User:CheshireKatz/Family

Intro

What's a family?

Nuclear: Mom/Dad/Kids

Extended: Nuc+Grandparents/Aunts&Uncles/Cousins/Nephews&Nieces/Grandkids

Children & care-providers

Married couples?

Formal models

Exclusive family (current) - married, opposite sex, parents

Advantages: Simple, Less litigation

Disadvantages: Excludes lots of alternative family models.

Caretaking family

Advantages: Focused on rights/interests of children and those who invest/care (as opposed to benefit)

Disadvantages: Undermines parents' rights, parents may resist external assistance

Family rights

1. Right to inherit thru intestacy & against disinheritance
2. Preference as executor
3. Wrongful death claims
4. Loss of consortium
5. Workers comp service benefits
6. Spousal benefits - health, life insurance, disability
7. Life insurance, health insurance
8. Evidenciary privilege
9. Homestead protection
10. Joint ownership of property
11. Hospital visitation rights
12. Financial rights upon divorce

HUNTINGTON '06

I. WHAT IS A FAMILY?

Interpretations

• Descriptive (legal rel) v. normative (moral- should it be/what we feel it is) definitions.
• Subjective- moral tie, bonds including sexual, unconditional relationships, permanence, religious aspects, mutual care giving and mutual economic support.
• Objective- blood lines, legal definitions.
• Formalist (clear- laws, statutes, etc) v. Functionalist. Laissez-faire def- privacy.

  Only who looks formally as a family (traditional model) v. functions of a family (what do we think that families do).

State defines b/c it picks up the pieces. LIMITS of the states on family distinctions?

- Legislature cannot draw lines w/in fam rel, but can't interfere with family relationships.

- Drawing lines outside blood lines rational standard, but once in the blood rel a stricter scrutiny.

A. OLDER WOMEN working together- Different approaches to the family

• Older Women-NY Times article

  - baby boomers women who are used to being in control of their lives, own real estate and have run businesses want something better than aging in retirement homes

  - aging w/ friends, pulling resources together. This model fits the functionalist definition: if you have a kid together, function like a family, you are one.

B. ADULT-CHILD RELATIONSHIPS

Kavanagh Rewriting the Legal Family: Beyond Exclusivity to a Care-Based Standard

- parents shared custody, mom had a lesbian partner and kids had a foster sibling; many neighbors and other adults non-blood relatives shared in the care of the kids, people came and went, but the kids were always care for. private if married, but w/ state intervention if kids & divorce. Current construction of family- still 2 parents of opposite sex- family is private, but state intrudes in family construction and child custody.

Exclusivity doctrine dominates: only 2 parents w/ full legal rights, otherwise strangers w/ none. Insider families v. Outsider families. The idea that exclusive insider families are successful and independent units is a myth!

Changes: most kids don't grow up in the traditional family. The reality that there are multiple caregivers (which offers them diverse relationships, etc) should not be ignored--state has an interest in regulating the 21st century messiness. Beyond Exclusivity-care should be brought to the center of the legal analysis to find broad alternatives to exclusivity. Bringing care into custody-adults should be req to show rel based on acts they perform & given privileges based on that. Care-based standard, recognition and standing, expanded families and webs of care are all very important issues. Expanded families- webs of care-give legal rights to people that are significant and exclude others- grandparents for ex.

Comments on Article: care-based standard would exclude those who are getting financial compensation, but children develop attachments to paid caregivers- if focus is on the significance of relationship to child- hard to address the problem.

