Family Law: Cases and Materials (7th ed.) by Areen
The Extended Family – Moore v. City of East Cleveland
Year: 1977
Court:
2. Disposition: Reversed.
3. Holding: the choice of relatives in this degree of kinship to live together may not lightly be denied by the State.
4. Issue: Does East Cleveland’s housing ordinance, which recognizes as a family only a few categories of related individuals, violate the Due Process Clause of the 14th Amendment?
5. Procedural History: Moore was convicted and sentenced to a fine and five days in jail. Moore appealed to the court of appeals of Cuyahoga County, Ohio, which sustained her conviction.
6. Facts: Inez Moore (defendant) lived in East Cleveland in a home with her son and two grandsons. Under the housing ordinance, this arrangement was outside the legal definition of “family.” Moore received a notice of violation of the ordinance from the CEC, and when she refused to modify her living arrangement, Moore was charged with criminal penalties.
7. Rule:
8. Reasoning: When the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.
The city seeks to justify it as a means of preventing overcrowding, minimizing traffic and parking congestion, and avoiding an undue financial burden on East Cleveland’s school system. -> the ordinance serves them marginally.
Brennan concurring: the prominence of other than nuclear families among ethnic and racial minority groups surely demonstrates that the extended family pattern remains a vital tenet of our society.
Stewart dissenting: in Belle Torre, the ordinance involved no fundamental right guaranteed by the Constitution. When the Court has found that the 14th Amendment placed a substantive limitation, it has been when the interests at issue were implicit in the concept of ordered liberty. This case does not rise to that level.
Marriage – Obergefell v. Hodges
Year:
Court:
2. Disposition:
3. Holding:
4. Issue:
5. Procedural History:
6. Facts: When John Arthur, the partner of James Obergefell (plaintiff), became terminally ill, the pair decided to marry. The couple wed in Maryland, where same-sex marriage was legal. After Arthur died, however, the couple’s home state of Ohio refused to list Obergefell as Arthur’s surviving spouse on the death certificate.
7. Rule:
8. Reasoning: the petitioners seek it for themselves because of their respect and need for its privileges and responsibilities. And their immutable nature dictates that same sex marriage is their only real path to this profound commitment.
Emens, Monogamy’s Law: Compulsory Monogamy and Polyamorous Existence
Two impulses towards inclusion of nonsexual: Many polys oppose hierarchy and strict definitions. Polys may not want to define their nonsexual relationships as different from sexual.
Exclusivity refers to whether someone has sex with people outside a relationship. Numerosity concerns how many people are in a relationship.
1. April Divilbiss. April, Chris, and Shane moved in. April’s child’s grandmother filed for removal of the child and for custody. The judge rejected April’s constitutional claims.
2. Eddie Simmons. A four person relationship was formed over time. Adam and Amber are married but others are not.
3. Elizabeth Joseph. She lives with husband Alex and his eight other wives. Lifestyle is attractive to modern carrier woman. Polygamy provides a whole solution. Female friendship is the great reward.
4. Dossie Easton. Easton rejected monogamy after a brutally possessive relationship.
Davis, Regulating Polygamy: intimacy, default rules, and bargaining for equality
Secular defenses of polygamy came from radical feminists and black nationalists. Polygamy is seen as a way to rescue black masculinity and restore patriarchy to the black community. Black nationalists and conventional conservatives view marriage as the best antidote to poverty and sexual immorality. Black nationalists advocate plural marriage as a way to further separate the black community from mainstream American culture. Radical feminists view polygamy as more effective than pressuring husbands to change and conform to women’s expectations. Polygamy can provide a sisterhood, generate more adults committed to balancing work-family obligations, and allow more leisure time. Two groups share combination of pragmatism and identitarian idealism.
Schneider, the channeling function in family law
In the channeling function: the law creates or supports social institution which are thought to serve desirable ends. Marriage and parenthood are two social institutions which illustrate the working of family law’s channeling function. Family law sets a framework of rules: it writes standards for entry into marriage, standards which prohibit polygamous, incestuous, and homosexual unions. Laws criminalizing fornication, cohabitation, adultery, and bigamy in principle limit parenthood to married couples, and those legal disadvantages that still attach to illegitimacy make it wise to confine parenthood to marriage.
The law perform the first task of the channeling function to create social institutions and to mold and sustain them. The second task is to channel people into institutions. It can perform these tasks by recognizing and endorsing institutions, thus giving them some aura of legitimacy and permanence. A second channeling technique is to reward participation in an institution. Third, the law can channel by disfavoring competing institutions.
The institution of marriage would be part of a comfortable social vocabulary.
Channeling function is improper because it violates some visions of state neutrality -> one cannot abolish the channeling function in family law; family law’s goals, particularly those goals represented by the protective, arbitral, and facilitative functions, are so central that they are unlikely to be abandoned.
McClain, Love, marriage, and the baby carriage: revisiting the channeling function of family law
The departures from the sequence love-marriage-baby carriage may not be wholly voluntary, but relate to forms of economic disadvantage and inequality. Second example of an altered or scrambled sequence is baby carriage and motherhood, then maybe love and marriage. Third example is love-baby carriage-marriage by governmentally funded education instead of no marriage at all. Recognizing how ends may conflict may help us grapple with the challenges posed by changing social norms and practices.
Lenhardt, Race, dignity and the right to marry
Girgis, What is marriage?
Conjugal view: marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. Revisionist view: marriage is the union of two people who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life.
Individual adults are naturally incomplete with respect to one biological function: sexual reproduction. The whole is made up of the man and woman as a couple, and the biological good of that whole is their reproduction. Marriage is deeply oriented to having and rearing children.
Essig, What if marriage is bad for us?
Restrictions on who may marry – Loving v. Virginia
Year: 1967
Court:
2. Disposition: Reversed.
3. Holding: The freedom to marry a person of another race resides with the individual and cannot be infringed by the State.
4. Issue: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the 14th Amendment.
5. Procedural History: The Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statutes and affirmed the convictions.
6. Facts: In June 1958, Mildred Jeter, an African American woman, and Richard Loving, a Caucasian man (defendants), were married in the District of Columbia pursuant to its laws. They later moved to Virginia (plaintiff) and resided in Caroline County. The laws of Virginia, however, banned interracial marriages within the state. In October 1958, the Lovings were indicted for violating the Virginia law.
7. Rule:
8. Reasoning: the State argues that the meaning of the Equal Protection Clause is that state penal laws containing an interracial element must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Because its miscegenation statutes punish equally both the white and the Negro participants, these statutes do not constitute an invidious discrimination based upon race.
The second argument advanced by the State is that the question of whether there was any rational basis for a State to treat interracial marriages differently is in doubt scientifically and the Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.
Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. These statutes deprive the Lovings of liberty without due process of law in violation of the Due Process Clause. Marriage is a basic civil right fundamental to our very existence and survival.
Restrictions on who may marry – Zablocki v. Redhail
Year: 1978
Court:
2. Disposition: affirm.
3. Holding: the statute cannot be justified by the interests advanced in support of it.
4. Issue: whether the Wisconsin statute, which states members of a certain class of Wisconsin residents may not marry without first obtaining a court order granting permission to marry, is constitutional. The statute specifies that the applicant submit proof of compliance with the support obligation.
5. Procedural History: the USDC for the Eastern District of Wisconsin held that the statute is unconstitutional under the Equal Protection Clause.
6. Facts: Redhail (plaintiff), a Wisconsin resident, fathered a child out of wedlock in high school. A paternity action was instituted against him in 1972. Redhail appeared in court and admitted to fathering a baby girl. The court entered an order requiring him to pay monthly child support until the girl reached age 18. For the next two years, Redhail was unemployed and indigent and was unable to make any child-support payments. In 1974, he filed an application for a marriage license with Zablocki (defendant), the county clerk of Milwaukee County. Redhail’s application was denied on the grounds that he had not obtained a court order granting him permission to marry.
7. Rule:
8. Reasoning: reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. (does statute directly and substantially interfere with the right to marry)
When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. Appellant argues proceeding furnishes an opportunity to counsel as to the necessity of fulfilling his prior support obligations and the welfare of the out-of-custody children is protected. -> the means impinge on the right to marry.
The statute provides incentive to make support payments to his children -> such “collection device” rationale cannot justify the statute’s broad infringement on the right to marry.
The statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant’s prior children. The State already has numerous other means for exacting compliance with support obligations.
The statute prevents the applicants from incurring new support obligations -> the statute is underinclusive since they do not limit in any way new financial commitments by the applicant other than those arising out of the contemplated marriage. It is overinclusive because the new spouse will better the applicant’s financial situation.
Stewart concurring: the statute is unconstitutional because it exceeds the bounds of permissible state regulation of marriage and invades the sphere of liberty protected by the Due Process Clause of the 14th Amendment.
Powell concurring: the Court does not present any principled means for distinguishing between the two types of regulations, those that do not and do significantly interfere with decisions to enter into the marital relationship.
Stevens concurring: the rich may marry and the poor may not; this type of statutory discrimination is totally unprecedented, as well as inconsistent with our tradition of administering justice equally to the rich and to the poor.
Rehnquist dissenting: under the Equal Protection Clause the statute need pass only the rational basis test.
Restrictions on who may marry – Turner v. Safley
Year: 1987
Court:
2. Disposition:
3. Holding: elements are sufficient to form a constitutionally protected marital relationship in the prison context. Missouri marriage regulation is facially invalid.
4. Issue:
5. Procedural History:
6. Facts: The Missouri Division of Corrections (DOC) (defendant) forbid prison inmates from marrying unless permitted by the prison superintendent for a “compelling reason.” Missouri inmates (plaintiffs) filed a class action seeking an injunction against the regulation and damages. The DOC contended that the regulation was necessary to maintain prison security and to carry out rehabilitative objectives.
7. Rule:
8. Reasoning: State argues Zablocki does not apply to inmates and marriage is not a fundamental right here. Not apply strict scrutiny but apply rational basis.
petitioners argue that the rule does not deprive prisoners of a constitutionally protected right. Even if the regulation burdens inmates’ rights, the restriction should be tested under a reasonableness standard. -> Zablocki applies to prison inmates.
Inmate marriages are expressions of emotional support and public commitment. Many religions recognize marriage as having spiritual significance. Most inmates eventually will be released and marriages are formed in the expectation that they will be consummated. Marital status is a precondition to the receipt of government benefits property rights, and other benefits.
Security concern: love triangles might lead to violent confrontations between inmates. -> There are alternatives to the regulation that accommodate the right to marry while imposing a de minimis burden on the pursuit of security objectives. Petitioners pointed to nothing in the record suggesting that the regulation prevents such entanglements. Common sense suggests no connection between the restriction and the triangles.
Rehabilitation concern: female prisoners often were subject to abuse at home or were overly dependent on male figures and they were connected to the crimes they had committed. Prohibition on marriage developed self-reliance. -> the rule sweeps broadly. The justification does not explain banning marriages by male inmates that had no problems. It does not account for the prohibition on marriages to civilians. Objective is suspect because only one female inmate was refused on this basis.
Restrictions on who may marry – Obergefell v. Hodges
Year: 2015
Court:
2. Disposition: reversed.
3. Holding: same-sex couples may exercise the fundamental right to marry.
4. Issue: 1) whether the 14th Amendment requires a State to license a marriage between two people of the same sex. 2) whether the 14th Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.
5. Procedural History:
6. Facts: The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. They claim the respondents violate the 14th Amendment by denying them the right to marry or to have their marriages given full recognition.
7. Rule:
8. Reasoning: The reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The right to personal choice regarding marriage is inherent in the concept of individual autonomy. The right supports a two-person union unlike any other in its importance to the committed individuals. The right safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education (many same-sex couples provide loving and nurturing homes to their children). The cases and the traditions make clear that marriage is a keystone of our social order.
Just as a couple vows to support each other, the society pledges to support the couple, offering symbolic recognition and material benefits to protect and nourish the union.
By virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.
Challenged laws burden the liberty of same sex couples and abridge central precepts of equality. The laws are unequal: same sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.
Allowing same-sex couples to wed will lead to fewer opposite-sex marriages -> unrealistic.
Roberts dissenting: marriage arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. For the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond. The right to marry cases stand for the proposition that particular restrictions on access to marriage as traditionally defined violate due process, not about a right to make a State change its definition of marriage. The marriage laws at issue do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ legitimate state interest in preserving the traditional institution of marriage.
Thomas dissenting: the Constitution contains no dignity Clause and the government is incapable of bestowing dignity.
Restrictions on the Procedure for marrying – Jones v. Perry
Year: 2016
Court:
2. Disposition:
3. Holding: Jones’s motion for injunctive relief is granted. Perry is permanently enjoined from requiring Sauer to appear.
4. Issue:
5. Procedural History:
6. Facts: Bradley Jones (plaintiff) was engaged to Kentucky state prisoner Kathryn Sauer. In July 2016, Jones sought a marriage license from Shelby County clerk Sue Perry (defendant). Perry refused to issue the license, asserting that her office interpreted Kentucky law as requiring both fiancés to appear in person before the clerk before a marriage license could be issued.
7. Rule:
8. Reasoning: the constitutional right at issue here is plain. Perry argues that the Court should apply rational basis review to the in-person requirement.
Perry argues her policy does not impose a direct and substantial burden because Jones and Sauer remain free to marry anybody they want just not each other. -> loved ones are not fungible commodities.
The in-person requirement absolutely prevents Jones from marrying Sauer, and absolutely prevents him from marrying a large portion of the population. The policy imposes a direct and substantial burden.
The in-person requirement is not closely tailored to effectuate only that interest. Alternative methods could just as easily effectuate that interest. Perry could drive up the road and watch Sauer.
The irreparable harm to Jones flows naturally from Perry’s violation. The court cannot remedy through monetary damage alone. The balance of harms tips in Jones’s favor. The public has an interest in vindicating marriage.
Jones sued Perry not warden to increase the likelihood of winning. Zablocki applies. (1) large portion are barred from marrying; (2) prevented from marrying a large portion of marriage pool. (2) applies here.
Traditional restrictions, incest – State v. Sharon H.
Year: 1981
Court:
2. Disposition: Reversed.
3. Holding: Court erred in dismissing the information charging Sharon and Dennis H. with violations of 102 and 1221. Statute applies to half-siblings.
4. Issue:
5. Procedural History:
6. Facts: Sharon H. (defendant) married her half-brother by blood, Dennis H. (defendant). The defendants were born to the same mother but had different fathers. The defendants were arrested for violating a state law that prohibited marriage between relatives, including marriage between a brother and sister related by blood.
7. Rule:
8. Reasoning: defendants contend that 13 Del.C 919 must be read to end all relationships between the adopted child and its natural parents and kin, including the blood ties the State asserts are the basis for the provision. The State contends the Legislature did not intend such a result.
Section 101(a)(1) of Title 13 is consanguinity statute that prohibits marriages between blood relatives in the lineal, or ascending and descending lines. It is based in Biblical prohibition on incestuous relationships. Another reason is genetic inbreeding allows unfavorable traits to be passed on.
Appellees argue that 101(a)(1) is a penal statute applied through 102 and must be strictly construed in favor of the appellees. Since 101(a)(1) does not expressly prohibit marriages between a half-brother and half-sister, the Court must construe it in favor of appellees. -> disagree. Strict construction does not require the Court to adopt an unreasonable construction. 101(a)(1) does not have any reasonable ambiguity.
Appellees contend that 919 ends all relationships between an adopted child and its natural relatives. -> 919 only eliminates the legal ties between the adopted child and its natural parents and does not bar application of 101 and 102.
Policy of maintaining the secrecy of adoption records bars any inquiry into the facts of the adoption -> 923 and 924 were not intended to eliminate any inquiry into the facts surrounding an adoption. They do not prohibit the State from presenting its case against the appellees.
Traditional restrictions, incest – Back v. Back
Year: 1910
Court:
2. Disposition:
3. Holding: the relationship terminated when plaintiff’s mother procured a divorce from decedent, and after that time plaintiff was not the daughter of decedent’s wife, and the marriage between them was valid.
4. Issue:
5. Procedural History:
6. Facts: Back (Back) married Mrs. Dirke, who had a daughter, Reacke Back (Reacke) (plaintiff), by her late husband. Reacke was thus Back’s stepdaughter. Back and Dirke later divorced. Subsequently, Back married Reacke. Back died, and Reacke brought suit against the executor of Back’s estate (defendant), seeking a declaratory judgment that Reacke was entitled to a share of Back’s estate as his widow.
7. Rule:
8. Reasoning: the enumeration of relationships is simply a method of stating more definitely what are the degrees of consanguinity or affinity rendering marriage or carnal knowledge between persons of the relationships named criminal.
Levi-Strauss, the family, in man, culture and society
Mead, Anomalies in American post-divorce relationships, in divorce and after
Traditional restrictions, age – IN re J.M.N.
Year: 2008
Court:
2. Disposition:
3. Holding: the marriage remains valid and Henry and Jacy remain husband and wife.
4. Issue:
5. Procedural History: Judge McMahan orally and then in writing granted Father’s motion to set aside the order because it was inappropriate for Mother to make the decision without notifying Father. It had the effect of rendering Jacy’s marriage void and the petition for annulment moot.
6. Facts: Jerry Nix (father) (plaintiff) and Amy Cantrell (mother) (defendant) were married and later divorced. They had a daughter, Jacy Marie Nix (Jacy). The father had custody of Jacy, while the mother, who had a history of mental illness, had visitation rights. When Jacy was 14 years old, the mother took Jacy and Jacy’s 18-year-old boyfriend to the Juvenile Court for McNairy County without the father’s knowledge to get married. Jacy’s mother signed a consent form for the marriage. The juvenile court then issued an order waiving the marriage-age restriction and authorizing the county clerk to issue Jacy and her boyfriend a marriage license. Jacy and her boyfriend took the court order to the clerk’s office and were married. The mother then informed the father of Jacy’s marriage. The father filed a motion in juvenile court to set aside the court’s previous order.
7. Rule:
8. Reasoning: Mother contends that the trial court erred, asserting that there was no evidence that she committed a fraud upon the court in obtaining the order. Mother also argues that the court erred in permitting Judge Gray to testify. -> the Juvenile Court did not abuse its discretion in setting aside the order giving Jacy permission to marry.
In TN, a marriage between a minor and an adult is voidable.
Traditional restrictions, polygamy – Collier v. Fox
Year: 2018
Court:
2. Disposition:
3. Holding: grand Defendants’ Motion for Summary Judgment and deny the Colliers’ MSJ.
4. Issue:
5. Procedural History:
6. Facts: Nathan and Vicki Collier (plaintiffs) had been married since 2000. Nathan was also in a committed relationship with Christine Collier (plaintiff) and wanted to marry Christine. In June 2015, Nathan and Christine applied for a marriage license in Yellowstone County, Montana. The application was denied, and the county attorney’s office sent a letter explaining that the marriage license could not be granted because it would violate Montana statutes criminalizing polygamy.
7. Rule:
8. Reasoning: the Colliers do not identify any manner in which Vicki has suffered or could suffer an injury in fact based on any of Montana’s anti-polygamy laws. The Colliers do not establish that “economic and familial interests” constitute legally protected interests. Vicki does not have standing.
The Colliers have never faced prosecution for violation of statute. The Colliers are raising a pre-enforcement challenge to these statutes. Plaintiffs should show an actual or imminent injury to a legally protected interest.
To determine the genuineness of a claimed threat of prosecution, consider (a) whether the plaintiffs have articulated a concrete plan to violate the law in question; (b) whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings; and (c) the history of past prosecution or enforcement under the challenged statute.
The Court will assume without deciding that the Colliers can satisfy the first factor. The Colliers refer to the Denial Letter. This statement does not threaten prosecution. The State states the Colliers are not in violation of the laws. The Colliers have not identified a single instance of bigamy prosecution in Montana. The Colliers have failed to demonstrate injury in fact and do not have standing.
The Colliers have sufficiently raised a challenge to the civil marriage statute. They applied for a marriage license and were denied and this is sufficient to confer standing to challenge civil statute prohibiting polygamy. It invaded a legally protected interest which is (a) concrete and particularized and (b) actual or imminent; (2) the injury would be fairly traceable to Defendants’ refusal to grant the license; and (3) a favorable decision from the Court could resolve their injury. The Colliers’ challenge to Mont. Code is ripe.
The Court follows Reynolds. The Colliers allege the laws have infringed upon rights to cohabitate, and so on. -> the Colliers have not presented any evidence that Defendants have prevented them from exercising the rights but engaged in the conducts.
Restrictions on the Procedure for Marrying – Rappaport v. Katz
Year: 1974
Court:
2. Disposition: complaint dismissed.
3. Holding: the forms and the degree of decorum at weddings in the City Clerk’s office do not sufficiently justify provoking a federal-state conflict.
4. Issue: whether the federal courts should supervise marriage forms and procedures in City Clerk’s offices.
5. Procedural History:
6. Facts: The city clerk of New York City, Herman Katz (defendant), instituted a dress code providing guidelines for wedding ceremonies. Two couples (plaintiffs), one who was married at City Hall and one who planned to be married at City Hall, brought suit, alleging that the guideline violated their civil rights with respect to the fundamental right to marry and the freedom of expression. The brides wished to wear pants at their respective City Hall wedding ceremonies.
7. Rule:
8. Reasoning:
State of Mind Restrictions – Lester v. Lester
Year: 1949
Court:
2. Disposition:
3. Holding: What they have signed and sealed after they have entered into a marriage is not enforceable when the purport of that agreement runs counter to the established law.
4. Issue:
5. Procedural History:
6. Facts: The Lesters signed an agreement stating that: (1) Mrs. Lester married Mr. Lester because she was not willing to leave Mr. Lester; (2) Mr. Lester married Mrs. Lester only because of the serious; and (3) the marriage was not to be interpreted as an actual marriage under any condition. The Lesters then lived as a married couple for approximately 10 years. Mrs. Lester brought suit for support after the marriage ended. Mr. Lester argued that the marriage was not intended to be real and thus was void ab initio.
7. Rule:
8. Reasoning: has the marriage contract entered into between the parties before me been the result of coercion, threat, force, fraud or other taint? The testimony and the documentary negative the assertion.
Private individuals may not by agreement set aside the law of the land. They may not declare that which is valid in law null and void.
The respondent’s claim of coercion or threat seems to be unfounded in light of his relationship for about ten years.
Prenuptial agreement and post nuptial (separation) agreement.
State of Mind Restrictions – Johnston v. Johnston
Year: 1993
Court:
2. Disposition: the granting of a nullity of the marriage is reversed and a judgment of dissolution shall be entered. The parties’ respective property rights shall be determined based on their previous stipulations. In all other respects, the judgment is affirmed.
3. Holding:
4. Issue:
5. Procedural History:
6. Facts: Brenda filed for an annulment based on fraud. Donald agreed that the marriage should end but argued that the end should not occur via annulment. Brenda testified that Donald had a drinking problem of which she was not aware when they got married. Brenda also testified that although she knew Donald was unemployed when they got married, she expected the husband to obtain employment after getting married. Donald was respectful before but never treated Brenda with respect after marriage.
7. Rule:
8. Reasoning: Donald complains the evidence is insufficient to support a finding of fraud. -> he is correct.
The concealment of incontinence, temper, idleness, extravagance, coldness or fortune inadequate to representations cannot be the basis for an annulment. In California, fraud must go to the very essence of the marital relation before it is sufficient for an annulment.
She deeded the property to Donald because they were married. If the marriage is void, then so is the deed. -> reversed.
Fraud going to the essence of marriage: intent to procreate, pregnancy, religion, divorce, criminal record, race
State of Mind Restrictions – In re the marriage of Farr
Year: 2010
Court:
2. Disposition: affirm.
3. Holding: misrepresentation did go to the essence of the remarriage.
4. Issue:
5. Procedural History: the district court declared marriage invalid.
6. Facts: Approximately four years later, in 2003, Larry told Joy that he was terminally ill and would die within a few years. As a result, Joy agreed to remarry Larry solely because she did not want him to die alone. The couple remarried in 2004. In 2007, Larry filed for another divorce. Joy counterclaimed for a declaration that the second marriage was invalid, arguing that Larry had committed fraud when he told her that he was terminally ill.
7. Rule:
8. Reasoning: husband contends that the trial court applied the wrong standard of proof and the court abused its discretion in finding that his representation was fraudulent and in neglecting to determine whether that representation went to the essence of the marriage.
The trial court did not err in applying a preponderance of the evidence standard when determining wife’s petition.
Reject husband’s contention that the court abused its discretion in invalidating the parties’ marriage. Reject husband’s contention that the trial court bypassed the statutory requirement that his misrepresentation go to the essence of the marriage. It is adequate to imply that the court found that the misrepresentation went to the essence of the marriage. Reject husband’s contention that a misrepresentation about prognosis cannot go to the essence of the marriage.
Common law marriage – Hargrave v. Duval-Couetil (In re Estate of Duval)
Year: 2010
Court:
2. Disposition: reversed.
3. Holding: the circuit court erred when it held that Duval and Hargrave entered into a common-law marriage. Hargrave could not prove by clear and convincing evidence that the couple entered into a valid common-law marriage while in OK.
4. Issue: (1) whether South Dakota will give effect to a common-law marriage established by South Dakota domiciliaries while living in a jurisdiction that recognizes common-law marriage.
5. Procedural History:
6. Facts: Although Hargrave and Duval held themselves out as husband and wife, they were never formally married. Duval did appoint Hargrave as his health-plan beneficiary and granted Hargrave his power of attorney. When Duval died, Hargrave filed a petition in circuit court to be declared Duval’s surviving spouse under the common law for purposes of inheriting from Duval’s estate. The petition was opposed by Duval’s daughters (defendants). South Dakota did not recognize common-law marriage, but Oklahoma did recognize such marriages.
7. Rule:
8. Reasoning: Hargrave relies on SDCL 19-8-1. Daughters argue that the domicile of the couple controls their ability to enter into a common-law marriage. Daughters further allege that at all relevant times, Duval and Hargrave were domiciled in South Dakota. We do not interpret Garcia as requiring domicile in the state in which the marriage occurred. SD does not require domicile in the foreign jurisdiction before recognizing that jurisdiction’s common-law marriage scheme.
Under OK law, a common-law marriage occurs upon: a declaration by the parties of an intent to marry, cohabitation, and a holding out of themselves to the community of being husband and wife.
The circuit court made no finding on mutual agreement or declaration of intent to marry. SDCL 25-1-38 states that a marriage must be contracted in the other jurisdiction before SD will recognize the marriage as valid. -> failing to establish that mutual assent or a declaration to marry took place, Hargrave could not meet the first requirement.
Common law marriage – Coon v. Tuerk
Year: 2014
Court:
2. Disposition:
3. Holding: the elements of a common law marriage existed upon their exchange of rings in May of 1999. The impossibility was removed on May 3, 2010, when the Religious Freedom and Civil Marriage Equality Amendment Act became effective.
4. Issue:
5. Procedural History:
6. Facts: the parties were in a romantic relationship for 18 years. Defendant asked Plaintiff to marry him and gave a ring. Gore’s book portrayed the parties as married. The parties signed a document akin to pre nuptial. Defendant went through chemotherapy and Plaintiff was present and cared for him.
7. Rule:
8. Reasoning: the parties could not have been common law married prior to March 3, 2010, and ask whether the parties became common law married on or after March 3, 2010. If the parties cohabitated as spouses following an express mutual agreement in words of the present tense, they became married pursuant to the common law. Same-sex marriage was not legally recognized in 1999 and the marriage was a legal impossibility.
Plaintiff testified that he replied affirmatively to Defendant’s proposal. Defendant does not recall but is certain that neither party agreed to be married. Based upon the totality of the record and the parties’ demeanor as witnesses, the Court credits Plaintiff’s testimony.
There was no evidence or testimony regarding attempts by Defendant to correct or contradict references as spouses.
The burden of proof is preponderance of the evidence.
The traditional model of marriage, Blackstone, 1 Commentaries on the Laws of England
Marital Privacy – McGuire v. McGuire
Year: 1953
Court:
2. Disposition: reverse and remanded.
3. Holding:
4. Issue:
5. Procedural History: the district court decreed that the plaintiff was legally entitled to use the credit of the defendant, …
6. Facts: During the marriage, Mr. McGuire rarely gave Mrs. McGuire any money. She purchased groceries and items for herself by selling poultry and eggs. In her old age, Mrs. McGuire lost the ability to make money through raising chickens. Mr. McGuire paid for three surgeries that Mrs. McGuire required, but he would not pay for new household furnishings or other items that Mrs. McGuire believed they needed. His financial assets were fairly substantial, but he refused to disclose them to Mrs. McGuire. Without filing for separation or divorce, Mrs. McGuire sued her husband for support and maintenance.
7. Rule:
8. Reasoning: to maintain an action such as the one at bar, the parties must be separated or living apart from each other. As long as the home is maintained and the parties are living as husband and wife it may be said that the husband is legally supporting his wife and the purpose of the marriage relation is being carried out.
Yeager dissenting: the conclusion that the decree that the district court had the power to entertain the action was not contrary to law. The court was without proper power to make any of the awards except the one of $50 a month.
Bradwell v. Illinois: The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.
Dobbs v. Jackson Women’s Health
Year: 2022
Court: Supreme Court of the US
2. Disposition: Reversed.
3. Holding: Roe and Casey must be overruled. The authority to regulate abortion must be returned to the people and their elected representatives.
4. Issue: whether the Constitution confers a right to obtain an abortion.
5. Procedural History:
6. Facts: the State of Mississippi asks to uphold the constitutionality of a law that generally prohibits an abortion after the 15h week of pregnancy.
7. Rule:
8. Reasoning: the Constitution makes no express reference to a right to obtain an abortion. Casey states that the abortion rights is an aspect of the liberty protected by the Due Process Clause of the 14th Amendment. The Court has long asked whether the right is deeply rooted in our history and tradition and whether it is essential to our Nation’s scheme of ordered liberty. (test for determining whether it is a fundamental right)
Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Abortion had long been a crime in every single State. An unbroken tradition of prohibiting abortion persisted from the earliest days of the common law until 1973.
Ordered liberty sets limits and defines the boundary between competing interests. It does not prevent the people’s elected representatives from deciding how abortion should be regulated.
These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s concept of existence prove too much. What sharply distinguishes the abortion right is abortion destroys what those decisions call potential life and what the law at issue in this case regards as the life of an unborn human being.
Five factors weigh in favor of overruling: the nature of their error, the quality of their reasoning, the workability of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance. (1) The Court usurped the power to address a question that the Constitution leaves for the people. (2) Roe failed to ground its decision in text, history, or precedent. Why reason and fairness demanded that the line be drawn at viability the Court did not explain. (3) Casey’s undue burden test is not workable – that is, it cannot be understood and applied in a consistent and predictable manner. (4) Roe and Casey have led to the distortion of many important but unrelated legal doctrines. (5) our decision concerns the constitutional right to abortion and no other right.
Thomas concurring: the Due Process Clause does not secure any substantive rights, including abortion right.
Kavanaugh concurring: a right to abortion is not deeply rooted in American history and tradition. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve.
Roberts concurring: the viability line established by Roe and Casey should be discarded. The previously recognized abortion right does not bar all abortion restrictions prior to viability and there is no need to go further.
Breyer dissenting: the Court has linked the right to abortion to other settled freedoms. The Court reverses because the composition of this Court has changed. The guarantee of liberty encompasses conduct today that was not protected at the time of the 14th Amendment. A woman’s freedom and equality are likewise involved. The constitutional regime today erases the woman’s interest and recognizes only the State’s. The ratifiers did not understand women as full members of the community embraced by the phrase “We the People.” Framers defined rights in general terms, to permit future evolution in their scope and meaning. Today’s decision forces her to carry out the State’s will. Casey reached the conclusion that stare decisis operates powerfully here. It still does. There is nothing unworkable about Casey’s undue burden standard. Its focus is familiar to judges across a variety of contexts. Whether they choose to parent or not, they will experience the profound loss of autonomy and dignity that coerced pregnancy and birth always impose. Roe and Casey created overwhelming reliance interests. 45% of pregnancies in the US are unplanned. The greatest burden will fall on women who cannot afford to travel. When Roe and Casey disappear, the loss of power, control, and dignity will be immense. Weakening stare decisis threatens to upend bedrock legal doctrines, creates profound legal instability, and calls into question the Court’s commitment to legal principle.
Roe was centered on the right to privacy. Majority came up with the trimester framework, where the State cannot impose restrictions. In Casey, substantive due process was central.
The Doctrine of Family Privacy – Planned Parenthood v. Casey
Year: 1992
Court:
2. Disposition:
3. Holding: the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy.
4. Issue: whether the State can resolve the philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.
5. Procedural History:
6. Facts: The suit challenges five provisions of the PA Abortion Control Act of 1982 on their face: section 3295, which requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed; 3206, which mandates the informed consent of one parent for a minor to obtain an abortion but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent’s consent; 3209, which requires that a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion; and which imposes certain reporting requirements on facilities.
