separate and no source of income then would be support obligations.) C. Employment Bradwell v. Illinois (US, 1873)-Woman was denied license to practice law. Not capable of contracting without husbands consent. Rule of covertures. Vaughn v. Lawrenceburg Power System (6th Cir. 2001)-anti nepotism policy did not directly and substantially burden right to marry or choose whom to marry. Policy was only economically burdensome so got rational basis.

D. Pregnancy Leave 1. PREGNANCY DISCRIMINATION TIMELINE

CONGRESS PASSES CIVIL RIGHTS ACT OF 1964 (Title VII includes protection against sex discrimination in employment, but until 1972 excluded state agencies and educational institutions) CLEVELAND BD. OF EDUC. v. LaFLEUR (1974) Violates DPC-no rational relationship to continuity and physical capability.

26 GEDULDIG v. AIELLO (1974) (state disability fund does not violate EPC by excluding only pregnancy from coverage) GENERAL ELECTRIC CO. v. GILBERT (1976) (private employers disability insurance plan does not violate Title VII by excluding pregnancy-related disabilities) CONGRESS PASSES PDA (1978) (amends Title VII to require equal treatment in employment for pregnant women) CAL. FED. SAVINGS & LOAN ASSN v. GUERRA (1987) Federal PDA statute is a floor, not a ceiling. State statues can do more. 2. Cases Case Cleveland Board of Education v. LaFleur (US 1974) Facts Rule Required to take un- Familial privacy rights paid maternity leave 5 (Eisenstadt) months before giving Procreation (Skinner) birth and not promised reemployment just giv- Used rational basis Violates DPC of en priority. but looks stricter be14th. cause focused on means. California Federal Woman was recepPDA is a floor, not a Savings & Loan tionist and after having ceiling. State law may Assc. v. Guerra baby was told no job provide more protec(US 1987) for her. tion than federal law CA statute-unpaid so long as it is not inleave and get job back consistent with the PDA-requires equal purpose of the federal treatment of pregnant law. women in work force. Holding Arbitrary cutoff dates had no rational relationship to preserving continuity and physical capability requirement.

The CA statute was not inconsistent with the purpose of the PDA.

E. Balancing Work and Family Family Medical Leave Act (FMLA) Gives benefits Gender neutral, non-pregnancy Pregnancy Discrimination Act (PDA) Non-discrimination Limited to pregnancy

Never can get paid leave

Could require paid leave if a policy provides for paid leaves

FMLA Benefits provided: Allows up to 12 weeks unpaid leave during a 12 month period Reasons allowed for leave: o Give birth o Accept placement of foster child o Adoption o To care for spouse, child, parent, or self who has a serious health condition o If spouse, child ore parents is on active duty and there is a need arising from this-impending call or order to active duty Notice: o Foreseeable leave-at least 30 days notice (child placement, birth, planned medical treatment Serious health condition-- Illness, injury, impairment, or physical or mental condition that involves: o inpatient care in a hospital, hospice, or residential medical care facility OR continuing treatment by a health care provider

Case: Caldwell v. Holland of Texas, Inc. (2000) Facts: Mother fired for taking day off to care for sick child. Rule: Under FMLA-care for child is included; serious health condition-consider 2 prongs -period of incapacity for more than three days OR -subsequent continued, supervised treatment relating to the same condition Holding: Under FMLA she was entitled to her job back-facts show, case remanded. *Did not have to give notice because ear infection was not foreseeable. F. Interspousal Immunity in Tort Actions

26 -Almost all states have abrogated (abolish a law by formal action) the doctrine of interspousal immunity either fully or partially -Merenoff (1978) Abrogated interspousal immunity for tortious conduct whether intentional or negligent, BUT said there may be certain circumstances where interspousal immunity may apply but will be dealt with on case by case basis. -Case: G.L. v. M.L. (NJ, 1988) Husband argued he was protected by interspousal immunity for risk of and giving his wife herpes due to an affair. Cant claim marital privilege when breaching marital K G. Battered Woman Syndrome -Now widely recognized as admissible evidence in all states and D.C. -Allowing testimony could prove: o Her perception of reality was distorted o Allows average layman to see that BWS alters understanding of what is reasonable for a person in the situation. -Case: Hawthorne v. State (FL, 1982) o Had to determine if expert testimony was relevant o Considered: 1) is expert qualified; 2) scientific knowledge permits a reasonable opinion to be given by expert; and 3) expert opinion is related to some science as to be beyond the understanding of average layman. H. Law Enforcement Case: Town of Castle Rock v. Gonzalez (US, 2005) Mother had TRO but ex took kids from yard. She called the police several times. She made a procedural due process claim, because of DeShaney couldnt bring under substantive due process. Claimed she had constitutionally protected property interest. Scalia said law does not entitle holder of TRO to any specific mandatory action by police (they have discretion).