C. GROUPS Penobscot Area Housing Dev. Corp v. City of Brewer- group home for 6 retarded people in single family zoning Commendable purpose, but it violates the ordinance. No autonomy (don't choose to live together); Not self-sufficient (don't look like a family, no head of the family, no cooking together, no permanence) Domestic bonds requires some continuity (not 1 y as here), stable authority figure, etc NOT A FAMILY-Reflects idea of traditional family structure. Institutional competence- the leg has the authority to state the definition of the family. Cts cant decide to extent that def. Borough of Glassboro v. Vallorosi Statute allows the family or functional equivalent to live in the single family zoned area. Ct allows it b/c: permanence (sophomores so -live there for 3+ years); cooked and cleaned together; joint checking account to pay for household stuff; Telephone together, etc. Ct recognizes the well-founded purposes of the ordinance, but tells the city to deal w/ the problem more directly & clearly, not through defs of family--Functional equivalent of family. Village of Belle Terre v. Boraas- Douglas- SC case- Small village- 700 people/220 homes- ordinance prohibits more than 2 unrelated adults in one dwelling. b/c of crowding ; keeping family feel. Zoning- Euclid v. Amler- state can enact zoning reg- standard of review = rational basis (not fund). Ct found a rational reason out of luck; nature of drawing lines someone is always left out.

Suspect classes: race (strict), gender (intermediate- to strict) and age (rational). Marshall, d- right of privacy ; association -emphasizes the Substantive DP fam defining itself should be protected. Goal of statute is over ; under inclusive--2 parents w/ 10 kids would break the purpose statute allows that- over. Under inclusive- it doesn't protect 3 elderly who are quiet, use public transportation, but are not related. Moore v. City of East Cleveland- Powell- Extended fam0 Grandma lives w/ son and his son ; her other grandson. City argues Belle Terre ; rational basis. BUT Ct finds that BT only targeted unrelated individuals. Ct characterizes case as protecting the family--the ordinance slices too deep into family.

Concurrence: distinction white/black view of the family.

BOTTOM LINE: - Legislature cannot draw lines w/in fam rel, but can't interfere with family relationships.

- Drawing lines outside blood lines rational standard, but once in the blood rel a stricter scrutiny.

- Characteristics of rel that are receive legal approval: duration, commitment, stability, permanence, exclusivity.

Goal & reach of statute should but may not be exactly the same. If absolutely no goal/reach overlap statute could be struck down. Rational basis must be applied to see if statute has a reason for using these definitions to accomplish goal.

II. MARRYING - Restrictions, Civil Unions, CL

Restrictions - age, incest, monogamy, proc, state of mind

A. INCEST AND AGE- TRADITIONAL RESTRICTIONS

i. Incest- void- annulment Affinity v. consanguinity (share blood)-Uncle to niece is consanguinity but uncle's wife is affinity to niece. Difference between criminal liability (crime to marry) and civil statute (can't get married).

- Void v. voidable.

Singh v. Singh - mistaken belief that parties were unrelated- married, but uncle; nice marriage declared null ; void. Appeal b/c only half uncle/nice and CT statute doesn't mention this distinction no difference.

Back v. Back - man married widow who had a daughter, divorced wife and married his ex's daughter--relation is affinity not consanguinity. Statute prohibited marrying the wife's daughter but once divorced, that doesn't apply valid. Levi-Strauss- cousins marrying can be bad for having kids, historically, etc; policy argument -this taboo is good b/c it forces us to establish other bonds, form a community, not just all w/in a family. Separates us from other species. May be a preindustrial idea b/c would have to leave village or family farm to marry whereas now we interrelate anyway. Could say decreases feuds between families although could say now it's just 1 community against another.

Alternative argument- marrying 1st cousins can strengthen families. The Truth About Cousin Couples, Anjana Ahuja, Reasons against: procreation + birth defects (science shows the % of risk is very small, Darwin married cousin- 10 healthy kids); social stigma of inbreeding, misconceptions v. research. Policy: If we limit relatives to marriage (in order to prevent procreation because genetics), why not prohibit marriage between 2 people w/strong disease genes? Not a good way to limit procreation anymore w/marriage laws. If genetic problemsstate interest- pay for special care (special ed, etc.). Woody Allen/Mia Farrow case- possible options of expanding law in CO to cover this:

(1) can't marry your children's siblings (state's interest? Harm is that it doesn't create a non-sexual environment for all children so problem w/creating sexual relationships later in life, BUT we allow authority figures to marry subordinates (CEO/secretary; professor/student), AND is Woody an authority figure for Soon-Yi;

