Family Law Flashcards
(213 cards)
1
Q
What happened in Griswold?
A
The Griswold Court found a right to reproductive privacy. The Court has also developed the very closely related idea that the family unit has a right to privacy against the State. Statute forbidding use of contraceptives = strict scutiny. (Focused heavily on marriage/married couples.)
2
Q
What right was established in Pierce and Meyer? What is included in liberty under these cases?
A
Meyer v. Nebraska(German), Pierce v. Society of Sisters(Public Schools) = the 14th Amendment liberty interests of parents/guardians over their children’s upbringing and education
3
Q
What right did Prince v. Massachusetts establish?
A
The custody, care, and nurture of the child is the fundamental right that belongs to the parents.
4
Q
What happened in Eisenstadt? What is the rule?
A
Statute prohibiting distribution of contraceptives to unmarried couples = rational basis under Equal Protection clause, but still struck down.
Court found that the right to privacy is not dependent on marital status, but there can be distinctions as long as those are rational.
5
Q
Is there a difference between a spousal consent requirement and a spousal notification requirement?
A
Casey finds no meaningful difference between spousal consent and spousal notification requirements, because they both create an undue burden on the ability to freely decide whether or not to get an abortion.
6
Q
What is the pluralism argument for family privacy?
A
the idea that families cope with things in different ways
7
Q
Can states standardize families?
A
No, it is beyond the state’s authority to standardize families.
8
Q
What was the holding of Roe?
A
The right of privacy includes the right of a woman to have an abortion under certain circumstances without undue influence from the state.
9
Q
What is the standard of review for issues of family privacy?
A
There is a shifting standard of review. The caselaw acts as a continuum: [Privacy] Griswold Eisenstadt Roe Casey Carhartt Upholding all abortion statutes under rational basis test [State interests]
10
Q
What was the holding of Lawrence v. Texas?
A
The liberty secured by the constitution allows adults to control their own personal relationships.
11
Q
Are consent/notification requirements for abortions for minors constitutional? Explain.
A
Supreme Courts have upheld statutes requiring a minor seeking an abortion to either notify the parents, or to utilize a judicial bypass. Can also require minors to obtain parental consent, so long as a judicial bypass is available in the same jurisdiction. Most states with consent/notification statutes only require one parent to be involved.
12
Q
What was the holding of Cruzan? What was the outcome?
A
A competent person does have the right to refuse life-saving nutrition and hydration; the state has important interests that can overcome such a right; Cruzan is an incompetent person whose wishes had not been made clear previously (by will or otherwise).
13
Q
What is the evidentiary standard that must be met before removal of life-sustaining treatment, under Cruzan?
A
The state may choose whether to defer only to the wishes made clear previously by the incompetent, or the decisions of close family members. In Cruzan, the requirement was clear and convincing evidence.
14
Q
What is the minority and majority position for a claim of breach of promise to marry?
A
Only a few jurisdictions still recognize the claim for breach of promise to marry. Breach of promise to marry started to be abolished because of abuse of it, especially once punitive damages were allowed.
15
Q
What kind of claim is a breach of promise to marry?
A
Hybrid contract and tort. Can sue for expectation damages and reliance damages, as well as damages for mental anguish, humiliation, loss of social status, etc.
16
Q
What were common defenses to breach of promise to marry?
A
If the plaintiff had physical or mental defects
If the plaintiff was unchaste
If the plaintiff did not love the defendant
If the agreement was mutual
17
Q
What do states that still have breach of promise to marry require (how do they limit the claims)?
A
The burden of proof on the plaintiff; AND
Must provide evidence of:
Signed, written evidence of the promise; OR
Testimony from two disinterested witnesses proving promise
18
Q
Are engagement rings gifts?
A
Engagement rings are typically a conditional gift that is not absolute until the condition is satisfied.
19
Q
What are the two approaches to determine returning the engagement ring?
A
- Fault-based: the donor gets the ring back only if they are not at fault for the breaking up of the engagement. (Not at fault means it was either mutual, or it was the recipient’s fault).
- No-Fault: Once the engagement is broken, the ring goes back to the donor regardless of what happens.
20
Q
When will courts enforce prenups?
A
The agreement must be voluntary (free from duress or coercion.)
Both parties’ consent must have been informed (must have adequate knowledge of fiancee’s financial status).
The terms of the agreement must not be unconscionable (substantive and procedural).
21
Q
How does the UPAA differ from ALI in premarital contracts?
A
UPAA analyzes from execution (signing of the docs) while ALI analyzes from execution AND enforcement (time of divorce). Both require procedural and substantive fairness, but UPAA sets a high standard for substantive unfairness, requiring unconscionability.
22
Q
What is the UPAA premarital rule?
A
UPAA = Prenup not enforceable if:
The execution of agreement was not voluntary; OR
The agreement was unconscionable when executed, meaning that party:
a. Was not provided fair and reasonable disclosure of finances
b. Did not voluntarily waive right to disclosure
c. Did not have adequate knowledge of the finances of the other party.
23
Q
What is the ALI premarital rule?
A
Prenup must meet standards of:
1. Procedural fairness
a. Informed consent
i. It was executed at least 30 days prior to marriage
ii. Both parties had or were advised to obtain legal counsel and had the opportunity to do so
iii. If one of the parties did not have counsel, the information was understandable
b. Disclosure
2. Substantive fairness
Whether enforcement would work a substantial injustice based on the passage of time, the presence of children, or changed circumstances that were unanticipated and would have a significant impact on the parties or their children.
24
Q
How is marriage like a public institution?
A
Before you are able to get married you must comply with procedural and substantive requirements imposed by the state.
25
How do family law matters on the state level interact with the federal level, and vice versa?
Federal courts don’t normally involve themselves in family matters. Some state restrictions on marriage do indeed violate the federal constitution.
26
What happened in Loving? What was the reasoning?
Statute violated Equal Protection and Due Process clauses. Statute prohibiting interracial marriage = Strict scrutiny.
The fact that the statute might be equally applied, does not remove it from the Due Process protections of the Fourteenth Amendment. The statute relies on racial distinctions, and has no legitimate governmental interest. The Freedom on Marriage has long been recognized as one of the vital rights in the freedom of men.
27
What conclusion did the Zablocki court come to?
Zablocki concludes that marriage is a fundamental importance, grounded in Loving and Griswold. (If we protect procreation, childrearing, and family relationships, we must also protect the decision to enter into the relationship that paves the way for all of it i.e. marriage!)
28
What are the two rules to come out of Zablocki?
(1) The state can impose reasonable regulations as long as such rules do not substantially or directly interfere with the right to marry.
(2) The state can impose regulations that do significantly interfere with the right to marry, but, there must be an important state interest and the statute must be closely tailored to effectuate that interest.
29
What was the holding of Turner? What level of scrutiny did it use?
The Court now firmly recognizes the right to marry as a constitutionally protected liberty interest. Prohibition on inmate marriages = rational basis review.
30
How has the 9th Circuit ruled on the right to marry?
While the right to marry counts as a fundamental right, the attributes of marriage do not (procreation, cohabitation, etc).
31
Why aren't marriages more common as private contracts?
Contract isn’t enough because there are many things you can’t contract around or force other parties to recognize, like the tax on inheritance.
32
What was the rule out of Windsor?
