Final exam Flashcards
(34 cards)
marital presumption
Michael H - a child born during a marriage is presumed to be the legal child of both spouses; built on the theory that we protect marriage from intruders–can we really consider V an intruder to the marriage when she was the one who went to the doctor to become pregnant and have a child with A? AND common law presumption -children born through artificial insemination in an intact marriage are the children of the husband and wife
biology parentage argument
genetics alone dont determine parentage if outweighed by intent or function; If we only allow motherhood based on the sharing of genes, we would disturb the intent of parents and intent of donors everywhere. We should instead depend on who wanted to be the parent, rather than who genetically is the parent.
intent based parentage
buzzanca - a person who intends to parent a child conceived via ART is a legal parent, even without genetic ties, and even if he disclaims interest in paying child support
de facto parentage
Conover, ALI - non-bio, non-adoptive, De facto parents have equal standing to bio parents to seek custody and visitation rights; a non legal parent is a de facto parent if they (1) lived with child for at least 2 years for reasons other than financial compensation; (2) performed a majority or = share of caretaking; (3) formed a bonded parent-child relationship; (4) with the consent of a legal parent to form a parent-child relationship or when the legal parent failed to perform caretaking functions regularly.
surrogacy
In re Baby M– traditional surrogacy contract for money void as against public policy
In Re KMH- the donor is only a parent if written agreement to become a parent.
Joint Custody
Rivero - joint custody needs to be 50/50 or at least 40%
Huelskamp- parents have to be able to get along, have similar parenting philosophies, put the kids first, and not engage in conflict.
custody coin flip argument
could be cheaper, quicker, and avoid
gender biases–but this could punish the parent who wants custody the most and reward the more risk averse parent
custody standard for decisions
best interests of the child!! what kid wants is not determinative.
Garska -We don’t want to unfairly punish the working spouse, and we want to avoid maternal stereotypes; if the parent had no previous emotional interactions with the children, the court can consider that as a factor.
Young -consider whether one parent has been spending time with the kids because they were anticipating a custody hearing like in this case; look to the past division of parental responsibility.
Hollon - tender years presumption, consider moral fitness questions
modification of custody standard
Can modify if you show material change in circumstances + best interest of the child UNLESS it was foreseeable
visitation under UMDA
noncustodial parent gets reasonable visitation rights unless it would seriously endanger the child’s physical, mental, moral, or emotional health.; We only cut off visitation for unfitness but not custody
third party visitation
Troxel -fit parents have a constitutional right to determine who visits their children because courts presume they are acting in the best interests of their child. Courts must give special weight to their decisions. A third party can only overcome this by showing severe emotional or psychological harm to the child or unfitness of the parents. THIS HAS BEEN NARROWED to only affect VISITATION and not custody. aimed at protecting the rights of a natural parent. There has to be a presumption that the parent knows the best interest of child, and only when you can overcome that presumption can u free urself from troxel.
more than two parents/ visitation
there can be more than two parents even though Obergefell really limits marraige
to two.
Dawn M. - some jurisdictions allow courts to recognize more than 2 legal parents if it’s in the best interest of the child. Key factors: emotional ties, caregiving history, detriment to child if contact ends; consider whether the kids consider the parents as their parents, whether the children would be devastated to not see the parents anymore
grandparents/visitation
Some jdx give grandparents limited standing
child support - mandatory parental duty
Kelley - legal parents can’t contract away child support obligations or child custody decisions i.e. in prenup
modification of child support
child support orders can be modified when there is a substantial change in financial circumstances
child Support from Functional Parents
Elisa B - courts may impose support obligations on a de facto parent or intended parent, even if not biologically related; you are presumed to be a parent if you (1) recieve the child into you home and (2) openly hold the child as your natural child.
Charisma- the parent in question had no biological ties to the kid, but the court found the intent to parent standard could grant an award of custody in the unmarried couple under Elisa B analysis.
common law marriage
only recognized in some states; requires capacity, mutual intent, holding out as spouses and cohabitation; not recognized in all states
Coon- - proving a common-law marriage requires clear evidence of mutual intent and public representation as spouses; strict evidentiary standards for common-law marriage; cohabitation alone isn’t enough.
Hargrave- intent + conduct are both essential for proving common- law marriage. Each case is fact-specific.court looked closely at the couple’s intent, shared finances, and how they presented themselves publicly. Ultimately, no marriage was found.
putative spouse doctrine
a person who believes in good faith they are married may be entitled to spousal protections (IF fraud is absent). Doesnt apply if deliberately chose not to get married civilly
unmarried cohabitants
Marvin- courts really are hesitant to enforce oral contracts; One cannot contract for custody or child support. Can contract for property unless sex is used as consideration. if so, the we can use contract law to find remedies. she should be refunded for her reliance to her detriment
Blumenthal- Two women in a long-term same-sex relationship (before marriage equality), co- owned property and raised children together. After their breakup, one sued for a share of jointly held assets and support; Illinois Supreme Court rejected the claims, refusing to apply Marvin-style reasoning; Shows that states vary on whether they allow claims between unmarried partners.
McGaw- choosing not to marry when able weakens equitable arguments; Courts would rather do what is best for the children, rather than making one party to a “marriage” whole when they could have actually gotten married civilly and avoided this mess. (McGaw)
marriage as a special and sacred status
Bix and Obergefell- marriage is what you are, not just a contract
intact marriages
McGuire- Wife sued her husband for financial support while they were still legally married but living apart (he refused to provide money even though she lived in the family home); courts’ reluctance to interfere in ongoing marriages
Griswold- A state law banning contraceptives even for married couples as unconstitutional; Court found a right to marital privacy implied by the “penumbras” of the Bill of Rights
marriage as a constitutional right
Loving - marriage is a constitutionally protected fundamental right under Equal Protection and Due Process Clauses of the 14th Amendment; limits state power to regulate marriage based on discriminatory classifications; interracial couple married in D.C. and returned to Virginia, where they were sentenced to prison under a state law banning interracial marriage; Supreme Court struck down the law as unconstitutional; consider whether the reasons cited are even legitimate or if they are simply
a ploy for something else. In case, the state argued that the VA law was in place because of “science”. It was actually in place for white supremacy reasons. If you argue that it is discriminatory against those who are in conjugal relationships, we may proceed under an equal
protection analysis.
Obergefell - marriage is a fundamental right under the Due Process and Equal Protection clauses; Court held that same-sex couples have a constitutional right to marry under the Due Process and Equal Protection Clauses.
Zablocki- the right to marry is fundamental, and linked to the right to privacy; Wisconsin law barred people with unpaid child support from getting married without court approval; Court struck down the law
due process analysis
Due Process- The 5th/14th amends protect citizens from the deprivation of life/liberty/property without due process of law–thus we want to restrict the govt’s ability to intrude upon these rights. We allow courts to strike down laws that trample people’s fundamental rights. Laws burdening marriage or parenthood must survive strict scrutiny to prove the law is necessary
Strict scrutiny analysis- (1) does this law infringe upon a fundamental right (2) has the govt shown a compelling interest for infringing on that right? (3) are the means used to achieve the compelling interest narrowly tailored so that they are the least restrictive
possible?
equal protection analysis
Government classifications (i.e. restricting benefits to conjugal couples) must at least meet rational basis test or intermediate scrutiny if it involves gender
Analysis- is the law substantially related to the important govt purpose?
Eisenstadt- A Massachusetts law only allowed married people to access contraception. Baird was arrested for giving birth control to an unmarried woman. Law violated Equal Protection. The right to privacy applies to individuals, not just married couples.