I. Marital Rape Exemption People v. Liberta, (NY, 1984)

1 Marital rape exemption had no rational relation to claimed interest of protecting from govt intrusion on marital privacy (protects consensual acts) and promoting reconciliation (if rape beyond reconciliation). Considered as sex classification in addition to [married vs. unmarried] o Needs to be gender neutral

J. Evidentiary Privileges (Trammel v. US-1980) Spouse has privilege alone to refuse to testify against spouse. It is the exercised by the spouse not accused.

IV. The Meaning of Family Case Facts Rule US Dept of Agri- Food stamp act. Who Rational basis-related and unrelated culture v. Moreno qualified? Case of sympathetic house- W/bite because legis(US 1973) holds taking in people lature acting to harm for health/financial politically unpopular EPC violations th group within DPC of 5 . reasons. Holding Legit interest of preventing fraud, but FAILS on tailoring. Douglas Concur: suggested a higher scrutiny b/c fund rt of freedom of association Rehnquist Dissent: plain rational basis

Moore v. City of Grandmother had her Strict scrutiny because Legitimate reasons East Cleveland (US son and his son living claimed ordinance in- but fails because both 1977) with her and then an- terred with her right to under and over incluother grandson. child rearing. sive. Extends family DPC violation of Housing ordinance household beyond th 14 . didnt allow extra Meyer and Pierce. child. Brennan Concur: this City claims overimpacts immigrants crowding, traffic conSteward Dissent: slipgestion pery slope, extending family farther than done before.

Lawrence v. Texas Recognizing possible Marks a development Shift in courts view. (US 2003) different make-ups of in same sex relations families recognized by Supreme Court

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Marvin v. Marvin (CA 1976) **

They lived together for 7 years. She tries to claim they had an agreement to share everything. Now determining division of property since separating. In re Guardianship Same sex couple, of Kowalski (MN one injured and her CtApp 1991) parents did not allow/want her partner to be guardian.

Ct rejects Cary idea Does not have to be that no agreement an express agreeneeded and only must ment can be inferred look to Status-Based from conduct. Approach. -gives multiple ways -Must be either an ex- to provide for equipress or implied table division. agreement. Determine guardian- Trial ct abused its disship by considering cretion. Injured wantbest interest of ward. ed to be with partner, doctors thought it was *same sex couples a good fit. should designate health care proxy formally.

Braschi v. Stahl As- Partners lived in rent Ct applied factors to Braschi proved he soc. Co (NY 1989) controlled apt. When determine definition of was more than a name on lease died, family-exclusivity roommate. Courts landlord tried to evict. and longevity of rela- used factors that look tionship, level of emo- like a traditional view tional/financial com- of family. mitment, manner in which they portrayed selves to society, reliance placed on one another, not dispositive-look to totality of relationship Vasquez v. Hawthorne (WA 2001) Partners lived togeth- Marvin Equitable Ap- Court rejects status er for 24 years. One proach-only grant if based approach. died without will and reasonable persons all property was in his could reach on concluname. sion about their relationship.

**Marvin gives multiple ways for providing for equitable division of property/assets.

1 Minority View-NON RECOGNITION-court could refuse to recognize these relationships even if had implied or express agreement (note Hewitt case) Cary-STATUS BASED APPROACH-not subject to factual agreement/ court looked at nature of relationship to see if looks like a marriage and if so will decided to equitably divided property and assests. MARVIN DOCTRINE-contract doctrine approach- allows express or implied agreement but prove there is one that is not based on sexual services. o Looks at what parties intended-doesnt have to be expressed; can be inferred from conduct. o Facts that parties agreed that assests would be divided, or agreed to support each other. o Downside of Marvin Doctrine-always hard to determine an implied agreement; not clear what each party intends Marvin Doctrine/EQUITABLE-didnt lay out clearly; might be other theories for equitable division

V. Divorce NYDR 170 Actions for Divorce 1. Cruel and Inhuman treatment 2. Abandonment-for 1 year (actual or constructive) 3. Imprisonment/confinement- 3 years 4. Adultery-defined; not just intercourse 5. Live apart by judicial decree- 1 year and adhere to all terms of decree 6. Live separate and have a written, signed agreement/ after 1 year and performing all terms 7. Irretrievable break down of marriage for at least 6 months-one party states under oath (divorce not granted until issues of marital property, support payments are settled.)