To determine if a classification qualifies as a quasi-suspect class, the court generally asks:
(1) Has the class been historically subject to discrimination?
(2) Does the class have a defining characteristic that frequently bears a relation to an ability to perform, or contribute to society?
(3) Does the class exhibit obvious immutable or distinguishable characteristics that defines members as a discrete group?
(4) Is the class a minority or politically powerless class?
33
What happened to DOMA after Windsor?
DOMA did not survive intermediate scrutiny under Windsor. Section 3 was stricken as unconstitutional.
34
What two questions did Obergefell answer?
Do same sex couples have a Constitutional right to marry?
| Must individual states recognize same-sex marriage licensed in other states?
35
What was the holding of Obergefell?
The Due Process Clause protects the liberty to make
choices central to individual dignity and autonomy and these choices include intimate choices that define personal identity and beliefs.
The right to marry applies to same-sex couples because:
(1) Individual autonomy
(2) The importance of a two-person union to the individuals involved, including benefits of companionship and understanding
(3) The safeguard that marriage provides to children and family is a compelling state interest
(4) The centrality of marriage as the keystone of our social order
36
What is the universal definition of incest? The US definition? The minority definition?
Incest universal definition = no sibling to sibling marriage, no parent to child marriage.
US defines incest as sibling/sibling, parent/child, grandparent/grandchild, aunt/nephew/uncle/niece
Only half the states prohibit marriage between first cousins.
37
What happens to incest marriages?
Incestuous marriages are typically void.
38
What's the difference between void and voidable marriages?
A void marriage is one that is invalid from inception. A voidable marriage is valid until subsequently declared invalid. If a marriage is void, then either party or a third party may challenge the validity of the marriage at any time and in any proceeding. The invalidity of a voidable marriage can be asserted only by one of the parties and only during the marriage.
39
How are half-siblings treated with incest?
People who are half-blood are treated the same as whole-blood. Cannot marry half-sister or half-brother.
40
What's the difference between affinity and consanguinity
“Affinity” = related by law, “Consanguinity” = related by blood
41
How are affinity relationships treated with incest?
Many states say the incest ban applies to the family you are adopted into.
Affinity relationships terminate upon the marriage that produced them.
42
How does bigamy impact the ability to get married?
To be validly married, a person must not already have a prior undissolved marriage to another living spouse.
43
What is the majority position on age restrictions for marriage?
Most states require a minimum age before they can legally consent to be married. Some states will allow marriage of parties below the specified age if there is parental or judicial approval.
44
Why don't age restrictions fail the Zablocki test?
Age minimums on marriage do not violate Zablocki because it doesn’t prohibit the right to marry, it just postpones it. They are also closely tailored to the state’s interest.
45
What state of mind is required to form a valid marriage? How can it be shown the state of mind is lacking?
Each party must have the mental capacity to consent. Any expression of consent must be voluntary and free from duress and fraud.
Fraud must go to the essentials of marriage (impotency,
determination not to have children, barrenness, lies regarding religion). Some courts use the material representation test and ask was the fraud material to the decision to marry?
46
What is an annulment? How is it different from divorce?
Annulment = a legal determination that a marriage was a legal nullity from its inception. The legal marriage never existed in the first place.
Annulment is different from divorce in that divorce is a dissolution of a legally valid marriage.
47
What are the 6 formal grounds for finding an annulment?
```
Fraud
Duress
Insanity or mental incapacity
Impotence
Age
Bigamy
```
48
What is the majority position for rights after an annulment?
property rights, custody, spousal support, etc. still valid after annulment. (Tends to be case specific)
49
What are the main grounds for declaring a marriage void? What are the main grounds for declaring a marriage voidable?
void: bigamy and incest.
| voidable marriages: age, fraud, and duress.
50
What was the holding of Blair?
Blair - There is an implication that when proving fraud, it must be material to the decision to get married.
There is a public policy for preserving marriages when possible, so there is a strict requirement that the fraud go to the essentials of the marriage.
51
What makes an annulment claim easier?
The sooner you file the easier your annulment claim is.
52
What two formalities are generally required to establish a valid marriage?
A marriage license
| Solemnization
53
What additional formalities are required by some states to establish a valid marriage?
Proof of age
A blood test
A waiting period
A fee
54
What is the rule on validating marriages that fail to comply with a formality?
Most jurisdictions will not invalidate the marriage just because of a failure to comply with the formalities. The exception to this is if the state has a statute that explicitly says the marriage is invalid for failure of the requirements.
55
When is common law marriage is recognized?
Minority position recognizes common law marriage.
States that do not allow common law marriages will recognize common law marriages that were successfully created in a state that acknowledges common law marriages.
56
What are the requirements to establish a common law marriage?
Must live together
Must hold themselves out to others as married
Must do both 1 and 2 with the mutual intention to be married.
Must also have the capacity to get married.
57
Can common law marriage allow marriages otherwise restricted by the state?
No. Common law marriage does not allow circumvention of other state restrictions, like incest, age, etc.
58
How can you end a common law marriage?
Once a common law marriage is formed, it is valid for all legal purposes and can only be dissolved through a divorce.
59
What is the doctrine of necessaries?
The doctrine of necessaries imposed liability on a husband to a merchant who supplied necessary goods to a wife. Necessaries generally include food, clothing, shelter, and medical care. (A wife or the children can purchase essential goods and services on the husband’s credit.)
60
What is the modern view of the doctrine of necessaries?
Some states have repealed it all together, and other states have made it gender neutral (wives can be liable for husbands).
61
What is the doctrine of nonintervention?
The doctrine of nonintervention specifies that the state rarely will adjudicate spousal responsibilities in an ongoing marriage. Marital support obligations are enforceable only after separation or divorce.
62
What is the majority and minority approach to property rights under marriage?
The majority position: The common law/separate property/title theory approach. The spouse who holds the title to each asset retains ownership of those assets.
Minority position: community property approach. Based on the idea that marriage is a partnership. Property acquired prior to marriage remains separate, property acquired during the marriage is owned equally by both parties. Exception for property acquired by means of gift or inheritance. Cannot dispose of community property without the consent of your spouse.
63
What was the holding in Neal? What was the holding in Henne?
Neal = A court has discretion to deny a request for a name change on the grounds that it will be detrimental, but its discretion to do so is narrow. Proper notice is required for a child's name change.
Henne v. Wright = There is no fundamental right to give a surname that does not have a legal connection to the parent.
64
What are the three standards in name disputes? Which is the majority?
Three standards in name disputes: custodial parent presumption, presumption favoring status quo, or a test to determine the best interests of the child. The best interests approach is followed by a majority of jurisdictions.
65
What was the holding of Vaughn? How does that compare to today?
Anti-nepotism work policy = Restriction is neither a direct burden (because it doesn’t preclude the marriage) nor is it substantial (because it doesn’t prevent them from marrying wide number of nonemployees, only makes marriage to other employees more costly). No violation for firing the employees, because they were at-will.
Today, anti-nepotism has been found generally acceptable.
66
How did Congress amend Title VII?
It now includes pregnancy for women. Pregnant women shall be treated the same as other persons similar in their ability or inability to work.
67
How do fetal protection policies fare?
Fetal protection policies for the most part are invalid as violating the PDA and due process.
68
What was the holding of LaFleur?