(2) Change law to living as spouses;

(3) Can't marry person who was a child in a home where you cohabitated (what about non-parental figure, or nanny, etc.) Issue here is really child protection, NOT incest. Traditionally- incest was viewed as injury to society.

ii. Age- rational basis scrutiny- void- annulment Age: Can get permission in CO for 16-18 year-olds by parents or judges. Many divorces, kids--pre-marital counseling. At CL- children were considered capable of consenting to marriage at age 7, though marriage was voidable by the underage party until he or she reached the age of discretion (12 girls and 14-boys). By 2005- Mississippi was the only state that didn't set min age at 18 w/o parental consent. Most states req consent at 16 or 17. Divorce rates among teenage marriages are very high- some states req pre-marital counseling to combat this- p. 99. Age restrictions- generally, even a legally emancipated child cannot get married w/o parental consent.

Moe v. Dinkins - no override for judges who think parents are not acting in child's best interest; policy-presumption that parents will act in best interest of child and should have some control over child's life, although in this case the children are parents themselves and have an interest in their child's life (not living out of wedlock), BUT this parental consent requirement is only a temporary harm, can marry at the age required in the state and make their child legitimate. Rational basis standard applies, NOT SS- State's have the power to make adjustments in C-al rights of minors b/c of the unique position of the minor and state's paternalistic power to protect and promote welfare of kids who lack capacity to act in their best interest. Age/maturity is a reasonable criterion--rationally related to State's legitimate goals.

B. MONOGAMY/POLYGAMY Polygamy, polygyny (1 H, 2+ W), polyandry (1 W, 2+ H), bigamy. Issue: multiple marriages- sequential polygamy. State interest: trad marriage- woven, $, homogeneity, protect W and kids, efficiency, clear legal rules, health (Egan) BUT Interest against prohibiting: freedom, regulate harms separately, shifting demographic needs, protect family rels, libertarian. History/practice: practiced in many cultures (Muslim- up to 4 wives, etc.), although in US often associated w/Mormons (although they no longer sanction it). So if you move from another country w/multiple wives, you only get 1 legal spouse (latest one) so only she will get benefits and only she will get benefits of citizenship status, etc. Joseph Smith started Mormonism, Morrill Act forbid polygamy and 1890 Mormon Church got rid of it. So it is a crime and a statute against it. Anywhere between 5 and 50k people living in polygamy in US now, most in Rocky Mtn region. Bronson v. Swensen H+W want 2nd wife- 3 challenges- freedom of religion (but state doesn't outlaw the belief, just legal sanction of it), privacy (Lawrence- sexual rel are permitted), association. No C-al right to practice polygamy whether for religious reasons or not. Law didn't target Mormons. Compelling state interest for monogamous relationship: bedrock principle of our society/woven in, $ for kids, etc.

Sanderson v. Tryon - custody dispute between 2 parents in formerly polygamous relationship together. Woman (P) still is in a poly rel w/another man, Man (D) is not. D got custody b/c she is in polygamous marriage- ct says ruling is based primarily on that reason- immoral environ w/mother so even in visitation she can't let children see her new H + other Ws,

Issue: whether polygamy is sufficient enough reason to take custody away if otherwise fit parent. NO- have to use numerous factors to determine fitness/custody. Moral character is only one factor- polygamy not enough to deny custody. Arizona Raided Short Creek- Wiley S Maloney- Why? Didn't work, waste of $, back and thriving, no law against it. Polygamy now!, Elizabeth Joseph- extended family to care for things, an empowering lifestyle for modern women-no guilt towards not caring for H ; kids as much as she would like to--these things are taken care of often by the other wives, through a rotation- free market for marriage (marry best guy, regardless of his marital status); form meaningful rels w/ other women; ultimate feminist style- women control terms- maximize potential w/o tradeoffs of monogamy; experienced H. The Persistence of Polygamy, Timothy Egan, THE NEW YORK TIMES SUNDAY MAGAZINE -deep religious beliefs make polygamy persist, but women feel like animals being bred, leads to sexual abuse ; incest, reverts to prehistoric values and notions that men are wired to have multiple partners, discourages birth control,

C. CONSTITUTIONALITY OF RESTRICTIONS 14th Amendment EP + DP components

• DPC: (PDP + SDP) - No state shall ...deprive any person of life, liberty, or property w/o due process of law, nor deny any person w/in its j/d the EP of the laws. Liberty = key word- unclear what it means. 14th applies ONLY to states!