7. Rule:
8. Reasoning: Roe has three parts. (1) recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. (2) a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. (3) State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus.
THe Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold v. CT.
Roe’s underpinnings are unweakened in any way affecting its central holding.
We reject the trimester framework, which we do not consider to be part of the essential holding of Roe.
Undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty. A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid.
Petitioners contend that the definition of medical emergency is too narrow, foreclosing the possibility of an immediate abortion despite some significant health risks. -> the medical emergency definition imposes no undue burden.
Requiring that the woman be informed of the availability of information is a reasonable measure and there is no undue burden.
The waiting period does not constitute an undue burden.
Respondents attempt to avoid the conclusion that 3209 is invalid by pointing out that it imposes almost no burden. The effects are felt by one percent of the women who obtain abortions. -> disagree.
A State may not give to a man the kind of dominion over his wife that parents exercise over their children. Section 3209 is repugnant to our present understanding of marriage and is invalid.
A State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure.
Scalia concurring and dissenting: Abortion is to be resolved through voting. (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed. Applying the rational basis test, uphold the PA statute in its entirety. Court explains how the word “liberty” must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives.
Battered Women’s Syndrome – People v. Humphrey
Year: 1996
Court:
2. Disposition:
3. Holding: evidence of battered women’s syndrome is generally relevant to the reasonableness and subjective existence of Defendant’s belief in the need to defend and the jury may consider it in deciding both questions. Disapprove Aris and Day.
4. Issue:
5. Procedural History: The district court sentenced Defendant to prison for eight years. The Court of Appeal remanded for resentencing on the use enhancement but affirmed the judgment.
6. Facts: Humphrey (defendant) shot Albert Hampton in their home. When the police arrived, Humphrey told them that she had shot Hampton because she did not want him to “beat on her” anymore. The trial court granted Humphrey’s motion for acquittal of first-degree murder.
7. Rule:
8. Reasoning: For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. To constitute perfect self-defense, i.e. to exonerate the person completely, the belief must be objectively reasonable. The fear must be of imminent harm.
Battered women’s syndrome has been defined as a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives.
The appellate court concluded that battered women’s syndrome evidence is not relevant to the reasonableness of the belief to kill in self-defense. The court found the evidence highly relevant to Defendant’s actual, subjective perception that she was in danger and she had to kill. The trial court erred in not admitting the testimony.
Aris and Day too narrowly interpreted the reasonableness element. They failed to consider that the jury must view the situation from Defendant’s perspective.
The ultimate question is whether a reasonable person would believe in the need to kill to prevent imminent harm. It is the jury, not the expert, that determines whether Defendant’s belief and her actions were objectively reasonable.
In assessing reasonableness, the question is whether a reasonable person in the Defendant’s circumstances would have perceived a threat of imminent injury or death. The jury may not consider evidence merely showing that an abused person’s use of force against the abuser is understandable.
Battered Women’s Syndrome – R. v. Malott
Year: 1998
Court: Supreme Court of Canada
8. Reasoning: concurring: the Lavallee Court accepted that a woman’s perception of what is reasonable is influenced by her gender, as well as by her individual experience, and both are relevant to the legal inquiry. It is wrong to think of this development as where an objective test has been modified to admit evidence of the subjective perceptions.
The reasonable woman must not be forgotten in the analysis of objective standard of the reasonable person.
A judge and jury should be made to appreciate that a battered woman’s experiences are both individualized and shared with other women, within the context of a society and a legal system which has historically undervalued women’s experiences. They should be told that a battered woman’s experiences are generally outside the common understanding of the average judge and juror they should seek to understand the evidence to overcome the stereotypes and myths. All of this should be presented to focus on the reasonableness of the woman’s actions, without relying on old or new stereotypes about battered women.
Battered Women’s Syndrome – Mitchell v. Mitchell
Year: 2005
Court: Appeals Court of MA.
2. Disposition: reversed.
3. Holding: it was error to terminate the order to prevent abuse.
4. Issue:
5. Procedural History: six months after Mary obtained abuse prevention order, a judge of the Probate Court vacated the order.
6. Facts: The order prohibited James from abusing or otherwise contacting Mary for one year. At the end of the one-year period, Mary would be permitted to file for an extension of the order. Midway through the year, James filed a motion to reconsider or vacate the order, arguing that since the implementation of the order, Mary had contacted him several times, requested to spend time alone with him, and did in fact spend time alone with him around the time of his mother’s funeral.
7. Rule:
8. Reasoning: standard for determining whether prospective relief from c.209A order is warranted must be a flexible one. The greater the likelihood that the safety of the protected party may be put at risk by a modification, the more substantial the showing the party seeking relief must make.
That the wife might have acquiesced in some contact with the husband due to funeral does not suffice to meet the husband’s heavy burden of demonstrating that the order was no longer needed to protect the wife. Whether measured against a clear and convincing standard of proof, or proof by some lesser standard, the evidence was insufficient.
Battered Women’s Syndrome – Ba v. United States
Year: 2002
Court: D.C. Court of Appeals
2. Disposition: Affirm.
3. Holding:
4. Issue:
5. Procedural History: the trial court convicted Ba of violating the civil-protection order.
6. Facts: In December 1999, Lashance Howard was granted a civil-protection order against her ex-boyfriend, Alassane Ba (defendant). The order prohibited Ba from being within 100 feet of Howard. Despite the order, Howard and Ba lived together consensually from January to March 2000, as they were attempting to reconcile. In May 2000, Howard saw Ba parked outside of her house in the middle of the night and called the police. The police arrived to check on Howard. When the police left, Ba immediately exited his car and moved to within six feet of Howard. At that point, the police returned and arrested Ba for violating the restraining order.
7. Rule:
8. Reasoning: to establish the elements of a CPO violation, the government must present evidence proving that Defendant engaged in (1) willful disobedience (2) of a protective court order.
Ms. Howard revoked her consent to violation of the CPO. Mr. Ba’s conduct was willful and resulted in a violation of the CPO.
Mandatory Arrest Policies, AG’s task force on family violence
Arrest should be the preferred response in cases of family violence.
When violence occurs between family members, officers tended to require the victim to initiate a citizen’s arrest. This burden results in the victim’s reluctant participation in mediation. Mediation may assume that the parties involved are of equal culpability or that the underlying cause of violence can be resolved without arrest.
Mandatory Arrest Policies – Town of Castle Rock v. Gonzales
Year: 2005
Court: Supreme Court of the US
2. Disposition: Reversed.
3. Holding: the respondent did not have a property interest in police enforcement of the restraining order against her husband.
4. Issue: whether an individual who has obtained a state-law restraining order has a constitutionally protected property interest in having the police enforce the restraining order when they have probable cause to believe it has been violated.
5. Procedural History: Defendant cited FRCP 12(b)(6) and the District Court granted the motion to dismiss. Court of Appeals affirmed the rejection of a substantive due process claim but found procedural due process claim.
6. Facts:
7. Rule:
8. Reasoning: Gonzales claim that the town violated the Due Process Clause because its police department had an official policy or custom of failing to respond properly to complaints of restraining order violations and tolerated the non-enforcement of restraining orders by its police officers; that town’s actions were taken either willfully, recklessly or with such gross negligence as to indicate wanton disregard and deliberate indifference to respondent’s civil rights.
Gonzales claims she had a property interest in police enforcement and that the town deprived her of the right when it tolerated nonenforcement.
The creation of a personal entitlement to something as vague and novel as enforcement of restraining orders cannot simply go without saying. It is by no means clear that entitlement could constitute a property interest. The right does not have some ascertainable monetary value.
Souter concurring: the property interest has always existed apart from state procedural protection before the Court has recognized a constitutional claim to protection by federal process.
Stevens dissenting: if a CO statute or order created an entitlement to mandatory individual protection by the local police force, that right would qualify as property entitled to constitutional protection. Respondent had a legitimate claim of entitlement to enforcement.
Areen, Intervention Between Parent and Child: a reappraisal of the state’s role in child neglect and abuse cases
The Elizabethan Poor Law provided for the establishment of tax-supported hospitals and poor houses to shelter the poor. The employable poor were compelled to work or sent to houses of correction if they refused to work. Children of the poor were put to work or apprenticed.
Neglect proceedings in the nineteenth century continued to be primarily part of the poor relief program, but they gradually were expanded to protect children from parental immorality and abuse. The new statute focused on preventing the exploitation of children rather than on enhancing their physical or emotional development.
In the beginning of the twentieth century, the development of mother’s aid and aid to dependent children made it possible for states to stop removing children because of family poverty. Poverty became a defense to a neglect finding. Also, parens patriae role of the states expanded to encompass protection of children from emotional as well as physical harm.
Pierce v. Society of Sisters
Year: 1925
Court: Supreme Court of the US
2. Disposition: affirmed.
3. Holding:
4. Issue:
5. Procedural History: the decree restrained Oregon from enforcing the Act.
6. Facts: the challenged Act requires every parent, guardian or other person having control, charge, or custody of a child between eight and sixteen years to send him to a public school and failure so to do is declared a misdemeanor.
7. Rule:
8. Reasoning: the inevitable practical result of enforcing the Act would be destruction of appellees’ primary schools, and perhaps all other private primary schools for normal children.
The Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.
Mahmoud v. Taylor
Year: 2025
Court: US Supreme Court
2. Disposition: Reverse.
3. Holding: the parents have shown that they are entitled to a preliminary injunction. The parents are likely to succeed in their challenge to the Board’s policies.
The Board’s introduction of the “LGBTQ+-inclusive” storybooks—combined with its decision to withhold notice to parents and to forbid opt outs— substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise that Yoder found unacceptable
4. Issue:
5. Procedural History: The District Court denied a preliminary injunction. A divided panel of the Fourth Circuit affirmed.
6. Facts: The board has introduced a variety of “LGBTQ+- inclusive” storybooks into the elementary school curriculum. The Board has told parents that it will not give them notice when the books are going to be used and that their children’s attendance during those periods is mandatory. A group of parents from diverse religious backgrounds sued to enjoin those policies, because they burden their religious exercises. In recognition of the county’s religious diversity, the Board’s “Guidelines for Respecting Religious Diversity” profess a commitment to making “reasonable accommodations” for the religious “beliefs and practices” of MCPS students. The Board eventually selected 13 “LGBTQ+- inclusive” texts for use in the English and Language Arts curriculum from pre-K through 12th grade. At issue in this lawsuit are the five “LGBTQ+-inclusive” storybooks that are approved for students in Kindergarten through fifth grade. Mahmoud and Barakat are Muslims who believe “that mankind has been divinely created as male and female.”
7. Rule:
8. Reasoning: A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses “a very real threat of undermining” the religious beliefs and practices that the parents wish to instill.
To obtain that form of preliminary relief, the parents must show that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction would be in the public interest. The parents have made that showing.
“[W]e have long recognized the rights of parents to direct ‘the religious upbringing’ of their children. Those rights are violated by government policies that “substantially interfer[e] with the religious development” of children. Such interference “carries with it precisely the kind of objective danger to the free exercise of religion. “objective danger” is present here. [T]he question whether a law “substantially interfer[es] with the religious development” of a child will always be fact-intensive.
Questions remain after a burden on religious exercise is found. First, a court must ask if the burdensome policy is neutral and generally applicable. Second, if the first question can be answered in the negative, a court will proceed to ask whether the policy can survive strict scrutiny. -> the Board’s policies “substantially interfer[e] with the religious development” of the parents’ children and pose “a very real threat of undermining” the religious beliefs and practices.
An environment cannot be achieved through hostility toward the religious beliefs of students and their parents.
Thomas concurring: [T]he Board failed to identify any tradition of teaching sexuality and gender identity to young children—much less a tradition of preventing parents from opting their children out of such instruction. The storybook curriculum is also different in kind from traditional sex education. . . . Instead of incorporating materials focused on health and reproduction, for example, the Board chose the storybooks based on factors such as whether they “reinforced or disrupted” “heteronormativity,” “cisnormativity,” and “power hierarchies that uphold the dominant culture.” Had the Board confined its “LGBTQ-inclusive” curriculum to a “discrete” “[u]nit” as well, parental opt outs would pose no greater administrative burden.
Sotomayor dissenting: Exposing students to the “message” that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny. The Court's ruling, in effect, thus hands a subset of parents the right to veto curricular choices long left to locally elected school boards. This Court has made clear that mere exposure to objectionable ideas does not give rise to a free exercise claim. Never has this Court held that mere exposure to concepts inconsistent with one’s religious beliefs could give rise to a First Amendment claim. Yoder . . . does not support the proposition that any government policy that poses a “ ‘very real threat’ ” to a parent’s religious development of their child triggers strict scrutiny. Eliminating books depicting LGBTQ individuals as happily accepted by their families will not eliminate student exposure to that concept. The Court, in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators.
Does curriculum substantially interfere with the child’s religious development? If yes, does it unconstitutionally burden parents’ rights?
U.S. v. Skrmetti
Year: 2025
Court: US Supreme Court
2. Disposition: Affirmed.
3. Holding: it does not violate the equal protection guarantee of the Fourteenth Amendment.
4. Issue: whether a Tennessee law banning certain medical care for transgender minors violates the Equal Protection Clause of the Fourteenth Amendment.
5. Procedural History: The District Court partially enjoined enforcement of SB1’s prohibitions. The Sixth Circuit reversed.
6. Facts: In March 2023, Tennessee enacted SB1, identifying concerns regarding the use of puberty blockers and hormones to treat gender dysphoria in minors. SB1 bans the use of certain medical procedures for treating transgender minors. SB1 does not restrict the administration of puberty blockers or hormones to individuals 18 and over. SB1 does not ban fully the administration of such drugs to minors. Three transgender minors, their parents, and a doctor (plaintiffs) brought a pre-enforcement challenge to SB1
7. Rule:
8. Reasoning: We are asked to decide whether SB1 is subject to heightened scrutiny under the Equal Protection Clause. We hold it is not. Classifications that turn on age or medical use are subject to only rational basis review. This Court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny. We also reject the argument that the application of SB1 turns on sex. The law does not prohibit conduct for one sex that it permits for the other.
we reject the plaintiffs’ argument that, “by design, SB1 enforces a government preference that people conform to expectations about their sex.” The plaintiffs’ allegations of sex stereotyping are misplaced.
The plaintiffs separately argue that SB1 warrants heightened scrutiny because it discriminates against transgender individuals. SB1 includes only two classifications: healthcare providers may not administer puberty blockers or hormones to minors (a classification based on age) to treat gender dysphoria, gender identity disorder, or gender incongruence (a classification based on medical use). The plaintiffs, moreover, have not argued that SB1’s prohibitions are mere pretexts designed to effect an invidious discrimination against transgender individuals.
SB1’s age- and diagnosis-based classifications are plainly rationally related to these findings and the State’s objective of protecting minors’ health and welfare.
NHS England characterized the evidence concerning the use of puberty blockers and hormones to treat transgender minors as “remarkably weak.”
Thomas concurring: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct. Deference to legislatures, not experts, is particularly critical here.
Barrett concurring: whether transgender status constitutes a suspect class. I write separately to explain why it does not. Transgender status is not marked by the same sort of “ ‘obvious, immutable, or distinguishing characteristics’ ” as race or sex. The category of transgender individuals is “large, diverse, and amorphous.” It would require courts to oversee all manner of policy choices normally committed to legislative discretion. The relevant question is whether the group has been subject to a longstanding pattern of discrimination in the law. The litigants did not thoroughly discuss whether transgender individuals have suffered a history of de jure discrimination as a class. Rational-basis review applies.
Sotomayor dissenting: Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls. Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny. Some transgender adolescents suffer from gender dysphoria, a medical condition characterized by clinically significant and persistent distress resulting from incongruence between a person’s gender identity and sex identified. SB1 defines an entire category of prohibited conduct based on inconsistency with sex. All transgender people, by definition, “identify with, or live as, a purported identity inconsistent with [their] sex. Transgender people have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence. The question is whether SB1’s ban on certain medications, applicable only if used in a manner “inconsistent with ... sex,” contains a sex classification. Because sex determines access to the covered medications, it clearly does.
Defining Neglect – Dept of Children and Families v. E.D.-O.
Year: 2015
Court:
2. Disposition: The judgment of the Appellate Division is reversed.
3. Holding: when substantiation of neglect must be determined on a case-by-case basis, there is little room for disposition of an appeal of a substantiation of neglect through the agency’s self-devised summary disposition procedure.
4. Issue:
5. Procedural History:
6. Facts: E.D.-O. (defendant) left her 19-month-old child S.O. asleep in her car seat while E.D.-O. went into a store. A security guard noticed the car running, saw the child, and called police. The Department of Children and Families, Division of Child Protection and Permanency (plaintiff) sent a caseworker to E.D.-O.’s home. The caseworker nonetheless substantiated the neglect charges, and the division filed a petitioner seeking care and supervision of E.D.-O.’s four children.
7. Rule:
8. Reasoning: Abused or neglected child – a child less than 18 years of age whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian to exercise a minimum degree of care.
In cases where the child has not suffered actual harm, the Division must demonstrate some form of threatened harm to a child.
Gross negligence standard instead of reasonable care.
Neglect – People v. Carroll
Year: 1999
Court: Court of Appeals of New York
2. Disposition: affirm the order of the Appellate DIvision
3. Holding: It did, because the evidence supported an inference that Defendant was acting as the functional equivalent of Shanaya’s parent at the relevant time.
4. Issue: whether the Grand Jury that indicted defendant for endangering the welfare of a child had sufficient evidence that defendant was legally charged with the care of Shanaya
5. Procedural History: the Supreme Court granted the motion to dismiss the indictment on the ground that there was insufficient evidence that defendant was legally charged.
6. Facts: Three-year-old Shanaya Jones’s father beat her to death over the course of a 10-day visit with him and her stepmother, Lisa Carroll (defendant). Carroll did not call the police or seek medical assistance until Shanaya died. A grand jury indicted Carroll for child endangerment on the ground that she was legally charged with Shanaya’s care.
7. Rule:
8. Reasoning: Defendant argues that the proof before the Grand Jury was insufficient to show that she was legally charged with the care or custody of Shanaya.
In order to be legally charged with caring for a child, obviously a person must have a responsibility to that child ased in law. The terms abused child and neglected child, which are incorporated by reference into Penal Law 260.10(2), are defined with reference to the actions of a parent or other person legally responsible.
The court must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted- and deferring all questions as to the weight or quality of the evidence- would warrant conviction. The evidence before the Grand Jury established a prima facie case that defendant was legally responsible for Shanaya’s care under Family Court Act 1012(g), and therefore legally charged with Shanya’s care under Penal Law 260.10(2).
Religious Practice or Neglect – Walker v. Superior Court
Year: 1988
Court: Supreme Court of California
2. Disposition: affirmed.
3. Holding: an adequately effective and less restrictive alternative is not available to further the state’s compelling interest in assuring the provision of medical care to gravely ill children whose parents refuse such treatment on religious grounds.
4. Issue:
5. Procedural History:
6. Facts: Laurie Walker was a member of a church that espoused treating illnesses with prayer rather than medical care. Walker’s four-year-old daughter, Shauntay, fell ill with flu-like symptoms and a stiff neck. Walker refused to seek any medical care for her child, and instead attempted to treat Shauntay with prayer. Shauntay’s condition deteriorated as she lost weight, became disoriented, and had difficulty breathing, and seventeen days after falling ill she died.
7. Rule:
8. Reasoning: Defendant contends that the provisions of Penal Code section 270 provide a complete defense to treatment with prayer rather than medical care.
The question remains as to whether compliance with the terms of section 270 absolves defendant of liability under all other provisions of the Penal Code.
Defendant contends that an intent to exempt prayer treatment from conduct within the reach of sections 192(b) and 273a(1) is implied by a number of other civil and criminal measures. -> argument by analogy to civil neglect and dependency provisions corroborates the determination that the Legislature has created no exemption under sections 192(b) and 273a(1) for parents who are charged. -> there is no statutory basis to bar Defendant’s prosecution.
Defendant contends her conduct is protected by the 1st Amendment and article 1 Section 4 of the CA Constitution. -> do not agree. Religiously motivated conduct remains subject to regulation. The gravity of the state’s interest is balanced against the severity of the religious imposition. Imposition of felony for failing to provide medical care furthers an interest of unparalleled significance. The governmental interest is plainly adequate to justify its restrictive effect. Parents have no right to free exercise of religion at the price of a child’s life.
The proceedings are profoundly intrusive. Child dependency proceedings advance the governmental interest only when the state learns of a child’s illness in time. The imposition of criminal liability is reserved for actual loss or endangerment of a child’s life and thus is narrowly tailored.
Exemption is in the criminal statute and she is trying to apply it in criminal context.
Physical violence against a child: discipline or abuse – Chronister v. Brenneman
Year: 1999
Court:
2. Disposition: reverse the order.
3. Holding: it does not.
4. Issue: does the Protection From Abuse Act prohibit a parent from using physical punishment to discipline a child for misconduct?
5. Procedural History:
6. Facts: Brenneman (defendant) hit his sixteen-year-old daughter Cassandra Morrison across the buttocks five or six times with a belt after she admitted to lying. Later that evening, Brenneman purportedly remembered he had left a gun in a downstairs cupboard, retrieved it, and made eye contact with Morrison as he took it upstairs. Morrison called her half sister, Shannon Chronister (plaintiff), who reported the incidents to Child and Youth Services. The court entered a PFA order.
7. Rule:
8. Reasoning: the fact that a father chose to discipline his child through the means of corporal punishment is relevant only to the extent it reflects the motivation for the physical conduct in question.
The question as we see it is whether or not appellant’s conduct constitutes abuse within the meaning of the Act. There is no indication that it resulted in anything more than a temporary painful condition. Nor was there any indication that the punishment resulted in any degree of bodily impairment.
Melvin dissenting: The pain must be only substantial in nature. The punishment rises to the level of abuse. Parents’ right to inflict corporal punishment is restricted.
Godsoe, Redefining parental rights: the case of corporal punishment
Parental corporal punishment is practiced despite the overwhelming research that it is ineffective at discipline and causes a greater propensity for future violence and increased risk of mental health and cognitive outcomes. They are coupled with injuries to personhood.
No rationale supports this forgiveness of significant harm to society’s most vulnerable members. Parental corporal punishment is at best a very misinformed attempt at discipline and at worst a use of children as literal whipping posts for frustration and rage. The parental discipline privilege should be abolished as have all other categorical status exceptions to a violent crime.
Nicholson v. Scoppetta
Year: 2004
Court: New York Court of Appeals
2. Disposition:
3. Holding:
4. Issue:
5. Procedural History: the District Court granted preliminary injunction, concluding that ACS’s practices and policies violated the substantive and procedural due process rights. The Second Circuit held that the District Court had not abused its discretion.
6. Facts: Nicholson (plaintiff) brought an action against the New York Administration for Children’s Services (ACS) (defendant) on behalf of herself and her two children. Nicholson brought the action pursuant to § 1983, alleging that ACS had improperly removed her children from the home without probable cause or due process of law.
7. Rule:
8. Reasoning: a party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that 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.
Exposure of a child to violence is not presumptively ground for removal, and in many instances removal may do more harm to the child than good. If parental consent cannot be obtained, section 1027 provides for preliminary orders after the filing of a neglect petition. The agency should bring a petition and seek a hearing prior to removal of the child. If the agency believes there is insufficient time to file a petition, the next step is ex parte removal by court order. [three factors] Under emergency removal, removal is done without a court order and without consent of the parent if there is reasonable cause to believe that the child is in such urgent circumstance or condition that continuing in the home or care of the parent presents an imminent danger to the child’s life or health, and there is not enough time to apply for an order.
Termination of parental rights - In the Matter of R.T.
Year: 2017
Court: Supreme Court of Nevada
2. Disposition: Affirm.
3. Holding: Poverty is not, and has never been, a valid basis for terminating one’s parental rights. The district court’s termination order was not predicated on the appellant’s poverty and is supported by substantial evidence.
Substantial evidence supports the finding that Jacqueline’s failure to reunite with her children was not due to her poverty.
4. Issue: whether one’s parental rights may be terminated due to poverty and whether the district court’s termination order was improperly based on the appellant’s poverty.
5. Procedural History: the District Court issued an order terminating Jacqueline’s parental rights with respect to all four children.
6. Facts: The Washoe County Department of Social Services (plaintiff) took custody of Jacqueline G.’s (defendant’s) four children after receiving several reports that she lacked adequate housing for them.
7. Rule:
8. Reasoning: Jacqueline argues that the district court terminated her parental rights due to her poverty. WCDSS argues that the district court terminated due to her continued failures to comply with her case plan goals despite having the ability to do so.
Fulton v. City of Philadelphia
Year: 2021
Court: US Supreme Court
2. Disposition: Reversed.
3. Holding: Section 3.21 of the contract is not generally applicable as required by Smith. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.
4. Issue: whether the actions of Philadelphia violate the 1st Amendment.
5. Procedural History:
6. Facts: the City of Philadelphia informed CSS that it would no longer work with CSS because of CSS’s refusal to certify same-sex couples and nonmarried couples as foster parents. CSS and agencies filed suit against the City the Department, and the Commission, claiming that the freeze violated the Free Exercise and Free Speech Clauses of the First Amendment.
7. Rule:
8. Reasoning: The City’s actions have burdened CSS by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs. The City views that certification reflects only that foster parents satisfy the statutory criteria, not that the agency endorses their relationships. CSS believes that certification is tantamount to endorsement.
This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable.
A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions. A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.
No matter the level of deference we extend to the City, the inclusion of a formal system of entirely discretionary exceptions in section 3.21 renders the contractual nondiscrimination requirement not generally applicable. The contract as whole contains no generally applicable non-discrimination requirement.
The City contend that the availability of exceptions under section 3.21 is irrelevant because the Commissioner has never granted one. -> that misapprehends the issue. The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, because it invites the government to decide which reasons for not complying with the policy are worthy of solicitude.
The City contends that foster care agencies are public accommodations and forbidden from discriminating on the basis of sexual orientation. CSS counters that foster care has never been treated as a public accommodation. -> agree with CSS.
The City’s actions are examined under the strictest scrutiny. A government policy can survive strict scrutiny only if it advances interests of the highest order and is narrowly tailored to achieve those interests. The question is whether the City has an interest in denying an exception to CSS. The City’s asserted interests are insufficient.
Barrett concurring: I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime. A law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions.
Alito concurring: We should confront the Smith question. If the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. Today’s decision will vanish. Smith ignored the normal and ordinary meaning of the constitutional text and made no real effort to explore the understanding of the free-exercise right at adoption. I would override Smith.
Gorsuch concurring: had we followed Alito, holding that the City’s rules cannot avoid strict scrutiny even if they qualify as neutral and generally applicable, this case would end today.
Unmarried fathers – Lehr v. Robertson
Year: 1983
Court:
2. Disposition:
3. Holding: because appellant never established a substantial relationship with his daughter, the statutes did not operate to deny appellant equal protection.
4. Issue: whether NY has sufficiently protected an unmarried father’s inchoate relationship with a child whom he has never supported and rarely seen.
5. Procedural History:
6. Facts: Prior to marrying Richard Robertson (plaintiff), Lorraine Robertson (plaintiff) had a child, Jessica, with Jonathan Lehr (defendant). When Jessica was over two years old, the Robertsons filed a petition for adoption so that Richard could be named as Jessica’s lawful father. Lehr filed a visitation-and-paternity petition in the family court in a different city. The trial court approved Richard’s adoption of Jessica. Lorraine moved to dismiss Lehr’s paternity action, claiming that the action was moot in light of the adoption order. The family court agreed and dismissed Lehr’s action.
7. Rule:
8. Reasoning: Lehr contends a putative father’s actual or potential relationship with a child born out of wedlock is an interest in liberty which may not be destroyed without due process of law; that he had a constitutional right to prior notice and an opportunity to be heard before he was deprived of that interest. He contends that the gender-based classification in the statute, which both denied him the right to consent to Jessica’s adoption and accorded him fewer procedural rights than her mother, violated the Equal Protection Clause.
When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause.
Appellant has never had any significant custodial, personal, or financial relationship with Jessica. The right to receive notice was completely within appellant’s control.
White dissenting: the procedures adopted by the State must at least represent a reasonable effort to determine the identity of the putative father and to give him adequate notice. Lehr was entitled to due process, and the right to be heard is one of the fundamentals of that right. Lehr effectively made himself known by other means, and it is the sheerest formalism to deny him a hearing because he informed the State in the wrong manner.
Unmarried Fathers – Michael H. v. Gerald D.
Year: 1989
Court:
2. Disposition: affirmed.
3. Holding:
4. Issue: whether the relationship between persons in the situation of Michael and Victoria has been treated as a protected family unit under the historic practices of our society or whether on any other basis it has been accorded special protection.
5. Procedural History:
6. Facts: Gerald D. (defendant) and Carole D. were married in 1976 in Las Vegas and resided together in California. In 1978, Carole became involved in an adulterous affair with a neighbor, Michael H. (plaintiff). In 1980, she conceived a child, Victoria. Soon after delivery, Carole informed Michael that he might actually be the father of Victoria. Michael and Carole each took DNA tests showing that there was a 98.7 percent chance that Michael was Victoria’s father. Michael and Victoria, through her guardian ad litem, brought another action to establish paternity and visitation rights for Michael. Gerald intervened and moved for summary judgment. Later in 1985, the California superior court granted Gerald’s motion for summary judgment and rejected Michael and Victoria’s motions for continued visitation. Michael claimed that the law at issue denied him an opportunity to establish his paternity and violated his Fourteenth Amendment due-process rights.
7. Rule:
8. Reasoning: the presumption of legitimacy was a fundamental principle of the common law.
We have found nothing addressing the power of the natural father to assert parental rights over a child born into a marriage with another man. It is Michael’s burden to establish that such a power is so deeply embedded within our traditions as to be a fundamental right.
What Michael asserts here is a right to have himself declared the natural father and thereby to obtain parental prerogatives. What he must establish is that it has traditionally accorded such a father parental rights, or at least has not traditionally denied them. The States do not award substantive parental rights to the natural father of a child conceived within and born into an extant marital union.
Claim that a State must recognize multiple fatherhood has no support in the history or traditions of this country.
Brennan dissenting: the plurality’s exclusive rather than inclusive definition of the unitary family is out of step with other decisions.
Biology plus test and marital presumption intersect.
Zainaldin, the emergence of a modern American family law: Child custody, adoption and the courts, 1796-1851
Agency adoption involves either a public child welfare agency or a private agency that has been licensed by the government. In an agency adoption, birth parents typically relinquish all parental rights to the agency. Independent or private adoption involves the birth parents selecting and placing the child directly with the adoptive parents, often with the aid of an intermediary.
Agency adoption – Vela v. Marywood
Year: 2000
Court:
2. Disposition: reverse the district court’s judgment.
3. Holding: Marywood owed Corina a duty of complete disclosure when discussing adoption procedures, including any proposed post-adoption plan. There is no evidence of probative value that supports the district court’s finding that Corina voluntarily executed the relinquishment affidavit. Corina conclusively established that the relinquishment affidavit was procured by misrepresentation, fraud, or overreaching and was not voluntarily signed. THe affidavit is void as a matter of law.
4. Issue: how forthright a licensed child-placing agency must be with an unmarried, expectant mother who seeks its counsel prior to the birth of her child.
5. Procedural History: the court approved the termination of rights.
6. Facts: Vela made clear to Marywood representative Aundra Moore that she wanted an open adoption, so she could select criteria for adoptive parents and be able to visit the child. Vela then selected an adoptive couple, who signed a “sharing plan” with Marywood, agreeing to allow visits between Vela and the child. On April 24, 1998, Vela gave birth to a son and placed the child in foster care at Marywood on April 27. The next day, Vela and her parents met with Moore at Marywood and were presented with an “Affidavit of Voluntary Relinquishment of Parental Rights” for Vela to sign. Vela did not have a copy of the affidavit prior to April 28, and it was not mentioned to Vela until after she and Moore discussed the sharing plan. Vela was unsure whether she wanted to sign the affidavit, but signed it two hours later, while crying, after reassurance from Moore that the sharing plan would ensure her future visitation with the child. Vela was not informed that she could delay her decision or seek the opinion of an attorney prior to signing. Vela then sought to revoke the relinquishment of rights, but was told by Moore that it was irrevocable.
7. Rule:
8. Reasoning: termination proceedings must be strictly scrutinized, and termination statutes are strictly construed in favor of the parent.
Corina argues that no rational trier of fact could find that the Affidavit of Relinquishment was executed voluntarily and knowingly, rather than as the result of misrepresentation, fraud, overreaching, and coercion.