LaFleur: Relies on the due process right to be free from government intrusion into such matters as whether to bear a child to hold that mandatory unpaid leave can be considered a penalty for the exercised right to bear a child. Mandatory pregnancy leave must be reasonable.
Administrative convenience cannot save what is otherwise a violation of due process.
69
What was the holding of Guerra?
Guerra: The Pregnancy Discrimination Act establishes the floor below which you cannot go. So states cannot provide less than the PDA requires, but can require more.
70
How is the Family and Medical Leave Act applied?
i. To find a serious health condition, entitling leave,
FMLA requires either inpatient care or continuing treatment:
1. To qualify for continuing treatment according to Caldwell there must be a period of incapacity for more than 3 days; AND
2. Subsequent continued, supervised treatment
relating to the same condition.
ii. Applies to employers with 50 or more employees
iii. Applies to employees with at least 12 months and 1250 hours of service
iv. Up to 12 weeks unpaid leave
v. Can also be used to care for spouse, son, daughter,
parent- if they have serious health condition.
vi. Supposed to get the same position back, or be placed within an equivalent position with equivalent benefits and pay UNLESS to do so would cause substantial economic and procedural harm to the employer (like general council)
71
What was the holding of Dike?
Court concludes that breastfeeding (or pumping) is a constitutional right based on the right of privacy. The Constitution protects from excessive state interference a woman’s decision respecting breastfeeding her child. Have to have compelling state interests narrowly drawn.
72
How can battered woman's syndrome support a claim of self defense according to Hawthorne?
Evidence of expert testimony regarding battered woman syndrome to support claim of self-defense:
a. Expert is qualified;
b. State of the art or scientific knowledge permits reasonable opinion; and
c. Subject matter is related to some science, profession,
business, or occupation beyond layman knowledge.
73
What are the two heart balm actions? What position allows heart balm actions?
Two types of Heart Balm torts: alienation of affection, and criminal conversation.
Heart Balm torts are the minority today.
74
What is alienation of affection? What are the elements?
When third person diverts or wins the affection of one
spouse so that the other spouse is deprived of a martial
relationship.
1. A valid marriage (the party must know of the marriage)
2. Wrongful conduct of the defendant with the plaintiff’s spouse
3. Loss of affection or consortium (consortium is a right growing out of the marital relationship, and includes the right to society, companionship, conjugal affection, and assistance of the other.)
4. A causal connection between the wrongful conduct and the loss of affection or consortium.
75
What is criminal conversation? How is it more difficult than alienation of affection?
Criminal conversation: requires that the defendant have had sex with the plaintiff’s spouse
Only defenses:
Plaintiff consented to the sex
Statute of limitations
76
What is the common law warrant rule? What are mandatory arrest laws?
Common law warrant rule: prohibited arrests of misdemeanants without a warrant.
Mandatory arrest laws require police to arrest an offender whenever police have probable cause to believe the offender has committed the crime.
77
What was the outcome of Castle Rock v. Gonzales?
The statute as written did not make enforcement of a restraining order mandatory because police officers always need to have discretion.
78
How have statutes changed domestic violence laws?
Authorize a warrantless arrest for some non-felonies. (Usually assault)
Authorize nighttime arrests in homes for misdemeanors.
Authorize magistrates to approve warrantless arrests over the phone.
Mandates warrantless arrests for some crimes.
Supplement the arrest with help for the survivors, like notice to the plan, assistance in getting noncriminal enforcement help, encouraging pressing charges, etc.
79
What was the marital rape exemption? How does it persist today?
Marital rape exemption: the husband is exempt from prosecution for raping his wife.
A majority of states still retain some form of the common law regime. Examples: criminalize a narrower range of offenses within the marriage, states subject the marital rape to less serious sanctions, require special procedural hurtles for marital rape prosecutions.
80
What was the outcome of Elonis?
Elonis - The determination of the correct mental state for stalking requires more than negligence for a communication to be viewed as a threat.
81
What are the two evidentiary privileges of family law? What do they do?
Spousal immunity privilege
- Protects spouses from testifying against their spouse during a valid marriage.
- Some states allow spouses to testify if they want to, but cannot be forced to. Some completely bar testifying. Some require defendant’s consent to spouse testifying.
Marital communication privilege
- Survives the dissolution of a marriage
- Prevents a spouse or former spouse from divulging any confidential communication made during the course of the marriage
- Only the communicator can waive the privilege, the testifying spouse cannot.
82
What is the leading case on the exposure of kids to domestic violence? What was the outcome?
Leading case → Nicholson v. Scoppetta = The definition of child neglect requires proof of the parent’s failure to exercise a minimum degree of care. The sole allegation of witnessing abuse, without more, is insufficient to prove neglect. However, a child can be removed if the emotional toll of witnessing the abuse rises to that level, so it is not that it never happens just not sufficient on these facts. Removal of children cannot be based on the presumption of neglect stemming from the parent’s status as a victim or survivor of intimate partner violence.
83
What are the elements of neglect?
To establish neglect, by preponderance of the evidence:
1. A child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired
2. 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.
84
How is the application of a formal definition of family different from a functional definition of family?
Formal definition would result in a single definition of family which would apply to everyone. Those who don’t fall into the definition would get different legal treatment.
Functional definition would look to the various behaviors and functions of different groups, rather than a single definition. If a particular group is sufficiently similar to a traditional arrangement (support, affection, caregiving, etc.), it could receive the same legal protections.
85
What was the outcome of Moreno?
US Department of Agriculture v. Moreno:
Rational basis review. No legitimate interest in seeking to harm a politically unpopular group (hippie communes). Fraud would’ve been legitimate interest but this restriction is not a rational way to further it, and there are already other sections that deal with fraud.
86
How did Belle Terre contrast with Moreno?
Contrast between Moreno and The Belle Terre case :
In Belle Terre, the court concludes a restrictive family definition in a zoning ordinance is constitutional. In Belle Terre there was a restricted zone required single family only. Family was defined as no more than two unrelated adults.
So why the difference? Courts are deferential towards local control, particularly property. Court was deferential to zoning ordinance. Belle Terre also didn’t threaten the most common alternative family; cohabiting couples. Moreno did.
87
What was the holding of Moore v. City of East Cleveland? What was the result?
Right to privacy includes the right to choose your family living arrangement, including the right to live with extended family members (especially your grandchild).
Zoning ordinance prohibiting persons beyond a certain degree of relation from living in a single household was unconstitutional because there is no compelling state interest.
88
How are cohabitating couples treated today? How were cohabitating couples treated historically?
Cohabiting couples is one of the most common alternative family arrangements today. States historically regarded these relationships as either wholly unlawful, or sought to assimilate them into marriage through doctrines like common law marriage.
89
What was the holding of Marvin v. Marvin?
Marvin v. Marvin:
In general, unmarried cohabitants can contract with each other. These contracts are only unenforceable to the extent they rest on the performance of sexual services as consideration, because that is against public policy.
90
What is the majority position on how unmarried couples can get relief after the breakup?
Breach of an express contract - the easiest.
Breach of an implied contract.
Equitable remedies where justice demands it
Quantum meruit
You can get back the reasonable value of household services, less the reasonable value of support received, if you can show that you rendered the services with the expectation of a monetary reward.
