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PERSPECTIVES ON THE FAMILY
WHY WE STUDY FAMILY LAW
Status Benefits
Societal interest in stability resulting from interpersonal commitments. Results in individual
developments and societal validation. Marriage produces these incentives.
Relationships
Structures for caretaker-dependent relationships. Marriage ISN’T necessary to strengthen those
relationships
“Schoolhouse of democracy”
Families produce good citizens and reduce societal costs
Marriage or negative consequences
Family law as a site of state regulation
Bundle of benefits for being a family
Status: legal position
Contract: power as an individual to decide what responsibilities are
Family as shelter from/contributor to the market
Overlap with other fields of law
Litigation, negotiation, lawyering strategy
Social justice and identity politics
BRIEF BACKGROUND FOR US FAMILY LAW
General Eras:
Colonial/Agrarian America
The End of the Colonial Period
Subsistence farming and small scale agricultural trading
Mirrored sovereign relationships: the little commonwealth or the little church (Blackstone’s
Commentaries – mapping hierarchy, book of persons, book of things, book of public wrongs, book of private wrongs)
First time someone took all the common law and put them together and created a set of
rules that said how we should think about the law
Rights of persons (private persons)
Magistrates (King and Judges)
People with a public purpose (nobility, military, clergy)
Private relations (master-servant, husband-wife, parent-child, guardian-ward)
H-W (financial support/daily support for control over wife)
Familiar themes:
Control rather than affection
Discipline and obedience for support (not choice)
Family as the site of reciprocal rights (status)
Less familiar themes:
Family as a community enterprise
Family as center of production
Egalitarian division of labor and formal equality
Industrial Revolution and Progressive Movement (change brought about by abolishing of slavery,
change in thoughts about equality, change in industry and technology)
Industrialism and the Progressive Era
Migration to urban areas and rise in immigration
The state as the patriarch; protection but not formal equality
Replacement of moral duties with legal duties
Family as site of social interdependence; family as less private
Familiar themes:
Division of market v. domestic labor
Separation of economic production of men and women
Family as a refuge from market; mothers as morally responsible
Rise of administrative agency state (welfare state, juvenile courts, etc.)
Less familiar themes:
Caused contractual behavior (autonomy) rather than status
Changing role of children and the rise of public education
Role of immigration as justifying state family intervention
Post-WWII and Rights Balancing
Rights-based system
Non-discrimination, due process as a focal point; balancing rights
The import of constitutional law and the judiciary
Globalization and the interdependent market (rather than the family)
Tradition v. modernity debate; state interests
Balancing is what motivates our modern family law
Tradition was that mother’s always got custody
Now we look at the best interest of the child
HOW DO WE DEFINE “FAMILY”?
Blood/adoption/marriage
Cohabitate/household unit
Financial unity/cost sharing
Emotional bonding/affection
“Holding out” as a family
permanence- intent to continue family unit in future
What is the purpose of family?
What legal arrangements best serve those purposes?
Blood/Adoption/Marriage
Cohabitate/Household unit
Financial unity/Cost sharing
Emotional bonding/ Affection
“Holding out” as family
Permanence of status
Contract/Legal indicator
Regan
Marriage helps you develop – self-actualization stuff
Marriage/commitment produces stability, individual development, social validation through public,
coherent expectations
Fineman
The parent-child relationship should be protected because it is a dependant relationship
State should help caretakers be caretakers
Should not focus so much on the list, but on support
Holding?
Her claims are unenforceable because they contravene public policy underlying Illinois law that
disfavors the grant of mutually enforceable property rights to knowingly unmarried parents.
Basically: For PP reasons, we want to encourage marriage.
Cannot treat this like a K
Because of the public policy reason want to encourage marriage
Court does not want to get into the values of how much she is worth – the nature of K
requires an extensive fact finding that marriage does not
There is a status in marriage that we take for granted
Reasons of the court?
Want to encourage marriage
This is kind of like common law marriage and our legislature has been explicit that they do not want
to recognize common law marriage
History: state doesn’t recognize these illicit relationships because we don’t assume that they have
the same duties and obligations that we assume attach to marriage.
What are the implications of the court’s decision?
Contract for co-habitants?
Common law marriage?
Public policy?
Braschi v. Stahl Associates Co. (NY 1989) (CB 15, supp 3)
Facts?