  PDP - certain procedures must be in place before depriving of life, liberty, or property.

  SDP- state cannot impose certain regulations that unreasonably impose restrictions that deprive persons of life, liberty, or property.

  General rule: SDP protects fund rights determined by looking at history and tradition. Such a right is something implicit in the concept of ordered liberty- you can't imagine society w/o it- marriage is included in SDP. Remember Lochner era and Roe v. Wade which both set the stage for how Zablocki is decided.

  Analysis: Ct dtrms Fundamental right... Yes? Strict Scrutiny. No? Rational Basis review.

• EP: still 2 substantive branches- suspect classifications & fundamental rights

  1. prohibits classifications based on race (strict scrutiny), gender (intermediate scrutiny), and age (rational basis). If the line state is drawing is based on those different standards of review.

  2. fund right branch (substantive EP)- Warren ct (Loving) came up w/ it certain fund rights can be derived from the EPCex. equal access to voting, interstate migration, education, etc. This is where Zablocki goes. Loving v. Virginia Warren- Black W ; white M marry in DC (legal); return to VA where they live and get arrested in the middle of the night marriage VOID and criminal charge. Ct sentenced them to 1 y w/ suspension on condition to leave and not return for 25 y (enough not to have mix race kids in the state). Huntington says there is a substantive EP issue here ; ct agrees--restricting the freedom to marry solely b/c of racial classifications violates the central meaning of the EPC. At the very least, EPC demands that racial classifications, especially in criminal statutes, be subjected to the most rigid scrutiny.

• State interest:

  1. no mix of the races for kids, racial integrity.

  2. marriage is traditionally left to the discretion of the states.

Strict scrutiny (race) VA violates EP ; DP (substantive- liberty- fund right to marry). 1st case holding marriage as fund. Zablocki v. Redhail Marshall- R wants to marry pregnant girlfriend, BUT custodial parent might not marry w/o approval from ct if he owes $ for child support + if he can prove that the children will not be subject to state care so, technically, that he'd be able to support them in the future. Blanket restriction ; if he marries void + criminal penalty. Marriage of fund importance-NOT fund per se; privacy= fund right, but NO clear finding for marriage; Rigorous review- NOT SS per se, but heightened; reasonable regs that don't interfere w/ right to marry ok.

Marshall: DPC, but mostly EPC- statute is over/under inclusive- under: you don't have to be married to have a kid and have to pay child support and over: b/c new wife might be wealthy ; improve his financial situation. Stevens: EPC- last line (p.70)- distinguishes classification based on who can enter the marriage- rich v. poor. Restriction is unreasonable. Rehnquist dissents. .Loving held that marriage is a fundamental right and Zablocki did not retreat; Loving, however, involved a racial classification so it was clearly going to be scrutinized under strict scrutiny. To the extent the Court found marriage to be a fundamental right in Loving, the Court clarified what this meant in Zablocki, but did not need to overrule Loving b/c, as you say, any fundamental right language in Loving is just dicta. Ends-Means Test in Zablocki: If a regulation is unreasonable (but does not significantly interfere), then it fails even rational basis. Imagine a statute that said Only people who smile when they see pelicans can get married. This is, of course, unreasonable, but it doesn't really significantly interfere with the right to get married. Just see a pelican (or a picture of one) and smile. It's easy to satisfy, but it's completely unreasonable. So it fails rational basis review. But if the regulation is reasonable only people over a certain age can get married then the question is whether it significantly interferes. If it does, then the means/end test is used to evaluate whether the regulation passes constitutional scrutiny.