Unjust enrichment
Constructive trusts
The majority of courts follow Marvin and allow cohabitants to make some types of claims against each other. Some jurisdictions only recognize express agreements.
91
What is the minority position on how unmarried couples can get relief after the breakup?
Minority uses status based approach. Treats cohabitants like married persons by granted half of the accumulated property, extending community property principles. This is the modern doctrine of committed intimate relationship. To determine the existence of a CIR, examine the following elements: (1) continuous cohabitation, (2) duration of the relationship, (3) purpose of the relationship, (4) pooling of resources and services for joint projects, and (5) intent of the parties.
92
In determining whether a relationship meets the standard of “closely related” for tort recovery, what factors should a court should take into account according to Graves?
The duration of the relationship
The degree of mutual dependence
The extent of common contributions to a life together
The extent and quality of shared experience
Whether the plaintiff and the injured person were members of the same household
Their emotional reliance on each other
The particulars of their day to day relationship
The manner in which they related to each other in attending to life’s mundane requirements
93
How does Graves compare to other jurisdictions on tort recovery for nonmarried couples?
Graves differs from a number of states that have said engaged does not count as closely related for NEID claims.
94
What happened in Shahar v. Bowers?
Employment law:
Shahar v. Bowers (overturned by Lawrence v. Texas):
The fact that this case is the government as an employer, uses a balancing test. Powers of government as an employer are far broader than government’s powers as sovereign. Based on Shahar, you could be fired for your intimate associations, but the decision and descrimination would be unconstitutional today.
95
What is the standard for selecting a guardian according to In Re Guardianship of Kowalski?
The best interests of the ward:
(1) Ward’s expressed preference
(2) Petitioner’s qualifications
(3) Court’s choice of a neutral guardian
(4) Court-identified deficiencies in appellant’s petition.
96
How can Graves, Shahar, and Kowalski be taken together?
A lot of inconsistency about whether the law should treat alternative families the same as traditional families, or whether they should be treated differently. If trying to account for the differences from these cases, one of the major factors is how closely the alternative family resembles the traditional family. However, legal context really matters--i.e. What kind of regulation are you challenging.
97
What happened in Braschi v. Stahl?
The court analyzes the legislative intent behind the statute to determine that the term family intended to extend protection to those who reside in households with all of the normal familial characteristics. The court thus adopts a functional definition of family for rent control.
98
What rule came out of Braschi?
Courts make an objective examination of the relationship between the parties:
1. The exclusivity and longevity of the relationship
2. The level of emotional and financial commitment
3. The manner in which the parties have conducted their everyday lives and held themselves out to society
4. The reliance placed upon one another for daily family services.
99
How does Braschi compare to other jurisdictions for housing and inheritance determinations for nonmarried couples?
Many states follow the Braschi framework now.
100
What happened in North Dakota Fair Housing v. Peterson?
The court harmonized the criminal cohabitation statute and the human rights act. It found the status inquiry to be whether a person is divorced, widowed, or separated, not that they are simply married or unmarried. Refusing to rent to the unmarried couple here was lawful because cohabitation is conduct, not status.
101
What’s important to note for family law purposes under inheritance law?
General and overwhelming rule is that unmarried cohabitants cannot inherit from their partners by intestate.
Estate planning becomes critically important for unmarried couples, but even this is not foolproof.
102
What happened in Clark v. Jeter?
Equal protection challenges to statutory classifications based on legitimacy of child are subject to intermediate scrutiny. To be constitutional, the classification must substantially relate to an important government objective.
In evaluating limitations periods for paternity suits, the Court has articulated the following framework: the period must be long enough to provide a reasonable opportunity for claims to be presented, and the time limitation must be substantially related to the state’s interest in curbing stale or fraudulent suits.
The six-year statute of limitations imposed on paternity actions filed on behalf of illegitimate children was held to be too short to satisfy the requirements of equal protection. Any time limitation must be substantially related to the state’s interest in stale or fraudulent claims.
103
What is the historical inheritance rule for nonmarital children? What is the Oregon rule?
A non-marital child could recover only if the father’s paternity had been previously adjudicated in court during the father’s lifetime.
OREGON RULE – a non-marital child had the same right to inherit from their natural parent provided the parent acknowledge their parenthood in a writing signed by them during the lifetime of the child.
104
What happened in Wallis v. Smith?
Under New Mexico law, a man may not recover from the mother of his child for contraceptive fraud or breach of a promise to use birth control. Public policy forbids recovery for contraceptive fraud or breach of a promise to use birth control. The reason for strict liability is that it serves the best interests of the child as well as the interests of the state in not being shouldered with the burden of a child who is not financially supported. Some misrepresentations are simply outside of the scope of recovery, especially in intimate environments for which privacy interests must be considered.
105
What is the majority approach today about child support payments?
Courts will always reject a bio father trying to dodge paying child support, that is why this is a strict liability matter. The is because the court cares about 1. The child’s best interests and 2. Insulates the state from having to be responsible for the care of the child.
106
What was the outcome of Stanley v. Illinois? How does this compare to other jurisdictions?
All parents are entitled to a hearing to determine their fitness before the state deprives them of custody of their children. The state presumed that unmarried fathers are unfit. That distinction violates both due process and equal protection.
It’s pretty safe to say that no states have statutes like in Stanley now.
107
What was the holding of Michael H. v. Gerald D?
The right of a potential natural father to assert parental rights over a child born into a woman’s existing marriage with another man is not traditionally recognized in historical jurisprudence and is not a fundamental right protected by the Due Process Clause of the Fourteenth Amendment.
108
What is the rule of presumption for children born into married family?
A child born to a woman in a marriage is presumed to be the child of the husband unless it can be proven that the husband is sterile or that he did not have access to his wife during all relevant times.
109
What three factors are considered in determining whether an unwed father can be seen as a legal father? When are unwed fathers entitled constitutional protection?
1. Biology
2. The parent’s social relationship with their child
3. The parent’s relationship with the mother.
Unwed fathers are entitled constitutional protection of their parental rights so long as they have accepted the responsibilities of parenthood.
110
What was the outcome of Chatterjee v. King?
A woman can establish a presumed natural parent and child relationship under the New Mexico Uniform Parentage Act. The presumption is based on a person’s conduct, not a biological connection, a woman is capable of holding out a child as her natural child and establishing a personal, financial, or custodial relationship with that child. This case utilized a functional definition of family.
111
What are the main three grounds for obtaining a fault-based divorce? What other grounds are available?
MAIN THREE: adultery, cruelty, dessertion and abandonment
Habitual drunkeness, criminal conduct, impotence, fraud/duress/undue influence for entering the marriage, pregnancy by another, attempted murder of spouse, joining a religion in opposition of marriage, giving spouse VD, deviant sexual condut.
112
What proof must there be to establish adultery?
Proof of adultery as a ground for divorce must be clear and positive and the infidelity must be established by a clear preponderance of the evidence.
113
What is required to prove adultery by circumstantial evidence?
Had the opportunity to commit the offense
| The disposition to commit the offense
114
What is required to prove cruelty for purposes of divroce?
Under cruelty, courts generally require a course of conduct of cruel behavior that has adverse health effects for the plaintiff spouse.
The one exception to the course of conduct requirement is if the single act is especially brutal (i.e. attempting to murder)
Today cruelty can include adverse effects on mental health, not just physical.