Rent controlled apartment in NY city, long term partners (2 dudes) that have lived together for 11
years but the man that’s name is on the lease dies. Landlord kicks out the other person, says rent- controlled statute only protects family members.
Family (blood/marriage/adoption) intestacy laws
What is the basis of petitioner’s claim?
Shared finances
Held themselves out to be married
Integration of family
Affection – 11 years
Power of Attorney/Life Insurance
Co-habitants and household unit
Holding?
Fundamental difference that motivates the court here is that bc they were homosexual couple, they
didn’t have the choice to be married. They do not have any option to marry and they did everything they could to approximate a married relationship – fundamental difference between this case and Hewitt.
An objective test? Standards v. Rules?
Factorial test – anyone is a family if they are acting like a family. Objective Test
1. Exclusivity of relationship
2. Longevity of relationship
3. Level of emotional and financial commitment
4. Manner in which parties conducted their everyday lives and held out to
society
5. Reliance placed upon one another for daily family services
It’s a standard- Not a rule.
Court assures it is an objective standard (use the same metric – reasonable
person).
Reasons of the court? Function not status?
What are the implications of the court’s decision?
What type of relationship is being described?
What are the daily family services?
Standards penalize the non-conventional couple, or people who are not acting like a family
What does the dissent have to say?
Over and under inclusive?
o Could be too broad and also too narrow…include those who don’t consider themselves
family and exclude people who fit marriage (married people who hate themselves) – minimum threshold plus test?
Unworkable?
Dissent:
NOTE: this case is an example of how powerful marriage is. If you are married, you can live together or not, be mean, not have shared finances, etc. You can not act married at all and still be entitled to all the legal protections. So, unconventional (non-married) couples get screwed.
Does not sound objective. It’s subjective and is impossible to apply.
It is impossible to be objective in these standards because they will change every
time you apply them.
It will take the court a lot of time to figure out how to apply them.
The factors are not interdependent- you could have some and not others and still
consider yourselves a family so it will open up litigation.
Slippery Slope: Creates huge category of people under the rent-control statute that
could be family rather than a narrow one. City of Ladue v. Horn (Mo. App. E.D. 1986) (CB 20, supp 4)
Facts?
Zoning ordinance of single family residence
Horn family moved in and are not married but have kids from previous marriages
City is litigating the case all the way
What is the basis of the petitioner’s claim?
What does this matter – who cares?
City should not care because it is part of their privacy and freedom of association
Equal protection claim that they have been discriminated against – deprived them of the
fundamental right of the freedom of association and privacy
The privacy right is around where they get to live
Holding?
o A municipality may limit households to individuals related by blood or marriage.
What is a “functional family”?
Rational basis v. strict scrutiny?
- Equal Protection Claim
Suspect Class
Heightened Class
Penumbra
- Where a fundamental right is not involved, ordinances regulating civic matters
such as health and public welfare are presumptively valid.
Married vs. unmarried people – no fundamental right of privacy of
association.
By any classification that does not meet compelling state interest.
No marriage, so no heightened standard of review is appropriate.
- Constitution protects right of families to live together. However, living together
on a long-term basis is not tantamount to marriage.
Colonial period (Classical Legal Thought); Progressive Era (The Social; Globalization (Policy Balancing)
Status v. Contract
Rules v. Standards
Hewitt and Brashci
Who is family?
Two people holding themselves out as married living together having and raising children for a
number of years?
Two people unmarried and unable to marry living together
Get from slides
Etc.
CONSTITUTIONAL PARAMETERS AND COMPETING INTERESTS
Competing constitutional rights of family members
Who is eligible for constitutional protections and to what extent?
What are legit state interests?
Role of national mores and majoritarian traditions
Lack of consensus
Changing use of history
Role of state regulation of/intervention in the family
Lochner v. New York (1905)
Facts: Bakers could not work more than 60 hours under a NY Law.
Holding: police powers may govern morality, health, safety, but not when a state law abridges
and individual’s constitutional rights. That right, is a right to liberty.
Police powers could mask any state motive.
Right: Right to liberty = right to contract under the DP clause.
State Interest: No relationship between the maximum hours of a baker and the state’s interest
in health/safety.
Dissents: Harlan and Holmes
Between reasonableness (Holmes) and something approaching heightened or strict scrutiny.
Remember, when you have a right, you have a countervailing state interest. The question is which
is stronger in a particular case.
Idea of nexus between means and ends…what the state interests are and what rights are at stake…
etc.