Turner v. Safley - - Inmate tries to get married, but needs approval from jail superintendent not given. As in Zablocki- 4 things marriage covers: (1) emotional support ; public commitment; (2) spiritual significance that many religious institutions recognize; (3) contemplating future life together after prison; (4) tangible benefits: government benefits, etc. Bottom line: if marriage law includes a classification EP claim. More likely: fund right of EP is targeted (Zablocki). Know that if you are raising a challenge to a marriage law, you bring a EP fund claim AND Substantive DP argument. Zablocki talks about marriage of being of fundamental importance. Test: reas regs that don't significantly interfere w/ decisions to enter into the marital rel may legitimately be imposed. Application: (1) does restriction directly and substantially interfere w/ the right to marry and (2) is restriction supported by sufficiently important state interest. Q: if we recognize right to marry, does it protect tangible rights of marriage or intangibles (social recognition, spiritual connection, religious sanction, etc). Turner recognizes both- KEEP track of them separately b/c of civil union questions. WHY DO WE NEED RESTRICTIONS? And Should we have more for genetic defects/diseases? 1. Incest- marriage should be C-al b/c fund right + unreasonable barrier BUT state has a compelling interest- genetic +Levy 2. Polygamy- state interest- $, but what if you just have 10 kids, tradition- procreation (not modern though), homogeneity, affirm social customs, comfort in that, protect W ; kids, efficiency, health. PRO: Greater opportunity to regulate it (counseling, etc); Align circles better so that child abuse or coercion or STDs is corrected rather than polygamous marriage, increase social acceptance; heart love 1+; personal choice, etc. 3. Age- the restriction is not a ban, but only a burden b/c of immaturity, decision-making, etc.

D. PROCEDURAL AND STATE OF MIND RESTRICTIONS Mental retardation is a restriction in a large number of states. A challenge would bring up that it directly and substantially interferes w/ the right to marry. Additionally, the state does not have a sufficient interest to protect. i. Procedural restrictions- dress code at City Hall Rappaport v. Katz - dress code required ;exchange of rings- 2 couples (one already married, one to marry) challenge this b/c the women don't want to wear skirts and the couple to marry doesn't want to exchange rings. Formalities matter and can run from what you wear and who can marry. Argument against these formalities: the state imposes what people should look like and how they should behave. But these restrictions could make the ceremony look serious, as it should. Fed ct decides that this is a matter of state concern- doesn't warrant a fed-state conflict- fed cts should not get involved in supervising marriage forms and procedures in City Clerks' offices which are of fundamental state concern! Marriage and the State- Glendon: All states req a marriage license before formal marriage ; maj of states have a waiting period. Marriage proc restrictions can be avoided by going to another state. State can't effectively impose too many restrictions, but can use marriage license as bottleneck for other small reqs (reading something-on birth control, HIV, etc). Colorado: you don't even have to be present at the marriage- can be done by proxy if strict reqs are met- one party overseas. ii. State of Mind restrictions: duress, fraud, insanity- voidable by annulment. Rules -a marriage by coercion/fraud-voidable can be annulled Policy: coercion leads to unenforceable agreement. Lester v. Lester coercion claim. Rule: a marriage by coercion or fraud- voidable -can be annulled. Policy reasonscoercion leads to unenforceable agreement. H is claiming duress- threatening to kill herself, etc; docs drafted and signed to show that he didn't want to be w/ her. Now, she wants support from him and he denies that the marriage never existed--Ct says NO - he got the benefit of marriage (sex) for 10 y- can't just get out. Private parties can't annul marriage ; change law. Rule: ante nuptial agreements that purport to invalidate the marriage are unenforceable. Huntington: gender element- he could not have had sex against his will- choice--real marriage. Fraud must go to the essence of the marriage for annulment- Objective standard applies for what goes to the essence. Johnston v. Johnston 20 month marriage- H turned from prince to frog- drunk, unemployed, dirty, unattractive fraud and seeking annulment. Rule: fraud must go to the essence of the marriage for annulment. In this case, NOT enough. Bottom line: Consummation is very impt for deciding annulment--if she found something out and stayed with him-- marriage cannot be annulled. Things like wanting a good marriage, good sex, etc are NOT enough. Rheinstein: cts always recognized fraud in sex related issues- impotence, being pregnant, having an std, and religious issues (portraying yourself as a practicing orthodox Jew and not being one).