115
What are the elements of abandonment/desertion?
A total voluntary separation
With the intent not to resume cohabitation
With neither consent from the spouse or justification
For some statutorily specified period of time
116
What is required for constructive abandonment/desertion?
Intolerable conduct by one spouse that justifies the other spouse’s desertion.
117
How is fault-based divorce discretionary?
If both fault-based and no-fault grounds exist, the judge may use discretion to select the most appropriate ground.
118
What are the defenses to fault-based grounds of divorce?
1. Recrimination - the plaintiff spouse is equally responsible for the breakdown of the marriage
2. Condonation - the innocent spouse has forgiven the guilty spouse for the conduct giving rise to the fault claim (condoned it)
3. Connivance - express or implied consent to spouse’s misconduct
4. Collusion - spouses get together to falsely claim grounds for a divorce
5. Insanity
119
What was the holding in Haymes?
Brief but unsuccesful attempt at reconciliation, even including an act of sex, does not amount to a condonation.
120
How does reconciliation affect fault-based divorce?
The courts should examine the totality of the circumstances surrounding the reconciliation before determining its effect upon the marital proceeding. Factors to consider: whether the reconciliation and any cohabitation were entered into good faith, whether it was at all successful, who initiated it and with what motivation.
121
What are the three no-fault regimes?
Some jurisdictions have irreconcilable differences regime
- The court has to conclude there are irreconcilable differences, or that the marriage is irretrievably broken
- Some regimes require a standard period of separation in addition to irreconcilable differences
No fault divorce requires both parties agree there are irreconcilable differences
Separation based regime, meeting the statutory period meets all requirements for divorce
122
How is IIED relevant to modern family law?
Some jurisdictions allow spouses to sue for IIED.
123
What is covenant to marriage? How relevant is it in the US? What are hallmarks of it?
Three states now have covenant marriage: a state-sponsored form of marriage that is more difficult to enter and to exit. Hallmarks of covenant marriage:
Typically requires pre-marital counseling. Permits divorce only after a statutory period of separation or proof of fault (2 years in Louisiana). Fault -> adultery, felony conviction resulting in death/imprisonment, abusive of spouse or child, or abandonment for one year by the other partner.
124
What was the holding of Boddie?
| What did Boddie not require?
Boddie v. Connectitcut: Supreme Court reasons that mandatory fees and costs foreclose indigent’s right to be heard, because state law alone regulates divorce, and requires a court hearing before granting divorce, petitioners unable to pay divorce related fees and costs have no alternative to dissolve their marriage.
Boddie does not require payment for counsel.
125
What was the holding of Turner v. Rogers?
The Due Process clause does not always require representation for a poor person facing jail time for failing to pay child support.
126
What is the role of counsel in divorce proceedings according to Moses?
There is an obligation on counsel, if he expects his fee to be paid by the other spouse, to control excessive demands upon his time, energy and intellect by the dependent spouse.
127
What is the rule taken from Dunagan about representing a prior client in a divorce proceeding?
If the prior representation resulted in acquiring extensive knowledge about the person who is not your client and that knowledge could affect your current client’s success in the divorce, do not represent your current client in the divorce.
If the prior representation resulted in very little or no knowledge about the person who is not your client, you can represent the client if both parties are informed of the prior representation AND both agree that the attorney can represent the other party.
128
What is the ABA rule regarding joint representation of divorce clients?
Joint representation is permitted under the ABA if the attorney reasonably believes he or she can adequately represent both clients’ interests and if both clients provide written consent after full disclosure of the risk of such representation.
Some states condemn the practice of joint representation by their disciplinary rules, case law, or state bar opinions.
129
What is the divisible divorce doctrine? How does it treat divorce like a pie?
Divisible divorce doctrine: courts may have power to grant one aspect of the divorce, such as the divorce itself, but the same court may lack the power to adjudicate other issues related to the divorce, like financial issues.
If the adjudicable issues were put into slices of pie:
Issues related to the divorce itself
Issues related to financial matters, such as spousal support and child support
Issues related to child custody
130
What jurisdiction requirements are there in divorce cases?
Jurisdiction in divorce cases is subject to special rules: the domicile of one party in the state is enough for jurisdiction.
Domicile in the divorce context is specifically defined as the place where a person is physically present with the intent of making that particular place your home.
131
What happened in In Re Marriage of Kimura?
Finds in rem jurisdiction (the power over a thing as opposed to a person) over the status of the marriage. Treats the marriage as a thing over which the court has jurisdiction because of one party’s domicile in the state.
Reasonable notice: actual opportunity to be heard.
132
What is a bilateral divorce? What is an ex parte divorce?
If both parties are present before the court that issues a divorce, that’s what is known as a bilateral divorce. A bilateral divorce is not subject to a collateral attack. The divorce decree is entitled to full faith and credit. Raises a presumption that domicile was valid.
If the divorce is an ex parte divorce, meaning that only one spouse is before the court that issued the divorce, it is more complicated. In general, if domicile was valid in the state that granted the divorce, then the divorce decree is valid in all other states. But the state called upon to recognize the foreign divorce can decide for itself whether the plaintiff spouse was properly domiciled in the foreign state (it can be collaterally attacked). The foreign divorce is entitled to a presumption of validity.
133
How does the US treat foreign divorce decrees?
The U.S. does not owe full faith and credit to divorce decrees from foreign countries. A state may choose to recognize them, but many states do not recognize such divorces when one spouse attacks it.
134
What is the domestic relations exception? How is Ankenbrandt different?
Federal courts will not exercise diversity jurisdiction to grant or deny divorce, alimony, property distribution, child custody, or visitation.
Ankenbrandt falls outside of the domestic relations exception because it was a tort claim. Just because it was against a former spouse (for abuse) does not make it a “domestic relations” claim.
135
What was the holding in Mani v. Mani? How do states follow?
Marital fault can be considered in the initial determination of whether spousal support can be considered at all. But you can only consider fault when it has negatively affected the parties’ economic status, or the fault is egregious (such as attempted murder, or infection of an STD).
Most states follow Mani.
136
How does management of funds impact marital property?
Active, first-hand management of funds leans more to a finding of marital assets than passive, third-party management.
137
How does commingling of funds impact marital property?
How much the spouse integrated his interest in the disputed property into the common financial affairs of the marital partnership, through commingling. More = more likely to be marital property.
138
What are the two major schemes of property division?
1. Community property: parties split anything that comes into the marriage during the marriage.
2. Equitable distribution (formerly title theory): at the end of the marriage, distribute property according to what is equitable.
(a) All property (kitchen sink/hotchpot/UMDA): All assets belonging to either spouse separately or to both spouses jointly, are thrown into the pot and are up for grabs at dissolution.
(b) Dual Property (includes Oregon): Requires the Trial Court to classify the property owned by the parties as marital or separate and distribute only the marital property, thus figuring out what property is marital property is a difficult question.
139
What is marital property?
Marital property, generally, are assets earned by couples during the marriage and this applies whether the assets are fully realized by the couple during the marriage or after the divorce.
140
What is separate property?
Property acquired by gift, bequest, devise, or descent
Property acquired in exchange for separate property
Increase in the value of separate property
Property excluded by valid agreement by the parties
Property acquired by a spouse by legal separation
141
What steps do courts go through in dividing marital assets?