Griswold v. Conn. (1965)
Facts: Plant Parenthood people set up clinic. Arrested.
Connecticut law prohibits people from using any article or product for the purpose of
preventing contraception.
Holding: Law unconstitutionally violated right to privacy.
Court could have decided based on right to liberty based in DP clause (like in Lochner ). But
instead decided to go with privacy.
Found right to privacy in the penumbras of the specific guarantees of the Bill of Rights.
Privacy of marital bedroom: “we deal with a right to privacy older than BOR…
Marriage is a coming together for better or worse … A bilateral loyalty, not commercial or social projects .”
Right: Disagreement about the source of constitutional right to privacy.
Douglas (majority): even though BOR doesn’t specifically mention privacy, its in the
penumbras of other constitutional protections- First, Third, Fourth, Fifth, Ninth Amendments
Goldberg: Ninth Amendment
Harlan: Privacy protected by DP Clause of 14th
Court emphasizes that it is different than Lochner because while the decision in Lochner
overturned a law based on economic principles, this case overturned a law that interfered with a right to privacy older than the BOR.
Dissent:
Black: Right to privacy found nowhere in constitution. Gallup Poll and popular opinion
Stewart: “uncommonly silly law”- but nevertheless constitutional..and role of legislatures.
State Interests?
There are some rights where the privacy element is so essential that state conduct in the
area is going to be automatically suspect. No state interest strong enough to justify interference with this right.
How broad is this right? This is addressed in Eisenstadt.
Eisenstadt v. Baird (1972)
Extended principles of Griswold beyond its particular facts. This case extended the holding to
unmarried couples, whereas Griswold only applied to marital relationships.
Facts: Professor hands out contraceptives to unmarried student and gets arrested.
Right: EP Clause
We don’t have to decide whether there is a fundamental right or whether marital
relationships is a suspect category. This law was not designed to protect public health and doesn’t even pass a rational relationship test.
Court has no interest in deciding whether bc is a fundamental right.
But then court says that the law doesn’t even pass the rational basis test because the
right is so fundamental.
Doesn’t make sense.
State Interest:
Health, morality (deterrence of premarital sex), anti-contraception?
Over and under-inclusive.
Holding:
Violation of EP clause of 14th^ amendment to deny unmarried couples right to use
contraception when married couples did have that right (under Griswold ).
State could not enforce law onto married couples because of Griswold , so law worked
irrational discrimination if not extended to unmarried couples as well.
Privacy right from Griswold extended to procreative decisions of unmarried people as well as
married people.
“"If the right of privacy means anything, it is the right of the individual, married or single, to
be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
Right to decisional autonomy to “bear or beget children” Who has the right?
Supposed to foreclose on abortion…didn’t work due to Roe.
“Yet a marital couple is not an independent entity... whether to bear or beget a child.”
Difference from Griswold? Rational relation test.
The language “bear or beget a child” obviously did not include abortion and led commentators
to conclude that this case shut the door to abortion.
All the court really says is that the distinction between married and unmarried is
unconstitutional.
Doesn’t rule on whether state can ban bc. Just says that married and unmarried
must be treated the same.
State’s interest in potential life is strengthened.
Note: not strict scrutiny—at any point of pregnancy, a state may enact laws to ensure a
woman’s choice is informed and such laws may express a preference for childbirth.
Stenberg v. Carhart (2000)
Right: application of Casey’s undue burden test to Nebraska state law.
Law made it illegal for doctors to perform partial-birth abortion. Doctors who did could have
license revoked.
THIS BAN WAS ENACTED ON THE BASIS OF PUBLIC MORALITY.
State interest: Multi-faceted
Preserve integrity of medical profession
Protect dignity of potential life
Expressing animosity towards abortion? (Ginsburg v. Kennedy)
Not enough to chip away at peoples consensual, private decisions.
Holding:
Cited Casey and said that any law which placed undue burden on woman’s right to choose
abortion was unconstitutional.
He said causing doctors to fear imprisonment was undue burden.
Didn’t distinguish between pre and post viability (big problem in this statute)
Needed a health exception within the statute as well.
Undue burden in choosing the potentially safest method of abortion
Ginsburg opinion: agreed that law was unconstitutional but also said that a state could not
force a doctor to perform other than what he felt in his own judgment to be the safest procedure. This is part of the “life and liberty” protected in constitution.