E. OPPOSITE-SEX REQUIREMENT, CIVIL UNIONS, AND SAME-SEX MARRIAGE Discussion on same sex: Doctrine ; Constitutionality; institutional competence (cts v. the legislatures), procedure (referendum, statutes, amend C), tradition, societal views, slippery slope, personal views on homosexuality. Goodridge v. Dep't of Pub. Health MA case-Marriage is a vital societal institution. Ps are gay seeking marriage license- State has the power to reg marriage; DPH has an interest in maintaining health, BUT marriage is an impt institution2 spouses + state and gays should not be treated differently. Marriage is a civil right- Loving ; Zablocki. W/o right to marry, people are excluded from many privileges ; experiences. Interracial marriages were prohibited. MA C protects personal liberties from gov intrusions. State wants rational basis, ct decides it doesn't even meet that standard- 3 rationales for state: procreation (but stereotypical); optimal setting for kids( but parent sexual orient insufficient ground to deny custody), and conserving state resources (but NOT rationally related to the goal of economy). Other reasons are proposedcommunity consensus that immoral--BUT law should not sanction prejudices/stereotypes (Palmore)--BAN violates MA C. MA- only state to recognize it; many states passed laws that provide some benefits, but many passed bans also. Canada. F. COMMON LAW MARRIAGE CL alternative to getting married, but still need to get divorced. Trend is away from it, states not allowing it as much although 11 states do allow it now, CO one of them. But no same-sex: have to be capable of getting married and have a subjective intent: want to get married. Objective criteria used in ct: make purchases together, joint tax returns, functionalist part of marriage is what ct looks at. Also cohabitation: marriage is consummated. Same-sex marriage- most impt policy change in family law in past 30y (no-fault divorce before); changes family def. CL marriage: morality issues w/it (easy way to make sex validated by marriage w/o actually getting married). Four Elements: (1) capacity to marry- all reqs; (2) mutual agreement; (3) cohabitation; (4) holding as H; W in public. To be able to get married- meet all marriage requirements, To rebut CL marriage, show separate finances/bank accounts/car insurance, etc. Do they look like they're married?What do other people think about them as a couple? Do they hold themselves out as married; call each other H;W, witnesses? Today, only 10 states + DC recognize CL marriage BUT there are impt considerations to keep it: if parties think in good faith that they are married; when one party thinks in gf that married; and both know that not married but believed that still legally wed b/c of CL marriage. Many states have presumption of validity of 2nd marriage when one spouse was married. Putative spouse- entitled to quasi-marital property division, support, BUT not a real marriage- no annulment or divorce. Defending Against a CL Marriage Claim, COLORADO LAWYER (March 2005) when a CL marriage claim is brought the first thing when defending is to ask for a declaratory judgment. Elements are described and burdens ; evidence discussed. In re Estate of Love - issue over whether M ; W were CL married b/c son wants mother's property now that she is dead. Joint checking accounts, car title, debt, plans for home, etc, but a few things the other way, most of which, however, b/c they lacked the legal designation. 3 reqs: ability to K, K, and consummation (cohabitation)--if all before 1997. G. RECOGNITION OF MARRIAGE IN OTHER STATES- FFCC PLACE OF CELEBRATION RULE Full, Faith ; Credit Clause (Const. Art IV, § 1)- place of celebration rule- lex loci- every state acknowledges other state's marriages IF married legally in that state b/c of reliance interest for couples, stability ; predictability; C-al right to travel. Two Exceptions: (1) if couple travels and marries elsewhere to evade reqs or limits on marriage and then moved back or (2) if the marriage obtained in the other state is contrary to the strong public policy of the home state--narrow exceptionCardozo quote strong public policy is some fund principle of justice, some prevalent conception of good morals, some seep rooted tradition of the commonwealth. 2 Parts in the FFCC: (1) Substance: FFC shall be give in each state to the public acts, records, and judicial proceedings of every other state; AND (2) Effects: Cs may by general laws prescribe the manner in which such FFC... shall be proven and the effect thereof--Cs can regulate procedures on HOW to do this- no implied claim for action in fed ct- cross ref to j/d. DOMA- Fed law marriage between M ; W so act is interpreted this way. DOMA: states don't have to recognize other states' same-sex rels that are treated as marriages in that state (so would include marriages ; civil unions). DOMA can probably not take away from FFCC BUT Case law recognizes that CO doesn't have to recognize MA same-sex couple if CO has strong public policy against same-sexunder just C, FFCC, CO doesn't have to recognize same-sex couple. BUT, DOMA can't be a nullity since Cs should know what they're doing--maybe even if you don't have a strong public policy against something, you don't have to recognize what the other state did. Cs is using its power to change effect and power of FFCC. But we presume Cs acts c-ally which does not seem to be the case here. We really don't know if DOMA is c-al or not. Doma may just codify and clarify the public policy exception. Same sex marriage--public policy is against it so that is a good enough reason not to recognize another's state gay marriage law. Wilson v. Ake lesbian couple living in FL and married in MA. Recognition in FL was refused and they claim FFC violation and assert that DOMA exceeds Cs power. Ct disagrees- Cs acted w/in C-al limits of FFCC- otherwise each state would have a license to enact national policy. Baker controls (no same sex fund right to marry)- Lawrence did not create one. Strict scrutiny is not granted under EP claim, but 11th cir held gay not a suspect class + DOMA doesn't discriminate men ; women treated equally rational basis. State has a leg interest (kids in trad families) + DOMA rationally related. Important issue: institutional competence is recognizing same sex marriages--cts or Cs/legislatures? Laurence Tribe, Toward a Less Perfect Union, THE NEW YORK TIMES- FFCC Effects part- Cs can bolster the FFCC, but CANNOT take away from this w/ effects clause-DOMA puts same sex marriage below the strong public policy. DOMA is ironic for 2 reasons: (1) that such a measure should be defended in the name of states' rights since C-al principal means of protecting state sovereignty is to limit the nat gov to certain enumerated powers and (2) that the 1 st such invitation ever extended by Cs should deal w/ marital union. The C's principal device for assuring a more perfect union is the FFCC, which is supposed to be a nationally unifying force. IS MARRIAGE A FUNDAMENTAL RIGHT? Loving held that marriage is a fundamental right and Zablocki did not retreat; Loving, however, involved a racial classification so it was clearly going to be scrutinized under strict scrutiny. To the extent the Court found marriage to be a fundamental right in Loving, the Court clarified what this meant in Zablocki, but did not need to overrule Loving b/c, as you say, any fundamental right language in Loving is just dicta.