1. They must identify the assets to be allocated
a. Anything worth money you must count
b. Courts allocate debts as well as assets
2. Characterize the assets as either marital or separate
3. Value the assets
4. Allocate the assets
142
What factors determine what is equitable in property division?
a. Age, education, background, and earning capacities of both parties;
b. Duration of the marriage, and if there were any prior marriages;
c. Standard of living during the marriage;
d. Present income of both parties, and their vocational skills and employability;
e. Source of money used to purchase the property;
f. Health of the parties;
g. Assets, debts, and liabilities of the parties;
h. Needs of each of the parties;
i. Provisions for the custody of minor children;
j. Whether the distribution is in lieu of or in addition to alimony;
k. Each party’s opportunity to acquire future income and assets;
l. Each party’s contribution to the acquisition of, or enhancement of the value of, the existing marital assets;
m. Each party’s contribution as a homemaker to the family unit; and
n. Whether either party has dissipated marital property (i.e., diminished the value of marital assets by wrongful conduct).
143
What are the types of alimony?
(1) Temporary maintenance: maintenance available during only the pendency of the divorce suit
(2) Permanent maintenance: spousal support available on an indefinite basis following a divorce. Usually terminable upon the death of either spouse. Some states end maintenance upon remarriage.
(3) Rehabilitative/Transitional Maintenance: maintenance available for a limited period of time to allow the recipient spouse to become self-supported. Common duration 5 years
(4) Restitutional/Reimbursement maintenance: maintenance available to compensate one spouse for their specific contributions to the other.
(5) Lump-Sum Maintenance: one time cash payment.
144
What do all courts consider in deciding alimony? What do some courts consider?
Need and fairness. Fault.
145
What are the various approaches to alimony awards?
i. Some States authorize the judge to make a determination
ii. Others authorize for just or equitable with factors
iii. Some States take a 2-step approach
1. The judge must assess the eligibility
2. If eligible, judge must assess the amount
iv. Uniform Marriage and Divorce Act (UMDA)
1. 2-Step Approach
a. Judge can grant an order for maintenance only if it finds that the spouse:
i. Lacks sufficient property to provide for reasonable needs; or
ii. Is unable to support themselves through appropriate employment or is the custodian of the child so that the spouse should not be required to seek employment
b. Is the spouse eligible?
i. If yes, can award financial maintenance and must consider other factors
1. Financial resources seeking maintenance
2. The time necessary to acquire sufficient education or training in order to obtain employment (Suggests rehabilitation as UMDA standard)
3. The standard of living in the marriage
4. Duration of the marriage
5. Age, physical, and emotional condition of the person seeking maintenance
6. Financial resources of the spouse who it is sought against
7. The UMDA specifically says that the judge should not consider marital misconduct under this statute
146
How does remarriage affect division?
Property divisions are final. Maintenance awards are modifiable on a showing of changed circumstances. Many state statutes allow for termination of maintenance upon remarriage, or even de facto marriage (cohabitation).
147
How does bankruptcy affect support?
domestic support obligations are nondischargeable debts for Chapter 7 bankruptcies.
148
What is the majority approach regarding retirement accounts and pensions in division?
all retirement accounts and pensions, whether vested or unvested, are treated as marital property subject to distribution.
Vested: currently entitled to them, regardless of employment
Unvested: contingent on continuing employment
149
What are the three approaches to dividing pensions?
(1) Present value approach: determine present value and decide how much the non-employee spouse is entitled to, and award some other property to offset the amount
(2) Present-division approach: determine the present percentage of benefits the non-employee spouse is entitled to, but doesn’t get these benefits until the pension matures
(3) Reserved jurisdiction method: reserves jurisdiction to distribute the benefits once they have matured, and determines the appropriate distribution at that time.
150
What is the majority approach to division of an advanced degree/license? What is the minority?
Majority of courts refuse to treat advanced degrees and professional licenses, as well as enhance earning capacity therefrom, as marital property. However, an enhanced earning capacity can be a factor in departure from a presumptive equal distribution.
New York is the minority, and it holds that professional licenses and educational degrees are marital property.
151
How are tax issues decided in support awards?
Who deducts the maintenance payments can be decided by the court, as part of the division of assets.
152
What do child support guidelines create?
Typically, child support guidelines only create rebuttable presumptions. Courts may deviate from the award the state’s guidelines would create, but they have to make specific findings to justify any deviation from the guidelines.
153
What are the three forms of state guidelines for child support?
1. Percentage of income model: a certain specified percentage of the noncustodial parent’s income must be paid to the custodial parent. This percentage varies according to the number of children at issue.
2. Income share model (majority):
Add the income of the parents together.
Compute the total obligation from combining the children and the total income
Prorate the obligation between the parents based on the prorate share of the combined income
3. Delaware Melson Model:
Calculate first the basic subsistence needs of each parent
Pay for the children’s needs
Any money left over, the children get a share of the money.
154
What is the majority approach to postmajority educational support?
The majority of states do not authorize postmajority educational support. In the states allowing courts to order postmajority support for higher education, reasonable expenses (not guidelines) determine the amount aka if they could have and would have paid for college if they were still married.
155
What are the two approaches to subsequent children?
First mortgage approach (majority): prioritizes the first set of children
Second family first approach: the needs of the second family are deducted from the income prior to making any child support calculations for the first set of children.
156
How may child support be modified?
Child support can be modified for material change in circumstances. Federal legislation disallows retroactive application of modification.
157
What is the Olmstead approach? What are alternatives?
Olmstead: Refuses relief because the parent seeking modification is voluntarily underemployed.
Alternative approaches:
Motive based test: disallows modification only when the change in employment reflects bad faith.
Best interests standard
Balancing test
158
When is child support not considered?
When child custody is 50/50
159
What are the two main enforcement acts for child support? How else has congress sought enforcement?
Child Support Recovery Act of 1992 makes it a federal crime to :
Wilfully fail to pay child support to a child who lives in another state where the obligation has remained unpaid for 1 year or is greater than $5k
To travel in interstate or foreign commerce with intent to evade a child support obligation
1998 Deadbeat Parents Punishment Act:
Amended to increase penalties for failing to pay child support
Create rebuttable presumption that a parent in arrears had ability to pay
Nonpaying parent has burden of proof to establish they cannot pay
Congress has required states to have certain procedures in effect for enforcing child support orders:
Income withholding
Interception of tax refunds
License suspensions
160
What jurisdiction is required for child support? How is it met?
Personal jurisdiction over both parents is required before a state may decide a child support question. (this is very different and much more demanding than the standard in granting a divorce.)
The quality and nature of the defendant’s activity within the state must be such that it would be reasonable and fair to require them to conduct their defense in that state.
A parent who is physically present in the forum state and served while they are there, that is enough to require them to litigate in that state.
161
What two statutes impact jurisdiction for child support?