When Marywood made a partial disclosure to Corina about the post-adoption plan, it assumed, the duty to tell the whole truth. Moore occupied a position of superiority and influence on behalf of Marywood and was bound to act in good faith and with due regard.
Although the face of the affidavit reflects it was signed knowingly and voluntarily, we must consider the surrounding circumstances. Corina signed and understood the affidavit in the context of and in reliance on the post-adoption plan. There is no evidence in the record that Corina was ever told that the post-adoption plan could not be legally enforced.
Marywood’s statements and omissions to Corina constituted misrepresentation, fraud, or overreaching.
Title 15A: Adoption act
Open adoption – Birth Mother v. Adoptive parents and new hope child and family agency
Year: 2002
Court:
2. Disposition: affirm.
3. Holding: because this agreement is unenforceable under Nevada law and the adoption decree governs, the birth mother cannot seek relief based on the agreement.
4. Issue:
5. Procedural History: the district court granted the motion to dismiss.
6. Facts: A birth mother (plaintiff) put her child up for adoption and signed a communication agreement with New Hope Child and Family Agency (defendant), an adoption agency. The birth mother met with a couple (the adoptive parents) (defendants) who wanted to adopt a child, and the birth mother consented to their adoption of her child. The adoptive parents signed the communication agreement and initially complied with the agreement. The adoptive parents then filed a formal petition for adoption of the child. The birth mother objected to the petition and demanded that the child be returned to her. Upon the birth mother’s objection, the adoptive parents ceased to comply with the agreement.
7. Rule:
8. Reasoning: without such a specific Nevada statutory provision the agreement between the birth mother and the adoptive parents is unenforceable.
Subsequent to an adoption decree, a natural parent has no rights to the child unless provided for in the decree. While an agreement may grant a natural parent rights to post-adoption contact, enforcing it would be inconsistent with the Legislature’s mandate that a natural parent may not exercise any right to the adopted child not incorporated in the adoption decree.
Race – Petition of R.M.G.
Year: 1982
Court: District of Columbia Court of Appeals
2. Disposition: reverse the judgment of the trial court and remand.
3. Holding: the statute on its face withstands constitutional challenge but the trial court’s application is not sufficiently precise to satisfy the Constitution.
4. Issue:
5. Procedural History: trial court granted the petition of the child’s black grandparents and denied the petition of her white foster parents.
6. Facts: D. was a black child whose natural mother put her up for adoption. D.’s natural mother did not tell D.’s natural father or D.’s black paternal grandparents, E.M.G. and R.M.G. (defendants), of the adoption. The Department of Human Resources (DHR) placed D. with white foster parents, J.H. and J.H. (plaintiffs). The plaintiffs filed a petition to adopt D. DHR notified D.’s natural father of the adoption petition. D.’s natural father objected to the petition. The defendants filed their own petition for D.’s adoption.
7. Rule:
8. Reasoning: our test remains the best interest of the child.
Statutory authorization of the race factor: the racial classification is sustainable only because it is one among a number of relevant factors.
Appellants allege the equal protection prohibits the use of skin color-defined race as a relevant issue in an adoption -> disagree. Adoptees often find it difficult to establish a sense of identity. An inherently suspect, indeed presumptively invalid, racial classification in the adoption statute is, in a constitutional sense, necessary to advance a compelling governmental interest: the best interest of the child.
Judicial application of the race factor: there is a very real risk of misuse, of discriminatory application of a racial classification in an adoption proceeding.
The trial court made no specific findings as to how race would be likely to affect this particular black child growing up, respectively. The court did not articulate the comparative analysis required by steps two and three: how the families compare in their respective abilities to accommodate race, and how significant racial differences between the families are when all factors relevant to the adoption are considered together.
Mack concurring: the trial court employed race as an impermissible presumption.
Newman dissenting: the possibility of an adverse effect would suffice to permit the trial court to tip the balance in the direction of the intraracial alternative.
Banks, the color of desire: fulfilling adoptive parents’ racial preferences through discriminatory state action
As a result of facilitative accommodation policies, most black children in need of adoption are categorically denied, on the basis of race, the opportunity to be considered individually for adoption by the majority of prospective adoptive parents.
Adoption agencies that receive any government funding should not accommodate adoptive parents’ racial preferences.
I would advise the practical solution of not allowing any expression of same-race preference.
Adoption of Native American Children – Adoptive Couple v. Baby Girl
Year: 2013
Court:
2. Disposition: Reverse.
3. Holding: Biological Father should not have been able to invoke 1912(f). SC Supreme Court erred in finding that 1912(d) barred termination of Biological Father’s parental rights. 1915(a)’s rebuttable adoption preferences does not apply when no alternative party has formally sought to adopt the child.
4. Issue:
5. Procedural History: the court held that the father’s parental rights could not be involuntarily terminated under the ICWA because the adoptive parents did not show that serious harm would come to the child by granting custody to the father. The South Carolina Supreme Court affirmed.
6. Facts: A baby girl (defendant) was born to a Hispanic mother and a father who was Cherokee. The mother and father were unwed at the time of the birth, which occurred off reservation. While the mother was pregnant, the father relinquished parental rights to the child by text message to the mother. The baby was born, and the mother placed the baby for adoption. The adoptive parents (plaintiffs), non-Indians, notified the father of the pending adoption. The father did not contest the adoption, but he later sought custody in the adoption proceedings.
7. Rule:
8. Reasoning: SC Supreme Court held Adoptive Couple failed to satisfy 1912(f) because they did not make a heightened showing that Biological Father’s prospective legal and physical custody would likely result in serious damage to the child. -> “continued custody” refers to custody that a parent already has. 1912(f) does not apply in cases where the Indian parent never had custody of the Indian child.
SC Supreme Court found that Biological Father’s parental rights could not be terminated because Adoptive Couple had not demonstrated that Biological Father had been provided remedial services in accordance with 1912(d). -> 1912(d) applies only in cases where an Indian family’s breakup would be precipitated by the termination of the parent’s rights.
SC Supreme Court suggested that if it had terminated Biological Father’s rights, then 1915(a)’s preferences for the adoptive placement of an Indian child would have been applicable. -> 1915(a)’s preferences are inapplicable in cases where no alternative party has formally sought to adopt the child.
Scalia dissenting: there is no reason that continued must refer to custody in the past rather than custody in the future.
Sotomayor dissenting: ICWA is consistent with the law of those States that protected, and protect, birth fathers’ rights more vigorously. ICWA protects not only Indian parents’ interests but also those of Indian tribes. A tribe’s interest in its next generation of citizens is adversely affected by the placement of Indian children in homes with no connection to the tribe. The majority’s hollow literalism distorts the statute and ignores Congress’ purpose to rectify a perceived wrong that was a correct application of federal law and that in any case cannot be undone.
Traditional rules and their decline – McLaughlin v. Florida
Year: 1964
Court: Supreme Court of the US
2. Disposition: reversed.
3. Holding: 798.05 is invalid as a denial of the equal protection of the laws guaranteed by the 14th Amendment.
4. Issue: whether a conviction under 798.05 of the Florida statutes, F.S.A. is valid.
5. Procedural History:
6. Facts: A Florida criminal statute prohibited cohabitation between an unmarried black person and an unmarried white person. McLaughlin (defendant) was convicted of violating the statute. The Supreme Court of Florida affirmed the conviction.
7. Rule:
8. Reasoning: 798.05 treats the interracial couple made up of a white person and a Negro differently than it does any other couple.
Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purposes; in this case, whether there is an arbitrary or invidious discrimination between those classes covered by Florida’s cohabitation law and those excluded. That is what Pace ignored and must be faced here.
Our inquiry is whether there clearly appears in the relevant materials some overriding statutory purpose requiring the proscription of the specified conduct when engaged in by a white person and a Negro, but not otherwise. -> we find nothing in this suggested legislative purpose, which makes it essential to punish promiscuity of one racial group and not that of another.
Florida has offered no argument that the State’s policy against interracial marriage cannot be as adequately served by the general, neutral, and existing ban on illicit behavior as by a provision such as 798.05.
Stewart concurring: I cannot conceive of a valid legislative purpose under our Constitution for a state law which makes the color of a person’s skin the test of whether his conduct is a criminal offense.
Margaret Mahoney, Forces Shaping the Law of Cohabitation for Opposite Sex Couples
When ALI MPC was published in 1962, most states in the US criminalized nonmarital cohabitation. Illicit cohabitation was defined as living together with a person of the opposite sex other than a spouse in an open and notorious manner under the representation or appearance of being married. This narrow provision was deleted by the ALI.
MPC advisory committee commented that the retention of widely unenforced criminal laws, such as the existing sex crime regulations, diluted the deterrent effect of other criminal laws. The committee took the position that most of the sexual activity historically regulated by broad criminal cohabitation and fornication statutes involved no victim and no harm beyond an affront to public morals. The committee emphasized the importance of respecting different viewpoints among citizens about the morality of various forms of sexual conduct.
Currently, only a handful of jurisdictions continue the criminal ban on unmarried cohabitation.
Pew Research Center, Soc & Demographic Trends Project, the decline of marriage and rise of new families
86% say a single parent and child constitute a family. 80% say an unmarried couple living together with a child is a family. 63% say a gay or lesbian couple raising a child is a family. The share of births to unmarried women rose to 41% in 2008 from 5% in 1960. Among black women giving birth in 2008, 72% were unmarried. This compares to 53% of Hispanic women and 29% of white women. In 2008, 5% of households were headed by a cohabiting couple, up from 3% in 1990. The share of mothers in the labor force rose to 71% in 2008 from 47% in 1975. In 2008, 18% of women 40 to 44 years had no biological children, up from 10% in 1980.
Pew Research Center, Richard Fry & D’Vera Cohn, Living Together: the economics of cohabitation
Among ages 30 to 44, 7% lived with an unmarried partner of the opposite sex, 58% were married and living with spouses, and 35% did not live with an opposite sex spouse or partner. The 7% of adults ages 30-44 who cohabited in 2010 compared with 3% who did in 1995. In 2010, 64% of who ever have lived with an unmarried partner say they thought of it as a step toward marriage. Among those currently living with a partner, 53% say so, compared with 67% of those who cohabited in the past.
Legal Developments – Marvin v. Marvin
Year: 1976
Court: Supreme Court of CA
2. Disposition: Reversed.
3. Holding: the complaint furnishes a suitable basis upon which the trial court can render declaratory relief. Plaintiff’s complaint states a cause of action for breach of an express contract, and can be amended to state a cause of action independent of allegations of express contract.
4. Issue:
5. Procedural History: the trial court rendered judgment for defendant on the pleadings.
6. Facts: Marvins lived together without marrying for seven years. According to Ms. Marvin, the couple orally agreed to hold themselves out as husband and wife, to pool all of their efforts and assets, and to share the fruits of such equally. Ms. Marvin further alleged that they agreed she would give up her career in order to focus on domestic duties and that he would support her financially from then on. Over the course of their cohabitation, she took care of the household while he worked outside the home. Substantial assets were obtained, all in his name. In May 1970, he compelled her to leave their house.
7. Rule:
8. Reasoning: Defendant contends the alleged contract is so closely related to the supposed immoral character of the relationship that the enforcement would violate public policy. -> The fact of cohabitation does not in itself invalidate agreements relating to their earnings property, or expenses. Neither is such an agreement invalid merely because the parties may have contemplated the creation or continuation of a nonmarital relationship. Agreements between nonmarital partners fail only to the extent that they rest upon a consideration of meretricious sexual services.
The cases that declined to enforce contracts between nonmarital partners involved illicit sexual service. Such contract is invalid only if sexual acts form an inseparable part of the consideration for the agreement.
A standard which inquires whether an agreement is involved in or contemplates a nonmarital relationship is vague and unworkable. Virtually all agreements between nonmarital partners can be said to be involved in some sense in the fact of their mutual sexual relationship or to contemplate the existence of that relationship. Adults who voluntarily live together and engage in sexual relations are nonetheless as competent to contract.
Prior cases – The Courts enforced an express contract yet disregarded the common law principle that implied contracts may arise. Courts have refused to recognize joint effort in interest based upon the contribution of services. Pre-Cary decisions result in an unfair distribution of property inheres in the court’s refusal to permit a nonmarital partner to assert rights based upon accepted principles of implied contract or equity.
The argument that granting remedies to the nonmarital partners would discourage marriage must fail. To equate the nonmarital relationship of today to a meretricious relationship is to do violence to an accepted and different practice.
The courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or else. The courts may employ principles of constructive trust or resulting trust. A nonmarital partner may recover in quantum meruit for the reasonable value of household services rendered less the reasonable value of support received.
Present and mutual intent to marry (from common law marriage) was absent.
Legal Developments – Blumenthal v. Brewer
Year: 2016
Court: Supreme Court of Illinois
2. Disposition:
3. Holding: Unmarried individuals may make express or implied contracts with one another, and such contracts will be enforceable if they are not based on a relationship indistinguishable from marriage.
4. Issue: whether there is continued viability and applicability of Hewitt v. Hewitt which held that Illinois public policy precludes unmarried cohabitants from bringing claims against one another to enforce mutual property rights where the rights asserted are rooted in a marriage-like relationship between the parties.
5. Procedural History:
6. Facts: Blumenthal brought action for partition of the family home she shared and jointly owned with Brewer. The couple had maintained a long-term domestic relationship and raised a family together but had never married. The relationship ended and Blumenthal moved out.
7. Rule:
8. Reasoning: common law marriages are invalid in Illinois.
Because rejection of Hewitt is essential to her counterclaim, Brewer requests that we revisit the decision and overrule it. -> recognized, we would infringe on the duty of the legislature to set policy in the area of domestic relations
Brewer argues that changes in law demonstrate that the legislature no longer considers withholding protection from nonmarital families to be a legitimate means of advancing the state’s interest in marriage -> the current legislative and judicial trend is to uphold the institution of marriage.
Brewer claims that Hewitt’s holding denies unmarried domestic partners the ability to bring common-law claims solely because they are in an intimate relationship with another. -> Hewitt’s holding acknowledges the legislative intent to provide certain rights and benefits to those who participate in the institution of marriage.
Theis concurring in part and dissenting in part: there is good cause to overrule Hewitt. It is outmoded and out of touch with contemporary experience and opinions on cohabitation. The legal landscape has changed. Courts have held that, when people live together in a family setting, contributions between them are presumed gratuitous and not compensable absent an express or implied contract.
D.C. Code 16-401
The Baby M Case
Whitehead refused to abide by the terms of the surrogacy agreement she had signed with Stern. She claimed custody of the baby, Melissa, who was born from insemination of her own egg.
Surrogacy Contracts – In re Baby M
Year: 1988
Court: Supreme Court of New Jersey
2. Disposition: affirmed in part, reversed in part, and remanded.
3. Holding: we invalidate the surrogacy contract because it conflicts with the law and public policy of this State. We find the payment of money to a surrogate mother illegal, perhaps criminal, and potentially degrading to women.
4. Issue: whether a contract that purports to provide a new way of bringing children into a family is valid.
5. Procedural History: The trial court affirmed the prior order issued ex parte awarding custody of the child to the Sterns. The trial court held that the contract was valid, ordered Mrs. Whitehead’s parental rights be terminated, and sole custody of the child be granted to Mr. Stern.
6. Facts: Mr. Stern agreed to attempt the artificial insemination and to pay Mrs. Whitehead $10000 after the child’s birth, on its delivery to him. Mrs. Whitehead realized, almost from the moment of birth, that she could not part with this child. Mrs. Whitehead turned her child over to the Sterns on March 30 at the Whiteheads’ home. Later in the evening, Mrs. Whitehead became deeply disturbed, disconsolate, stricken with sadness. She went to the Sterns’ home and told them about the suffering. The Sterns turned the child over to Mrs. Whitehead. Four months later, Melissa was returned to the Sterns by forcible removal. Mr. Stern sought to enforce contract. The Whiteheads fled with the child to Fl. Police in Fl enforced the order and forcibly turned over the child to the Sterns.
7. Rule:
8. Reasoning: Our law prohibits paying or accepting money in connection with any placement of a child for adoption. -> money was paid and accepted in connection with an adoption. One of estimated costs was an Adoption Fee. Three knew about the adoption. The actions of all three worked to frustrate the goals of the statute.
The evils inherent in baby bartering are loathsome. The child is sold without regard for whether the purchasers will be suitable parents. The natural mother does not receive the benefit of counseling and guidance. The monetary incentive may make her decision less voluntary.
The termination of Mrs. Whitehead’s parental rights fails to comply with the stringent requirements of New Jersey law. Our law provides for termination only where there has been a voluntary surrender of a child to an approved agency or to the DYFS accompanied by a formal document, or with abandonment or unfitness. -> in this case a termination was obtained by claiming the benefit of contractual provisions. A contractual agreement to abandon one’s parental rights, or not to contest a termination action, will not be enforced in our courts.
The surrogacy contract violates the policy of this State that the rights of natural parents are equal concerning their child, the father’s right no greater than the mother’s.
Worst of all is the contract’s total disregard of the best interests of the child.
Differences between an adoption and a surrogate contracted: surrogacy will not survive without money, the use of money in adoptions does not produce the problem, the built-in financial pressures do not lead to the ill-suited adoptive parents, and consent is irrevocable in surrogacy.
In America, we decided long ago that merely because conduct purchased by money was voluntary did not mean that it was good or beyond regulation and prohibition.
To assert that Mr. Stern’s right of procreation gives him the right to the custody would be assert that Mrs. Whitehead’s right of procreation does not give her the right to the custody of Baby M.
Mrs. Whitehead claims the right to the companionship of her child. This is a fundamental interest, constitutionally protected.
Best interests question boils down to a judgment, consisting of many factors, about the likely future happiness of a human being. The facts, the experts’ opinions, and the trial court’s analysis of both argue strongly in favor of custody in the Sterns. Mrs. Whitehead is entitled to visitation at some point.
Stern argues that the parental presumption should apply to Elizabeth Stern under Equal Protection claim. -> surrogacy is not similarly situated.
ART and Parentage – In re C.K.G.
Year: 2005
Court: Supreme Court of Tennessee
2. Disposition: vacate the Court of Appeal’s holding that Charles is estopped to deny Cindy’s maternal status. Affirm comparative fitness, custody, child support, and visitation.
3. Holding: TN’s parentage statutes neither provide for nor contemplate the circumstances of this case, where an unmarried couple has employed ART to produce children and dispute has arisen over the gestator’s legal status as mother. Cindy is the legal mother of the children.
4. Issue:
5. Procedural History: a pendent lite order required Charles to pay Cindy $3000 per month for child support. The juvenile court ruled that Cindy had standing to bring a parentage action as legal mother of these three minor children with all the rights, privileges, and obligations as if she were their biological mother. The court awarded joint custody with Cindy designated as the primary custodial parent. The Court of Appeals affirmed.
6. Facts: Charles G. (defendant) and Cindy C. (plaintiff) were not married, but were in a long-term relationship and decided to have children via in vitro fertilization. Cindy signed an agreement, formalizing her intent to be the mother of any child born as a result of the procedure. Two eggs from an anonymous egg donor were inserted in Cindy’s uterus and fertilized with Charles’s sperm. One of the eggs split, and Cindy gave birth to triplets, C.K.G., C.A.G., and C.L.G. (children). Cindy and Charles’s relationship deteriorated, and Cindy filed a petition with the juvenile court to establish her status as the children’s mother and obtain custody and child support. Charles objected to the petition, arguing that because Cindy had no genetic connection the children, she could not be the children’s legal mother.
7. Rule:
8. Reasoning: Charles claimed Cindy had no standing as a parent because, lacking genetic connection to the children, she failed to qualify as a parent under TN parentage statutes.
Cindy falls outside the statutory scope of the parentage and adoption statutes, which do not expressly control the circumstances of this case. The legislative history shows that the current parentage statutes were not designed to control questions of parentage where sperm or egg donation is involved. TN’s parentage and related statutes do not provide for or control the circumstances of this case.
In Johnson, CA court held that she who intended to procreate the child-that is, she who intended to bring about the birth of the child that she intended to raise as her own-is the natural mother under CA law. In Belsito, OH court ruled if the male and female genetic providers have not waived parental rights, they must be declared the legal parents. Second, if the female genetic provider has waived her parental rights, then the gestator is the legal mother. -> we decline to adopt either the intent test or the genetic test.
(1) Prior to the children’s birth, both Cindy as gestator and Charles as the genetic father voluntarily demonstrated the bona fide intent that Cindy would be the children’s legal and agreed that she would accept the legal responsibility and the legal rights of parenthood; (2) Cindy gave birth as her own; (3) this case does not involve a controversy between a gestator and a genetic progenitor, nor does this case involve a controversy between a traditional surrogate and an intended mother.
Birch dissenting: unless our legislature acts, this narrowly tailored solution designed for this case will be used as precedent for other cases involving reproductive technology. Majority has side-stepped a legislative mandate on the definition of parent. Using intent just as a factor is problematic. I would resolve this case through genetics. The real question is whether Plaintiff is the children’s legal mother, and the answer is no. The majority reached beyond existing law. TN statutes do not use gestation or intent to confer parental status, but uses genetics, marriage, and adoption.
Problem with using intent test: pre-conception thoughts and emotions differ from the time of birth. Child’s best interest is not considered. It is hard to prove. It is equivalent to private adoption without home study.
ART and the spouse’s parental status – Strnad v. Strnad
Year: 1948
Court: Supreme Court of New York
3. Holding: Defendant is entitled to rights of visitation. The child has been potentially adopted or semi-adopted by Defendant. This child is not an illegitimate child. The court does not pass on the legal consequences in so far as property rights or propriety are concerned.
6. Facts: the Court has assumed that Plaintiff was artificially inseminated with the consent of Defendant and the child is not of the blood of Defendant.
ART and the spouse’s parental status – Okoli v. Okoli
Year: 2012
Court: Appeals Court of Massachusetts
2. Disposition: affirm.
3. Holding: consent to create a child is the standard intended by the Legislature in G.L. c. 46 4B. Husband signed the consent forms knowing the anticipated result was a conception of a child.
4. Issue:
5. Procedural History: Probate and Family Court ordered husband to pay child support for the twin minor children. The Court ruled that husband was the legal father of the children because he consented to the artificial insemination of his wife.
6. Facts: the twins were conceived through in vitro fertilization using donor sperm and donor eggs. The parties were separated in 2000. In 2001, donor eggs became available and the couple signed an agreement providing that husband consented to his wife beginning IVF. Husband claimed that wife made him sign the agreement by threatening to withdraw her support of his citizenship application. Each time wife underwent IVF, husband signed a consent form, many times noting that he was signing it pursuant to the couple’s 2001 agreement. They divorced in 2009.
7. Rule:
8. Reasoning: husband argued that his consent to the procedure was subject to the 2001 agreement, and this conditional consent did not satisfy the statute. He argued that his consent was coerced through wife’s threat to withdraw her sponsorship. He claimed that his signature on the form was forged. He argued that his liability was miscalculated.
Consent for purposes of the statute means consent to create a child, rather than consent to become a parent. We cannot interpret consent to require an affirmative intent on behalf of the husband to be a parent. Consent within the statute must mean consent to create the child.
The critical element of consent in cases of artificial insemination is consent to create a child. Where a husband consents to an IVF, parental status should attach.
ART and the spouse’s parental status – Pavan v. Smith
Year: 2017
Court: Supreme Court of the US
2. Disposition: Reverse.
3. Holding: Arkansas may not deny married same-sex couples that recognition of being listed on birth certificate.
4. Issue:
5. Procedural History: The trial court held that the statute is inconsistent with Obergefell. Arkansas Supreme Court reversed. Arkansas Supreme Court ruled that when a married woman gives birth, state law generally requires the name of the mother’s male spouse to appear on the child’s birth certificate, but Arkansas need not extend that rule to same-sex couples.
6. Facts: While living in Arkansas, each same-sex couple decided to have a baby using an anonymous sperm donor. The Arkansas Department of Health (department) issued birth certificates listing only the birth mothers’ names.
7. Rule:
8. Reasoning: same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions or enrolling in school.
The State argues that being named on a child’s birth certificate is not a benefit that attends marriage, but a birth certificate is simply a device for recording biological parentage. -> the State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents.
Gorsuch dissenting: The statute establishes a set of rules to ensure that the biological parents of a child are listed on the birth certificate. Nothing in Obergefell indicates that a birth registration regime based on biology offends the Constitution. Petitioner didn’t challenge 9-10-201. The State conceded benefits afforded nonbiological parents must be afforded equally. When it comes to adoption, the State says adopting parents are eligible for placement on birth certificates without respect to sexual orientation.
ART and the unmarried partner’s parental status – Charisma R. v. Kristina S.
Year: 2006
Court: Court of Appeal of California, First District, Division 5
2. Disposition: reverse and remand.
3. Holding: remand to determine (1) whether Charisma is a presumed parent of Amalia and (2) whether this is an appropriate action in which to rebut the presumption that Charisma is Amalia’s parent. Presumed parent status depends on whether Charisma (1) received Amalia into her home and (2) openly held Amalia out as her natural child. Then, determine whether the facts outlined in Elisa B are true namely (1) whether Charisma actively participated in causing Amalia to be conceived with the understanding that she would raise Amalia as her own together with Kristina, (2) whether Charisma voluntarily accepted the rights and obligations of parenthood after Amalia was born, and (3) that there are no competing claims to being Amalia’s second parent.
4. Issue:
5. Procedural History: the trial court denied the petition, holding Charisma lacked standing under the Uniform Parentage Act.
6. Facts: Charisma and Kristina were domestic partners. With Charisma’s consent, Kristina was artificially inseminated and gave birth to Amalia. Charisma and Kristina broke up, and Kristina moved out and took Amalia with her. Charisma filed a petition seeking to establish that she was the legal parent of Amalia.
7. Rule:
8. Reasoning: the trial court followed Appeals decisions holding that a former lesbian partner lacking a biological tie to a child cannot establish a parent-child relationship. CA Supreme Court overruled in Elisa B. The Court held that a former lesbian partner may be able to establish parentage under gender-neutral application of section 7611, subdivision (d).
Nicholas H…
Uniform Parentage Act
703, 704 individual who consents to assisted reproduction by a woman with the intent to be a parent is a parent if the consent is in a writing signed or there is clear and convincing evidence of an express agreement before conception that the individual and the woman intended to both be parents of the child, or the woman and the individual resided together during the first two years of the child’s life and openly held the child out.
ART and the donor’s parental status – In re K.M.H.
Year: 2007
Court: Supreme Court of Kansas
2. Disposition: affirm.
3. Holding: application of KSA 38-1114(f) to D.H. does not violate equal protection.
4. Issue:
5. Procedural History: the district court sustained the mother’s motion to dismiss, ruling that KSA 38-1114(f) was controlling and constitutional.
6. Facts: the sperm donor alleges he had an oral agreement with the children’s mother to act as the twins’ father. The twins’ mother filed a child in need of care petition to establish that the donor had no parental rights under Kansas law. S.H., the mother, and D.H., the donor, are unmarried. D.H. accompanied S.H. to a clinic but the procedure did not result in pregnancy. D.H. did not accompany S.H. for the second procedure that resulted in pregnancy. D.H. filed an answer to the CINC petition and filed a paternity action.
7. Rule:
8. Reasoning: the wording of this original UPA and statutes that imitated it did not address the determination of a sperm donor’s paternity when an unmarried woman conceived a child through artificial insemination.
In Jhordan C. v. Mary K., the sperm was never provided to a licensed physician and affirmed recognition of the donor’s paternity. In In interest of R.C., the Court refused to apply its absolute bar to paternity because the known donor produced an oral agreement that he would be treated as father of the child. In McIntyre v. Crouch, the Court agreed the statute would violate the Due Process Clause as applied to the donor if such an agreement to share the rights and responsibilities of parenthood was proved. In C.O. v. W.S., the Court determined that the statute would violate due process if applied to the donor, because of the agreement that there would be a relationship between the donor and the child.
If these parties desire an arrangement different from the statutory norm, they are free to provide for it, as long as they do so in writing.
Center argues genetic relationship must be destiny -> inconceivable that an anonymous donor with no intention to be a father would nevertheless automatically become one.
Center and DH argue statute inevitably makes the female the sole arbiter of whether a male can be a father to a child his sperm helps to conceive -> this does not make the requirement of written agreement unconstitutional.
D.H. argues S.H. has unclean hands -> mere ignorance of the law is no excuse for failing to abide by it.
Disposition of Gametes and Embryos – In re Marriage of Witten
Year: 2003
Court: Supreme Court of Iowa
2. Disposition: affirm.
3. Holding: judicial enforcement of an agreement between a couple regarding their future family and reproductive choices would be against the public policy of this state. Reject the contractual approach and agreements entered into at the time IVF is commenced are enforceable and binding, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored embryo.
There can be no use or disposition of the Wittens’ embryos unless Trip and Tamera reach an agreement.
4. Issue:
5. Procedural History: the district court ruled that the dispute should be governed by the “embryo storage agreement.” The trial court enjoined both parties.
6. Facts: Trip sought to dissolve their marriage in 2002 after 7 and 1/2 years. During the parties’ marriage they had tried in vitro fertilization. At the time of trial seventeen fertilized eggs remained in storage at UNMC. Prior to IVF procedures, the parties signed “embryo storage agreement.”
7. Rule:
8. Reasoning: Tamera contends the agreement does not address the situation at hand -> the present predicament falls within the general provision requiring signed approval of both parties.
Three approaches to resolve disputes over the disposition of frozen embryos: (1) the contractual approach, (2) the contemporaneous mutual consent model, and (3) the balancing test.
The legislature did not intend to include fertilized eggs or frozen embryos within the scope of section 598.41.
The current prevailing view is that contracts entered into at the time of IVF are enforceable so long as they do not violate public policy.
The NJ court stated “if there is a disagreement between the parties as to disposition, the interests of both parties must be evaluated” by the court.
Judicial decisions and statutes in Iowa reflect respect for the right of individuals to make family and reproductive decisions based on their current views and values. They also reveal that such decisions are highly emotional in nature and subject to a later change of heart.
Balancing test poses grave public policy concerns, which substitutes the court as decision maker, and a better principle to apply is contemporaneous mutual consent, where no transfer, release, disposition, or use of the embryos can occur without the signed authorization of both donors.
Cohen, Complexifying commodification, consumption, ART, and abortion
The sale of reproductive goods could be wrong because of 8 enumerated reasons.
Lenhardt, the color of kinship
Peyton has only one notable flaw: she is the wrong race. The document regards blackness as a kind of injury, and conceives of whiteness as a legitimate, legally enforceable property right. The emphasis placed on genetic ties and racial purity plays out in a way that reinstates monoraciality as a norm and privileges whiteness. That the patients to whom ART industry players cater are overwhelmingly white and well-resourced accounts for this in large degree, as does the fact that the donors in highest demand are those who identify as white. She likely sought to rehabilitate that privilege and to restore an accepted, valued social identity – whiteness – that had been undermined or spoiled by her intersecting, an still stigmatized, social identity as a lesbian.
Some colonies followed Protestant doctrine on divorce, hence allowing it, while others followed the Anglican law of the ecclesiastical courts of England, which didn’t allow divorce. Even when available, divorce was not easy to obtain. It was available on restricted grounds involving marital fault, such as adultery or extreme cruelty. By 1985, every jurisdiction in the US adopted a “no-fault” ground for divorce. Forty states require a showing of irreconcilable differences, irremediable breakdown, incompatibility of the spouses, or some such similar ground. The divorce decree cannot be finalized until all other ancillary issues, namely custody, property and alimony, have been settled by the parties or court.
Friedman, A history of American law
By the end of the nineteenth century, private divorce laws had become extinct. The growing demand for easy divorce foretold a slow but real revolution in the way men and women related to each other. Easy divorce laws grew out of the needs of the middle class mass. The smallholder had to have some way to stabilize and legitimize relationships, to settle doubts about ownership of family property. Divorce was in form an adversary proceeding. Later, the collusive or friendly divorce came to dominate the field.
Areen, uncovering the reformation roots of American marriage and divorce law
The roots of family law were planted when New England Puritans adopted civil marriage and divorce. Intercolonial differences, together with the Constitution’s allocation to the states of power to establish religion and to oversee family law, explain why there are fifty different laws. Puritan beliefs, which protected wives from spousal abuse and gave them equal access to divorce, encouraged more egalitarian family relationships. Sectarian disputes led colonists to adopt secular control of marriage and divorce. Secular control also appealed to the new middle class. CA statute did not mandate unilateral divorce but left the final decision in each case to the courts.
Fault-based grounds for divorce – Edwards v. Edwards
Year: 2012
Court: Tennessee Court of Appeals
2. Disposition: affirmed.
3. Holding: the trial court’s alimony award to Wife was within the range of acceptable alternatives. We find no abuse of the trial court’s discretion.