O’Connor agreed, saying that any such procedural law would have to be applied only to
prevent unnecessary partial-birth abortions and would have to include an exception for the health of the woman (which this law did not).
Kennedy’s dissent:
Legit state interest in protecting life through regulating procedure; closing off exceptions
that could be too broad.
Informed consent of the woman (her to know what the procedure is and to be able to weigh
the risks accurately).
Gonzales v. Carhart (2006)
Concerns similar questions as Stenberg, but this time in context of a federal statute. This
decision narrowed the holding of Stenberg.
Upheld Partial-Birth Abortion Act of 2003.
Held that it did not impose an undue burden on a woman’s DP right to get an abortion under
precedents such as Roe and Casey.
Distinguished, but did not overrule Stenberg.
Signals shift in SC jurisprudence towards restriction of abortion rights?
This is first time court has held that doctors can be prohibited from using a medical
procedure deemed necessary by the doctor to benefit the patient’s health.
Court said that under Casey , state has an interest in preserving fetal life—and the ban was
narrowly tailored to address this interest.
“ethical and moral concerns,” including an interest in fetal life, represent substantial state
interests which (assuming they don’t impose an undue burden) could be a basis for legislation at all times during pregnancy, not just after viability.
What happened to a health exception?
Balanced with preserving integrity of medical profession and potential life.
Uncertainty of medical evidence.
Woman’s emotional health
Informed consent and post-abortion “syndrome.”
How was Casey predictive of the outcome of this case?
Bowers v. Hardwick (1986)
Upheld constitutionality of GA law criminalizing sodomy in private between consenting adults
(whether gay/straight/married/single) when applied to homosexuals.
Right: DP liberty to engage in private sexual conduct?
Court says no.
Griswold had held that a right to privacy was implicit in the DP clause. Bowers held that this
right did not extend to private, consensual sexual conduct, at least insofar as it involved homosexual sex.
State Interest:
Protect societal morality.
Holding: no right to engage in same sex conduct free from state intrusion.
Reasoning:
When fundamental rights like the right to privacy have little textual support they must be
“implicit in the concept of ordered liberty” or “deeply rooted in the nation’s history and tradition.”
There is no historical tradition protecting right of people to engage in same sex sexual
activity, and conduct in the home is not insulated from the law.
Majority emphasized that Eisenstadt and Roe had only recognized a right to engage in
procreative sexual activity and that the longstanding moral antipathy towards homosexual sodomy was enough to argue against notion that Framers would have envisioned a “right” to sodomy.
For court to hold otherwise would be to substitute own moral judgments for those of
elected representatives.
Dissent: Stevens: majority defined right at stake too narrowly. Interpreted
Eisenstadt as fundamentally affecting scope and nature of SDP liberty rights, based on idea that constitution protects people as individuals, not as family units.
He summarized the Court's then-existing substantive Due Process liberty right as
such: "[I]ndividual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." He then reasoned that because state intrusions are equally burdensome on an individual's personal life regardless of his marital status or sexual orientation, then there is no reason to treat the rights of citizens in same-sex couples any differently. Thus, Justice Stevens would have applied the substantive Due Process liberty protection equally, "regardless of whether the parties who engage in it are married or unmarried, or are of the same or different sexes."
In 2003, the Lawrence majority relied heavily on Justice Stevens' Bowers dissent, and
ultimately decided that "Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today."
Lawrence v. Texas (2003)
Right: DP (liberty or privacy), EP, neither or both?
Framed differently than Bowers. “Their penalties and purposes, though, have more far
reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.”
Majority: intimate, adult consensual conduct at issue here is part of liberty protected by SDP.
Statute furthers no legit state interest which can justify its intrusion into the personal and private life of an individual.
State Interest? Morality.
Holding: Rational Basis with razor teeth.
based on parental substantive due process
court frames its reason as a rational relation test
intent of the legislature is to target this German population
the teacher is the right holder – right to teach etc.
but the parent also has a right because their ability in choosing how to bring up their children
Pierce v. Society of Sisters (1925)
statute intended to eliminate parochial schools
“The child is not a mere creature of the state; those who nurture him and direct his destiny have the
right, coupled with the high duty, to recognize and prepare him for additional obligations...”
court is concerned about the right of the parents to choose where their children go to school
14 th^ amendment liberty interest
state interests: producing good citizens, uniform curriculum
Court is more concerned with the bad consequences of the law
Fear of a socialist agenda – states cannot be the parent
It would take a lot for the state to intervene
Scope of Parental Rights
Prince v. Massachusetts (1944) : woman let niece sell things on the street. State law prohibited
public child employment.