1. UIFSA : gives 8 bases for allowing a state tribunal to exert jurisdiction over a non-resident individual:
Individual is personally served within the state
Individual consents to jurisdiction
Individual resided with a child in the state
Individual resided in the state and provided prenatal expenses or support for the child
Child currently resides in the state as a result of acts or directives of the individual
Individual engaged in sexual intercourse within the state, and the child may have been conceived as an act of that sexual intercourse
The individual asserted parentage in the punitive father registry maintained by the state
There is any other basis of jurisdiction consistent with state and us constitutions
- Personal jurisdiction continues as long as the state has continuing exclusive jurisdiction to enforce or modify a support order. Has continuing jurisdiction if:
At the time of filing a request for child support or modification the state is the residence of the obligor, the obligee, or the child for whose benefit the child support order is issued; OR
Even if the state is not the residence, if the parties consent.
2. FFCCSO Act; Full-Faith and Credit Child Support Order Act.
If the original ordering state still has jurisdiction, file petition to modify with that state.
162
When are separation agreements valid?
Separation agreements may pertain to anything besides support, custody, and visitation of the children and be binding upon the court, unless the court finds the agreement unconscionable.
163
What are the 2 Distinct Legal Aspects of the Custody Decision?
1. Legal Custody: Right to make decisions on behalf of the child
2. Physical Custody: Where the child lives
164
What was the paternal presence rule? How did it change?
Paternal Presence Rule: At Common Law, fathers had an unfettered right to custody upon divorce
Then, If you can show that the father was unfit, the wife got custody
165
What was the tender years presumption? How did it change?
Tender Years Presumption:Idea that children of tender years, under the age of 7, were presumptively placed with mothers and older children were placed with the same-sex parent
Then, the father has to show that the mother was unfit
166
What was the primary care taker standard? How did it change?
The Primary Care Taker Standard - awarded custody to primary care taker
a. Is now looked at as a factor in custody decisions
167
What is the majority test today for determining custody?
Majority today: best interests of the child test
i. First question: Whether the parents are both fit
1. Only comes into play when both parents pass this threshold
ii. Second question: Some variation between the States in how they implement this standard:
1. Divide custody into best interests with little guidance
2. Others add factors to determine
3. This is State dependent
168
What are the UMDA factors for determining custody?
Wishes of the child’s parents as to his custody
The wishes of the child as to his custodian
Relationship the child has with their parent(s), siblings or other person who may significantly affect the child’s best interest
The child’s adjustment to home, school, community
The mental and physical health of all individuals involved.
Do not consider parental conduct that doesn’t affect the relationship with the child
169
How does race impact the custody determination?
The law cannot give effect to private biases. Race cannot be used as a negative factor in custody decisions.
170
How does religion impact the custody determination? What's an example?
Need clear evidence of substantial harm to children before limiting a parent’s expression of religious belief
Cutting off religious accessories not okay, pictures of Jesus are okay
171
What are 11 factors in determining the best placement of the child?
Age, health and sex of the child
Determination of the parent that had the continuity of care prior to the separation
Which has the best parenting skills and which has the willingness and capacity to provide primary child care
The employment of the parent and responsibilities of that employment
Physical and mental health and age of the parents
Emotional ties of parent and child
Moral fitness of parents
The home, school and community record of the child
The preference by law
Stability of home environment and employment of each parent
Other factors relevant to the parent-chid relationship.
172
How does sexual orientation impact the custody determination?
The nexus test: A parent’s sexual conduct is relevant to the child custody determination only if the conduct has an adverse effect on the child.
173
How do personal choices impact the custody determination?
Differences in religion, personal values, and lifestyle, should not be the sole decision for child custody.
174
How does domestic violence against the former spouse impact the custody determination?
4 different procedural approaches a state can take in terms of DV and Custody:
a. An irrebuttable presumption against an abuser from having custody
b. A rebuttable presumption against an abuser from having custody
c. Mandatory consideration in the best interest analysis
d. Permissible consideration in the best interest analysis
175
How does domestic violence against the child impact the custody determination?
Evidence of domestic violence is a specific factor in custody awards.
Even one incident resulting in bodily injury creates a rebuttable presumption for custody
176
What are the different approaches to joint custody?
Presumption of joint custody
Preference for joint custody. Bell.
Joint custody is one option in the best-interests determination (most common)
Legal custody almost always 50/50
177
What factors do courts look to in awarding joint custody?
1. Mature parents who can communicate and share decision making
2. Shared parenting values
3. Not too much bitterness in the relationship between parents
4. Parents willing to make joint custody work
5. Parents that live close together
178
What is the majority and minority rule about custody of pets?
Majority - Barney Rule: dogs are personal property, any settlement provision is void
Minority - you can file for custody/visitation of pets
179
What is the presumption for visitation? What is the caveat?
The right of any fit non custodial parent unless visitation would be detrimental to the best interests of the child
Courts have considerable discretion in setting visitation
180
When is supervised visitation most often ordered?
Supervised visitation is most often ordered in case of abuse, neglect, substance abuse, or when one parent is mentally ill.
181
What was the holding of Troxel v. Granville? What was the dissent?
Troxel v. Granville: Statutes giving 3rd party visitation rights is not unconstitutional, but the Washington statute was unconstitutional because it infringed on the Mother’s right to control the upbringing of her children.
Troxel dissent: The constitution does not require a threshold finding of harm before a court may order visitation contrary to a parent’s wishes.
182
What is the presumption of fit parents?
The court generally presumes that fit parents are acting in the best interests of their children.
183
What prima facie right are biological parents afforded? How can this right be rebutted? Who can rebut this right?
Biological parents have a prima facie right to custody.
Thus, if the person acting in loco parentis seeking custody is standing in the way of a parent, then that person must establish by clear and convincing evidence that primary custody should be awarded to the non-biological parent.
This standard applies not just to gay/unmarried couples but to step parents, grandparents, etc.
184
Do courts consider the child's wishes in visitation?
No court has held that a child has a right to visit nonbiological parents/choosing who to visit
185
How are the children's wishes considered in custody determinations?
Although the express wishes aren't controlling, they do constitute an important factor and have to consider it in determining the child's best interest
-The preference of one parent over another has to be over good reasons and must take into account maturity and intelligence
-The weight given to the child's testimony is determined by the judge
States have generally taken one of 4 approaches
a. Some states require consideration of the child's wishes
b. Some states instead require consideration of a child's wishes if the court concludes that the child is mature
c. Some states require deference to the child's preference if the child is of a specific age 12 and up
d. Give judges complete discretion of whether to consider a child's preference
186
What are the various modification of custody approaches?
-Most common: Conditions since initial decree have substantially changed that child’s best interest require a change in custody
-Liberal standard: one that allows modification based on a child’s best interest without a showing of changed interests
-Stringent standard/UMDA: one that allows a nonconsensual modification only in cases where there was a showing of endangerment to the child
-The ALI approach: When there has been a significant change in circumstances and this change must stem from facts that were not known and could not have been known at the time of the original custody award, such that modification is necessary to the child’s welfare
i. Modification has to be necessary to the child's welfare
ii. Bans certain grounds for modification:
· Loss of income or employment of custodial care
· Remarriage or cohabitation of the custodial parent
· Placement into daycare of the custodial parent
187
How is the preference of the custodial parent considered in custody issues?
1. First, elevate the relocating the right to travel over the other competing interests
2. Second, treat all the competing interests as equal and require both parents to demonstrate what would be in the child's best interest
188
Where is there jurisdiction over child custody issues?