4. Issue: whether the trial court abused its discretion in awarding transitional alimony and alimony in future to Wife.
5. Procedural History: the trial court granted Wife a divorce based on Husband’s adultery. Husband filed a motion to alter or amend the final decree, arguing that the proof was insufficient for the trial court to grant Wife a divorce on the basis of adultery. The trial court denied in all respects except calculation of alimony. Wife filed for contempt and IIED, and the trial court found Husband was in willful violation of orders but denied IIED claim.
6. Facts: In 2010, Wife returned to the marital home after a weekend visit with her sister. She found Husband in his pajamas pants and a t-shirt and a woman sitting on the couch, wearing only a pink negligee and a shawl over her shoulders, and smoking a cigarette. Husband and the Ms. Cole went to Ms. Cole’s house. Husband filed for divorce on the ground of irreconcilable differences. Wife filed a counter-complaint for divorce, alleging irreconcilable differences, inappropriate marital conduct, and adultery.
7. Rule:
8. Reasoning: the findings of fact are reviewed de novo. Questions of law are reviewed de novo.
Husband argues that the preponderance of the evidence does not support the trial court’s finding that he was guilty of abuse and adultery. With a proper balancing of the factors Husband argues the trial court abused its discretion. -> the evidence overwhelmingly supports the trial court’s credibility determination in favor of Wife.
Husband argues the evidence does not support the trial court’s finding that he committed adultery, because Wife submitted “no proof of sexual relations.” -> the record need not include DNA evidence to support the finding of adultery.
Desertion – Jenkins v. Jenkins
Year: 2004
Court: Court of Appeal of Louisiana, Second Circuit
2. Disposition:
3. Holding: the trial court must have found that Brenda had just cause for moving out of the matrimonial domicile based upon Frank’s habitually excessive drinking and abusive language toward Brenda. The trial court did not err in finding that Brenda was without fault in the dissolution of the marriage.
4. Issue:
5. Procedural History: the trial court found Brenda without fault in the divorce awarded her permanent periodic spousal support of $700 per month.
6. Facts: Brenda moved out of the couple’s house and filed for divorce. The couple reconciled. One year later, Brenda moved out again and filed for divorce, seeking interim and permanent spousal support. Frank argued that Brenda abandoned him, rendering Brenda at fault and ineligible for spousal support. Brenda testified that while she lived with Frank, he drank to excess daily and that his drinking led to verbal and physical abuse. Frank denied abuse.
7. Rule: the elements for proving abandonment are: (1) the party has withdrawn from the common dwelling; (2) the party left without lawful cause or justification; and (3) the party has constantly refused to return to live with the other.
8. Reasoning: to justify or establish lawful cause for leaving the common dwelling, the withdrawing spouse must make a showing which is substantially equivalent to a cause giving rise to grounds for separation. Habitual intemperance or excesses, cruel treatment or outrages were included among the causes serving as fault grounds for separation. The extent and habitualness of intoxication constitutes habitual intemperance.
(1) Spouse willfully left the marital home (2) without lawful cause or justification and (3) with no intent to return.
Imprisonment – Reyes v. Reyes
Year: 2009
Court: Supreme Court, Bronx County, NY
2. Disposition:
3. Holding: Plaintiff’s papers have established that the requirements of DRL 170(3) are fulfilled and her action may proceed and Defendant’s default taken.
4. Issue:
5. Procedural History:
6. Facts: The parties were married in 2000 when Defendant was incarcerated and after he had been sentenced in 1999 to 11 years. This action commenced in 2007. In 2008, Defendant was deported to the Dominican Republic. Defendant was duly served with the summons and complaint but responded to neither.
7. Rule:
8. Reasoning: the divorce claim is made pursuant to Domestic Relations Law 170(3) alleging that Defendant was confined in prison for more than 3 or more consecutive years and the requisite period of imprisonment occurred after the marriage was performed.
DRL 170(3) makes no reference to fault. A Plaintiff who fulfills all of the requirements set out in that section is entitled to a judgment of divorce, notwithstanding that the defendant could not be said to have done anything after the marriage that could be construed as fault.
You couldn’t get unilateral no fault divorce in New York at that time.
Cruelty – Benscoter v. Benscoter
Year: 1963
Court: Superior Court of Pennsylvania
2. Disposition: (dismiss petition)
3. Holding: Plaintiff did not become dissatisfied with his wife until she became ill with multiple sclerosis. He cannot now discard her.
4. Issue:
5. Procedural History:
6. Facts: The Benscoters had four children, all boys. In 1958, Mrs. Benscoter was diagnosed with multiple sclerosis (MS), an incurable, progressive disease. In 1962, Mr. Benscoter filed for divorce. Mr. Benscoter alleged that Mrs. Benscoter had verbally abused him on account of the couple’s failure to produce a daughter. At the divorce hearing, Mrs. Benscoter testified about her suspicions in 1961 that Mr. Benscoter was having an affair.
7. Rule:
8. Reasoning: It was incumbent upon Plaintiff to show clearly and indubitably his status as the injured and innocent spouse. We do not believe that Plaintiff was the innocent and injured spouse.
Cruelty – Hughes v. Hughes
Year: 1976
Court: Court of Appeal of Louisiana, Second Circuit
2. Disposition: affirm.
3. Holding: The trial judge’s conclusion is supported by the evidence and is in accord with the prior jurisprudence.
4. Issue:
5. Procedural History: the trial court found Mr. Hughes’ conduct to constitute mental harassment sufficient to render the continued living together insupportable.
6. Facts: Mrs. Hughes moved out the household on account of the abusive conduct of Mr. Hughes. Specifically, Mrs. Hughes testified at trial that Mr. Hughes was habitually intemperate, was verbally abusive, and had threatened physical violence. At one point, Mrs. Hughes had moved back in with Mr. Hughes to attempt reconciliation, but approximately one month later, Mr. Hughes’s abusive behavior began again. At that point, Mrs. Hughes moved out for good and filed a petition for a separation from bed and board, alleging cruel treatment. Mr. Hughes denied the allegations in the petition and argued that Mrs. Hughes’s leaving the household constituted abandonment. Testimony of the Hugheses’ daughter corroborated Mrs. Hughes’s testimony regarding Mr. Hughes’s abusive behavior.
7. Rule:
8. Reasoning:
Recrimination – Rankin v. Rankin
Year: 1956
Court: Superior Court of Pennsylvania
2. Disposition:
3. Holding: in neither event has appellee established his right to a divorce on the ground of indignities.
4. Issue:
5. Procedural History: the district court said “we have some doubt as to whether there is sufficient evidence in the case to sustain the cause of cruel and barbarous treatment.”
6. Facts: Michael Rankin instituted an action in divorce against his wife, Edith. The complaint alleged cruel and barbarous treatment and indignities to the person and was amended to include a charge of desertion. The parties called each other vulgar names and at various points each threatened to kill the other. Additionally, Mr. Rankin physically abused Mrs. Rankin and was in fact arrested for assault and battery.
7. Rule:
8. Reasoning: the term cruel and barbarous treatment comprises actual personal violence or a reasonable apprehension thereof, or such a course of treatment as endangers life or health and renders cohabitation unsafe. A single instance of cruelty may be so severe, and with such attending circumstances of atrocity, as to justify a divorce.
The fact that married people do not get along well together does not justify a divorce. Testimony which proves merely an unhappy union, the parties being high strung temperamentally and unsuited to each other and neither being wholly innocent of the causes which resulted in the failure of their marriage, is insufficient to sustain a decree. If both are equally at fault, neither can clearly be said to be the innocent and injured spouse, and the law will leave them where they put themselves.
Connivance – Hollis v. Hollis
Year: 1993
Court: Court of Appeals of Virginia
2. Disposition:
3. Holding: a finding of connivance, the prior consent of one spouse to the misconduct of another, was sufficiently supported by the evidence. The defense of connivance need not be expressly asserted in the pleadings.
4. Issue:
5. Procedural History: the trial court found that the husband’s adultery resulted from the wife’s connivance and procurement and granted the husband a divorce on no-fault grounds.
6. Facts: Mr. Hollis filed a petition for no-fault divorce. During the divorce proceeding Mrs. Hollis testified that Mr. Hollis had committed adultery with another woman. Mr. Hollis admitted to committing adultery, but testified that Mrs. Hollis had consented to the affair. In support of this contention, Mr. Hollis introduced into evidence a letter that Mrs. Hollis had written to him. The letter stated that Mrs. Hollis wanted Mr. Hollis to be happy and to find someone who loved him. Mrs. Hollis recommended that Mr. Hollis start an intimate relationship with the woman with whom he eventually committed adultery. Based on Mrs. Hollis’s consent for the adultery, the trial court granted Mr. Hollis a no-fault divorce.
7. Rule:
8. Reasoning: connivance is the consent, either expressed or implied, of one spouse to the proposed misconduct of the other spouse. One who consents to another’s misconduct may not seek a divorce based on the misconduct.
The husband was not barred from asserting connivance because he had not expressly pleaded the defense of connivance or condonation. His answer expressly denied her allegations. A court may deny a divorce where it appears from the record that the injured party has connived to bring about the misconduct complained of.
Condonation – Willan v. WIllan
Year: 1960
Court: Court of Appeal for England and Wales
2. Disposition:
3. Holding: in the case of a husband who has sexual intercourse it can only be said of him that what he does he does on purpose, and that sexual intercourse with his wife must be a voluntary act on his part.
4. Issue:
5. Procedural History: Mr. Willan’s petition for dissolution of his marriage on the ground of cruelty was dismissed.
6. Facts: Mr. Willan filed a petition for divorce based on cruelty. Mr. Willan alleged that Mrs. Willan frequently and repeatedly demanded sexual intercourse from Mr. Willan and coerced him to engage in intercourse via a variety of methods despite the fact that he was unwilling. Specifically, Mrs. Willan often was violent toward Mr. Willan until he relented and had sexual intercourse with her. Additionally, Mrs. Willan would often pester Mr. Willan for intercourse late into the night to the point where the only way Mr. Willan could sleep was to acquiesce in Mrs. Willan’s demands. Mrs. Willan objected to the divorce petition on the ground of condonation. The night before the husband left for the last time, an act of sexual intercourse took place.
7. Rule:
8. Reasoning: the act of intercourse could not be held to amount to condonation, because it was one and the same with an act which was of itself relied on as part of the cruelty alleged -> there is no finding by the learned commissioner that the last act relied on as condonation was one with the cruelty alleged by the husband. The wife submitting herself to an act of sexual intercourse could not in any way amount to an act of cruelty.
In the case of a husband having intercourse with the wife, with full knowledge of the matrimonial offence of which complaint is made, is conclusive evidence of condonation by the husband of the wife. It is the best possible way of showing that the wife has been reinstated as a wife.
CA Governor’s Commission on the family (1966)
The retention of specific fault grounds leads to needless divorce and invests with spurious objectivity acts whose real significance varies widely with the varied marriage relationships that provide their setting.
If the Family Court is to function at all, it must be by a procedure which permits and requires dissolution of a family only upon a finding of irremediable breakdown of the marriage. The marital relationship is a deep and complex one, and should not be sundered by the law unless the Court finds that the legitimate objects have been irretrievably lost.
Difonzon, customized marriage
At present, the living apart period to allow for divorce consists of one year. If the couple have no minor children and have entered into a property settlement agreement, they need only live apart for six months. More than half of American jurisdictions had enacted no-fault divorce grounds before 1970. CA’s reform eliminated fault-based alternatives for divorce-minded spouses. The irreconcilable differences standard minted in 1969 as the sole divorce criterion in CA was designed to transform divorce litigation from an adversarial tempest to an amiable teapot. The very process of stalling divorce-minded partners was an integral component of therapeutic divorce premised on its belief that slowing the divorce process would dissuade many couples from seeking to dissolve their marriages. The Family Law Act of 1969 heralded the era of no-fault divorce, but it was intended to render divorce more difficult to obtain. In 1975 the CA legislature repealed the provision which had allowed proof of specific bad acts to show the existence of irreconcilable differences. Even in contested divorce cases, a perfunctory judicial acknowledgement of marital breakdown replaced the parade of witnesses and staged courtroom battles. UMDA specified that the sole ground for divorce should be an irretrievable breakdown of marriage.
CA Family Code
The Uniform Marriage and Divorce Act
Adjudicating no-fault – In re Marriage of Dowd
Year: 1991
Court: Appellate Court of Illinois, Second District
2. Disposition: affirmed.
3. Holding: irreconcilable differences existed in this case and an irretrievable breakdown of the marriage occurred long ago. Marriage should be dissolved under the no-fault provision of the Act.
4. Issue:
5. Procedural History: the circuit court of Kane County entered a judgment of dissolution of marriage based on irreconcilable differences.
6. Facts: the parties were married in 1970 and had one child born in 1971. In 1985 petitioner moved out of the home and returned in 1986 based on respondent’s agreement to seek marital counseling. Petitioner retuned to marital bed and petitioner slept on the couch. Petitioner expressed her love for respondent in 1986 and had sexual relations in 1987. Petitioner filed for dissolution in 1988.
7. Rule:
8. Reasoning: Respondent contends the proof was insufficient to show that the parties lived separate and apart in excess of two years or that the marriage was irretrievably broken down. He contends “living separate and apart” ground requires that spouses live physically separate and apart for two years.
In Kenik, it was not necessary for individuals in a marriage to live apart to make the provision applicable.
Although no physical separation of two years had occurred prior to the dissolution, the parties had been living “separate and apart” for more than two years.
What constitutes irretrievable breakdown – Grimm v. Grimm
Year: 2004
Court: Appellate Court of Connecticut
2. Disposition:
3. Holding: The court did not improperly find that the marriage had broken down irretrievably.
4. Issue:
5. Procedural History:
6. Facts: Mrs. Grimm filed for no-fault divorce based on an irretrievable breakdown of the marriage. Mrs. Grimm had previously filed and withdrawn five other divorce actions. Mrs. Grimm testified that she had continually withdrawn the actions due to Mr. Grimm’s attempts to prolong and force Mrs. Grimm to spend significant amounts of money on the process. Mrs. Grimm testified that Mr. Grimm was distant, abusive, and dishonest during the course of their marriage. Mrs. Grimm also testified that Mr. Grimm had exposed himself in the presence of a child and committed larceny. Mr. Grimm responded that Mrs. Grimm’s pattern of filing and withdrawing divorce actions was indicative that the marriage had not truly suffered an irretrievable breakdown and that Mrs. Grimm actually still wanted to reconcile.
7. Rule:
8. Reasoning: Defendant claims 46b-40(c)(1) violates the free exercise of religion clauses because his faith opposes divorce. -> disagree. The statute is a valid and neutral law of general applicability. Courts upheld the constitutionality of no-fault divorce.
Defendant argues the court abused its discretion in finding that the marriage had broken down irretrievably. -> the trial court was within its discretion to credit the Plaintiff’s version of the facts that the pattern of litigation was the result of the Defendant’s attempt to thwart the dissolution proceedings.
Whether irretrievable is a question of fact determined by the trial court. Factual findings are reviewed under the clearly erroneous standard of review, which occurs when not supported by any evidence in the record or when there is evidence but the reviewing court is left with the definite and firm conviction that a mistake has been made.
High attorney’s fees and 12 years of fight
Contracting around statutory grounds for divorce – Massar v. Massar
Year: 1995
Court: Superior Court of NJ, Appellate Division
2. Disposition: affirm.
3. Holding: two intelligent adults should be able to agree concerning the framework and timetable for the dissolution of their troubled marriage and have that agreement enforced, if that agreement is fair and equitable.
4. Issue:
5. Procedural History: an order enforced an agreement limiting the grounds for a complaint for divorce to eighteen months continuous separation. The district court upheld the agreement and dismissed the complaint, denied without prejudice motion to enforce the prenuptial agreement, and ruled that Mrs. Massar could file a complaint for separate maintenance.
6. Facts: Prior to marriage in 1988, the parties signed a prenuptial agreement. In 1993, the marriage deteriorated and the parties discussed separation and eventual divorce. In 1993 agreement, Mr. Massar agreed to vacate the home and Mrs. Massar not to seek termination of the marriage other than for eighteen months separation. Approximately five months after the Massars signed the agreement, Mrs. Massar filed a petition for divorce based on extreme cruelty. Mr. Massar filed a motion to dismiss and to enforce the prenuptial agreement.
7. Rule:
8. Reasoning: Mrs. Massar argues that a complaint for divorce on the grounds of extreme cruelty does not violate the intent of the agreement. She argues that the agreement violates public policy and is enforceable. She argues that a plenary hearing was required. -> disagree. Language is clear and unequivocal. This agreement was supported by consideration. There is insufficient evidence that this waiver was not a knowing and voluntary act, and a plenary hearing was not warranted.
Marital agreements are enforceable only if they are fair and equitable. Any marital agreement which is unconscionable or is the product of fraud or overreaching by a party may be set aside. Although marital agreements are contractual in nature, “contract principles have little place in the law of domestic relations.”
Mrs. Massar urges to adopt a per se rule that agreements confining a spouse to a particular cause of action are against public policy and are unenforceable. -> we have reviewed the enforceability on a case-by-case basis to determine if the application of the provision is fair and just. Decline to adopt a per se rule.
Contracting around statutory grounds for divorce – In re marriage of Cooper
Year: 2009
Court: Supreme Court of Iowa
2. Disposition:
3. Holding: the reconciliation agreement is void under Iowa law. As a void contract, it should be given no weight in the dissolution proceedings.
4. Issue:
5. Procedural History: The district court granted temporary support. Bernard filed a motion to reconsider. The district court found the postnuptial reconciliation agreement valid and considered its terms when equitably dividing the couple’s property. The court of appeals reversed on the ground that the reconciliation agreement injected fault into the distribution of property contrary to established public policy.
6. Facts: Reconciliation agreement was signed after the husband engaged in an extramarital affair. The wife sought to enforce the agreement in a subsequent dissolution action after discovering that the extramarital relationship had not ended.
7. Rule: Vergestene caught Bernard cheating on her. As a result, the Coopers signed a postnuptial reconciliation agreement, under which Bernard agreed that if he was unfaithful to Vergestene again, he would accept fault in a divorce proceeding and pay Vergestene household expenses, maintain life insurance and family health insurance, pay the education expenses of the Coopers’ daughter, and pay Vergestene one-half of all future retirement payments that Bernard received. Bernard left the house in 2005. Bernard continued his affair after signing the agreement. Vergestene filed for divorce.
8. Reasoning: Bernard claims the parties’ reconciliation agreement is unenforceable as it violates Iowa’s public policy by considering fault in dissolution proceedings.
This case involves a reconciliation agreement which has as a condition precedent the sexual conduct of the parties within the marital relationship. A unifying theme of our case law is that contracts which attempt to regulate the conduct of spouses during the marital relationship are not enforceable.
No-fault divorce law is designed to limit acrimonious proceedings. A contrary approach would empower spouses to seek an end-run around our no-fault divorce laws through private contracts.
Shaw Spaht, Covenant marriage seven years later: its as yet unfulfilled promise
A LA covenant marriage differs in: (1) mandatory pre-marital counseling; (2) the legal obligation to take all reasonable steps to preserve the couple’s marriage if marital difficulties arise; and (3) restricted grounds for divorce consisting of fault on the part of the other spouse or two years living separate and apart. At the end of the counseling, the prospective spouses sign a document Declaration of Intent that contains the content of their covenant, which includes the agreement to seek counseling if difficulties arise and their agreement to be bound by the law of covenant marriage. A spouse in a covenant marriage may obtain a divorce only if she can prove adultery, conviction of a felony, abandonment for one year, or physical or sexual abuse of her or a child of the parties. Otherwise, the spouses must live separate and apart for two years.
Amato, Good enough marriages: parental discord, divorce, and children’s long-term well being
Although divorce harms some children, it benefits others. If we make divorce more difficult to obtain, then we are likely to benefit some children in low-discord marriages, but we also are likely to harm some children in high-discord marriages. It would be unpopular and harsh policy to encourage some couples to divorce, it might be advisable in cases where violence or abuse is present in the marriage. About 40% of marriages with children are projected to end in divorce. About half of children are harmed by divorce and about half are helped by divorce. The divorce projection of 26% suggests the current divorce rate is higher than it should be.
Laufer-Ukeles, Reconstructing faults: the case for spousal torts
(1) No-fault divorce was devised as a method of decreasing hostility between divorcing couples and ensuring that resolution of disputes received the proper support in family courts with specialized judges. (2) Feminists have been critical of no-fault divorce for its effects on dependents and their caregivers; and for that it deprives women of bargaining power with regard to the financial incidents of divorce. -> women are increasingly the parties who are at fault or who initiate the divorce. Primary caregivers, who are usually women, have much more to lose in bargains. Fault divorce disproportionately punishes the very caregivers and children whose welfare divorce regulation should be focused on protecting. (3) studies on the effect of divorce on children are mixed. It is not clear that no-fault divorce actually increases divorce rates. Divorce regulations should focus on caregivers and children who have the most at stake and suffer the most from unregulated unilateral no-fault divorce. No fault divorce provides the best forum for supporting post-divorce families, easing tension and creating stability.
Strasser, Marriage, divorce, and domicile
States vary with respect to their willingness to recognize marriages celebrated in other jurisdictions. Some will recognize any marriage celebrated in a sister state, while others specify which marriages validly celebrated elsewhere will nonetheless not be recognized within those jurisdictions.
Divorce jurisdiction – Sosna v. Iowa
Year: 1975
Court: Supreme Court of the US
2. Disposition: affirmed.
3. Holding: a state may quite reasonably decide that it does not wish to become a divorce mill for unhappy spouses who have lived there as short a time.
4. Issue:
5. Procedural History: The district court dismissed the petition for lack of jurisdiction, finding that Mrs. Sosna had not been a resident of Iowa for one year preceding the filing.
6. Facts: Sosnas married in 1964 and separated in 1971. In 1972, Mrs. Sosna moved to Iowa with her here children and petitioned the District Court of Iowa for a dissolution of her marriage. Mr. Sosna, who was served with notice when he visited his children, made a special appearance to contest the jurisdiction.
7. Rule:
8. Reasoning: the imposition of a durational residency requirement for divorce is scarcely unique to Iowa. Appellant contends that the requirement is unconstitutional because it discriminates against those who have recently exercised their right to travel. -> durational residency requirements in other cases were justified on the basis of budgetary or recordkeeping considerations and insufficiently outweighed the constitutional claims. But divorce residency requirement delayed her access to the courts but she could ultimately obtain the same opportunity for adjudication.
Marshall dissenting: this analysis ignores the severity of the deprivation suffered by the divorce petitioner who is forced to wait a year for relief. It cannot reasonably be argued that when the year has elapsed, the petitioner is made whole. The Court does not regard Mrs. Sosna’s deprivation as being very severe.
She cannot get divorced in NY because she is not present in NY. Iowa law applies and NY law does not.
Rose v. Rose
Direct examination of Mitchell by Fisk
Witness Mitchell testifies Diane’s family told him Diane was unable to love and too uncomfortable to live with the children. Children’s mother was cold and father was withdrawn.
Mitchell states Diane had some signs of organic brain damage but she loved people around her and was not psychotic.
Diane states she was being treated as though she were a bad influence on the baby. She would be criticized by Steve and Alice no matter what she does. Steve and Alice took the baby and Diane had a hard time visiting the baby and did not feel welcome.
Cross examination of Mitchell by Mellon
Mitchell testifies Diane’s husband was deeply involved in the suicide attempts due to his expression of dissatisfaction of her. Mitchell is sad that the child has been kept away from its mother during sixteenth to eighteenth month.
Steven Rose as adverse witness by FIsk
At a family consultation session, Dr. Bower said you are trying to commit Diane to the group and Steven, Alice, and others needed treatment.
Direct examination of Deborah Nathan by Fisk
Diane stayed in Nathan’s home for a month and a week and helped with the household chores and taking care of the baby. Nathan testified that Dr. Bower said Steve, Alice, and Nancy were the most vicious people he had ever seen and they were self-righteous and unforgiving people. Dr. Grant said the group came to commit Diane to institution but the group is the ones that need the treatment.
Cross examination of Deborah Nathan by Mellon
Dr. Winter is paying Deborah Nathan’s expenses.
Direct examination of Steven Rose by Fisk
Steven testifies that Diane went to Austria with Steven as Steven was to pursue medicine but Diane did not go to classes and wanted to return home. At George Washington University, Diane worked and Steven enrolled in medical school. When Diane delivered baby, Diane and Steven asked parents for money. Steven denies he criticized Diane’s parents for not giving money or after the suicide attempt. Steven denies the specifics of the argument between Alice and Diane.
Direct examination of Samuel Winter by Fisk
Dr. Winter made $20000 in contribution to the University to get Steve Rose into the school. After Diane fell, he talked with Harold who said Alice wants the baby and Winter said Amanda also loves the baby. A month later, Steven became more distant and irritated.
Cross examination of Samuel Winter by Mellon
Dr. Winter testified that Nancy was close to her parents but drifted away after Diane’s incident occurred. Nancy might have improper relationship with Steven Rose.
Direct examination of Amanda Winter by Fisk
Ms. Winter moved to D.C. after Diane’s incident. The baby was with Mrs. Rose in Arlington, until they moved to Washington apartment; then, Ms. Winter took care of the baby while Alice went to the hospital. Alice would take over baby chores for herself when Ms. Winter was doing it. Alice’s actions would take all the joy out of it from Ms. Winter. Steven was very hostile toward Ms. Winter all the time. Diane grew more hostile toward Ms. Winter and indicated Steven and Alice were telling her something she could not have known that were more and more hostile toward her parents. Ms. Winter went home after Diane told her to do so.
Direct examination of Nancy Winter by Fisk
At the family session, Nancy expressed hostility toward her parents because they were not involved with their children when the children needed them. Dr. Winter told Nancy to get involved in the schism between the Roses and the Winters and Nancy said she did not want to.
Direct examination of Diane Rose by Fisk
Diane testifies Steven often called Diane stupid and laughed at her with regards to learning German. Diane took care of the baby the whole time until the incident and Steven did not take care of the baby. After the incident, her father supported her and Steven became critical of her, telling her daily how she was inadequate. Alice accosted Diane that she was not doing works the right way. Steven would support Alice and not Diane. Steve and Alice would say Diane’s parents did not love her. Alice would take over the tasks of taking care of the child and Diane had no physical contact with the child. There was a physical confrontation and Diane went to the Nathans for about a month. Diane asked Steve to bring the child and he did weeks later once, and Diane took care of Nathans’ baby. Diane returned to the apartment and Steve left. Diane could not see the baby four times a week and they wouldn’t allow it, so Diane filed a custody hearing.
Cross examination of Diane by Mellon
Diane testifies that Steven told her she is so inadequate that she could not even kill herself. She states she was brainwashed just like Nancy. She says Alice and Steven are great. She says she had to hate her parents to keep Steven. She says Steven made her feel she was not good enough for the baby and she attempted suicide for the baby because she felt she was a burden and for Steven because it would relieve him.
Direct examination of Greenburg by Fisk (psychiatrist)
Greenburg would put Diane in the lowest lethality group and describe her as not suicidal at the time. Diane has been making attempts to change her passivity in personality and has been willing to seek help, trending away from the lethality. Greenburg testifies Mrs. Rose would be a superior parent to Mrs. Rose, because the mother is a more important parent than a father and Mrs. Rose is possible to supply the intimate and constant attention in a young time in child’s life.
Cross examination of Greenburg by Mellon
Greenburg does not agree with the Washington law that states no parent shall be favored because one is mother. Greenburg has not met Steven or the child and met Diane for an hour and fifteen minutes.
Direct examination of Howe by Fisk (psychologist)
Howe testifies Diane should be awarded custody. It would create continuing stable relationship created in the mother-child situation in one-to-one and absence of other individuals.
Direct Examination of Pyle by Mellon (psychiatrist)
Pyle testifies Diane was suffering from a severe depressive reaction and that she will make another suicidal attempt. He states the child is at risk of sustaining psychological trauma and physical trauma through a suicidal attempt. The child might internalize his mother’s situation, and the mother might kill the child.
Cross examination of Pyle by Fisk
Pyle put Diane in the high risk category in part because she had chronic depression, but does not involve examination of Diane. The counsel is paying for the expenses of Pyle to come and testify.
Direct examination of Piller by Mellon (psychiatry)
Steven states Diane’s suicide attempt was because of feelings of inadequacy with the child and feeling of abandonment by her parents. Piller states Steven has no mental disorder and does not think Steven is vicious.
Cross examination of Piller by Fisk
Piller is unaware of various details about Steven and his mother.
Direct examination of Steven Rose by Mellon
Steven states Diane received a letter from her mother castigating Steven and Diane for having car and camera and that they should go through terrible times, and told them they could never come home again. Steven took emergency measures for Diane on the days after Diane’s incident. Steven states Dr. Bower is very hostile at times and very affectionate at other times, made derogatory comments on various people, and stated he misjudged Steven. Steven says Diane refused to come over or see Jason. Steven talked to Dr. Richards at UCLA and arranged for a special treatment so that he can stay with his child. Steven says a woman will work at the house full time to take care of the child while he is at the hospital.
Cross examination of Steven Rose by Fisk
Steven states he himself has been taking care of Jason and Jason will have to adjust to the new caretaker gradually. He says the intern will last three years and that Diane will have to fly in to visit Jason.
Direct examination of Bennett by Mellon (friend)
Bennett states Steven and Jason get along well.
Direct examination of Goldstein by Mellon
Goldstein testifies that a child of eight months would have begun to internalize and incorporate as a psychological parent in a very substantial sense the father. The child experienced abandonment in psychological sense and strain the tie dramatically. It would be least harmful to allow the child to the custody of his father. Every time you break a tie abruptly, you make it more difficult for the next relationship. There is an experience that the child grows on of the parent always coming back; his father is always coming back. Given the length of time of prior separation and the age of the child, it is hard to contemplate such an abrupt termination of relationship.
Cross examination of Goldstein by Fisk
Fisk states the reason for suicide attempt was because of pressure put upon Diane by her husband and his mother with reference to permitting her to care for her own child. Fisk asks if the court should leave the child with the parent who stole him away. Goldstein states if the child is thriving he would leave him there. Fisk asks if it is beneficial to the child for Mr. Rose is hostile to Mrs. Rose and the Winters and alienated child from Mrs. Rose, and Goldstein answers in the negative. Fisk asks when Mr. Rose takes Jason to L.A., there will be an interruption in the continuity of care. Goldstein says it is detrimental but it is less detrimental to break the tenuous ties than the real ties developed over two years.
Redirect of Goldstein by Mellon
Goldstein examines the question from the child’s vantage point. A child was placed in foster care and was abruptly taken back to the biological mother, which psychiatrists objected by severing the ties with the foster mother. The child developed ties with the biological mother and that tie should not be broken.
Direct examination of Alice Rose by Mellon
Alice states she wanted to provide the best possible care for Diane and called Dr. Allen for Dr. Raymond. She denies she wanted custody if Diane died. Alice says she had a great relationship with Diane, like mother and daughter.
Direct examination of Bower by Mellon
Bower states Diane does not function in an ordinary, intact, and normal manner. Bower states Diane, under continued pressure, she becomes confused in her thinking and becomes lose. Bower concludes Diane has a disturbance in her thinking, and it is consistent with a personality disorder. Bower thinks the custody should go to Steven Rose, because he manages stresses in an adoptive and continuously functioning way, while Diane did not. Bower says Diane was unable to continue dealing with stressful incidents and tended more to her own needs and thinking than that of child’s.
The Trial Court Judge Sangster
The Court has questions on: (1) the moral, emotional, and physical fitness of the parties; (2) the desirability of continuing an existing relationship and environment. I now find that Diane is not suicidal and not likely to be a significant risk in the future. Diane is now viewed as a psychological parent to some degree. Diane had a passive-dependent personality disorder. It appears to me that Steven is a very demeaning person; he is prone to criticize and quick to demonstrate some kind of intellectual superiority.
The Appeals Court Judge Thornton
Husband claims he is the sole psychological parent of the child and the wife’s should not have been awarded custody because of her suicidal tendencies and the brain damage from the suicide attempt. -> both husband and wife are psychological parents. Wife is not now or prospectively suicidal and she is fit to be awarded custody. Affirmed.
Fitness – Arneson v. Arneson
Year: 2003
Court: Supreme Court of South Dakota
2. Disposition: Affirmed.
3. Holding: the court properly considered the relevant factors in making its custody determination and did not abuse its discretion in awarding primary physical custody to Teresa.
4. Issue: whether the circuit court improperly considered the father’s physical limitations resulting from his cerebral palsy in deciding child custody between the parents.