NYDR 171 Defenses to Adultery

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1. Connivance-P involved in, responsible for Ds wrongful conduct 2. Forgiveness- If P forgives/condones Ds conduct may be proven affirmatively or voluntary cohabitation with knowledge of fact 3. Statute of Limitation-action not commenced within 5 years from time of discovery of adultery. 4. Recrimination-P also guilty of adultery.

A. Living Separate and Apart Was the no-fault option Statutes generally reflect three types of living separate: o Parties live apart by judicial decree or separation agreement (This is like NYDRL 5-6) o Parties must live apart willingly or voluntarily (mutual consent) o Least restrictive is UMDA-merely requires proof that parties live apart for the statutory period. Bennington Case: husband moved into trailer but still did marital duties so did not fulfill the 2 year apart requirement. B. Divorce Reform: Same Sex Couples Gonzales v. Green Facts: One had money; one did not. Married in Mass, but not recognized in NY. Separation agreement-property division Rule/Holding: Same sex marriage not recognized in NY so use Marvin Doctrine approach and follow the express agreement. C. Financial Consequences of Divorce Property Spousal Support/Alimony Child support

1 1. Property Distribution a. Marital Property vs. Separate Property (from UMDA 370 1970) Marital Property-all property acquired by either spouse after the marriage, EXCEPT: Separate Property o acquired by gift, bequest, or descent o acquired in exchange for property acquired before marriage or in exchange for property acquired by gift, bequest, or descent o acquired by spouse after decree of legal separation o excluded by valid agreement of the parties o increase in value of property acquired before marriage b. Court divides marital property without regard to marital misconduct in just proportions considering all relevant factors including: contribution of each spouse to marital property, homemaker counts value of property set apart by each spouse duration of marriage economic circumstances of each spouse

Type of Regime During Marriage Separate Property-no state Title Theory uses this anymore *Ferguson Case-got rid of this in MS

At Divorce Whomevers name is on title gets the property

26 Community Property

Each spouse has undivided interest in property acquired during marriage (excluding gifts)

Community property is divided between spouses (most states: 50/50 while some states: equitable)

Separate property stays Spouses retain their sepaseparate (property acquired rate property before marriage + gifts etc.) Spouses can agree to change character of property. Title ownership governs dur- Marital estate created. Gening marriage regardless of erally follows community whose name = co-ownerproperty principles ship Marital estate is divided (not necessarily 50/50subject to courts distribution) Spouses retain their separate property Title ownership governs dur- Marital estate created. Ining marriage regardless of cludes ALL property inwhose name = co-ownercluded under Majority apship proach + all or some of the property considered separate under majority and community property regimes. Marital estate is divided (not necessarily 50/50)

Equitable Distribution: Old UMDA (Majority) *without regard to marital misconduct

Equitable Distribution: Hotchpot Approach (New UMDA) *without regard to marital misconduct

**New York does not include without regard to marital misconduct, but does have a catch all factor yet court only considers when there is egregious fault 2. Spousal Support/Alimony a. UMDA Approach (no-fault)* awarded if lacks prop. to provide for own needs AND

1 unable to support self through appropriate job or must care for child that prevents from working

b. Mani Approach: Limited to economic fault or egregious fault Case of wife had $$ gifted from father. They had a luxurious lifestyle. Husbands martial fault of adultery was not economic or egregious so should not be considered in deciding alimony amount.

c. Fault Based-some states do take fault into account

*UMDA 308 Maintenance 1998 Court may grant maintenance only if spouse seeking maintenance: 1. lacks sufficient property to provide for own reasonable needs AND 2. is unable to support self through appropriate employment or custody of child that prevents them from working outside home. Maintenance shall be for amount of time court deems just, without regard to marital misconduct and considering all relevant factors: - financial resources -time necessary to get sufficient education or training in order to find job -standard of living established during marriage -duration of marriage -age and physical/emotional condition -ability of spouse to pay maintenance and still support self.