1. Where the custody was initially issued
| 2. If both parents moved, then also those other states
189
Explain the UCCJA:
Identifies 4 bases for jurisdiction:
1. Home state jurisdiction: The child’s home state; State where child has lived with parent or person acting as parent for at least 6 consecutive months prior to the filing of the petition
2. Significant connection jurisdiction: When the jurisdiction was in the best interest of the child and at least one parent had a significant connection to the state
3. Emergency Jurisdiction: The child is present in the state and either had been either abandoned, abused, neglected
4. No other state had jurisdiction
190
Explain the Parental Kidnapping Prevention Act:
- Applies to all interstate custody cases
- Works in addition to UCCJA
- Same bases for jurisdiction but prioritizes home state jurisdiction
- Who has jurisdiction to modify custody
ii. Authorized continuing exclusive jurisdiction in the state that initially gave the custody order if a parent or the child lived there
iii. States have to give full faith and credit to orders that comply with PKPA
191
Explain the UCCJEA:
-Like the PKPA, it prioritizes homestate juris. Only look at others if there is no homestate or if it declines to exercise juris.
It gives 4 bases for jurisdiction:
1. A state has jurisdiction if the state is the homestate.
2. If there is no homestate, or the homestate has declined to exercise jurisdiction, and A) the child and at least one parent have a significant connection with the state other than mere physical presence and B) substantial evidence is available in the state about the child's care, training, personal relationships, protection
3. If all courts having jurisdiction have jurisdiction over 1 and 2 and have declined jurisdiction on the ground that this state is better
4. No court of any other state would have jurisdiction under options 1-3.
UCCJEA also:
-Expands the grounds for emergency jurisdictions to protect siblings or parents of the child (dv and abuse for example).
-Provides emergency jurisdiction is only temporary
-Clarifies a state retains exclusive continuing jurisdiction over custody until
a. Neither the child nor the child’s parents continue to reside in the state; or
b. The child no longer has a significant connection with the state, and substantial evidence relating to the child’s care, protection, training, and personal relationships is no longer available in the state.
-Only the state that initiated the custody order can decide when to surrender exclusive continuing jurisdiction
192
What parental responsibility does a 3rd party donor have?
You can relieve a biological parent of responsibility of child support. Some states only allows this if the child was conceived by artificial insemination (not by sexual intercourse)
193
What does the Uniform Parentage Act provide regarding artificial insemination?
Provides that a parent who can consent in writing to artificial insemination by a donor that is performed by a licensed physician is treated as the natural parent rather than the donor
-If married, no court action needed to support parent rights to and terminate donor right
194
What was the holding of Astrue? How does this apply generally?
Denied social security benefits to children who were conceived posthumously. If you are conceived before the death, then social security benefits apply.
Results in these(inheritance/parentage) cases will vary depending on the state law.
195
What rights does a valid adoption create, extinguish, or entail?
A valid adoption permanently extinguishes the child-parent relationship between the child and their biological and establishes a new one between the child and their adoptive parents.
Adoptive parents enjoy the same constitutional rights as biological.
Adopted children enjoy the same inheritance and support rights as biological.
196
What are the two ways to adopt?
1. Agency adoption
Bio parents relinquish rights to agency who places the child in a selected family home
2. Independent Adoption, private placement adoption
The parties deal with each other directly or through a lawyer
Payment must be for pregnancy related services, to prevent “baby selling.”
197
What is ICWA? What affect does it have?
Governs jurisdiction over the removal of Native American children from their families in custody, foster care and adoption cases. It gives tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservations.If the child in any adoption is at any part native American you have to think about the ICWA because if it applies, it overcomes everything else.
198
What traditional factors do agencies and bio parents consider when matching a child with an adoptive family? What about today?
Traditionally 2 preferences
i. General Rule: prefer relatives to strangers
ii. Match the adoptive child to a family as closely as possible including race and religion
Today: Absolute prohibitions on transracial adoptions have been found unconstitutional, but using race as one factor is likely to survive a constitutional challenge
199
What are the different types of surrogacy?
i. Traditional: where the surrogate mother or parent is inseminated with proposed father’s sperm and the surrogate provides genes and gestation
ii. Common--> Gestational: embryo from intended parents is implanted in the surrogate and is basically just the oven
200
What is a man's traditional right to his sperm? How does conception in vitro change this?
Once a man ejaculates he loses legal control whether a child will result and whether he will be a parent.
However, modern cases give men or let them retain decisions authority in vitro: making an embryo in the lab
a. Right not to procreate
i. Right not to be a genetic parent
ii. Right not to be a legal parent
iii. Right not to be a gestational parent
201
What was the holding of St. Mary v. Damon?
Post dissolution dispute on how to share time with children made with reciprocal IVF. Determines there can be two legal mothers. Depends heavily on the parties’ intent. Court invokes the principle of freedom of contract.
202
What was the holding of Jason P?
A known sperm donor who is not married to the mother can be recognized as the father completely apart from the genetic connection. Just like a parent can become a presumed father by taking him into his home and holding them out to be his kid, if you act like a parent but are a donor, you can still be found to be a parent.
203
What was the holding of Prince?
The state as parens patriae has more authority to regulate children activities than adults in the interests of protecting the child and the state has not exceeded its authority here. States have child abuse and neglect laws, that take precedence over parental autonomy.
204
What was the holding of Stacy M v Jason M?
Parental relationship can’t be bifurcated. All or nothing choice - can’t have visitation without support.
205
What is the Constitutional Right to Privacy?
i. Right of personal privacy is implicit in the concept of liberty within the Due Process Clause.
ii. Privacy is a fundamental right.
206
What level of scrutiny did Zablocki apply? How? What was the result?
Preventing marriage when unpaid child support = “critical examination” of the states interests. Presumably more than rational but less than strict. To get to a higher level of scrutiny here, the court relies on the fundamental rights derived from the equal protection clause. The more the right in question appears fundamental, the more you should escalate the level of scrutiny.
The means for achieving the interests in the statute aren’t narrowly tailored so they significantly burden the right to marry.
207
What was the holding of Cincinnati Women's Services v. Taft?
Statute limiting minors to one judicial bypass per pregnancy (need judicial bypass, in lieu of parental consent, for abortion) is a substantial obstacle to getting an abortion.
208
What was the holding of Carhart?
Statute prohibiting physician from performing partial birth abortion is constitutional because the government had a legitimate and substantial interest in promoting and preserving fetal life. Statute did not impose an undue burden to find alternatives.
209
When can one bring a claim for Negligent Transmission of a Sexually Transmitted Disease against a spouse?
Must show the spouse had actual or constructive knowledge of the STD.
210
What is required for stalking?
a. Intent
b. Fear
i. Objective requirement that conduct causes
reasonable fear
ii. Some courts require objective and subjective
211
What standard of proof is required for termination of parental rights according to Santosky?
To terminate parental rights, state’s allegations must be proved by clear and convincing evidence. Some states use a higher standard than this.
212
What determinations are required for termination of parental rights?
Determine that both parents are unfit.
| Best interest of the child require termination.
213
What if a biological parent wants their child back after adoption?
Court should allow revocation of adoption when interest of child would be promoted and bio parent is fit, competent, and able to care for child.
i. Cannot consider fact that potential adoptive parent may be better able to care for child financially
ii. Giving child for adoption does not equal abandonment.
Court can only vacate adoption of child adopted pursuant to the laws of the state.