(1) whether the trial court’s determination was impermissibly influenced by Travis’s physical disability. (2) whether the determination was erroneously based on the tender years doctrine. (3) whether findings are clearly erroneous and whether the court abused its discretion.
5. Procedural History: the trial court awarded joint legal custody to the parents, naming Teresa as the primary physical custodian.
6. Facts: Arnesons married in 1998 and their child Grace was born. Travis was diagnosed with cerebral palsy when he was six years old. Travis receives monthly personal injury payments for life and uses a wheel chair and a personal attendant. He is independent and capable of caring for himself. He believes he is capable of caring for his child without assistance of an aide. Teresa is devoted to her child. She provided a greater share of Grace’s physical needs. In 2001, Travis sued Teresa for divorce. The Court ordered that they share custody on alternating weeks. The attendant thought any concerns about Travis’s inability were unfounded. Teresa did not allow Grace to go to Travis’s for daycare during Teresa’s weeks because Travis would not let Grace go to Teresa’s at night. Zimbelman concluded that Travis’s limitations make him less able to care for Grace than Teresa.
7. Rule:
8. Reasoning: In deciding custody disputes between parents, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child’s temporal and mental and moral welfare.
A physical disability is not a per se impediment to custody. Although health and physical condition of a parent is a valid factor in determining a child’s best interests, a judge must neither presume the existence of limitations nor fail to adequately consider other relevant factors.
The judge should consider: (1) the person’s actual and potential physical capabilities; (2) how the parent has managed and adapted to the disability; (3) how the other members of the household have adjusted to it; and (4) the special contributions the person may make to the family despite, or even because of, the handicap.
Fitness: Teresa was more willing to maturely encourage and provide contact between the child and the other parent. Stability: both were equal. Primary caretaker: Teresa is and Grace needs to be with the one emotionally attached to, Teresa.
If Travis felt that Zimbelman’s assessment misrepresented his abilities, he could have brought I his own expert to contradict her.
Weighing multiple factors – Hollon v. Hollon
Year: 2001
Court: Supreme Court of Mississippi
2. Disposition: Reverse and remand.
3. Holding: the chancellor abused his discretion by placing too much weight upon the moral fitness factor and ignoring the voluminous evidence presented under the remaining factors supporting Beth as the preferred custodial parent.
4. Issue:
5. Procedural History: Tim and Beth were granted a divorce nunc pro tunc on the grounds of irreconcilable differences. Child custody, child support, and assessment of court costs were disputed. The chancellor granted Tim custody of Zach and reserved visitation rights for Beth.
6. Facts: Tim and Beth were married in 1994. Zach was born in 1996. They lived in an apartment where Beth served as the on-site manager and Tim served as a police officer. They separated in 1997 and again in 1998. Tim moved out of the home and Beth took in a roommate, Dukes. Beth admitted she slept in the same bed as Dukes but denied any sexual relationships. Mauldin, a Beth’s friend, testified that Beth was engaged in sexual relationship with Dukes. Tim borrowed a key to the apartment from Mauldin, entered without permission, and made a photographic record of what Tim deemed inappropriate. During the trial, Beth moved out of the apartment and into her parents’ home.
7. Rule: Albright factors in what is in the best interest of a child: (1) age, health, and sex of the child; (2) determination of the parent that had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship.
8. Reasoning: We determine whether the chancellor was manifestly wrong, clearly erroneous, or abused discretion.
1 -> There is a presumption that a mother is generally better suited to raise a young child. This factor favors Beth due to presumption.
2 -> Since the parties separated, the mother retained primary care of the child. Tim did not express interest in becoming the custodial parent until the allegations of homosexuality arose and rarely exercised visitation rights. Beth.
3 -> Tim had not paid his child support obligations regularly and did not visit Zach for two months. Beth had the primary responsibility of caring for the children. -> Beth holds an advantage.
4 -> Tim has a regimented schedule regardless of weekends or the hour of the day but Beth works 35 hours in an office environment. This factor is in Beth’s favor.
5 -> This factor balances equally between Beth and Tim.
6 -> No testimony presented Zach exhibited a stronger attachment to one parent and the trial court found this factor balanced equally between Beth and Tim.
7 -> Chancellor found Beth’s testimony regarding homosexual affair to be untrustworthy. He noted that he ought to have confidence that the custodial parent is a truthful, forthright person and he lacked confidence in Beth. He noted that evidence of a homosexual relationship is not per se a basis to determine the child custody. The trial court never found the mother unfit, and no evidence was presented regarding detrimental effects the child may have suffered. Tim drank and gambled. This factor was the most scrutinized.
10 -> Chancellor found this factor favoring Tim. The reason is inexplicable because Beth’s situation is more favorable to child-rearing.
The absence of specific findings prevented affirming the lower court with the confidence. The chancellor did not analyze the applicable factors with specificity. His defining consideration centered on the allegations of homosexual affairs and committed reversible error.
Pearson, Sexuality in Child Custody Decisions
Courts use the nexus test, ruling that a parent’s sexual orientation may be taken into account only if there is evidence that it is likely to cause harm to the child. Maxwell and Donner argue the nexus test itself is not neutral because it necessarily seeks evidence of a connection between homosexual orientation and harm. Stacey and Biblarz published a review noting that a higher proportion of children raised by same sex parents engage in homosexual activity. The question before a judge in a custody dispute would shift from whether a parent transmits homosexuality to whether possible reproduction of homosexuality is value-neutral or poses risk of harm.
Race and Ethnicity – Palmore v. Sidoti
Year: 1984
Court: US Supreme Court
2. Disposition: Reversed.
3. Holding: The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.
4. Issue: Whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother.
5. Procedural History: The court made no findings with respect to allegations about the child’s care. The court noted the recommendation for a change in custody because the wife has chosen a life-style unacceptable to her father and to society. The court concluded that the best interests of the child would be served by awarding custody to the father. The court’s opinion turns to what it regarded as the damaging impact on the child from remaining in a racially mixed household.
6. Facts: Palmore and Sidoti, both Caucasians, divorced in 1980 and the mother was awarded custody of their 3-year-old daughter. In 1981, the father sought custody of the child by filing a petition to modify the prior judgment because of changed conditions. The mother cohabited with a black whom she married two months later and the father asserted several allegations in which the mother had not properly cared for the child.
7. Rule:
8. Reasoning: the court was entirely candid and made no effort to place the holding on any ground other than race. A core purpose of the 14th Amendment was to do away with all governmentally imposed discrimination based on race. Such classifications are subject to the most exacting scrutiny; they must be justified by a compelling governmental interest and be necessary to the accomplishment of its legitimate purpose.
The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause.
The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.
Child’s welfare is the compelling governmental interest.
Race and Ethnicity – Jones v. Jones
Year: 1996
Court: Supreme Court of South Dakota
2. Disposition: Affirmed.
3. Holding: it is proper for a trial court, when determining the best interests of a child in the context of a custody dispute between parents, to consider the matter of race as it relates to a child’s ethnic heritage and which parent is more prepared to expose the child to it.
4. Issue:
5. Procedural History:
6. Facts: Dawn and Kevin were married in 1989. Kevin was an enrolled member of the Sisseton-Wahpeton Dakota Nation. Dawn is a Caucasian. Kevin worked in construction and in the feeding of the cattle on the family farm. Dawn was a homemaker and held various jobs and is currently enrolled in a nursing program. Kevin is a recovering alcoholic and a divorce was granted based upon mental cruelty. They were granted joint legal custody of the children with primary physical custody being awarded to Kevin.
7. Rule:
8. Reasoning: Dawn argues the trial court awarded the children to Kevin because, as a Native American, he has suffered prejudice and will better deal with the needs of the children when they are discriminated against. She argues the trial court impermissibly considered the matter of race when determining the custody and violated her Equal Protection rights.
Kevin showed a sensitivity to the need for his children to be exposed to their ethnic heritage. To say that a court should never consider whether a parent is willing and able to expose to and educate children on their heritage is to say that society is not interested in whether children ever learn who they are.
Domestic Violence – Ford v. Ford
Year: 1997
Court: District Court of Appeal of Florida, Fourth District
2. Disposition: Reversed.
3. Holding: the trial court’s custody determination was arbitrary and unreasonable with respect to the weight accorded the testimony offered and the court’s findings.
4. Issue:
5. Procedural History: the trial court ordered the parents to share parental responsibility of Kylee and awarded primary physical residence to the husband. It found the mother manipulated visitation to the detriment of the father, using Kylee as leverage, concluding the father would be most likely to allow frequent and continuing contact.
6. Facts: Witnesses provided testimony regarding domestic violence, including Jones, a Custody Evaluator who completed a court-ordered custody/visitation evaluation. In May 1994, the couple invited the husband’s family to their house. When the family arrived, the husband ran out of the house screaming and told his family they better get in the house before he tore off his wife’s head. He told his sister-in-law that he hit his wife again. Clark, director of the Family Violence Intervention Program, testified the husband admitted his domestic violence against his wife. In October 1994, the husband threw the wife on the floor. The wife testified that he began kicking her and she ran out and called the police. The husband stated he slapped the wife after she kicked him. Ms. Jones recommended the wife have primary residential custody of Kylee because she was more emotionally stable and would provide a better home.
7. Rule:
8. Reasoning: the trial court’s determination of a child’s primary physical residence is subject to an abuse of discretion standard of review.
We are troubled not only by the absence of any meaningful analysis of the extensive evidence of domestic violence, but also by the apparent misapplication of record evidence to the statutory factors contained in section 61.13(3), Florida Statutes (1995).
As to factors (3)(a) and (j), the trouble occurs when a court attempts to harmonize the non-abusive parent’s conduct with friendly parent provisions. The trial court failed to offset what it perceived to be the mother’s violation of FL’s friendly parent provisions, with what was recognized in the temporary order as the mother’s justifiable reason to fear the Husband.
As to factor (g), the record is devoid of evidence favoring the father and is replete with testimony on the long history of abuse perpetrated by the husband against the wife. The trial court’s finding to the contrary is unsupportable.
Religion – Weisberger v. Weisberger
Year: 2017
Court: Supreme Court, Appellate Division, Second Department, New York
2. Disposition: Reversed.
3. Holding: We modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.
4. Issue:
5. Procedural History: Pending the hearing and determination of the father’s motion, the Supreme Court awarded the father temporary residential custody of the children. The parties entered into a temporary order of visitation on consent. The mother opposed the father’s motion and moved to modify the religious upbringing clause.
The Supreme Court noted that the mother’s conduct was in conflict with the parties’ agreement, which forbade living a secular way of life in front of the children or while at their schools. It stated that given the agreements the court was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination. The Court granted (1) and (3), and stayed (2).
6. Facts: The couple married in 2002. In 2005, the mother told the father that she was sexually attracted to women. The couple divorced in 2009. In a stipulation of settlement in 2008, the parties agreed to joint legal custody of the children with the mother having primary residential custody. The parties agreed that the children would be raised Hasidic and that the father would choose the children’s school. In 2012, the father moved to modify the stipulation so as to (1) award him sole custody, (2) award the mother only visitation, and (3) to enforce the religious upbringing clause. The father alleged that the mother had radically changed her lifestyle in a way that conflicted with the religious upbringing clause. The father did not fully exercise his visitation rights. The father testified that he wanted to give the children a traditional upbringing according to his religion.
7. Rule:
8. Reasoning: modification of an existing court-sanctioned custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the children. The court’s findings will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence.
The court gave undue weight to the parties’ religious upbringing clause. When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor. NY courts will consider religion when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent. Clauses that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children.
The father failed to demonstrate that it is in the children’s best interests to award him custody. The award would be harmful to the children’s relationship with the mother.
The plain language of the agreement was to give the children a Hasidic upbringing, not the mother. Nor may the courts compel any person to adopt any particular religious lifestyle. A religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely.
The evidence does not support that it is in the children’s best interests to have their mother conceal the true nature of her feelings and beliefs or to force her to adhere to practices and beliefs that she no longer shares. The children’s best interests would be better served by a more limited modification of the religious upbringing clause than that proposed by the mother.
Bala, Children’s voices in family court: guidelines for judges meeting children
Some take the view that children have rights and should be allowed to express their views about their future even in the context of parental disputes. Others believe that children need to be protected from family conflict and not directly involved in the process.
Arguments against children involvement include concerns that children lack the ability to assimilate relevant information about the family justice process and may not understand what they are being asked. Children may be manipulated by parents into providing inaccurate information. Children may experience guilt, pressure, or retribution from parents.
Halbrook, Custody: kids, counsel, and the Constitution
When advocates are appointed for children in custody matters, they generally serve in Guardian Ad Litem or some form of attorney for the child. A GAL is obligated to advance the best interests of the child within the case. An attorney for the child must advance the child’s interests, sometimes framed as the child’s best interests and sometimes as the child’s expressed wishes.
Joint Custody – Rivero v. Rivero
Year: 2009
Court: Supreme Court of Nevada
2. Disposition: Reversed and remanded.
3. Holding: In joint physical custody arrangements, the timeshare must be approximately 50/50. Each parent must have physical custody of the child at least 40 percent of the time to constitute joint physical custody.
The district court properly disregarded the parties’ definition of joint physical custody because it must apply Nevada’s definition. The district court abused its discretion by not making specific findings of fact to support its decision that the custody arrangement constituted joint physical custody and the modification of the decree was in the best interest of the child.
The district court abused its discretion when it determined, without making specific findings of fact, that the parties had joint physical custody and when it modified the custody arrangement set forth in the divorce decree.
4. Issue:
5. Procedural History: the district court found that the joint physical custody did not accurately reflect the timeshare arrangement. It denied her motion for child support, found that they had joint physical custody, and ordered to mediation to establish a more equal timeshare plan. It found she did not have de facto primary physical custody.
6. Facts: Ms. Rivero filed a complaint for divorce. The parties agreed to joint physical custody of the child. The agreement stated that Ms. Rivero would have physical custody of the child five days per week and Mr. Rivero would have physical custody two days per week. Less than two months later, Ms. Rivero moved to modify the decree by awarding her child support, and less than one year later, she moved for primary physical custody and child support. She alleged he did not spend time with the child, his mother took care of the child, and he did not have suitable living accommodation. She argued she has de facto primary custody. He argued she denied him visitation.
7. Rule:
8. Reasoning: Legal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the child’s health, education, and religious upbringing. Joint legal custody vests this right with both parents. The parents must consult with each other to make major decisions regarding the child’s upbringing. If the parents reach an impasse and are unable to agree on a decision then the parties may appear before the court on an equal footing to have the court decide what is in the best interest of the child.
Ms. Rivero and the Family Law Section assert that the court should clarify the definition of joint physical custody to determine whether it requires a specific timeshare agreement. The Section suggests each parent has custody at least 40% of the time.
Under the legislative history on NRS 125.490, joint physical custody is awarding custody to both parents and providing that custody shall be shared by the parents to ensure the child of frequent associations and a continuing relationship with both parents.
Ms. Rivero, as the moving party, had the burden to show that modifying the custody arrangement was in the child’s best interest.
Alternatives to the Best Interests standard – Young v. Hector
Year: 1998
Court: Court of Appeal of FL, Third District
2. Disposition: Affirm.
3. Holding: there was substantial competent evidence to support the trial court’s discretionary call in this regard.
4. Issue: whether the trial court abused its discretion when it determined that the best interests of the two minor children dictated that their mother be designated their primary custodial parent.
5. Procedural History: the trial court designated the former mother as the primary custodial parent of the two minor children.
6. Facts: After birth of two children, both parents worked outside of the home. In 1987, the father’s business ventures began to suffer and the mother became bored with her law practice. The mother and the children arrived in Miami and the mother passed the FL bar and found a position. The father moved to Miami and passed contractor’s examination. The father renovated the couple’s houses and was in arguments with the mother about finding gainful employment. The couple had a negative cash flow. The father was frequently away for months. The children were cared for babysitter and the mother. One month after the father’s return in 1993, the mother asked for divorce. The father still refused to make efforts to obtain employment but was more involved in the lives of the children. The father maintained that he was the primary caretaker.
7. Rule:
8. Reasoning: the father contends the trial court abused its discretion when it awarded custody to the mother.
This inquiry by the court is not evidence of gender bias.
The guardian ad litem noted that the mother had been the more economically stable. It stated the mother had been a constant factor and dominant influence in the children’s lives and the father had not. It stated the mother had a superior ability to control her anger around the children. The trial court did not abuse its discretion and the court’s determination was not influenced by gender bias against the father.
Schwarts dissenting: the trial court’s award is unsupported by any cognizable, equitable consideration presented in the record. Modifications of the custody provisions may be made only when there has been a change of circumstances adversely affecting the welfare of the children. When the children have manifestedly benefitted from an arrangement, the same rule should apply. The court should allocate custodial responsibility so that the proportion of custodial time the child spends approximates the proportion of time each parent spent performing caretaking functions prior to the separation. The result was dictated by the gender bias.
Goderich dissenting: the mother acquiesced to the agreement that the father would stay at home by allowing it to continue for three years. The trial court was not concerned with the parties’ financial condition but had gender bias. If the roles were reversed no judge would question a mother’s lack of employment. A parent’s financial resources should never be considered as a determinative factor. The reasons for the father’s absence from the home was valid. The father’s anger was based on the financial inequities of the situation.
Principles of the Law of Family Dissolution: Analysis and Recommendations.
The ideal standard for determining a child’s custodial arrangements is one that both yields predictable and easily adjudicated results and also consistently serves the child’s best interests. Avoiding expert testimony is desirable because such testimony tends to focus on the weaknesses of each parent. Therapists are better used to assist parents in making plans to deal constructively with each other and their children.
THe primary caretaker presumption is used to determine which parent will be designated the sole custodian, with a right of physical custody superior to that of the noncustodian, and a right of legal custody equal or greater than that of the noncustodian. 2.08 seeks to allocate shares of custodial responsibility in accordance with the preexisting patterns.
Levy, Custody law and the ALI’s principles: a little history, a little policy and some very tentative judgments.
Joint custody enjoyed substantial legislative popularity for a time because if divorce fathers are not deprived of authority over their children they will continue to support them and stay emotionally attached to them to the children’s development advantage. Most legal observers believe joint legal custody (sharing of legal decision-making authority), rather than joint physical custody (some kind of shared parenting), should become common.
In some states the terms custody and custodian and visitation have been abolished and replaced with a concept of actual and shared parenting. Washington statute provides parenting plan formula that provides a post-dissolution care and management plan.
Professor Scott suggested that custody and visitation be awarded so as to approximate the time each parent spent with the child during the marriage. The exceptions to the rigid approximate the time spent doctrine seem to give judges as much discretion as the best interest test does.
The public policy issues of custody law and practice are: how to construct the substantive standard, whether the value to children of more shared parenting than most parents apparently adopt on their own is worth the cost of doctrinal and practice modification that accomplishing the change would require, and the extent to which legislatures or judges should modify the traditional American commitment to private ordering; that is, the acceptance of parental autonomy in determining post-dissolution custodial arrangements for children.
Principles of the law of family dissolution: analysis and recommendations (2002)
This section requires parents to file a parenting plan in order to encourage them to anticipate their children’s needs and make arrangements for them. The parenting-plan concept presupposes a diverse range of childrearing arrangements and rejects pre-established set of statutory choices.
The screening process required under Paragraph 3 might well include advisers who can help parents fill out the forms.
The screening process should include a process for review of a policy and court records to check for prior complaints of violence, convictions for crimes, and domestic violence civil protection orders.
Uniform Marriage and Divorce Act (1973)
Section 407 Visitation
Visitation rights adhere to best interest of the child standard.
Visitation – Roberts v. Roberts
Year: 2003
Court: Court of Appeals of Virginia
2. Disposition: Affirmed.
3. Holding: the record supports the court’s determination that continued in-person visitation with father is contrary to the children’s best interests.
4. Issue:
5. Procedural History: the trial court held that the situation could not continue and awarded mother sole legal and physical custody of the children, terminated father’s in-person visitation and limited father’s contact with the children.
6. Facts: the father’s in-person visitation rights were terminated and sole legal custody was awarded to the mother. The parties were married in 1989 and divorced in 1998. Mother was awarded physical custody of the children with liberal visitation granted to father. After father moved to NC, the children visited his new house. The children disliked visiting their father because he made them read the Bible, do chores, and used corporal punishment. Jeffrey told the children Sonja was a fornicator and adulterer condemned to hell. Father told the children they would go to hell. The children feigned illness to not go to the father. A clinical psychologist found Jeffrey’s condemning Sonja, telling his daughter that women should not aim to achieve men’s goals and be subservient, and meting out corporal punishment distressed the children and risked psychological harm.
7. Rule:
8. Reasoning: the father contends that the trial court erred by failing to consider properly the presumption that parents act in the best interests of their children, the decision violated his right to free exercise of religion, that 20-124.2 is unconstitutional, that the court did not apply 20-124.2 properly, and that the court denied him due process of law.
Va. Code 20-124.2 is religiously neutral, does not substantially burden the free exercise of religion, and rationally advances the legitimate state interest of protecting children. The rights of the parents must be tempered by the test interest of the child. Father remains free to instruct the children on his religious beliefs. He is barred only from condemning and threatening mother and the children. The ruling did not unconstitutionally infringe father’s free exercise rights.
In custody determinations, the controlling consideration is always the child’s welfare. The evidence supports the court’s finding that father’s conduct was causing serious psychological and emotional injury to the children.
Felton concurring in part, dissenting in part: the trial court failed to narrowly tailor its remedy to balance the state compelling interest in protecting the children, consistent with father’s constitutionally protected interests. The evidence was insufficient for the court to enter an order terminating the father’s right to in-person visitation and to severely limit even his ability to talk with them by telephone. The trial court has multiple remedies available to it, short of termination of visitation, to insure the children’s visitation with their father would be without concern for their mental and physical well-being.
Parenting time is having a negative impact on the child.
Parenting time: time set aside by a court order for a parent and child to spend together. Visitation: a schedule of time that occurs with a child by someone other than a legal parent.
Modification – Rose v. Rose Revisited
Year: 1999
The mother filed a request to eliminate some of the authorized visitation periods. The father resisted the modification motion and filed for a change of custody to himself. There has been a substantial change of circumstances since the 1995 decree. The mother has undergone some emotional traumas, has been too dependent on her child and at other times given him more independence than necessary. The father has mellowed, showed poor judgment, and was overprotective and reactionary. The child may suffer from depression. The Court concludes that Jason’s best interests lie with his father as primary custodian. He is more stable and offers Jason the best chance to make progress toward normalcy.
Uniform Marriage and Divorce Act (1973)
409 Modification
Subsection (a) prohibits modification petitions until at least two years have passed following the initial decree with a safety valve for emergency situations. The subsection includes a two-year waiting period following each modification decree. During that period, a contestant can get a hearing only if he can make an initial showing that there is some greater urgency for the change than that the child’s best interest requires it.
Subsection (b) asserts presumption that the present custodian is entitled to continue as the custodian. Modification should be made in three situations: where the custodian agrees to the change, where the child has in fact been integrated into the family of the petitioning parent, or where the noncustodial parent can prove both that the child’s present environment is dangerous to physical, mental, moral, or emotional health and that the risks of harm from change of environment are outweighed by the advantage of such a change to the child.
Modification – Smith v. Smith
Year: 2007
Court: Court of Appeals of Ohio, Seventh District
2. Disposition: Affirmed.
3. Holding: There is no reversible error apparent.
4. Issue:
5. Procedural History: In 2004, County Court of Common Pleas transferred custody of her children to their father in post-dissolution proceedings. The parties signed an agreed temporary judgment entry in which they would share the designation of residential parent. The mothered was ordered to stop actions related to gender identity disorder and return to Toronto, Ohio. The court found that the mother disobeyed prior court orders and that she could not be counted on to follow order. The court interviewed the boy who enjoyed stereotypical male activities. Dr. King recommended that the child be raised as a biological boy.
6. Facts: The parties were married in 1994 and divorced in 2001. The mother was designated as the residential parent and the father was granted standard visitation. In 2004, the father filed a motion for reallocation of parental rights and termination of child support. The father alleges that the mother enrolled their older son as a girl, she was taking the child to a transgender support group, and she intended to subject the child to hormonal therapy and surgery. In 2003, the mother told the father the son had GID, but the father did not accept it.
7. Rule:
8. Reasoning: The starting point in a modification of custody action is whether there was a change in circumstances since the prior final custody order that supports the court’s intervention.
The residential parent’s relocation, by itself, is not a sufficient change in circumstances. Most of the facts regarding gender identity problems arose after the initial dissolution decree, and these facts support the conclusion that there was a change of circumstances. The court must then show the best interests of the child and whether the benefits of changing custody outweigh the harm that will be caused by it.
The mother challenges what is portrayed as judicial meddling with basic child-rearing decisions. Parents have fundamental constitutional rights in the care, custody, and management of their children. The mother argues the court had no authority to interfere in medical issues involving her son. -> she is mistaken. Once parties initiate divorce, they necessarily involve the court system in their lives and lives of any children. The court is called upon to exert parens patriae. The court has the authority and duty to make custody rulings in the best interests of the children and retains continuing jurisdiction to modify those rulings.
The mother questions whether her actions posed a harm to her son and whether there was any harm that justified the change in custody. There exists a presumption that retaining the original residential parent is in the best interests of the child. -> the mother is incorrect. The presumption is rebuttable by any evidence, not necessarily evidence that the residential parent is harming the child. The trial court is required to find that the harm in changing custody is outweighed by the advantages of changing custody.
The mother argues the trial court failed to consider all the best interest factors in R.C. 3109.04(F). The trial court failed to consider how the change in custody would affect the younger child. -> not persuasive.
The mother is not prevented from filing her own request for change of custody should the circumstances change.
UMDA standard, but tweaked the standard when adopting. Under UMDA, need to show current environment poses danger. The tweaked standard took it out.
Relocation – Bisbing v. Bisbing
Year: 2017
Court: Supreme Court of New Jersey
2. Disposition: the judgment of the Appellate Division is modified and affirmed.
3. Holding: because the best interests standard applies to the determination of cause under NJ STAT ANN 9:2-2 notwithstanding the mother’s designation as the parent of primary residence, the question whether the mother anticipated a relocation does not determine the governing standard.
4. Issue:
5. Procedural History: The trial court found that, like in Baures case, the mother sought to relocate for a good-faith reason and that the relocation would not be inimical to the interests of the daughters. The trial court authorized the relocation conditioned on allowing visitation and communication. The Appellate Division reversed. It noted the first inquiry under Baures is whether the parents have agreed on a custodial relationship in which one parent has primary custody and the other serves a secondary custodial role. It found that there was a genuine issue of material fact as to whether the mother negotiated the custody provisions in good faith. It ruled that it bad faith was involved, the mother’s motion should be resolved under a best interests standard, instead of Baures standard.
6. Facts: the parties divorced when their twin daughters were seven years old. The agreement stipulated that the mother would be the parent of primary residence and the father would be the parent of alternate residence. It provided that neither party would permanently relocate out of state with the children without the prior written consent of the other. Several months after the divorce, the mother advised that she intended to marry the man in Utah and sought an order permitting her to move. The mother asked the father to consent to the permanent relocation of the children to Utah. The father replied that the mother was free to move but the children must remain in NJ. The mother filed a motion pursuant to NJ Stat Ann 9:2-2.
7. Rule:
8. Reasoning: the father contended that the mother had negotiated the parties’ Agreement in bad faith and sought the opportunity to prove that claim at a plenary hearing. The father argued that the mother secured his consent to her designation as a parent of primary residence without informing him that she contemplated relocating to gain advantage under the Baures standard. He asserted the relocation would make it impossible for him to maintain a full and continuous relationship.
The mother argues the Appellate Division created a new standard that is amorphous, overly broad, and unduly burdensome. She contends the decision will generate frivolous disputes over the relocation of children. She maintains the Baures test should have applied. She asserts the decision infringes on her right to travel.
The father urges the Court to enforce the terms of the parties’ Agreement. He contends the Appellate Division’s standard is not new, it will not increase litigation, and it will eliminate a party’s incentive to bargain for the status of parent of primary residence.
The legislature required a showing of cause for an out-of-state relocation under NJ STAT ANN 9:2-2 in order to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship.
In Baures, the court held that the trial court should treat the relocation application as a motion for a change in custody governed initially by a changed circumstances inquiry and ultimately by a simple best interests analysis. The Court held that a trial court should not deny a motion for relocation merely because the modification would reduce the objecting parent’s visitation but should bar relocation only if the move would have an adverse effect. The Court identified two developments: When a relocation benefits a custodial parent, it will similarly benefit the child. The Court invoked the growing trend in the law easing restrictions on the custodial parent’s right to relocate with the children and recognizing the identity of interest of the custodial parent and child.
Here, if a remand hearing revealed that the mother manipulated the parties’ negotiations to gain an advantage in an anticipated relocation dispute, fundamental fairness requires the trial court to apply the best interests of the child standard.
In place of the Baures standard, courts should conduct a best interests analysis to determine cause under NJ STAT ANN 9:2-2 in all contested relocation disputes in which the parents share legal custody. Our holding compels a remand to the trial court for a plenary hearing to determine whether the custody arrangement set forth in the parties’ Agreement should be modified to permit the relocation of the parties’ daughters.
The Extended Family – Troxel v. Granville
Year: 2000
Court: Supreme Court of the US
2. Disposition: affirmed.
3. Holding: the decision whether intergenerational relationship between grandparents and grandchildren would be beneficial in any specific case is for the parent to make in the first instance. The court must accord at least some special weight to the parent’s own determination.
4. Issue:
5. Procedural History: The Superior Court granted the visitation to the Troxels. The Washington Court of Appeals reversed and dismissed the Troxels’ petition. Washington Supreme Court affirmed and held that 26.10.160(3) unconstitutionally interferes with the fundamental right of parents to rear their children.
6. Facts: Section 26.10.160(3) of the Revised Code of Washington permits any person to petition a superior court for visitation rights at any time and authorizes the court to grant such visitation rights whenever visitation may serve the best interest of the child. Troxel petitioned a Washington Superior Court for the right to visit their grandchildren. Respondent Granville, the mother, opposed the petition. Granville and Troxel never married but had two daughters. Brad regularly brought his daughters to his parents’ home for weekend visitation. Brad committed suicide in 1993. Granville informed the Troxels that she wished to limit their visitation to one short visit per month. Granville married Wynn and Wynn adopted Isabelle and Natalie.
7. Rule:
8. Reasoning: the nationwide enactment of nonparental visitation statutes is assuredly due to the States’ recognition of these changing realities of the American family. Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties.
The liberty interest at issue in this case – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court. Section 26.10.160(3) unconstitutionally infringes on that fundamental parental right. The statute is breathtakingly broad. A parent’s decision that visitation would not be in the child’s best interest is accorded no deference. The statute places the best-interest determination solely in the hands of the judge. The problem is that the Superior Court gave no special weight at all to Granville’s determination of her daughters’ best interests. The judge placed on Granville the burden of disproving that visitation would be in the best interest of her daughters.
Stevens dissenting: the State Supreme Court erred because neither the provision granting any person the right to petition the court for visitation nor the absence of a provision requiring a threshold finding of harm to the child provides a sufficient basis for holding that the statute is invalid in all its applications. As the statute plainly sweeps in a great deal of the permissible, the State Court majority incorrectly concluded that a statute authorizing any person to file a petition seeking visitation privileges would invariably run afoul of the 14th Amendment. The holding that the Constitution requires a showing of actual or potential harm to the child before a court may order visitation finds no support in this Court’s case law.
Children have liberty interests and their interests must be balanced in the equation. The constitutional protection against arbitrary state interference with parental rights should not be extended to prevent the States from protecting children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child. The Due Process Clause leaves room for States to consider the impact on a child of possibly arbitrary parental decisions that neither serve nor are motivated by the best interests of the child.
Scalia dissenting: I would not extend the theory upon which Meyer, Pierce, and Wisconsin rested on to this new context. We will be ushering in a new regime of judicially prescribed and federally prescribed family law. I have no reason to believe that federal judges will be better at this than state legislature.
Kennedy dissenting: In my view, it would be more appropriate to conclude that the constitutionality of the application of the best interests standard depends on more specific factors. A fit parent’s right in relation to another parent or a de facto parent is different. Family courts are best situated to consider the issues.
O’Connor states statute is unconstitutional as applied.
Third Party Custody – Simons by & through Simons v. Gisvold
Year: 1994
Court: Supreme Court of North Dakota
2. Disposition: affirmed.
3. Holding: When a psychological parent and a natural parent each seek a court ordered award of custody, the natural parent’s paramount right to custody prevails unless the court finds it in the child’s best interest to award custody to the psychological parent to prevent serious harm or detriment to the welfare of the child.
4. Issue:
5. Procedural History: The district court concluded Gisvold should be given custody of Jessica because the natural parent has a paramount right to custody when the child would not sustain serious harm or detriment.