Alimony Cases Case Facts Rule/Holding Michael v. Michael (MO Ct Wife worked. Husband lazy Husband was economically journalist. dependant so should have of App, 1990) received alimony. Ct should have awarded rehabilitative maintenance so he could get education to eventually support self. His homemaker duties were lax so not entitled to equal, but should get some.

26 Rosenberg v. Rosenberg Very wealthy. Wife allowed Family trusts were separate husband to further his busi- property so she could not (MD, 1985) ness. collect for their increased value. She gets indefinite alimony because of her age, lifestyle and earning ability.

Borgmann Email: If you are looking for a rule statement for property division in an equitable distribution state, you can use the old (1970) UMDA. Those factors are essentially the same factors that would be used by most equitable distribution states (even if some states might state them slightly differently). The old UMDA provision also distinguishes between separate and marital property. You can rely on that definition for purposes of separate vs. community property in a community property state as well. One reminder, however: the old UMDA expressly states that property distribution should be done without regard to fault. Remember that some equitable distribution states (including NY) do not have such language and have a catch-all provision that on its face would seem to allow some consideration of fault (although we've discussed how narrowly some states have applied such provisions, both in property distribution and alimony/spousal support contexts). Finally, some states expressly allow the consideration of fault in property distribution. 3. Child Support-three approaches Income Shares Approach- Majority Fixed Percentage Approach- about 10 states follow Delaware Approach- 3 states follow

*Federal Law requires guidelines to avoid previous discretion: Goal is to establish more uniformity, predictability, to increase awards. Congress does NOT SET guidelines-just requires state to have

Fixed Percentage of Income Model: % is told in the statue (most straight-forward) Assume 10% N=$50K and C=$50K [N pays $5K (10% of $50K)] N=$40K and C=$50K [N pays $4K (10% of $40K)] -Never takes into account how much money the custodial parent earns.

1 o Guidelines provide presumption but most states allow judge to deviate from guidelines. Income Shares Model: considers what custodial parent earns 1. Determine total income. N+C 2. Determine total child support. Multiply total income x relevant guideline % 3. Determine N or Cs obligation. Divide their income by total income x child support Ex. Assume 10% 1. N=$50K and C=$50K. 2. $100K x 10%. 3. $50K/$100K x $10K. Ex. Assume 10% 1. N=$40K and C=$80K 2. $120K x 10%. 3. For N: $40K / $120K x$12K $100K (total income) $10K (child support) $5K (paid by each parent) $120K (total income) $12K (child support) $4K (paid by N)

Child Support Cases Case Facts Rule Holding Downing v. Divorced wife wants Reasonable and neces- No need for three Downing (KY Ct child support insary. ponies. There was not of App, 2001) creased because exevidence that needs of husband is making the child had changed. more money. Curtis v. Kline Statute that said non- Cant treat kids of diUsed rational basis (PA, 1995) custodial parent must vorced couples different- and found it violated continue to pay for ly and demand they pay the EPC of the 14th. secondary education. for kids college. Classification: kids of A father challenged divorce vs. kids of still this as a violation of married. th EPC of 14 . Pohlman v. Father got remarried If non-custodial parent Father failed to meet Pohlman (FL and had more kids. has more kids they do so his burden of proving a Dist Ct of App, Wanted his child sup- knowing they must still permanent, involun1997) port for previous fami- support kids from previ- tary, and substantial ly to be reduced. ous marriage. change in circumstances.

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VI. Child Custody and Visitation UMDA 1998 402 Best Interest of Child [RULE FOR BEST INTEREST] Factors court to consider: 1. Wishes of childs parent or parents 2. Wishes of child as to his custodian 3. Interaction and interrelationship of child with parents, siblings, and any other person who may significantly affect the childs best interest. 4. The childs adjustment to his home, school, and community; and 5. The mental and physical health of all individuals involved. A. Parental Disputes: *Tender Years Presumption Unconstitutional, some state statutes may consider it. Devine v. Devine (AL 1981): - Neither parent was unfit so based on Orr v. Orr (sex is not proxy), tender year presumption was unfair burden on dad and denied father equal protection provided by 14th.