Government has broad authority to regulate the actions and treatment of children. Parental
authority is not absolute and can be restricted if doing so is in the interests of a child’s welfare. While children share many of the same rights as adults, they face different potential harms from similar activities.
State is free to legislate against this activity even if parents are there.
States have a duty to protect children from labor and the bad influence of being in public
Balancing test to determine what is in the best interests of the child
Prince’s argument: Freedom of religion and parental right under DP clause
State replies: your liberty to bring children up the way you want has boundaries and when the
parens patraie – the state acts as the parent in protecting the child.
This is not about the home, this is in a public place and you are at the risk of state regulation
because the state has the interest to protect the child
When you expose children to the outside world the sense of harm grows large
Wisconsin v. Yoder: (1971): state law required all kids, even Amish, to go to school until 16.
Amish want out at 14
COURT: Amish children cant be placed under compulsory education past 8th^ grade because it
violates their parent’s fundamental right to freedom of religion under first amendment, made applicable to states by 14th^ amendment.
Great judicial discretion: if the court likes your way of life and thinks it’s ‘wholesome’
Non-intervention, absent some pressing danger, is the optimal choice
Parental SDP Rights Now
Constitutional Rights of Parents
Troxel v. Granville (2000) (CB 867, supp 120) SEE NOTES AFTER TROXEL! PG.
Facts: π petitioned a Washington Superior Court for the right to visit their
grandchildren over the protest of the (children’s mother )
Issue: Does a parent have a fundamental right in the care, custody and control of his
or her child?
Law: A parent has a fundamental right in the care, custody and control of his or her
child
Two problems with lower court decision according to USSC:
Court says that lower court gave no deference to what the natural mother
wanted.
Also, the court made no findings about why her preferences were arbitrary,
harmful, misplaced, etc.
HOLDING: No judicial disregard for the preferences of fit parents, absent special
circumstances.
As applied, Troxel is a very slippery test.
How does the court describe the parents’ right?
Care, custody, and control
Parents get the ability to choose where children spend their time
The state court gave no deference to this
They should have put the burden on the grandparents to prove that they have access to
the children
The court made no findings about why her preferences were arbitrary or misplaced
However they cut back what the grandparents wanted and the court found a middle
ground
Washington Supreme Court struck down the statute in question
Troxel v. Granville , 530 U.S. 57 (2000)[1], was a case in which the Supreme Court of the United States, citing a constitutional right of parents to rear their children, struck down a Washington state law that allowed any third party to petition state courts for child visitation rights over parental objections. Impact of Troxel v. Granville In the case of Troxel v. Granville , the United States Supreme Court has said that "the interest of parents in the care, custody and control of their childrenis perhaps the oldest of the fundamental liberty interests recognized by this Court."[2] The Supreme Court also made it clear that this fundamental right is implicated in grandparent visitation cases. The plurality opinion stated at the outset that statutes allowing grandparent visitation orders to be imposed over parental objection "present questions of constitutional import." The Supreme Court flatly declared that a parent's fundamental right to the "care, custody and control of their children" was "at issue in this case." The Supreme Court struck down the Washington grandparent visitation statute because it unconstitutionally infringed on that fundamental parental right.
State courts considering nonparent visitation petitions must apply "a presumption that fit parents act in
the best interests of their children.".[3] Troxel requires that State courts must give "special weight" to a fit parent's decision to deny nonparent visitation. “Choices [parents make] about the upbringing of children.
.. are among associational rights... sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect.”[4] This principle must inform our understanding of the “special weight” Troxel requires courts to give to parents’ decisions concerning whether, when and how grandparents will associate with their children. Even though Troxel does not define "special weight," previous Supreme Court precedent indicates that "special weight" is a strong term signifying very considerable deference.[5] The "special weight" requirement, as illuminated by these prior Supreme Court cases, means that the deference provided to the parent's wishes will only be overcome by some compelling governmental interest and overwhelmingly clear factual circumstances supporting that governmental interest.
Procedural Due Process
Parham v. J.R. (U.S. 1979)
state law allows parents to confine children. Adolescent think law is unconstitutional
Pregnancy is not similar. You cannot undo having a baby. Minor’s choice about having a
baby is more significant than other areas where minors don’t have control.