6. Facts: Bruce Simons and Joelle Gisvold (plaintiff) were married and had one child, Jessica Simons. Bruce and Joelle divorced soon after Jessica was born. Bruce was awarded custody of Jessica, and Joelle was granted visitation rights. Approximately two years later, Bruce remarried. Bruce then raised Jessica with his new wife, Debra Simons. When Jessica was nine years old, Bruce died of cancer.
7. Rule:
8. Reasoning: Debra Simons argues in the exceptional circumstances where there is a psychological parent, the best interests of the child should prevail, with no preference for a natural parent.
Joelle alleged Bruce’s death constituted a material change in circumstances and she is entitled to custody of Jessica.
In matters of child custody, the district court is vested substantial discretion. Its decision will not be set aside unless it is clearly erroneous. Parental rights do not spring full-blown from the biological connection. They require relationships more enduring.
To rebut the parent’s presumptive right to custody, a person who is not a legal parent must prove: parental unfitness (requires harm; e.g. substance abuse), or exceptional circumstances (requires harm; e.g. gone for 7 years), or they are a de facto parent (apply the best interests of the child standard).
De facto parents – Conover v. Conover
Year: 2016
Court: Court of Appeals of Maryland
2. Disposition: Reverse and remand.
3. Holding: de facto parenthood is a viable means to establish standing to contest custody or visitation and answer yes. Janice M. is clearly wrong and has been undermined by the passage of time.
4. Issue: should Maryland reconsider Janice M. v. Margaret K. and recognize the doctrine of de facto parenthood?
5. Procedural History: the circuit court issued an opinion concluding that Michelle did not have standing to contest custody or visitation. The court found that Jaxon was conceived and born prior to marriage and the presumption did not apply. Michelle was de facto parent, but the status was not recognized in Maryland. The Court of Special Appeals affirmed.
6. Facts: Michelle and Brittany Conover began relationship in 2002. They agreed that Brittany would be artificially inseminated from a donor. The couple gave birth 2010, and the certificate listed Brittany as the mother but no father. The couple married in 2010 and separated in 2011. In 2012, Brittany prevented Michelle from visiting Jaxon. In 2013, Brittany filed a Complaint for Absolute Divorce, and Michelle requested visitation rights.
7. Rule: H.S.H.-K. test notes third party seeking de facto parent status bears the burden of proving (1) biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
8. Reasoning: Where the dispute is between a fit parent and a private third party, the parent is asserting a fundamental constitutional right and the third party is not. A third party seeking custody or visitation must first show unfitness of the natural parents or that extraordinary circumstances exist before a trial court could apply the best interests of the child standard.
This Court refused to distinguish de facto parents from other third parties and asserted that de facto parents seeking access rights must first show parental unfitness or exceptional circumstances before applying the best interests standard.
Two circumstances exist for departing from stare decisis: (1) when the prior decision is clearly wrong and contrary to established principles or (2) when the precedent has been superseded by significant changes in the law or facts. Psychological parents are defined as third parties who have, in effect, become parents.
Several state courts of last resort have expressly held that Troxel does not prevent the recognition of de facto parent status.
Maryland’s recognition of same-sex marriage in 2012 undermines the precedential value of Janice M. The case fails to effectively address problems typical of divorce by same-sex married couples. ALI and commentators espoused de facto parenthood.
Brittany maintained that we should not overrule Janice M. because de facto parent status should be left to the General Assembly. -> disagree. The General Assembly has granted equity courts jurisdiction over the custody or guardianship of a child.
legal parent --- DFP --- 3rd Party -> The third party seeking to establish DFP status may not be intimate partner.
UPA
609 Adjudicating Claim of De Facto Parentage of Child
In most states, if an individual can establish that he or she has developed a strong parent-child relationship with the consent and encouragement of a legal parent, the individual is entitled to some parental rights and possibly some parental responsibilities. By statute and through case law, several states recognize such persons as legal parents.
The individual has to hold out the child as the individual’s child. States rejected UPA for this standard.
Tri-parenting – Dawn M. v. Michael M.
Year: 2017
Court: Supreme Court of New York, Suffolk County
2. Disposition:
3. Holding: the best interests of J.N. will be served by granting plaintiff’s application for shared legal custody. Plaintiff is granted shared legal tri-custody and visitation.
4. Issue:
5. Procedural History:
6. Facts: Dawn M. (plaintiff) and Michael M. (defendant) were married and tried to have a child, but Dawn miscarried. Dawn became close friends with Audria G., who eventually moved in with the couple. The three began having three-way sexual relations and decided that Audria and Michael would have a child together, J.M. The three continued living together until J.M. was more than 18 months old, with the two women sharing maternal responsibilities. Then Dawn and Audria moved out with J.M. J.M. identified both women as his mother, calling both “mommy,” although Michael would testify that J.M. called Dawn by her first name. Both women shared responsibility for J.M. and made all parenting decisions together. But when Dawn filed for divorce from Michael, Michael stopped viewing her as a parent. When J.M. reached 10 years old, the two women still lived together.
7. Rule:
8. Reasoning: although not a biological parent or an adoptive parent, plaintiff argues that she has been allowed to act as J.M.’s mother by both Audria and defendant. She asserts that the best interest of J.M. dictates that she be given shared legal custody of J.M. and visitation with him. Plaintiff argues that defendant should be estopped from opposing this application because he has created and fostered this situation by voluntarily agreeing to raise him with three parents.
Pursuant to Domestic Relations Law 70, a parent may apply to the court for custody based solely upon what is for the best interest of the child. The Court of Appeals stressed that the ultimate determination of whether to grant the custody and visitations rests in the sound discretion of trial courts in determining the best interests of the child.
In determining shared legal custody, J.M.’s best interests control. Joint custody is usually encouraged primarily as a voluntary alternative when the parents are amicable. Here, the plaintiff acts as a de facto joint custodial parent.
UPA 613 Adjudicating competing claims of parentage
Alternative A provides that a child cannot have more than two legal parents. Alternative B permits a court to find that a child has more than two legal parents.
Under the Uniform Child Custody Jurisdiction and Enforcement Act of 1997, the child’s home state has exclusive and continuing jurisdiction over child custody litigation. The home state is the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding. The second basis requires the child has (1) significant connections with the state and at least one parent lives in that state, and (2) the court has access to substantial evidence concerning the child’s care, protection, training, and personal relationships.
UCCJEA
102 Definitions 105 International application of Act 201 Initial child-custody jurisdiction 202 Exclusive, continuing jurisdiction 204 Temporary emergency jurisdiction 206 Simultaneous proceedings 207 Inconvenient forum 208 Jurisdiction declined by reason of conduct
Interstate custody disputes – Foster v. Wolkowitz
Year: 2010
Court: Supreme Court of Michigan
2. Disposition: Reversed and remanded.
3. Holding: the record reveals that the child’s home state for the purposes of the UCCJEA is IL, because that is the state in which the child resided for at least 6 consecutive months immediately before the commencement of a child-custody proceeding.
4. Issue: whether the statutorily required presumptive award of custody given to a mother when an acknowledgement of parentage is executed pursuant to the Acknowledgement of Parentage Act serves as an initial custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act.
5. Procedural History: the trial court ruled that MI had jurisdiction to hear the case because, by executing an AOP, the parents consented to the jurisdiction of MI specifically on the issues of custody, support, and parenting time. Because AOP granted initial custody of a minor to the minor, the UCCJEA would not be invoked. The trial court awarded joint legal custody to both parties and physical custody to the plaintiff. Defendant was awarded parenting time and a child support order was entered. The Court of Appeals affirmed.
6. Facts: Plaintiff and defendant are biological parents of M born in 2006. They cohabitated but never married. They moved from IL to MI and filed an AOP naming defendant as the child’s father and establishing paternity. In 2007, the parties returned to IL and plaintiff regularly visited MI with the child. In 2008, the relationship ended and plaintiff and the child returned to MI to live with plaintiff’s parents. Plaintiff filed a paternity action and defendant filed a custody action in IL.
7. Rule:
8. Reasoning: defendant argued IL should have jurisdiction under UCCJEA. Plaintiff argued MI should exercise jurisdiction because the child was residing with Plaintiff in MI, plaintiff’s petition was filed first, and plaintiff and the child had significant ties to MI.
While this grant of initial custody occurs by operation of law when the parties stipulate to the child’s paternity, the statutory language also makes clear that the initial grant of custody creates no impediment should either parent wish to seek a judicial determination of custodial rights. Nothing in the plain language of the statute equates the execution of an AOP to a judicial determination regarding custody.
The judicial branch has absolutely no involvement in the execution of an AOP. AOP requires that parents consent to the general, personal jurisdiction of Michigan courts but jurisdiction over a person has never been synonymous with jurisdiction over a case. The consent to personal jurisdiction in AOP provides no basis for Michigan to exert home-state jurisdiction pursuant to the UCCJEA.
If it is initial custody order, we look at which state is the home state (IL). If it is modification, CEJ trumps home state basis and the question is whether MI has CEJ. -> AOP is not a custody determination. It is initial custody order. AOP stipulated that parents consented to personal jurisdiction in MI, but MI does not have subject matter jurisdiction.
UCCJEA
203 Jurisdiction to modify determination 303 Duty to enforce
The Full Faith and Credit Clause requires states to give full faith and credit to the final judgments of other states. Custody decrees are not regarded as final judgments because the state court issuing the decree retains jurisdiction to modify it in the best interest of the child until the child is eighteen. PKPA requires states to give full faith and credit to the custody decrees.
Parental Kidnapping prevention act of 1980
Interstate custody disputes – Thompson v. Thompson
Year: 1988
Court: US Supreme Court
2. Disposition: Affirmed.
3. Holding: The context, language, and history of the PKPA together make out a conclusive case against inferring a cause of action in federal court to determine which of the two conflicting state custody decrees is valid.
4. Issue:
5. Procedural History: The District Court granted Susan’s motion to dismiss for lack of subject matter and personal jurisdiction. The Court of Appeals for the Ninth Circuit affirmed.
6. Facts: Susan Clay filed a petition in 1978 in Los Angeles Superior Court to dissolve her marriage to David Thompson and seeking custody of the couple’s infant son, Matthew. The court awarded joint custody but Susan left to LA for a job and the court awarded her the sole custody. Susan and Matthew moved to LA and Susan filed a petition in LA state court or enforcement of the CA custody decree, judgment of custody, and modification of visitation privileges. The LA granted the petition. The CA court entered an order awarding sole custody to David. In 1983, David brought this action in the DC for CD of CA requesting an order declaring the LA decree invalid and the CA decree valid, and enjoining the enforcement of the LA decree.
7. Rule:
8. Reasoning: Because courts entering custody orders generally retain the power to modify them, courts in other States were no less entitled to change the terms of custody according to their own views of the child’s best interest. For these reasons, a parent who lost a custody battle in one State had an incentive to kidnap the child and move to another State to relitigate the issue. The context of the PKPA suggests that the principal problem Congress was seeking to remedy was the inapplicability of full faith and credit requirements to custody determinations.
Because Congress’ chief aim in enacting the PKPA was to extend the requirements of the Full Faith and Credit Clause to custody determinations, the Act is most naturally construed to furnish a rule of decision for courts to use in adjudicating custody disputes and not to create an entirely new cause of action. It is not compatible with the purpose and context of the legislative scheme to infer a private cause of action.
Congress did not intend the federal courts to play the enforcement role that David urges. The unspoken presumption in David’s argument is that the States are either unable or unwilling to enforce the provisions of the Act. -> State courts faithfully administer the Full Faith and Credit Clause.
CA can exercise jurisdiction as home state basis, because father lives there and child lived for 6 months. CA retains CEJ to modify the order.
International Custody Disputes – Abbott v. Abbott
Year: 2010
Court: Supreme Court of the US
2. Disposition: reversed and remanded.
3. Holding: to interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention’s purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes.
4. Issue: whether a parent has a right of custody by reason of that parent’s ne exeat right: the authority to consent before the other parent may take the child to another country.
5. Procedural History: Timothy brought an action in TX state court, asking for visitation rights and an order requiring Jacquelyn to show cause why the court should not allow Timothy to return to Chile with A.J. The court denied Timothy’s request but granted him liberal periods of possession of A.J. Timothy filed this action in the USDC for the WD of TX. He sought an order requiring his son’s return to Chile pursuant to the Convention and enforcement of the ICARA. The District Court denied relief and held that the father’s ne exeat right did not constitute a right of custody under the Convention and that the return remedy was not authorized. The Court of Appeals affirmed, holding that the father possessed no rights of custody because his ne exeat right was only a veto right over his son’s departure from Chile.
6. Facts: The US is a contracting state to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention provides that a child abducted in violation of rights of custody must be returned to the child’s country of habitual residence, unless certain exceptions apply.
The Abbotts had a child, A.J., in 1995 and moved to Chile in 2002. The couple separated in 2003. Chilean law granted Jacquelyn daily care and control of A.J., but it granted Timothy regular visitation rights and a ne exeat right—a joint parental right that Timothy could use to prevent Jacquelyn from removing A.J. from Chile. Jacquelyn sought and obtained a new exeat of the minor order from the Chilean family court, prohibiting the boy from being taken out of Chile. While the custody case in Chile was still pending in 2005, Jacquelyn took A.J. to Texas without consent from Timothy or the Chilean court. In 2006, Jacquelyn filed for divorce in Texas and sought full control over A.J.’s place of residence.
7. Rule:
8. Reasoning: the Convention’s central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must order the return of the child forthwith, unless certain exceptions apply. A removal is wrongful where the child was removed in violation of rights of custody.
The ICARA authorizes a person who seeks a child’s return to file a petition in state or federal court and instructs that the court shall decide the case in accordance with the Convention. If the child in question has been wrongfully removed or retained within the meaning of the Convention, the child shall be promptly returned. The Convention applies to this dispute. The question is whether A.J. was wrongfully removed from Chile. Timothy’s ne exeat right is a right of custody under the Convention.
We consult Chilean law to determine the content of Timothy’s right and follow the Convention’s text and structure to decide whether the right at issue is a right of custody. Timothy has direct and regular visitation rights and it follows from Chilean law that he has a shared right to determine his son’s country of residence under this provision. Timothy’s ne exeat right gives him both the joint right to determine the child’s place of residence and joint rights relating to the care of the person of the child.
The Court of Appeal’s conclusion would render the Convention meaningless in many cases where it is most needed. The US has endorsed the view that ne exeat rights are rights of custody.
The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence. Ordering a return remedy does not alter the existing allocation of custody rights, but does allow the courts of the home country to decide what is in the child’s best interests.
Stevens dissenting: Jacquelyn received sole custody or daily care and control of A.J.
Ne exeat: right to block a parent from removing the child from that jurisdiction. Mother should petition and Chilean court should decide whether to remove ne exeat right of the father.
International Custody Disputes – Monasky v. Taglieri
Year: 2020
Court: Supreme Court of the US
2. Disposition: affirmed.
3. Holding: a child’s habitual residence depends on the totality of the circumstances specific to the case. A first-instance habitual-residence determination is subject to deferential appellate review for clear error. (1) the determination of habitual residence does not turn on the existence of an actual agreement. (2) the habitual residence determination presents a task for factfinding courts and should be judged on appeal by a clear-error review standard deferential to the factfinding court.
4. Issue: (1) could Italy qualify as A.M.T.’s habitual residence in the absence of an actual agreement by her parents to raise her there? (2) should the Court of Appeals have reviewed the District Court’s habitual residence determination independently rather than deferentially?
5. Procedural History: In 2015, Taglieri petitioned the USDC for the ND of Ohio for the return of AMT to Italy under the Hague Convention on the ground that Italy was her habitual residence. The DC found that an infant is too young to acclimate to her surroundings and the shared intent of the parents is relevant in determining the habitual residence and AMT’s shared intention was to live in Italy where a marital home was established. The DC ordered return of AMT to Italy. The Court of Appeals affirmed.
6. Facts: Monasky is a US citizen who brought her infant daughter, A.M.T., to the US from Italy after her Italian husband became abusive. Taglieri successfully petitioned the District Court for A.M.T.’s return to Italy under the Convention.
The couple were married in the United States in 2011 and moved to Italy. The marriage began deteriorating because Taglieri allegedly became physically abusive. In 2014, Monasky became pregnant, but the couple began living separately after Taglieri found work in Lugo, three hours away from the couple’s home in Milan. Monasky considered divorcing Taglieri and returning to the United States, while simultaneously preparing with Taglieri to care for the expected child in Italy by purchasing baby items, researching childcare, and finding a larger apartment. After the couple’s daughter, AMT, was born in February 2015, Monasky told Taglieri that she wanted to divorce him and return to the United States. However, Monasky and AMT subsequently joined Taglieri in Lugo. In March 2015, after an argument with Taglieri, Monasky sought police assistance and fled with AMT to a safe house. Monasky alleged that Taglieri had abused her and that she feared for her life. In April 2015, Monasky took AMT to Ohio, where they moved in with Monasky’s parents. Taglieri obtained a declaration from an Italian court terminating Monasky’s parental rights.
7. Rule:
8. Reasoning: the Convention recognizes certain exceptions to the return obligation. Prime among them, a child’s return is not in order if the return would place her at a grave risk of harm or otherwise in an intolerable situation.
The Convention’s explanatory report refers to a child’s habitual residence as the family and social environment in which the child’s life has developed.
ICARA expressly recognizes the need for uniform international interpretation of the Convention and our sister signatories to a treaty are due considerable weight. The clear trend is to treat the determination of habitual residence as a fact-driven inquiry into the particular circumstances of the case.
Monasky’s proposed actual-agreement requirement is not only unsupported by the Convention’s text and inconsistent with the leeway and international harmony the Convention demands; her proposal would thwart the Convention’s objects and purposes.
Monasky counters that an actual agreement requirement is necessary to ensure that an infant’s mere physical presence in a country has a sufficiently settled quality to be deemed habitual. -> a wide range of facts, including that the parents have made their home in a particular place, can enable a trier to determine whether the residence is habitual.
Monasky argues her proposed actual-agreement requirement would promote prompt returns of abducted children and deter would be abductors. -> when all the circumstances are in play, would-be abductors would find it more difficult to manipulate the reality on the ground and impeding them from forging artificial jurisdictional links with a view to obtaining custody of a child.
Monasky argues actual agreement requirement is necessary to protect children born into domestic violence. -> domestic violence should be an issue fully explored in the custody adjudication upon the child’s return. Article 13(b) addresses it.
Monasky points to her absence of settled ties to Italy and the unsettled and unstable conditions in which AMT resided in Italy. -> The district court found that Monasky had sufficient ties to Italy such that she was a habitual resident.
Thomas concurring: I would decide this case principally on the plain meaning of the treaty’s text. The ordinary meaning of the phrase habitual residence provides strong support for the conclusion that an objective agreement between the child’s parents is not required.
Alito concurring: Habitual residence under the Convention means the place where the child in fact has been living for an extended period. The term does involve a heavily factual inquiry. The standard of review on appeal is abuse of discretion.
International Custody Disputes – Golan v. Saada
Year: 2022
Court: Supreme Court of the US
2. Disposition: vacated and remanded.
3. Holding: The Second Circuit’s categorical requirement is inconsistent with the text and other requirements of the Hague Convention. Although nothing in the Convention prohibits a district court from considering ameliorative measures and such consideration often may be appropriate, a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings.
4. Issue:
5. Procedural History: The Second Circuit has made it a requirement, mandating that district courts independently examine the full range of options that might make possible the safe return of a child before denying return due to grave risk, even if the party petitioning for the child’s return has not identified or argued for imposition of ameliorative measures.
The District Court granted Saada’s petition. It determined that Italy was BAS’s habitual residence and that Golan had wrongfully removed BAS to the United States. It found that returning BAS to Italy would expose him to a grave risk of harm. It ordered BAS’s return based on Second Circuit precedent. It found that if Saada provided Golan financial support of $30,000, started therapy, and lived separately from Golan in Italy, among other things, the grave risk to BAS would be ameliorated. The Second Circuit vacated the order, finding the measures insufficient. Following the identification and implementation of additional ameliorative steps, including obtaining a protective order in Italy and requiring Saada to pay Golan $150,000 in financial support, the district court again ordered BAS’s return. The Second Circuit affirmed.
6. Facts: Golan is a citizen of the US and met Saada, an Italian citizen, in 2014. They married in 2015. Their son BAS was born in Milan. Saada and Golan’s relationship was characterized by violence. In 2018, Golan flew with BAS to the US to attend her brother’s wedding and moved into a domestic violence shelter. Saada filed in Italy a criminal complaint for kidnapping and initiated a civil proceeding seeking sole custody of BAS. Saada also filed a petition under the Convention and ICARA in the USDC for the ED of NY, seeking an order for BAS’s return.
7. Rule:
8. Reasoning: A court is not bound to order a child’s return if it finds the return would put the child at a grave risk of physical or psychological harm. A court has discretion to determine whether to deny return. In exercising this discretion, courts consider whether any ameliorative measures undertaken could reduce whatever risk associated with a child’s repatriation.
The Convention provides that return is not required if there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
Under ICARA, the party petitioning for the child’s return bears the burden of establishing by a preponderance of the evidence that the child was wrongfully removed or retained. If the court finds so, the respondent opposing the return has the burden of establishing that an exception applies. A respondent must establish this exception applies by clear and convincing evidence. Absent a finding that an exception applies, a child must be promptly returned.
Nothing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion. Saada argues that this requirement is implicit in the Convention’s command that the court make a determination. Saada argues that determining whether a grave risk of harm exists necessarily requires considering whether any ameliorative measures are available. -> The question whether there is a grave risk is separate from the question whether there are ameliorative measures that could mitigate the risk.
While a district court has no obligation under the Convention to consider ameliorative measures that have not been raised by the parties, it ordinarily should address the measures. The Second Circuit’s rule, by instructing district courts to order return if at all possible, improperly elevated return above the Convention’s other objectives.
The Convention’s purpose and other objectives constrain courts’ discretion to consider ameliorative measures in at least three ways. (1) Any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. (2) consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. (3) any consideration of ameliorative measures must accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children.
Common law principles and community property principles have converged towards principles of equitable distribution.
Community property systems distinguished between the property each spouse owned before marriage and the property that either spouse acquired during marriage. The former was considered the separate property of the spouse, while the latter was part of the community. During the marriage, each spouse had a present, undivided right to one-half of the community property. Upon divorce or death, each spouse retained their separate property and typically got half of the community property. If an asset was acquired by gift or inheritance, it was also characterized as separate. Community property systems allowed for joint or separate management by the titled spouse of community property. Other modifications include requiring the mutual consent of the spouses for encumbering or transferring real property.
The common law granted husband an estate jure uxoris and curtesy. The estate jure uxoris gave the husband rights of management over his wife’s separate landed property. Curtesy was the husband’s right to a life estate over the wife’s land upon her death, if a child or children had been born of the marriage. The wife lost title to all her personal property and control and in exchange the husband had an exclusive duty to support his wife. The wife acquired a dower right, which entitled her to a life estate over one-third of all of the husband’s land acquired during marriage. This was a right that matured only upon the death of the husband.
A husband seeking to enforce his rights jure uxoris had to show that he properly supported his wife from that property’s income. Trusts became a way of circumventing the application of the coverture rules. Married Women’s Property Acts allowed married women to hold their own property free and clear from husband’s interests.
Courts began to apply equitable remedies, such as the application of constructive or resulting trusts, or other beneficial interests in favor of the wife against property titled in the husband’s name. The equitable distribution statutes replaced the patchwork of limited equitable remedies against specific property with a generalized right to have an equitable portion of property accumulated during the marriage by either spouse.
An active increase is any increase in value of separate property that is attributable either to the expenditure of marital capital or to marital labor and is marital property. A passive increase is any increase attributable to market forces or the efforts of third parties and is treated as separate.
UMDA Section 307 Disposition of Property: Alternative A minority (hotchpot) approach – equitably distribute all of the property. Alternative B majority (dual property) approach – distribute marital property only.
ALI Principles of the law and family dissolution
Section 4.03 Definition of Marital and Separate Property
The Problem of characterization in equitable distribution – Innerbichler v. Innerbichler
Year: 2000
Court: Court of Special Appeals of Maryland
2. Disposition: affirmed.
3. Holding: We perceive neither error nor abuse of discretion by the court in evenly dividing the marital portion of TAMSCO.
4. Issue: whether the trial court erred by improperly finding that the increase in value in TAMSCO was marital property.
5. Procedural History: The trial court ordered (1) the monetary award to Carole in the amount of $2581864 which was based on the court’s determination that the appreciation in value of Nicholas’s 51% ownership interest in TAMSCO constituted marital property and (2) monthly alimony of $8000 for 5 years followed by indefinite alimony of $6000. The award was based on the court’s determination as to TAMSCO’s value. The court concluded that TAMSCO had a fair market value of $8.3 M. The court determined husband’s ownership interest was $4233000 and pre-marital interest $153000. The court concluded the marital value of TAMSCO was $4080000.
6. Facts: Nicholas and Carole were granted divorce after more than 14 years of marriage. In 1995, the Husband moved out of the marital home and filed a complaint for Limited Divorce and the Wife filed a countersuit, seeking an absolute divorce. In 1982, one year prior to marriage, husband co-founded TMSCO with his friend and colleague Bilawa. Husband owned 51% and Bilawa owned 49%. Six months before marriage, the husband filed 8(a) certification and TAMSCO was in its embryonic stages. 83 days after the marriage, 8(a) was granted and TAMSCO grew rapidly.
7. Rule:
8. Reasoning: the husband maintains that neither TAMSCO nor the post-marriage appreciation in the company’s value constituted marital property. He argues that the company was created before the marriage and its success was directly linked to an Army contract. He maintains that TAMSCO’s growth was the result of the efforts of many people as well as factors such as the thriving defense industry. He asserts that the court was required to ascertain the precise portion of TAMSCO’s increase in value for which appellant was responsible and that only the portion attributable to his work efforts could qualify as marital property. -> The court was not clearly erroneous in rejecting the claim. The court did not err by attributing all of the appreciation to the husband’s efforts and failing to assign a specific percentage.
The party who asserts a marital interest in property bears the burden of producing evidence as to the identity of the property. The party seeking to demonstrate that particular property acquired during the marriage is nonmarital must trace the property to a nonmarital source.
The trial court must follow the procedures: (1) for each disputed item of property determine whether it is marital or nonmarital. (2) determine the value of all marital property. (3) decide if the division of marital property according to title will be unfair; if so, the court may make a monetary award to rectify any inequity created by the way in which property acquired during marriage happened to be titled.
The Problem of characterization in equitable distribution – Holman v. Holman
Year: 2007
Court: Missouri Court of Appeals, Southern District, Division Two
2. Disposition: affirmed.
3. Holding:
4. Issue:
5. Procedural History: The trial court found Wife acquired a marital interest, found Wife’s nonmarital property at $89223, valued Husband’s nonmarital property at $624799, and found there was an unequal division of marital property such that Wife was entitled to a judgment against Husband in $203832.
6. Facts: Husband owned a farmhouse on thirty acres where his ex-wife resided. When ex-wife vacated, Husband and Wife began remodeling it by spending $90000. Wife valued the marital interest of the house at $130360, the difference between the appraised value of $185000 and value before remodeling at $54640. The parties borrowed $75000 to construct a commercial building on real property Husband inherited. The bare land was valued at $30000 and the Building was appraised shortly before trial at $127000. The wife claimed the marital interest at $97000.
7. Rule:
8. Reasoning: Husband asserts the Commercial property and building should have been deemed separate property because the property was inherited by Husband from his father and all of the funds used to improve it came from Husband’s separate funds. He asserts the Commercial Property was inherited by him and never titled in Wife’s name.
Any increase in the value of separate property can constitute marital property if marital assets or labor contributed to acquiring that increase. Under the source of funds rule, when property is acquired by an expenditure of both nonmarital and marital property, the property is characterized as part nonmarital and part marital. A spouse is entitled to an interest in the property in the ratio of the nonmarital investment to the total nonmarital and marital investment in the property. The remaining property is characterized as marital and its value is subject to equitable distribution.
Wife asserts it is not the loan which created a marital interest but the construction and payment of the loan with income generated during the marriage which established a marital interest in the property. -> correct.
Husband’s marital interest in the commercial property is marital / (nonmarital + marital) * equity = 71.428% * 127000 = 90714.3. Husband’s nonmarital property interest is nonmarital / (nonmarital + marital) * equity and adjusted from $18000 to $36285.
The value of marital interest in the Farmhouse is 62.223 * $185000 = $115113.38 and Husband’s nonmarital property is adjusted from $54640 to $69886.
The inception of title method decides the characterization of the property at the moment the property was first acquired. If the premarital separate efforts of the titled spouse are largely responsible for the increase, the community is only reimbursed for the fair value of community capital or labor invested in the separate property minus any compensation already received (Van amp rule). If the increase is largely attributable to the efforts of the spouse during marriage, the separate estate of the titled spouse is reimbursed for the capital or labor invested in the separate property before marriage plus a fair return for the investment based on annual rate of return. The remainder of the value is community (Pereira rule).
The transmutation of property approach recharacterizes separate property as community whenever there is contribution of community labor or capital in the increase of value of the separate property.
The Problem of characterization in equitable distribution – Laing v. Laing
Year: 1987
Court: Supreme Court of Alaska
2. Disposition: affirm except with regard to its disposition of the husband’s nonvested pension, which cannot be divided. Reverse and remand.
3. Holding: the contingencies that may prevent the employee spouse from ever collecting his or her nonvested pension should not bar the non-employee spouse from recovering a share if the pension is in fact paid out.
4. Issue: whether the trial court properly characterized Kenneth’s nonvested pension as marital property.
5. Procedural History: The trial court awarded Kenneth his pension with a present value of $27000 and awarded Marla offsetting marital assets.
6. Facts: Kenneth and Marla were married for twenty years. Marla had an equity of $15000 in home and benefits from her first husband’s death to $10000.
7. Rule:
8. Reasoning: AL follows the majority rule that vested pension and retirement benefits are subject to division by a divorce court. The trend is to consider pensions as marital property regardless of whether they have vested. Supporting this is the reasoning that the contingent nature of a nonvested pension presents simply a valuation problem, not bearing on the non-employee spouse’s entitlement to a just share of the marital assets.
Kenneth argues that there was insufficient evidence to support the present value figure adopted by the trial court.
In the present value approach a court faced with a nonvested pension factors the contingencies to collection into a reduced to present value calculation. The court determines a fraction of the present value representing the marital contribution to the accrued pension benefits. The number of years the pension has accrued during the marriage / the total number of years during which the employee spouse’s pension has accrued. -> unacceptable. Since the non-employee spouse receives the share in a lump sum at the time of the divorce, the method unfairly places all risk of possible forfeiture on the employee spouse.
In the reserved jurisdiction approach, the trial court retains jurisdiction and orders the employee spouse to pay to the former spouse a fraction of each pension payment actually received. It does not necessarily mean that a protracted pay-out to the former spouse will follow vesting. Once vesting occurs, that portion of the pension which is marital property can be calculated as of the time of the divorce. The non-employee spouse’s share of this figure may be payable in a lump sum or in installments which do not particularly have to be keyed to the time that the pension benefits are actually received.
Because the nonvested pension may be forfeited in its entirety, it should not be considered when the trial court makes the initial property division at the time of the divorce. If and when the employee spouse’s pension rights vest and if the parties are unable to reach an agreement on their own, the non-employee spouse may at any time seek an order diving the pension. This is to be done in the same manner as if the pension had been vested at the time of the divorce. Once the pension has vested, the trial court can determine whether the present value or the retained jurisdiction approach is appropriate.
Under REACT, if and when the employee spouse’s pension vests and matures, the plan administrator makes appropriate payments directly to the non-employee former spouse in accordance with the QDRO. The non-employee spouse is sure to receive the payments to which he or she is entitled.
Reject present value approach because employee-spouse may never vest.
The Problem of characterization in equitable distribution – Howell v. Howell
Year: 2017
Court: Supreme Court of the US
2. Disposition: Reversed and remanded.
3. Holding: A family court, when it first determines the value of a family’s assets, remains free to take account of the contingency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support.
4. Issue: Can the State subsequently increase, pro rata, the amount the divorced spouse receives each month from the veteran’s retirement pay in order to indemnify the divorced spouse for the loss caused by the veteran’s waiver? -> No.
5. Procedural History: The AZ family court held that the decree had given Sandra a vested interest in the prewaiver amount of that pay and ordered John to ensure that Sandra receive her full 50% of the retirement without regard for the disability. The AZ Supreme Court affirmed. The lower court had ordered John to reimburse Sandra. The Supreme Court concluded that because John had made his waiver after the family court divided his military retirement pay, Mansell did not control and federal law did not preempt.