1. Race: Race classification is not permissible to deny custody. Palmore v. Sidoti (US 1984): - Mother started living with African American and father tried to get custody due to changed circumstances. - Lower court discriminated based on race-considering social consequences-racial stigma. - Must pass strict scrutiny. Did leave open that race may be used for some specific circumstances.

2. Religion: Court may not examine truth behind persons religions beliefs. However, inquiry into the sincerity of a professed belief is constitutionally appropriate. Sagar v. Sagar (MA AppCt 2003): - Hindu-father wanted a particular ceremony that mother did not want for daughter. They had joint custody. - DPC allows rt to control upbringing of child, so ruling for either parent would violate others right. Left for child to decide and control own religious destiny. - Fathers argument was not based on sincerely held religious belief. It was him wanting control.

3. Sexual Orientation: Can only consider parents sexual relationships if they have an adverse affect on child.

1 Fulk v. Fulk (Miss Ct App 2002): - Court should not have looked into mothers lesbian relationship. Other factors should have been considered.

ing custody.

4. Careers: Cant have a presumption that because mom is workand going to school that it is impermissible to get Rowe v. Franklin (OH Ct App 1995): - Bound to best interest of child-trial court abused its discretion-considering moms lifestyle-law school, work. - Trial court was wrong in granting custody to dad because mom was making poor choices that did not reflect a commitment to childs best interest.

B. Joint Custody-based on belief that child benefits from frequent contact with both parents. Legal custody-major decision-maker about upbringing, health, welfare, education Physical custody-where the child resides and confers responsibility for day-to-day decisions

1. Joint custody if in best interest of child Bell v. Bell (Alaska, 1990) - Parents equally shared parenting responsibilities, and agreed to shared custody. - State favored joint custody if in the best interest of child. - Trial court erred in giving mom sole custody. Finding that parents couldnt cooperate was wrong since they only disagreed about daycare.

2. Same-Sex Couples: Example of lower court recognizing lex loci of same sex marriage for purposes of discussing custody. Beth R. v. Donna M. (NY Sup Ct, 2008) Got married in Canada and held selves out as married. This court privileged marriage and biological parents. *NY appears to require another basis to infer parenthood of non-biological parents. - Alison D. case came before (1991) and rejected idea of non-biological parent. Beth R is different because there is a marriage. - Deborah H. case came after (2010) and reaffirmed Alison D. Confirms that courts privilege formal marriage

26 relationship.

3. Childs preference McMillen v. McMillen (PA, 1992) - Father got custody based on 11 year old sons testimony. - When home of mom and dad are equally acceptable, the court may give weight to preference of child if based on good reasons and child is sufficiently mature and intelligent to express an opinion. - Best interest is still the main factor. Here son said he was frightened of stepfather and mom left him home alone. - Childs preference is not controlling, but is a factor.

C. Visitation 1. Child abuse: Courts are more likely to limit visitation than deprive it. Hanke v. Hanke (MD Spec. App 1992) - Father sexually abused ex-wifes daughter so court ordered supervised visitation. - Parent wanting restricting bears the burden of proof that restriction is necessary. This mom was justified due to past abuse in not wanting her child to have overnight visits with the dad.

2. Non-Payment of Child Support: Court may deny visitation if noncustodial parent refuses to pay (parental neglect) and if child is being adversely affected by non-payment. Turner v. Turner (TennCt App, 1995) - Dad should not have visitation suspended. - He was in need of a reduction and was asking for it. He did not refuse to pay support. - No proof that kids were being adversely affected.

*Visitation may be denied if extreme circumstances-incarceration, felony, substance abuse problem. 3. Constitutionality of 3rd Party Visitation Statutes Troxel v. Granville (US 2000) - Grandparents wanted visitation. Mom wasnt denying them, just wanted it to be less.

1 WA statute- interfered with mothers fundamental right to control upbringing of kids. - Mini-rule: There is a presumption that fit parents act in the best interest of their children. - US did not apply a harm standard whereas the WA SupCt did (ct should not intervene to allow nonparent visit unless can show harm to child by not allowing them to visit). Stevens Dissent: Kids arent possessions. They have an interest/desire to continue these relationships. -