Reproductive Choice Within the Family
Casey
Facts: π contended that ’s abortion law notification requirement was an
unconstitutional invasion of a married woman’s right to privacy
Issue: Is ’s abortion law notification requirement an unconstitutional invasion of a
married woman’s right to privacy?
Law: Pennsylvania’s abortion law notification requirement is an unconstitutional
invasion of a married woman’s right to privacy
Parental Status and the Unitary Family
Relationship Between Parenthood and Marriage
Michael H. v. Gerald D. (U.S. 1989) (CB 878, supp 122) SEE NOTES AFTER! 887.
Facts: Natural father Michael H (π) sought to have legal visitation rights with
daughter (π) who had been born into a marriage between Carole and Gerald D. ()
Issue: Does a putative father have a liberty interest protected by the DPC of the 14th
amendment in maintaining a relationship with his child born into an existing marriage?
Law: A putative father does not have a liberty interest protected by the DPC
of the 14th^ amendment in maintaining a relationship with his child born into an existing marriage.
Conclusive presumption for the husband: visitation based on best interests –
procedural and substantive due process
Presumption that the child born to a married couple was the married
fathers
Michael H. wants:
Visitation rights
Violates his procedural due process rights
Wants to create a rebuttable presumption
Wants a hearing to establish his biological connection to the child and his
relationship with Victoria
The court has not given him this because of the conclusive presumption
Care, custody, and control – he is the father
Has a substantive due process right to parent
What is the state’s interest in Michael H?
We have a way to use a law to not support adulterous relationships,
protect sanctity of family, etc.
If you wanted to act like a father then you should have acted in the way with
the mom to create that
Victoria’s interest:
Best interest standard
But it is not the Constitutions’ job to protect a relationship with her biological
father
CA makes no provision for dual fatherhood – her interests start and begin on
this
No test that creates protection for children that is not defined by state law
Mom has a lot of power and Dad has very little power
Scalia: we are going to create no test today that creates constitutional relationship for
children that are not defined by state law.
Dissent – at least wants a hearing so he gets a shot…person with substantial relationship
should have an opportunity.
Stevens: this could have all been handled by avoiding the question of paternity
Could have avoided it by thinking about the best interest of the child
Would Troxel change the outcome in Michael H?
What type of father has a constitutional right to parent? Does a child have a right to two
fathers?
What is the role of history in determining unmarried fathers’ rights?
Reason we protect marital privacy is because the state doesn’t want to be in between the
husband and the wife – it is really bad at making those decisions
Strong state interest in resolving the adoption proceedings – giving the mom power and
consent
Unmarried Fathers’ Custodial Rights:
Here, strong state interest in resolving the adoption (finding out who parent is). Strong state interest in
giving mom power to consent.
Lehr v. Robinson (U.S. 1983) (CB 907, supp 126)
Facts: π contended that a New York statute, which allowed his biological child to be
adopted without his receiving notice, was unconstitutional
Issue: Does due process require that in all cases notice be given to a biological father
of the pendency of an adoption proceeding?
Law: Due process does not require that notice be given in all cases to a biological
father of the pendency of an adoption proceeding concerning the child
FACTS: bio dad and BM never married. 8 months after birth, BM married
another guy. When child is 2, husband tries to adopt child. Bio Dad decides to try to stop adoption by filing petition for paternity and visitation in another district. Court finalizes adoption and terminates Bio Dad’s rights while Bio Dad’s petition is still pending in other district.
Bio Dad claims:
I should get notice- Procedural DP
I’m being treated differently than other fathers- EP claim
COURT: Due process does not require in all cases that notice be given
to a bio father of the pendency of an adoption proceeding concerning the child.
What must a father do to establish his constitutional right to maintain a
relationship with a child?
Hold himself out as a father, act like a parent.
In this case, father had not done that at all in the first two years of child’s life.
Adoption of Michael H.
Facts: An unwed father planned to give his child up for adoption but later sued for
custody after the baby’s birth
Issue: Does an unwed father have a federal constitutional right to withhold consent to
an at-birth, third party adoption?
Law: An unwed father has no federal constitutional right to withhold
consent to an at-birth, third party adoption unless he demonstrates a full commitment to his parental responsibilities shortly after learning of the pregnancy
Adoptive parents take the girl and baby into their home
Dad tries to establish paternal rights after the adoption and is trying to
intervene into the adoption
Validity of officiant and judicial estoppel:
Factors of judicial estoppel:
Clearly inconsistent
Judicial integrity
Unfair advantage to a litigant
Dissent: Why find the marriage valid as performed?