6. Facts: Howells were divorced in 1991. The divorce decree treated John’s future retirement pay as community property. It awarded Sandra 50% of military retirement when it begins and also awarded child support and spousal maintenance until retirement. In 1992 John retired. 13 years later the DVA found John 20% disabled and John elected to receive disability benefits. Doing so reduced the pay he and Sandra received. Sandra asked AZ court to enforce the original decree, restoring the value of her share of John’s total retirement pay.
7. Rule:
8. Reasoning: a federal statute provides that a State may treat as community property, and divide at divorce, a military veteran’s retirement pay. The statute exempts from this grant of permission any amount that the Government deducts as a result of a waiver that the veteran must make in order to receive disability benefits. We held a State cannot treat as community property, and divide at divorce, this portion of the veteran’s retirement pay.
The Court concluded that States could not consider any of a veteran’s retirement pay to be a form of community property. In 1982 Congress passed the USFSPA that a State may treat veterans’ disposable retired pay as divisible property.
In Mansell, Major Mansell moved to modify the decree so that it would omit the portion of the retirement pay that he had waived so that he could receive disability benefits. This Court held that federal law forbade CA from treating the waived portion as community property divisible at divorce.
The temporal difference highlights only that John’s military retirement pay at the time it came to Sandra was subject to later reduction. The state court did not extinguish that future contingency. The existence of that contingency meant that the value of Sandra’s share of pay was possibly worth less.
State courts cannot vest that which they lack the authority to give. Interest in half of Hon’s pay is contingent, depending for its amount on a subsequent condition: John’s possible waiver of that pay.
The State cannot avoid Mansell by using the terms reimburse or indemnify instead of dividing property. Such orders are pre-empted.
Human capital and other intangible assets – Postema v. Postema
Year: 1991
Court: Court of Appeals of Michigan
2. Disposition: affirm in part and remand.
3. Holding: Defendant’s law degree was clearly the end product of a concerted family effort giving rise to an equitable claim for compensation in favor of plaintiff in recognition of her unrewarded sacrifices, efforts, and contributions toward attainment of the degree.
Where an advanced degree is the end product of a concerted family effort, involving the mutual sacrifice, effort and contribution of both spouses, there arises a marital asset subject to distribution, where in the interest of the nonstudent spouse consists of an equitable claim regarding the degree.
The appropriate remedy is to remand to the trial court for revaluation of plaintiff’s equitable claim.
4. Issue: concerns the valuation of defendant’s law degree and whether the trial court erred in finding the law degree to be a marital asset. Defendant was held solely responsible for repayment of $14000 in student loans. It determined that defendant’s law degree was a marital asset subject to distribution. It valued the degree at $80000 and awarded plaintiff $32000.
5. Procedural History: The trial court found the breakdown primarily the fault of defendant.
6. Facts: The parties were married in 1984. The wife attended school to receive her associate’s degree in nursing. The couple agreed that the wife would pause her education so the husband could go to law school. While the husband attended law school, the wife worked full-time to support the couple. The wife also undertook the primary responsibility of maintaining the couple’s household. In 1987, the parties separated.
7. Rule:
8. Reasoning: This Court is required to accept the trial court’s factual findings unless those findings are clearly erroneous.
Fairness dictates that a spouse who did not earn an advanced degree be compensated whenever the advanced degree is the end product of a concerted family effort involving mutual sacrifice and effort by both spouses. Although the degree holder will always have the degree to show for the efforts the nonstudent spouse is left with nothing. A remedy consistent with fairness and equity requires that an attempt be made to at least return financially to the nonstudent spouse the value of what that spouse contributed toward attainment of the degree.
We reject the view holding that an advanced degree is more properly considered as a factor in awarding alimony. The basic purpose of paying alimony is to assist in the other spouse’s support. A spouse’s entitlement to compensation constitutes a recognized right not dependent upon factors related to the need for support. Therefore, alimony is not appropriate. An alimony award may unfairly jeopardize a spouse’s recognized right to compensation because a trial court has broad discretion.
Woodworth discussed methods of compensation: (1) awarding a percentage share of the present value of the future earnings attributable to the degree, or (2) restitution. Under 1, it estimates what the person holding the degree is likely to make in a particular job market and subtracting what that person would probably have earned without the degree. The nonstudent spouse should be awarded a percentage after considering (1) the length of the marriage after the degree was obtained, (2) the sources and extent of financial support given to the degreeholder during the years in school, and (3) the overall division of the parties’ marital property.
Woodworth method emphasizes the notion that a nonstudent spouse possesses some sort of pecuniary interest in the degree itself. It misconstrues the underlying premise upon which an award of compensation involving an advanced degree is based. The focus of an award is not to reimburse the nonstudent spouse for loss of expectations but to reimburse that spouse for unrewarded sacrifices, efforts, and contributions toward attainment of the degree on the ground that it would be equitable to do so in view of the fact that that spouse will not be sharing in the fruits of the degree.
Valuation involves two steps: (1) an examination of the sacrifices, efforts, and contributions of the nonstudent spouse toward attainment of the degree. (2) given such a determination of what remedy or means of compensation would most equitably compensate the nonstudent spouse under the facts of the case.
Marital Debt – Polacheck v. Polacheck
Year: 2013
Court: Court of Appeals of Ohio
2. Disposition: Reversed and remanded.
3. Holding: the trial court failed to consider the parties’ relative economic circumstances and other relevant factors to determine how to equitably allocate the student-loan debt.
4. Issue: what considerations should inform the trial court’s exercise of its discretion when equitably dividing marital student-loan debt.
5. Procedural History: The trial court allocated the student-loan debt solely to Wife, without any offset in the overall division of property and debts.
6. Facts: Wife married Husband in 1996 and three children were born. Husband earned six-figure salary and provided the primary financial support. Wife attended nursing school and incurred $40000 in student-loan debt and secured employment with an annual salary of $58000.
7. Rule:
8. Reasoning: Wife argued that it was equitable to allocate the student-loan debt equally between the parties, while Husband argued that the court should allocate sole responsibility for the student-loan debt to Wife.
We review the trial court’s decision for an abuse of discretion. Marital debt is subject to allocation as part of the property distribution and debt allocation is guided by the equitable factors in RC 3105.171. The factors in the statute anticipate that marital liabilities can and should be paid from the pool of marital assets. Because debts often must be paid from a future stream of income, courts will often consider the relative incomes and earning abilities of the parties.
Student-loan debt Is commonly understood to be associated with an intangible future benefit: the enhanced earning ability of the educated spouse. The spouse is viewed as having obtained an asset that is not divisible. Benefit-based reasoning fails to consider the parties’ relative educations or earning abilities, relative economic circumstances and other factors related to the attainment of the spouse’s education, or the parties’ respective roles during the marriage. It fails to account for the unique facts and circumstances of the case.
If a spouse earns a degree, the other spouse as well as the children will benefit by virtue of that spouse’s greater earning power and economic independence. The other spouse may pay less spousal support and for a shorter duration and less child support. It is inequitable to require the spouse earning a degree toward the end of the marriage to shoulder the entire burden of the debt.
NY Dom Rel Law 236
Marital Debt – Tucker v. Tucker
Year: 1991
Court: Missouri Court of Appeals, Eastern District, Division Four
2. Disposition: As modified, affirmed.
3. Holding: Wife, in addition to the property awarded in the decree, shall receive from husband as her share of the home equity, $6000, to be paid in equal monthly principal installments. Washing machine is awarded to wife.
4. Issue:
5. Procedural History: The trial court found wife guilty of marital misconduct and awarded husband virtually all of the couple’s marital assets, including a washing machine that wife inherited from her grandmother.
6. Facts: The parties were married in 1981 and separated in 1988. In 1988, Husband’s sister was dying of terminal cancer and wife spent time in her sister-in-law’s home assisting the family. Sharon died in 1988. Wife went to Texas to assist the family of husband’s brother. Sharon’s widower, Babor, went to Texas. They returned to Missouri together. Husband received reports of involvement between wife and Babor. Husband testified wife indicated her preference for Babor over husband. Wife denied any sexual relationship.
7. Rule:
8. Reasoning: the division of marital property need not be equal but it must be just. The conduct factor becomes important when the conduct of one party to the marriage is such that it throws upon the other party marital burdens beyond the norms to be expected in the marital relationship. If one party to the partnership has, because of the other’s misconduct, contributed more to the partnership, he or she should receive a greater portion of the partnership assets.
The evidence indicates the wife contributed equally throughout the marriage to the partnership. Her misconduct occurred no earlier than the last two months of the marriage. The misconduct alone does not destroy the right of the wife to share in the marital assets.
Marital Debt – Finan v. Finan
Year: 2008
Court: Supreme Court of Connecticut
2. Disposition: Remanded.
3. Holding: trial courts are permitted to consider, when determining the allocation of assets between spouses in a dissolution proceeding, whether a spouse’s actions that occur prior to the spouses’ physical separation constitute the dissipation of marital assets.
In order for a transaction to constitute dissipation of marital assets for purposes of equitable distribution under 46b-81, it must occur either (1) in contemplation of divorce or separation; or (2) while the marriage is in serious jeopardy or is undergoing an irretrievable breakdown.
4. Issue: whether a trial court fashioning financial orders in dissolution cases may consider a party’s pre-separation dissipation of marital assets. Whether trial courts should consider both pre-separation and post-separation dissipation of marital assets when fashioning financial orders.
5. Procedural History: The court ordered defendant to pay plaintiff unallocated alimony and child support the annual sum of $95000 based on his base salary of $225000.
6. Facts: the parties married in 1982 and divorced in 2005. The court found that the marriage had broken down irretrievably.
7. Rule:
8. Reasoning: plaintiff claims the trial court improperly refused to admit into evidence a report detailing defendant’s pre-separation dissipation of marital assets and failed to consider evidence that defendant dissipated marital assets by spending large sums of money prior to the separation.
Several states that allow courts to recognize dissipation also require that the actions constituting dissipation must occur either (1) in contemplation of divorce or separation; or (2) when the marriage was in serious jeopardy or undergoing an irretrievable breakdown.
The temporal restrictions better assist courts in determining the impropriety of a spouse’s actions, namely, whether the actions were carried out to deprive the other spouse of assets that would otherwise be available for equitable division by the court.
Kisthardt, Re-thinking Alimony: the AAML’s considerations for calculating alimony, spousal support or maintenance
Initial rationale appeared to be premised on the fact that women gave up their property rights at marriage and after the marriage ended they were without the means to support themselves. The original award of alimony was similar to the wife’s claim of dower, and she would receive one-third of the income of her husband at the time of the divorce.
The introduction of the Married Women’s Property Acts changed the ability of women to retain property, but alimony remained. One rationale was based on contract theories. In the 1970’s states adopted principles of equitable distribution allowing for property acquired during marriage to be divided between the spouses regardless of how it was titled. Maintenance was only available to spouse who had an inability to meet his or her reasonable needs through appropriate employment.
DC Code 16-913 Alimony
The trend has been to move away from awarding permanent alimony. In some jurisdictions, statutes or case law have created additional types of alimony, such as rehabilitative and reimbursement alimony.
Alimony – Gnall v. Gnall
Year: 2015
Court: Supreme Court of NJ
2. Disposition: Reversed and remanded.
3. Holding: All thirteen factors must be considered and given due weight, and the duration of marriage is only one factor to be considered.
4. Issue: whether it was appropriate for the Appellate Division to reverse and remand for an award or permanent alimony.
5. Procedural History: the trial court ordered limited duration alimony in the amount of $18000 per month from 2010 through 2021. The Appellate Division reversed and remanded the case for an award of permanent alimony.
6. Facts: Gnalls married in 1993 and wife filed for divorce in 2008. After obtaining a master’s degree in computer science, Elizabeth worked as a computer programmer. Elizabeth left work in 1999 when the spouses decided she should become a full-time caretaker for the couple’s three children. James Gnall, a certified public accountant, was consistently employed and eventually became the chief financial officer for Deutsche Bank’s American finance division. By 2008, the year Elizabeth filed for divorce, James’s compensation was approximately $1.8 million.
7. Rule:
8. Reasoning: James argues that the Appellate Division improperly created a bright-line rule, stating that any marriage lasting fifteen years or more is considered long-term. Elizabeth urges to affirm the decision and maintains that the Appellate Division did not create a bright-line rule.
Elizabeth stresses that the parties’ fifteen-year marriage was long-term and it should be evaluated whether permanent alimony is appropriate. She also argues the ages of the children should play an important role because she has the primary responsibility for them.
Alimony relates to support and standard of living. NJ recognizes final award alimony of permanent alimony, rehabilitative alimony, limited duration alimony, and reimbursement alimony.
The purpose of permanent alimony is to allow the dependent spouse to live the same lifestyle to which he or she grew accustomed during the marriage. Courts are instructed to evaluate the actual needs of the wife and the actual means of the husband.
The limited duration alimony was created as a remedy to address a dependent spouse’s post-divorce needs following shorter term marriage where economic assistance for a limited period of time would be just. The duration of the marriage marks the defining distinction.
The rehabilitative alimony is a short-term award for the purpose of financially supporting a spouse while he or she prepares to reenter the workforce. An award is granted when a lump sum or a short-term award is needed to achieve economic self-sufficiency. The alimony is not an exclusive remedy and can be awarded in addition to permanent alimony.
The reimbursement alimony is awarded to a spouse who has made financial sacrifices, resulting in a temporarily reduced standard of living, in order to allow the other spouse to secure an advanced degree or professional license to enhance the parties’ future standard of living. This award can be made in combination with another type of alimony.
The trial court did not consider and weigh all of the necessary factors required by NJSA 2A:34-23 in determining that permanent alimony was unwarranted. The Appellate Division inadvertently created a bright-line rule. No per se rule exists indicating that permanent alimony is unwarranted unless the 25th year has been reached. The final clause of the sentence affirms that the not short-term nature of a fifteen-year marriage mandates that it cannot be considered for limited duration alimony.
Alimony – Hodge v. Hodge
Year: 1986
Court: Supreme Court of PA
2. Disposition: remanded.
3. Holding: the trial court should determine whether wife is entitled to alimony, keeping in mind that alimony is intended to rehabilitate a spouse not to provide a source of economic equalization.
4. Issue: whether a medical license is marital property under our Divorce Code and whether the award of alimony was proper.
5. Procedural History: The trial court rejected wife’s claim that the medical license was marital property and awarded her alimony of $100 per week for 14 years. The Superior Court affirmed.
6. Facts: The parties married in 1967. Between 1971 and 1977, husband underwent medical training and wife worked to support him. The parties filed for divorce in 1981.
7. Rule:
8. Reasoning: The Court rejects the argument that the medical license was marital property.
Husband argues it was improper to award wife alimony for fourteen years. The trial court adopted the special master’s conclusion and stated that equitable adjustment is needed to place some economic responsibility on plaintiff for defendant’s sacrifices. Superior Court found no abuse of discretion. -> alimony was intended to be based on actual need and ability to pay. The primary purpose of alimony is to provide one spouse with sufficient income to obtain the necessities of life, not to punish the other spouse. The purpose of alimony under our statute is rehabilitation not reimbursement.
The trial court must keep in mind the purpose of alimony as set forth in section 501(a) in evaluating whether a certain factor is relevant. Both the special master and the trial court improperly attempted to effectuate economic equality through the use of alimony.
Fault – Dykman v. Dykman
Year: 2007
Court: Court of Appeals of Arkansas
2. Disposition: Affirmed.
3. Holding: Appellant has demonstrated he retains a considerable amount of vigor and ability to pay alimony.
4. Issue: whether the trial court’s award of alimony was proper in light of appellant’s advanced age.
5. Procedural History:
6. Facts: The appellant is a doctor of psychology and the appellee is a psychiatrist. Appellant is 85 years old and appellee is 52. Appellee was employed by a consulting firm and delivered her earnings to appellant. Appellant gave substantial gifts and checks from marital assets to other women. Appellant forged appellee’s signature to obtain a second mortgage and forged appellee’s name to tax returns.
7. Rule:
8. Reasoning: as a result of the diversion of marital funds, appellee does not have available the marital assets that she believed were being paid for by her contributions. Instead, at a time when she is attempting to establish a psychiatric practice, appellee faces bankruptcy.
Appellee’s attempt to establish her own psychiatric practice was engendered by a vocal impairment. Appellant’s financial misconduct directly relates to appellee’s need, and it might properly be considered in awarding alimony.
Modification – Schwarz v. Schwarz
Year: 2010
Court: Appellate Court of Connecticut
2. Disposition: affirm.
3. Holding: in the circumstances of this case, the court did not abuse its discretion in increasing the plaintiff’s alimony after finding that the defendant had met his burden under 46b-86(b), because it also found that the plaintiff had met her burden with regard to 46b-86(a).
4. Issue:
5. Procedural History: The trial court granted the motion to increase his alimony obligation from $2000 per week to $2175 per week.
6. Facts: The parties’ 29 year marriage was dissolved in 2005. The separation agreement stipulated that defendant shall pay alimony to plaintiff in the amount of $2000 per week until the death of either party or plaintiff’s remarriage. Alimony shall be subject to section 46b-86(b). Defendant’s gross income had increased from $373620 to $450000.
7. Rule:
8. Reasoning: Defendant claims the court improperly (1) found a substantial change in his financial circumstances and (2) increased the plaintiff’s award of alimony after finding that he had met his burden with regard to his motion to modify alimony on the basis of the change in plaintiff’s financial circumstances caused by her living with another person.
Defendant claims the court erred when it found that the increase in his income constituted a substantial change in circumstances. -> disagree.
Plaintiff claimed there was a substantial change in circumstances due to a substantial increase in the cost of her health insurance coverage. Defendant paid for Plaintiff’s COBRA coverage for three years and Plaintiff procured insurance coverage by working at the golf shop for the man with whom she was living. The partner could no longer pay for the insurance and plaintiff anticipated paying $15000 per year for her health insurance.
Defendant claims a court, as a matter of law, cannot increase the amount of alimony after finding that the party receiving alimony was living with another person, as contemplated in 46b-86(b). The Court abused its discretion. -> disagree.
46b-86(b) does not require a court to reduce alimony if a party proves that the other party’s financial circumstances have changed as a result of his or her choice to live with another person. It does not preclude the party who is receiving alimony from pursuing a motion to increase alimony.
The court found that Plaintiff needed to pay for health insurance and Defendant’s income had increased. Plaintiff was still in need of additional alimony.
Flynn dissenting: if a party remarries after divorce, it terminates the alimony. Some parties entered cohabiting relationships to avoid termination. To avoid such arrangement the legislature enacted 46b-86(b). Defendant filed a 46b-86(b) motion because the plaintiff was living with another man and her financial needs had been altered, and plaintiff filed a 46b-86(a) motion to increase her alimony because defendant’s income had increased. The trial court granted both motions. The increase in alimony ordered pursuant to 46b-86(a) was an abuse of discretion under the facts.
tenBroek, California’s dual system of family law: its origin, development, and present status (part I) (1964)
Brito, the welfarization of family law
The federal child support system, as well as the more recent reforms, subjects welfare and non-welfare families to different sets of rules and expectations depending on their status. Welfare families are required to seek child support through the state IV-D child support offices. Families must assume their rights to collect support to the state, and the state bureaucracy pursues child support from absent parents. Within the welfarized system of family law, there is greater governmental control over and sanctioning of welfare families. Using punitive, privacy-invading measures, the government denies TANF parents the right to make fundamental decisions affecting the best interests of their families.
45 CFR 302.56 Guidelines for setting child support orders (2019)
There are the income shares model, the percentage of income model and the Melson formula as child support guidelines.
Under the income shares model, a child of divorce should be supported at the same level as in an intact family. Both parents should be contributing to child support. It calculates child support on the basis of survey data about what percentage of their overall income intact families spend on their children.
The percentage of income model sets the child support obligation based only on the non-custodial parent’s level of income and the number of children for which a support order is being sought.
Under the Melson formula, every parent should be allowed to retain the minimum amount that is necessary for their own basic needs and the continuation of their employment. Until every child’s basic needs are covered, parents should not be allowed to retain more than the minimum amount necessary for their own basic needs. If income is enough to cover the basic needs of both parents and their dependents, children should be able to share in the additional income and higher standard of living of their parents. The formula calculates the net income of each parent. Then, it calculates the minimum reserve needed for each parent’s own basic needs and subtract that from the net income. It then calculates a basic child support need based on the parents’ combined net incomes. The basic child support need is subtracted from the parents’ combined available net income. A percentage is applied to the remaining combined income to calculate a standard of living adjustment. The basic child support need and SOLA are added to provide the total child support obligation, which is divided between the parents in proportion to their contribution to combined income.
Colo. Rev Stat Ann 14-10-115
Child support guidelines – Kraisinger v. Kraisinger
Year: 2007
Court: Supreme Court of PA
2. Disposition: Affirm but husband is free to revisit the issue.
3. Holding: The hearing officers’ and the trial court’s conclusions were based on considering and weighing all of the factors necessary for application of the nurturing parent doctrine.
4. Issue:
5. Procedural History:
6. Facts: The parties married in 1989 and divorced in 2001. In 2002, the parties entered into a marriage settlement agreement, which was incorporated with, but did not merge into, the divorce decree. In 2005, wife filed for additional child support. The hearing officer considered whether the agreement was made without fraud and coercion, fair and reasonable, and did not prejudice the children’s welfare. She determined there was no fraud or coercion the agreement was fair and reasonable, and did not prejudice the welfare of the children.
7. Rule:
8. Reasoning: Husband asserts that the court erred in applying the nurturing parent doctrine and in failing to impute an earning capacity to wife when fashioning the support Order. The nurturing parent doctrine recognizes that a custodial parent who stays at home and cares for a child does support the child. The hearing officer relied upon the doctrine to establish wife’s income at $0 per month.
Husband alleges the trial court was in error because wife was employed until they had four young children. The hearing officer recommended that wife be afforded the opportunity to stay at home with the youngest child until the child is in school full-time. The husband may seek to revisit the issue when the children are in school full time.
Who is responsible for child support – Miller v. Miller
Year: 1984
Court: Supreme Court of NJ
2. Disposition: Reverse and remand.
3. Holding: the facts established at trial are sufficient to impose a pendent lite award but are not sufficient to indicate whether a permanent support obligation should be imposed.
4. Issue: whether a stepparent can be equitably estopped from denying the duty to provide child support for minor stepchildren after divorcing their natural parent. If equitable estoppel applies, what evidence must be presented to establish a cause of action for child support.
5. Procedural History: The trial court agreed with wife. It held that husband was equitably estopped from denying his duty and had to pay child support. The court based its holding on emotional bonding. The Appellate Division affirmed, because husband interfered with the normal relationship between the girls and their natural father.
6. Facts: The Millers married in 1972. Wife’s two daughters by her prior marriage lived with the Millers. The Millers separated in 1979. In 1980, wife filed for divorce. Wife sought child support from husband. In her complaint, she alleged by his actions, husband had induced the girls to rely on him to their emotional and financial detriment. She claimed he was equitably estopped from denying a duty to pay child support. Husband claimed he stood in loco parentis to the children but was a stepfather and legal relationship with the children terminated. After Febre got out of jail, he attempted to visit the children, but Jay actively opposed the visitation and prevented the children from having a relationship with Febre.
7. Rule:
8. Reasoning: NJ has no statutory requirement imposing a duty of support on a stepparent for his or her spouse’s children by a former marriage. Nor did the common law impose a legal obligation. Such an obligation arises by a voluntary assumption.
In loco parentis relationship exists only so long as the parties, namely the surrogate parent and/or the child, desire that it exist. Despite the general rule that an in loco parentis relationship terminates upon the intent of the stepparent, in certain cases the courts have relied on principles of equitable estoppel or implied contract to impose a continuing obligation of child support.
To establish a claim of equitable estoppel, the claiming party must show that the alleged conduct was done, or representation was made, intentionally or under such circumstances that it was both natural and probable that it would induce action. Gladys, as the party alleging equitable estoppel, has the burden to prove that Jay’s conduct established representation, reliance, and detriment.
No court has forced a husband to support the children of his divorced spouse merely because he developed a close relationship with the children, nurtured them into a family unit with himself as the father, and had the children call him daddy. The development of emotional bonding is not sufficient to invoke equitable estoppel in stepparent cases. As to detriment, the parent should establish that the children will suffer future financial detriment as a result of the stepparent[‘s representation or conduct that caused the children to be cut off from their natural parent’s financial support.
If the wife knows where the natural father is, she has the burden to bring him before the court and to seek child support from him. Once in court the burden is on the natural father to show why he should not pay. If the court faults the stepfather’s conduct, the stepparent should be responsible for the children’s support.
The natural parent should always be considered the primary resource for child support. The stepparent must take positive action interfering with the natural parent’s support obligation to be bound.
Handler concurring and dissenting in part: this is an appropriate case to recognize that defendant be required, under principles of equitable estoppel, to continue to provide child support for his minor stepchildren. Defendant frustrated and cut off the girls’ relationship with their natural father. He left the children at a substantial financial disadvantage. When a stepparent walks away from the marital family after cutting off of financial assistance from the natural parent, the stepparent should remain responsible for the continued support.
When does the responsibility end – Solomon v. Findley
Year: 1991
Court: Supreme Court of AZ
2. Disposition: Approved and remanded.
3. Holding: the contract for post-majority support should be enforced in a separate contract action. Because the divorce court did not have authority to enforce the post-majority educational support provisions, that portion did not merge into the dissolution decree, but rather retained its independent nature enforceable as a contract claim.
4. Issue:
5. Procedural History: Wife sought to enforce the decree by filing an order to show cause, alleging failure to provide educational funds. The divorce court denied, stating the child was beyond minority and it lacked jurisdiction. Wife filed a breach of contract action and the trial court granted husband’s motion to dismiss. Court of appeals allowed plaintiffs to pursue their claim for post-majority education al support in contract.
6. Facts: In 1976, Solomon and Findley filed a joint petition for dissolution of marriage with a provision that husband provides funds for the child’s education.
7. Rule:
8. Reasoning: husband argued the obligation to perform the agreement ended when the child reached majority.
TN Supreme Court found that the agreement to pay all future education al expenses constituted a contractual obligation outside the scope of the legal duty of support during minority. AK Supreme Court found that the court could not have ordered such provisions and the parties must have made a separate and independently enforceable contract. GA Supreme Court allowed a wife to enforce a post-majority contract agreement by contempt. IL appeals court enforced the agreement to provide stability in negotiations and to prevent one party from being penalized due to the other party’s failure to comply.
When does the responsibility end – Curtis v. Kline
Year: 1995
Court: Supreme Court of PA
2. Disposition: Affirmed.
3. Holding: We can conceive of no rational reason why those similarly situated with respect to needing funds for college education should be treated unequally.
4. Issue: Whether Act 62 violates the equal protection clause of the 14th Amendment of the US Constitution.
5. Procedural History: The Court of Common Pleas held that the Act violated the 14th Amendment.
6. Facts: Two years after Philip Kline (plaintiff) was initially ordered to pay child support for his three children, he petitioned the court to terminate his support obligation as to two of the children, who were now college students. After the petition was filed, the state legislature passed a law known as Act 62, which permitted courts to order separated, divorced, or unmarried parents (but not married parents) to contribute to their children’s post-secondary educational expenses, even if the children were over 18. Kline was given leave to challenge the constitutionality of Act 62.
7. Rule:
8. Reasoning: Act 62 must be upheld if there exists any rational basis for the prescribed classification. We must determine whether the challenged statute seeks to promote any legitimate state interest or public value. It must then be decided whether the statute bears a reasonable relationship to the intended objective.
Act 62 classifies young adults according to the marital status of their parents, establishing for one group an action to obtain a benefit enforceable by court order that is not available to the other group. The Act distinguishes between children of divorced/separated/never-married parents and children of intact families.
This classification is not rationally related to the legitimate government purpose of obviating difficulties encountered by those in non-intact families who want parental financial assistance for education.
Whether the authority of the state may be selectively applied to empower only those from non-intact families to compel help. -> it may not. A divorced parent could be required to provide educational support for the children from a first marriage and not residing with him but not the child of a second marriage and still residing with him. A child over 18 of a woman whose husband had died would have no action against the mother but one whose mother never married, married and divorced, or was separated when husband died would be able to maintain such an action.
Reject the NH Supreme Court’s analysis in LeClair. The discriminatory classification adopted by our legislature is not focused on the parents but rather the children.
Montemuro dissenting: Act 62 is intended to assure the children who are disadvantaged by the divorce or separation that they are not deprived of the opportunity to acquire post-secondary school education. It merely recognizes that divorce has a deleterious effect upon children, which should be redressed. The Majority has declared that the distinction between the children of broken families and those of intake families simply does not exist. Act 62 does not make mandatory the directive to pay child support for college. Children whose parents are still married most often continue to receive support past majority. Equal protection does not demand that every permutation be addressed separately; what is sought is equality not uniformity.
Modification – Little v. Little
Year: 1999
Court: Supreme Court of AZ
2. Disposition: vacate the opinion of the court of appeals and affirm the decision of the trial court.
3. Holding: a court, rather than rely upon a good faith test, must balance a number of factors to determine whether to modify a child support order to reflect a substantial and continuing change of circumstances.
4. Issue: what standard courts should apply in determining whether a non-custodial parent’s voluntary decision to leave his or her employment to become a full-time student constitute a sufficient change in circumstances to warrant a downward modification of the parent’s child support obligation.
5. Procedural History: The trial court concluded that husband had failed to prove a substantial and continuing change of circumstances and denied his request for modification. It found that husband voluntarily left his employment to further his own ambition, he failed to consider the needs of his children when he made that decision, and to reduce his child support obligation would be to his children’s immediate detriment. It reduced the child support on the ground that wife had acquired a higher paying job. The Court of Appeals held that the trial court abused its discretion in finding that husband’s decision to terminate his employment and pursue a degree was unreasonable.
6. Facts: The parties divorced in 1995. The court ordered husband to pay support of two young children. He resigned commission in the Air Force and chose to enroll as a full-time law student. Husband petitioned the court to reduce his child support.
7. Rule:
8. Reasoning: AZ’s law states that a court should modify a child support order only if a parent shows a substantial, continuing change of circumstances. When a parent is unemployed or working below his or her full earning potential, a trial court calculating the appropriate child support payment may impute income to that parent, up to full earning capacity, if the parent’s earnings are reduced voluntarily and not for reasonable cause. Trial court may elect not to impute income if he or she is enrolled in reasonable occupational training that will establish basic skills or is reasonably calculated to enhance earning capacity.
The good faith test considers the actual earnings of a party rather than his earning capacity, so long as he or she acted in good faith and not primarily for the purpose of avoiding a support obligation when he or she terminated employment. The strict rule test disregards any income reduction produced by voluntary conduct and looks at the earning capacity of a party in fashioning a support obligation. The intermediate test balances various factors to determine whether to use actual income or earning capacity in making a support determination.
Flaws in the good faith test include: the test erroneously assumes that a divorced or separated party to a support proceeding will continue to make decisions in the best overall interest of the family unit, when often the party will not. The test fails to attach sufficient importance to a parent’s existing obligation to support his or her children. Once the party seeking a downward modification provides a seemingly good faith reason for leaving employment, the burden of proof often shifts to the party opposing the reduction to then show that the reason given is merely a sham. The test focuses upon the parent’s motivation for leaving employment rather than upon the parent’s responsibility to his or her children and the effect of the parent’s decision on the best interests of the children.
Flaws in the strict rule include: it is too inflexible because it considers only the parent’s earning capacity in determining whether to modify. It allows no consideration of the parent’s individual freedom or of the economic benefits that can result to both parent and children from additional training or education.
The paramount factor is the financial impact of the parent’s decision on the child or children the support order protects. If the impact is not be so severe as to place the children in peril, consider the overall reasonableness of a parent’s voluntary decision to terminate employment and return to school. Ask whether the parent’s current educational level and physical capacity provide him or her with the ability to find suitable work in the marketplace. Consider the length of the parent’s proposed educational program. Inquire whether the parent is able to finance his or her child support obligation while in school through other resources such as student loans or part-time employment. Consider whether the parent’s decision is made in good faith and not to avoid a child support obligation.
The negative impact of the requested reduction on husband’s children would have been substantial. Husband has a BA and an MBA and asking to assume that he will make more money when he completes law school invites the court to engage in speculation. The record does not indicate that husband, upon leaving the Air Force, even attempted to obtain suitable employment in the area. Husband was able to finance school through student loans and can obtain part-time employment. The trial court found that husband failed to act in good faith.
Colo Rev. Stat Ann 14-10-115
The guidelines should be used as a rebuttable presumption for the establishment or modification of the amount of child support. A court may deviate where its application would be inequitable, unjust or inappropriate.