===III. DISSOLUTION OF MARRIAGE===- Fault/no, Annulment, Divorce, K-ual, Unmarried, relig. - When Every Relationship is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage- Lynn A. Baker ; Robert E. Emery- Marriage license applicants ; law students were surveyed about knowledge of divorce statutes, demographics of divorce ; expectations of their own marriage-findings suggest that the sense of unfairness ; surprise that frequently comes w/ divorce may be a result of systematic cognitive biases rather than a lack of info about divorce. Research shows that the spouses discover the terms of the marriage K only upon divorce. Disregard if divorce base rates may explain why so few individuals contract around existing divorce statutes prior to marriage. Young women may be disadvantaged by their idealism since, following divorce, typically the W suffers a substantial decline in standard of living. - The 37-Year Itch, Alex Kuczynski, THE NEW YORK TIMES divorce is no longer the province of the 40-something midlife crises- among the 55-80 group, divorces are accepted and increasingly common, pointing to many factors among which the longevity of Americans- 70 y-old is no longer OLD. The triggers are varied: boredom, drifting apart after kids leave, infidelity, etc- culture of self-actualization spreads to the older crowed (sports, yoga, etc). In the 40-80 age group, the divorce was generally initiated by the W. Financially stable W tend to divorce later in life, not for sex, but for their dignity. Statistics: 50% divorce for 1st marriage, 60% for 2nd marriage- Median for duration: 8y for 1st, 7y for 2nd. Many factors play a role, including whether parents were divorced, age when married (under 20- higher rate, over 25-lower). Highest rate in Nevada and lowest in MA- always query who paid for the research and the statistic/survey. A History of Am Law- Friedman- England was a divorce free society- very rare awarded through private bill. US followed, but after independence, it started to change- PA first state to pass a gen divorce law and similar laws were passed in many states, but not for consensual divorce. Divorce was to reward the virtuous spouse, victimized by the evil spouse-clean hands.