Void Marriage vs. Voidable Marriage: (CB 159)
Void: in theory requires no declaration of invalidity. Voidness of marriage can be declared at any
time and generally at the instance of any interested party. Nor, in principle, can a void marriage ever become a valid marriage.
Void: bigamy, insanity, intoxication, and other incapacity, LGBT persons
Voidable: has at least potential validity. Valid unless its nullity has been declared. Moreover, nullity
ordinarily can only be sought by a party to the marriage and only during the lifetime of the marriage.
Fraud, duress, undue influence, consanguinity, impotence
The Content of the Agreement
Lutwak v. U.S. (U.S. 1952) (CB 160, supp 26)
Facts: ’s were tried for conspiracy to defraud the US π by helping aliens enter the US by
marrying honorably discharged veterans of WWII.
Issue: May aliens circumvent the immigration laws by fake marriages in which neither of the
parties ever intended to enter into the married relationship?
Law: Aliens may not circumvent the immigration laws by fake marriages in which
neither of the parties ever intended to enter into the marital relationship.
Requirements of the law and the legislative intent of War Brides Act
“Real” spouses
the act only applies to real couples (ones who live together, consummate their
relationships, etc.)
we don’t care if they are formally valid, they are not valid in substance
the court is looking at this from the capacity side
Limited purpose marriages
We have upheld marriages where it does not matter why you got married
We will not recognize it if the intent is to defraud the American Government
Showing how much it will intrude
What is the rule in this case?
Dissent’s reasoning?
Marriage Fraud Amendments of 1986/IMBRA
Protect people who marry immigrants (online marriages, etc.)
Could this rule apply to non-immigration contexts?
The state does not care in does not want to get involved
Capacity to Agree
Edmunds v. Edwards ( N.W. 2d 1980) (CB 166, supp 27)
Facts: π brought suit to annul the marriage of his ward for lack of mental capacity
Issue: Is a marriage valid if the party has sufficient capacity to understand the nature of the
contract and the obligations and responsibilities it creates?
Law: A marriage is valid if the party has sufficient capacity to understand the
nature of the contract and the obligations and responsibilities it creates.
Need just a general understanding of duties
Why is the guardian involved?
Worried that Edwards does not have the capacity to enter into a marriage
He has been institutionalized his whole life
The real reason is because he is using that money to manage Edwards affairs
Worried that she will spend down his money – his money will b subject to creditors if she
cannot pay her bills
Rule?
“What persons establish by entering into matrimony, is not a contractual relation, but a
social status.”
The court will not find incapacity unless the person seeking the annulment does not
understand the marital duties.
Just some mental incapacity is not enough
Role of expert testimony
Capacity to agree or perform marital duties
Evidence to prove that they have necessary understanding of marriage?
Same capacity to manage business affairs?
Can still show capacity to marriage even though they did not have capacity to manage
business affairs
Fraud and Duress
In re Marriage of Ramirez (Cal. App. 2008) (CB 172, supp 28)
Facts: π sought dissolution of his marriage to and petitioned for judgment of nullity on
grounds of fraud, because π was having an affair with ’s sister throughout his marriage to
Issue: Is a marriage voidable and subject to nullity if the consent of either party was
obtained by fraud and the fraud goes to the very essence of the marriage relation?
Law: A marriage is voidable and subject to nullity if the consent of either party
was obtained by fraud and the fraud goes to the very essence of the marriage relation.
What is the fraud in this case?
Essence of marital relationship; defeat marital relationship; rob one party of true consent
What’s not essential: lies about character, habits, chastity, business, social standing,
behavior?
What’s included: “vital” duty—ability or desire to engage in sexual relations or procreation
Intent at time of marriage
Here, fidelity?
This is a community property state
So this means equitable distribution for the land that they acquired together.
HOLDING: To have fraud, the fraud relied upon must be such as directly defeats the
marriage relationship. Much be such a defect in the marriage relationship that if the other person had known about it, they wouldn’t have married.
Also, for fidelity, it had to be an affair that was going on before the marriage or during the
time of the marriage and was such that if the other person had known, it would have stopped them from entering into the marriage.
Consequences of an annulment, rather than a divorce
No community property; implies property division that favors W
Duties of Marriage
The historical role of spousal unity and the link to privacy
Families as little sovereigns