Rich families – Smith v. Smith
Year: 2002
Court: Court of Civil Appeals of OK
2. Disposition: Affirmed, but the trial court abused its discretion in setting the amount, so modify the amount.
3. Holding: A child’s reasonable expenses could justify a child support award in excess of an extrapolation for income exceeding the guidelines. It was an abuse of discretion to award an amount greater than even the liberal amount of expenses. Using the living expenses submitted by mother, $3355.9, father’s 88% share is $2953.19.
4. Issue:
5. Procedural History: Mother sought an increase in child support based on changes in the parties’ incomes and expenses of the minor child. The trial court increased father’s support obligation from $460 to $4300 per month. The trial court noted that a substantial and material change of circumstances had occurred since the entry of the decree.
6. Facts: The parties married in 1981, a child was born in 1984, and the parties divorced in 1988. The decree awarded custody to mother, granted visitation to father, and ordered $460 per month in child support.
7. Rule:
8. Reasoning: father argues that mother asserted the minor child was deprived because father’s income had increased dramatically and the child enjoyed a very good lifestyle before the modification.
Father’s monthly income is $46015 and mother’s is $6419. Combined is $52434. 9.15% of that amount is $4797. Father’s percentage share of 88% of $4797 is $4220.
The child support table shows that as the gross income increases, the proportion designated for child support decreases. This is because a child’s needs do not inherently increase regardless of the amount of income, three pony rule.
In Archer v. Archer, the trial court determined that the high income was an extraordinary circumstance which excused compliance with the child support guidelines. Husband argued the maximum amount could only be exceeded if exceptional needs were shown. The court explained that the trial court may also consider the payor parent’s affluent lifestyle. In Mocnik v. Mocnik, the court noted that the joint monthly income was $19543. The top amount of child support equaled 13.52% that, when multiplied, calculated $2642.21 and the husband owed 91% of that amount.
Poor families – Rose on behalf of Clancy v. Moody
Year: 1993
Court: Court of Appeals of New York
2. Disposition: Affirm.
3. Holding: Provision in Family Court Act is preempted under the Supremacy Clause. A perfunctory, legally noncollectible judicial order of support is not authorized and would send the wrong messages. It would degrade the value and integrity of the judicial decree and unjustly and unaccountably brand the respondent parent a deadbeat.
4. Issue:
5. Procedural History: Family Court rejected Commissioner’s objections to the Hearing Examiner’s findings and determination that mother’ child support obligation for her third, noncustodial child was $0. The Appellate division affirmed, adding that the minimum award was preempted by Federal law.
6. Facts: Respondent mother has custody of two children and subsists on Social Services financial aid. Her first born lived with his grandmother and is a noncustodial child. In 1991, Social Services filed a petition for support against the mother. The mother’s income was determined to be $0. The Hearing Examiner concluded the application of the mandatory minimum award would be unjust and inappropriate.
7. Rule:
8. Reasoning: The Commissioner and AG argue that NY’s Family Court Act 413(1)(g), which conclusively fixes a minimum $25 per month floor in all cases, is not preemptively nullified by any conflict with Federal law 42 U.S.C. 667, which mandates a rebuttable presumption in all such instances. -> disagree.
NY’s Family Court Act 413(1)(g) flatly contradicts the Federal law.
The County and intervenor assert the Family Court Act avoid preemption conflict because the figure is a justifiable public policy message, not a true collectible obligation. -> BY establishing an irrebuttable minimum of $25, the State treads on the Federal mandate which gives a noncustodial parent the right to rebut any presumed support amount, by showing inability to pay.
Income, defined at section 413(1)(b)(5), does not include public assistance. Respondent mother has $0 in income. For a judicial decree to declare that she owes what she cannot realistically or legally pay is not only unjust and inappropriate, it is a legal pretense. To require her to pay $25 per month would decrease allotment from $126 to $101, a substantial percentage decrease, and a penalty per se for being a public charge.
Patterson, Civil contempt and the indigent child support obligor: the silent return of debtor’s prison
If insufficient funds are obtained through wage withholding and seizure of assets, coercive mechanisms include the revocation of occupational, driver’s, and other licenses; the denial of passports; and reporting to consumer reporting agencies.
Child support enforcement – State v. Talty
Year: 2004
Court: Supreme Court of Ohio
2. Disposition: Reverse and remand.
3. Holding: the antiprocreation order is overbroad under Jones and vacate that portion of the trial court’s sentencing order.
4. Issue:
5. Procedural History: After pleading not guilty, Talty plead no contest and the trial court found him guilty. The court of appeals held that the condition was constitutional and affirmed.
6. Facts: In 2002, the Medina County Grand Jury indicted Talty on two counts of nonsupport. The trial court placed Talty under community control for five years. As a condition of the community control, the trial court ordered Talty to “make all reasonable efforts to avoid conceiving another child.”
7. Rule: Courts must consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation. Probation conditions cannot be overly broad so as to unnecessarily impinge upon the probationer’s liberty.
8. Reasoning: Talty asserts the order is overbroad because there was no opportunity to have the antiprocreation condition lifted if he became current. The government contends other states approved identical conditions.
The trial court did not allow for suspending the procreation ban if Talty fulfilled his obligations. The condition is overbroad because it restricts the right to procreate without providing a mechanism for the ban to be lifted.
Reject that the order is valid because Talty could have been incarcerated but for the act of grace and he would have been denied conjugal visits. -> the US Supreme Court rejected the act of grace doctrine. The fact does not justify a lesser intrusion of his or her rights. The rejection is predicated on that the infringements of constitutional rights must be tailored to specific government interests and these interests may differ based on the sentencing. A legitimate penological interest may be different from a legitimate probationary interest.
If a trial judge could deny to a probationer any right that a prison official could deny to an inmate, then a condition of community control need not be related to the rehabilitation of defendant, the administration of justice, or the prevention of future criminality.
Pfeifer dissenting: the court found that Talty never paid toward his child-support obligations even though he was aware of them. The court found him in contempt of his support obligations. The General Assembly has charged trial courts by considering reasonableness, proportionality, and consistency. I consider the sanction appropriate, or reasonable, and proportionate, under the egregious circumstances of this case because the sanction relates directly to the crime of which Talty was convicted and is tailored to prevent even more instances of felony nonsupport. RC 2929.15(C) provides mechanism for reducing the sanction. I do not believe that felons subject to community control are entitled to strict scrutiny even for the deprivation of fundamental rights. The condition is not overly broad and is reasonably related to Talty’s rehabilitation.
Child support enforcement – Turner v. Rogers
Year: 2011
Court: Supreme Court of the US
2. Disposition: Vacate the judgment and remand.
3. Holding: Where the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent. The State must have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration related question, whether the supporting parent is able to comply with the support order.
Turner received neither counsel nor the benefit of alternative procedures. Turner’s incarceration violated the Due Process Clause.
4. Issue: whether the 14th Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration.
5. Procedural History:
6. Facts: In 2003, a SC family court entered an order requiring Turner to pay $51.73 per week to Rogers to help support their child. Over the next three years, Turner repeatedly failed to pay the amount and was held in contempt. After his release in 2006, the clerk issued a new show cause order for Turner. Turner’s civil contempt hearing took place in 2008. The judge found defendant in willful contempt.
7. Rule: Factors that decide what specific safeguards the Due Process Clause requires to make a civil proceeding fair: (1) the nature of the private interest that will be affected, (2) the comparative risk of an erroneous deprivation of that interest with and without additional or substitute procedural safeguards, and (3) the nature and magnitude of any countervailing interest in not providing additional or substitute procedural requirements.
8. Reasoning: SC family courts enforce their child support orders in part through civil contempt proceedings.
Turner claimed that the Federal Constitution entitled him to counsel at his contempt hearing. The SC Supreme Court rejected the right to counsel claim.
The 6th Amendment does not govern civil cases. Civil contempt seeks only to coerce defendant to do what a court had previously ordered him to do. Where civil contempt is at issue, the 14 Amendment’s Due Process Clause allows a State to provide fewer procedural protections than in a criminal case.
To secure payments, systems often rely upon wage withholding, expedited procedures for modifying and enforcing child support orders, and automated data processing. Sometimes States use contempt orders.
(1) argues strongly for the right to counsel. Indigence can be a question that in many cases is sufficiently straightforward to warrant determination prior to providing a defendant with counsel. Sometimes the person opposing defendant at the hearing is not the government represented but the custodial parent in represented by counsel. A requirement that the State provide counsel to the noncustodial parent could create an asymmetry of representation.
There is available a substitute procedural safeguards, including notice to defendant that his ability to pay is a critical issue, the use of a form to elicit relevant financial information, an opportunity at the hearing for defendant to respond to statements and questions about his financial status, and an express finding by the court that defendant has the ability to pay.
Thomas dissenting: the majority errs in moving beyond the question that was litigated below. It transforms a case entirely to vacate based on an alternative constitutional ground advanced only by an amicus and outside the question on which the petitioner sought review. The interests of children and mothers who depend on child support are notoriously difficult to protect. Deadbeat dads attempt to shield their earnings. Whether deadbeat dads should be threatened with incarceration is the business of the policymaking branches. I would affirm that the Clause does not provide a right to appointed counsel and that is the only issue properly before the Court.
Lollar, Criminalizing Poor Fatherhood
All states have civil mechanisms to enforce child support orders, but increasingly, states are relying on criminal sanctions to remedy a parent’s failure to pay child support. (1) Poor fathers are being incarcerated for not having the money to support their children. These prosecutions not only violate the Constitution but also contravene the prohibition on debtor’s prisons. (2) fathers with little to no income are helping finance the government’s child support enforcement system. Legislators and courts provide child welfare and state fiscal well-being as justifications. Our current system actively discourages paternal contact to child by imposing unrealistic expectations on a father to pay child support he often cannot afford.
The OCSE lumped together broadly related data in the analysis, making it difficult to truly ascertain how much child support money is going from noncustodial parents to custodial parents, and how much for the government reimbursement. The OCSE does not supervise the prosecutorial arm and its cost-effectiveness analysis does not include the sizable costs the states bear for the prosecution and/or incarceration of noncustodial parents. Being branded a criminal carries broad, indefinite, and quantifiable ramifications. The prosecution and incarceration of someone unable to pay should be deeply troubling. States are prosecuting for being unable to pay off private debts or public debts and these should be found unconstitutional under Equal Protection-Due Process analysis.
Property, spousal, and child support jurisdiction – Vanderbilt v. Vanderbilt
Year: 1957
Court: Supreme Court of the US
2. Disposition:
3. Holding: The Nevada decree was void and the Full Faith and Credit Clause did not obligate NY to give it recognition.
4. Issue:
5. Procedural History: The NY court found the Nevada decree valid but entered an order under 1170-b directing petitioner to make designated support payments to wife. The NY Court of Appeals upheld the support order.
6. Facts: The Vanderbilts were married in 1948 and separated in 1952. In 1953 husband sued for divorce in Nevada. The wife was not served with process in Nevada and did not appear before the divorce court. In 1954 wife instituted an action in a NY court praying for separation and alimony. The NY court did not have personal jurisdiction over husband but sequestered his property within the State. Husband appeared specially and contended that the Full Faith and Credit Clause compelled the NY court to accept the Nevada court ruling.
7. Rule:
8. Reasoning: husband argued that 1170-b is unconstitutional because it contravenes the Full Faith and Credit Clause.
Here the wife’s right to support had not been reduced to judgment prior to the husband’s ex parte divorce. Since wife was not subject to its jurisdiction, the Nevada divorce court had no power to extinguish any right which she had under the law of NY to financial support. The Nevada divorce court was as powerless to cut off the wife’s support right as it would have been to order the husband to pay alimony.
Foreign versus domestic law on marital property – Aleem v. Aleem
Year: 2007
Court: Maryland Court of Special Appeals
2. Disposition:
3. Holding: the conflict between Pakistani law and Maryland law is so substantial that applying Pakistani law in the instant matter would be contrary to Maryland public policy. The Circuit Court did not err in declining to apply the law of Pakistan in determining wife’s rights in marital property titled in husband’s name.
4. Issue: whether the trial court erred in failing to hold an evidentiary hearing to determine if the parties’ Pakistani divorce should be granted comity. Whether the trial court erred in refusing to grant comity to a Pakistani divorce.
5. Procedural History: Wife filed for limited divorce. The court ordered husband to vacate the family home in 2003 and entered judgment against husband for arrearage in pendent lite child support. Wife amended to seek an absolute divorce. In 2004, husband moved to dismiss on the ground that all issues have been decided in Pakistan. The court denied the motion to dismiss. The two trials for divorce ended with dismissal without prejudice. The court entered a judgment granting wife an absolute divorce on the ground of a two-year separation and signed an amended order for spousal support.
6. Facts: Husband and wife are nationals of Pakistan. While wife was suing husband for divorce, husband divorced wife by talaq. The controversy concerns court’s equitable division of marital property in the form of husband’s pension. Husband presented at the Pakistani Embassy in Washington DC and signed and had notarized a Divorce Deed.
7. Rule:
8. Reasoning: husband contends the court was required to receive evidence in explanation of Pakistani law as it relates to the divorce by talaq obtained by him.
Any error by the circuit court in not more formally receiving evidence concerning Pakistani law is harmless. This is because Pakistani law is so contrary to Maryland public policy that it is not entitled to comity.
In Chaudry v. Chaudry, the Appellate Division rejected the wife’s claim for an equitable distribution. It held that there was an insufficient nexus between the marriage and New Jersey. It held that ante-nuptial agreement negotiated by her parents barred an equitable distribution.
NJ has a sufficient nexus with the marriage.
A law of a foreign country that provides that husband had no obligation equitably to divide marital property does not require enforcement by comity.
Pakistani attorneys state that, under Pakistani law, the distribution of property on divorce follows title.
The marriage certificate/contract does not address most of the property at issue in this case. The Pakistani marriage contract is not to be equated with a premarital or post-marital agreement that validly relinquished rights in marital property.
Constitutional limits on long-arm jurisdiction – Kulko v. Superior Court of California
Year: 1978
Court: Supreme Court of the US
2. Disposition: Reversed.
3. Holding: the exercise of such jurisdiction would violate the Due Process Clause of the 14th Amendment. The mere act of sending a child to CA to live with her mother is not a commercial act and connotes no intent to obtain or expectancy of receiving a corresponding benefit in the State. Husband’s motion to quash service was erroneously denied by the CA courts.
4. Issue: whether the CA state courts may exercise in personam jurisdiction over a nonresident, nondomiciliary parent of minor children domiciled within the State.
5. Procedural History: the trial court denied the motion to quash. Husband argued the CA courts lacked personal jurisdiction over him. The appellate court affirmed, reasoning that, by consenting to his children’s living in CA, husband had caused an effect in the state. The CA Supreme Court affirmed.
6. Facts: Kulko, husband, married Horn, wife, in 1959 during stopover in CA en route from a base in TX and both residents of NY. Horn returned to NY and Kulko returned to NY after the tour. In 1972, the parties separated. Wife moved to CA. a written separation agreement was drawn up in NY and wife flew to NY to sign this. Wife flew to Haiti to procure a divorce there and returned to CA to remarry. Children began to reside with wife during the school year and spend vacations with husband. Wife commenced action to establish the Haitian divorce decree as a CA judgment; to modify the judgment so as to award her full custody; and to increase child-support obligations. Husband appeared specially and moved to quash service of the summons since he was not a resident of CA.
7. Rule:
8. Reasoning: The existence of personal jurisdiction depends upon the presence of reasonable notice to the defendant that an action has been brought, and a sufficient connection between the defendant and the forum State. Kulko acknowledges the adequacy of the notice that he received but contends that his connection to CA is too attenuated.
International Shoe set forth that a defendant have certain minimum contacts with the forum State such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. The CA Supreme Court’s application of the minimum-contacts test represents an unwarranted extension of International Shoe and would sanction a result not fair, just, or reasonable.
A father who agrees to allow the children to spend more time in CA than was required under a separation agreement can hardly be said to have purposefully availed himself of the benefits and protections of CA’s laws.
Courts below assert that the exercise of in personam jurisdiction is warranted by the financial benefit husband derived from his daughter’s presence in CA for nine months. -> it does not support CA’s assertion of jurisdiction. Diminution in costs resulted not from the child’s presence in CA but from the child’s absence from husband’s home.
The cause of action arises not from the commercial transactions in interstate commerce, but from his personal, domestic relations. Basic fairness point that husband’s state of domicile is the proper forum.
Uniform Interstate Family Support Act
201 bases for jurisdiction over nonresident. Section 202 Duration of personal jurisdiction. 205 continuing, exclusive jurisdiction to modify child-support order. 206 continuing jurisdiction to enforce child-support order. 211 continuing, exclusive jurisdiction to modify spousal-support order. 611 modification of child-support order of another state.
Constitutional limits on long-arm jurisdiction – Shaikh v. Lakhani
Year: 2017
Court: Superior Court for the DC, family division
2. Disposition:
3. Holding: the Court has personal jurisdiction over husband for child support purposes and jurisdiction over the parties’ marital status, but must dismiss wife’s claims for spousal support and equitable distribution for lack of personal jurisdiction.
4. Issue:
5. Procedural History:
6. Facts: The parties married in Pakistan in 2000 and the wife became a US citizen. Wife’s relationship with husband deteriorated and the parties separated after a domestic violence incident. Wife left Pakistan with the three children and arrived at DC. Husband contacted DC Police Department and requested to contact wife’s sister and check in on the children. Wife petitioned the court for a civil protection order and was granted a Temporary Protection Order that awarded her temporary sole custody. In 2016, wife filed for divorce seeking sole custody, child support, and equable division of marital and pre-marital assets, spousal support, and fees. Husband filed motion to dismiss for lack of jurisdiction.
7. Rule:
8. Reasoning: husband argues that, because this court does not have personal jurisdiction over him, the Court does not have authority to dispose of marital assets nor impose any order upon husband relating to child support, alimony, or fees. Wife filed an opposition arguing that the Court has subject matter jurisdiction and personal jurisdiction because she and the children fled to escape domestic violence.
Husband contends he does not have minimum contacts with the DC to predicate personal jurisdiction. Wife argues the Court has personal jurisdiction because he has impliedly consented to or waived the exercise of personal jurisdiction; husband caused wife and the children to come to the DC, communicated his approval of their residence, purposefully availed himself of the benefit of the laws of the DC by utilizing the police, and harassed and stalked wife.
For personal jurisdiction for child support: Only subsections (5) and (7) of UIFSA may establish jurisdiction. Under (5), we examine whether the child resides in the District as a result of the acts or directives of the nonresident defendant.
In Franklin v. Department of Social services, Division of child support enforcement ex rel Franklin, the husband ordered the wife and children to leave their home in Africa. The court held that to allow a husband to escape his child support obligations merely because he failed to dictate the specific destination when he ordered to leave would frustrate the purpose of the legislature in enacting UIFSA. In In re marriage of Malwitz, the court held that CO had a personal jurisdiction over nonresident father because he engaged in a course of conduct designed to terrorize the mother and forced her to seek safety in CO.
Husband’s repeated and escalating domestic violence constitutes acts or directives under UIFSA and has direct correlation with the minor children’s present residence in the District. The Court has personal jurisdiction under (5).
For personal jurisdiction for spousal support: only subsections (1), (2), and (7) may provide grounds for personal jurisdiction for a spousal support claim. The Court lacks personal jurisdiction over husband under the spousal support provisions.
UIFSA subsection (7) provides that the Court may exercise personal jurisdiction consistent with the limits of the US Constitution. The court must examine whether there is a sufficient connection between the nonresident defendant and the forum state. Husband argues wife has not alleged nor could allege any type of contacts that he has with DC. -> agree.
Wife argues husband purposefully availed himself through contacting the police and visiting sister’s residence. -> not convincing. Contact with MPD does not amount to a deliberate and voluntary association with the DC. As in Kulko, nonresident father’s mere acquiescence to a mother’s decision to reside with the child in a foreign state is not a sufficient purposeful act. The Court cannot interpret husband’s statement as his implied consent to the jurisdiction.
Full faith and credit for child support orders act (2017)
Constitutional limits on long-arm jurisdiction – Hamilton v. Hamilton
Year: 2009
Court: Supreme Court of Indiana
2. Disposition:
3. Holding: the trial court’s order did not impermissibly modify the foreign judgment in violation of UIFSA or FFCCSOA and are consistent with the requirements of the Full Faith and Credit Clause.
4. Issue: whether the trial court’s judgment constituted a modification of the original FL support order that would violate the Full Faith and Credit Clause or the Supremacy Clause.
5. Procedural History: the IN trial court issued a contempt order requiring the father to pay less than the full amount of the FL support obligation to avoid incarceration.
6. Facts: The Hamiltons were granted a divorce in FL in 2005. The FL judgment awarded wife physical custody and required husband to pay support in the amount of $1473 per month. Husband did not fulfill his responsibilities. Wife sought enforcement by filing a motion for contempt in the FL court. Husband did not appear and the FL court found husband in contempt. Husband moved to IN. Wife sought enforcement by registering FL judgment and order in IN court. The IN court extended full faith and credit to the child support judgment and the contempt order, except to the incarceration order. The IN court found husband in contempt but stayed the jail sentence if husband tendered less amount in money. In 2007, IN court ordered husband to serve in jail but stayed the sentence contingent upon husband paying wife, obtaining full-time employment, and executing a wage assignment. Wife asked to find husband in contempt and the court ruled that husband was not in contempt.
7. Rule:
8. Reasoning: FFCCSOA provides that a state which first issues a support order retains continuing, exclusive jurisdiction over the judgment subject to exceptions. Under the Supremacy Clause, the provisions of FFCCSOA are binding on the states and supersede any inconsistent provisions of state law. FFCCSOA and UIFSA are virtually identical.
Wife argues that the IN court orders impermissibly modified the FL support order. Husband responds that the orders were proper enforcement mechanisms that UIFSA and FFCCSOA leave to the discretion of the IN courts. -> agree with husband.
The FL court issued $1473 per month support judgment. Wife and her children remained FL residents, and parties never agreed to grant modification jurisdiction to another tribunal. FL retained continuing, exclusive jurisdiction. IN became a responding state. The trial court’s contempt orders were valid enforcement mechanisms. As a responding tribunal, the IN court had discretion to specify the amount and manner of compliance with the support order, and to fashion a remedy that would most effectively compel payment.
Unlike in Reis v. Zimmer or Walker v. Amos, the trial court here did not divert, suspend or otherwise alter the support responsibilities.
IN can modify the payment schedule but cannot do anything about the underlying order. Husband can go to FL and seek a downward modification.
Bix, private ordering and family law (2010)
Until recently, rights and obligations were set by the state. States now allow different types of private ordering. The basic idea behind private ordering is that individuals know better than do other people what is in their own best interests. Autonomy - We can only be said to be governing our lives in any significant sense when we have a variety of tenable choices and can make un-coerced choices among them. One standard justification for regulation of private transactions is public interest: there are reasons for public promotion of transactions that work to the general benefit, and for placing burdens upon, or prohibiting outright, transactions that work against the general benefit. There is need for government regulation when those private arrangements harm third parties. The obvious vulnerable third parties are minor children.
Mnookin and Kornhauser, bargaining in the shadow of the law: the case of divorce (1979)
When the divorcing parties have no children, the law generally recognizes the power of the parties upon separation or divorce to make their own arrangements concerning marital property and alimony.
The state usually has very limited resources for a thorough and independent investigation of the family’s circumstances. The applicable legal standards are extremely vague and give judges very little guidance as to what circumstances justify overriding a parental decision. There are obvious limitations on a court’s practical power to control the parents once they leave the courtroom Courts behave as if their function in the divorce process is dispute settlement.
Economic analysis suggests that a parent may trade custodial rights for money.
Premarital contracts – Simeone v. Simeone
Year: 1990
Court: Supreme Court of PA
2. Disposition: affirmed.
3. Holding: the prenuptial agreement is valid and enforceable. Wife is barred from receiving alimony pendente lite.
4. Issue: the validity of a prenuptial agreement.
5. Procedural History: A master’s report upheld the agreement and denied claim for alimony pendente lite. Exceptions to the report was dismissed by the Court of Common Pleas and the Superior Court affirmed.
6. Facts: In 1975, wife, 23 year old nurse, married husband, 39 year old neurosurgeon. Husband had income of $90000 per year and wife was unemployed. Husband had assets worth $300000. On the eve of the wedding, husband’s attorney present wife with a prenuptial agreement and wife signed without the benefit of counsel. The parties are in disagreement as to whether wife had advanced knowledge and she contends she signed under adverse circumstances. The agreement limited support payments to $200 per week to a maximum total payment of $25000. The parties separated in 1982 and divorced in 1984. Husband satisfied the $25000 limit. In 1985, wife filed a claim for alimony pendente lite.
7. Rule:
8. Reasoning: wife asserts that the court’s interpretation is in error insofar as it requires disclosure of statutory rights only in cases where there has not been made a reasonable provision for the spouse. Wife’s assertion focused on that there was an inadequate disclosure of statutory rights. She asserts that the payments provided in the agreement were less than reasonable.
There is no longer validity in the implicit presumption that supplied the basis for Geyer. Women are no longer regarded as the weaker party in marriage. The paternalistic approach is now insupportable.
Prenuptial agreements are contracts and should be evaluated under the same criteria as are applicable to other types of contracts. Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.
We find no merit in a contention raised by wife that the agreement should be declared void on the ground that she did not consult with independent legal counsel. To impose a per se requirement would be contrary to law and would be paternalistic.
Parties would not have entered such agreements if they did not expect their agreements to be strictly enforced. If parties viewed an agreement as reasonable at the time of its inception, they should be foreclosed from later trying to evade its terms by asserting that it was not in fact reasonable.
Everyone who enters a long-term agreement knows circumstances can change during its terms, so what appeared desirable might prove to be an unfavorable bargain.
Wife asserts husband understated the value of a classic car collection worth $183000. -> the value of the car collection was fully disclosed.
Wife asserts the agreement was executed under duress in that it was presented at 5 p.m. on the eve of her wedding. -> the master found this claim not credible.
Papadakos concurring: the full and fair disclosure, as well las the lack of unfairness and inequity, standards reiterated in Geyer are supported. All vestiges of inequality between the sexes have not been erased.
Estate of Geyer: the prenuptial agreement need to be fair and reasonable. Simeone disagrees and says it should be treated like any other contract.
Uniform premarital agreement act 1-6
Marital agreements – Ansin v. Craven-Ansin
Year: 2010
Court: Supreme Judicial Court of MA
2. Disposition: Affirmed.
3. Holding: Enforcement of a marital agreement is not contrary to public policy. The marital agreement in this case should be specifically enforced.
4. Issue: whether “postnuptial” or “marital” agreements are contrary to public policy and, if not, whether the marital agreement at issue is enforceable.
5. Procedural History: A judge in the Probate and Family Court upheld the agreement.
6. Facts: In 2004, the parties made a written agreement “settling all rights and obligations arising from their marital relationship” in the event of a divorce. In 2006, husband filed a complaint for divorce and sought to enforce the agreement.
Husband owned assets of various entities which were substantial real estate holdings in FL. Husband received distributions from his interest. RINET provided financial advice to the parties and assigned real estate value of $4 to $5 million. The parties were married in 1985 and marital problems began in 2003. In 2004, husband informed wife that he needed her to sign an agreement if their marriage was to continue. The parties separated and husband promised he would recommit to the marriage if she signed. The agreement was signed in 2004. The agreement states wife disclaims any and all interest in husband’s interest in the FL real estate. Husband agreed pay wife $5 million and 30% of the appreciation of all marital property from the time of the agreement to the time of the divorce. In 2005, husband enrolled in Kennedy School of Government and moved out of the house at wife’s request. In 2006, wife became involved in a relationship with another man. Husband filed petition for divorce.
7. Rule:
8. Reasoning: Marital relationship need not vitiate contractual rights between the parties.
Wife argues marital agreements are different in kind and should be declared void against public policy because they are innately coercive, usually arise when the marriage is already failing, and may encourage divorce. -> there is no support that marital agreements are typically executed amid threats of divorce or induced by promises and are not coercive.
Marital agreements must be carefully scrutinized. A judge should scrutinize whether (1) each party has had an opportunity to obtain separate legal counsel of each party's own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; and (5) the terms of the agreement are fair and reasonable at the time of execution and at the time of divorce.
The marital agreement was not the product of coercion or fraud. Wife argues that husband misrepresented his intention to stay in the marriage in order to induce her to sign the agreement. -> the judge found to the contrary. It was not until two years later that husband filed divorce.
Full disclosure requires the party seeking to enforce it provide (1) his or her significant assets, and their total approximate market value, (2) his or her approximate annual income, and (3) any significant future acquisitions, or changes in income, to which the party has a current legal entitlement, or which the party reasonably expects to realize in the near future. The disclosures were sufficient to meet the rigorous standard. Wife argues husband undervalued his interest in the FL real estate and that he committed a breach of the warranty in the agreement that such disclosures were accurate and truthful. -> the facts found by the judge belie this claim.
A judge should consider whether each party was represented by independent counsel, the adequacy of the time to review the agreement, the parties’ understanding of the terms of the agreement and their effect, and a party’s understanding of his or her rights in the absence of an agreement. The evidence supports that wife’s waiver was meaningful.
We do not accept husband’s suggestion that the standard applicable to marital agreements should be the same as the one applicable to premarital agreements. The marital agreement was fair and reasonable, viewed at the time of execution.
At the time of divorce, examine: (1) the nature and substance of the objecting party's complaint; (2) the financial and property division provisions of the agreement as a whole; (3) the context in which the negotiations took place; (4) the complexity of the issues involved; (5) the background and knowledge of the parties; (6) the experience and ability of counsel; (7) the need for and availability of experts to assist the parties and counsel; and (8) the mandatory and the discretionary factors. We see no reason to conclude that the judge was erroneous.
Marital agreements – Borelli v. Brusseau
Year: 1993
Court: CA Court of Appeal, First District
2. Disposition: Affirmed.
3. Holding: Marriage continues to be defined by statute as a personal relationship of mutual support. Marital support is one that cannot command a price.
4. Issue:
5. Procedural History: complaint was dismissed after demurrer was sustained without leave to amend to wife’s complaint.
6. Facts: the complaint sought specific performance of a promise by wife’s deceased husband to transfer certain property to her in return for her promise to care for him at home after he had suffered a stroke.
In 1980, the parties entered into an antenuptial contract and were married. Husband died in 1989. Husband told wife that he intended to leave the properties to her. In 1988, husband suffered a stroke while in the hospital. In exchange for husband’s promise to leave wife the property, wife agreed to care for husband in his home, for the duration of his illness. Husband bequeathed wife the sum of $100000 and his interest in the residence they owned as joint tenants and the bulk of decedent’s estate passed to his daughter.
7. Rule:
8. Reasoning: wife contends the trial court erred by sustaining the demurrer on the grounds that the alleged agreement wife seeks to enforce is without consideration and the alleged contract is void as against public policy. -> contention lacks merit.
Husband and wife assume mutual obligations of support upon marriage. Husband’s duties and obligations to wife included more than mere co-habitation with her. It was his duty to offer wife his sympathy, confidence, and fidelity. When necessary spouses must provide uncompensated protective supervision services for each other.
In re Sonnicksen’s Estate and Brooks v. Brooks, a wife is obligated by the marriage contract to provide nursing type care to an ill husband. Contracts whereby wife is to receive compensation for providing such services are void as against public policy and there is no consideration for husband’s promise.
Wife argues the cases are based on outdated views of the role of women and the rule of those cases denies her equal protection because wives have to provide actual nursing services for free. -> disagree.
The marital duty of support includes caring for a spouse who is ill. Support in a marriage also encompasses sympathy, comfort, love, companionship, and affection. The duty of support can no more be delegated. A spouse is not entitled to compensation for support.
Dissent suggests that marriages will break up if such agreements are not enforced. -> such negotiations are antithetical to the institution of marriage as the Legislature has defined it.
Poche dissenting: statements that a husband has an entitlement to his wife’s services smack of the common law doctrine of coverture which treated a wife as scarcely more than an appendage to her husband. Coverture has been discarded in CA, where both husband and wife owe each other the duty of support. Civil actions are allowed for intentional or negligent torts committed by one spouse against the other. The same is true for breached contracts. Restraints on interspousal litigation are almost extinct.
Had there been no marriage, husband could have validly contracted. The mere existence of a marriage certificate should not deprive competent adults of the utmost freedom of contract they would otherwise possess. In the present day husbands and wives have alternative methods of meeting this duty of care to an ill spouse. There is no sound reason why their contract, which clearly facilitated continuation of their marriage, should be any less valid. It makes no sense to say that spouses have greater bargaining rights when separated than they do during an unruptured marriage. The majority preserves intact an anomalous rule which gives married persons less than the utmost freedom of contract they are supposed to possess.