A. FAULT-BASED DIVORCE- Grounds and Defenses Fault divorce- adversarial proceeding, a reward given to the faultless/innocent party; must prove allegations even if guilty spouse showed up. A lot flowed from the fault (alimony, etc). Historically, 2 ways to get a divorce- judicial and legislative. 1. GROUNDS i. Cruelty- broadest ground-subjective- originally limited to bodily harm/reasonable apprehension of it. Benscoter v. Benscoter - H claims to be mentally abused by W who is disappointed with not having a girl; W cruel--but ill. Actually, she had ms + he had an affair ct holds that marriage is for better or worse + he cannot discard her- NO divorce awarded on those grounds. Cruelty as a ground for divorce is established through evidence of a course of conduct rather than sporadic episodes. Hughes v. Hughes - W files for legal separation. Cruelty base must be established by her--she said that he was generally mean-spirited to her. The child testifies on behalf of the mom saying that he was mean verbally. Mental harassment is enough to warrant requesting a divorce no longer limited to bodily harm. Cruelty: refusal to have sex was considered cruelty; if not is can still be desertion. One episode of cruel behavior is generally not enough for a divorce, unless particularly serious or shocking. ii. Adultery more strictly construed as a ground- proven by circumstantial ev or paternity of child. Arnoult v. Arnoult - W files no fault divorce. H counters filing to prove post-separation adultery. H brings a private investigator who observed them on a couple of occasions. Ct is weary of private investigators b/c of their bias, but looking at the totality of circumstances, in this case, it found adultery as a ground for fault-based divorce Rule: a prima facie case of adultery can be made where the only evidence presented is the testimony of hired investigators--BUT generally, such evidence should be corroborated--divorce granted. iii. Desertion- actual and constructive; sometimes operates as a defense (like provocation). Crosby v. Crosby W wants alimony which was denied b/c she wasn't free of fault- didn't follow H to another city as the statute req a wife to do- duty to follow H. Statute is un-C-al she is free of fault. A statute requiring the W to abide by the domicile of her H is un-C-al ; alimony cannot be denied to the wife based in this violation. Statute discriminated on the basis of gender and was not related substantially to serving any impt gov interests. - Actual and constructive desertion (like refusal to have sex). Refusal to have sex w/o contraceptives has been held to be the equivalent of desertion. Desertion defeats initial cause of action and operates as an alternative ground of divorce. A slim majority of states accept it as a ground (25 +DC)- at CL, the W lost identity when married--chattel domicile req. OTHER grounds for fault based divorce: impotence, not supporting a spouse, etc. 2. DEFENSES i. Recrimination- sometimes bars divorce altogether-Limited or abolished in 17 states Recrimination- divorce allegation by D against P where D has fault- BUT Comparative rectitude-no purpose in denying d. Rankin v. Rankin - 1956 cruelty + / H is bringing case ; claims that she was abusing him physically ; mentally. He tells story about how she almost killed him while driving, but ct says info is uncorroborated and highly unlikely. She is saying that she learned how to be cruel from him and brings evidence that he actually beat her up. Witnesses corroborate the story. Ct. says that the only reason they'd get a divorce is b/c they don't get along or maybe even hate each other--which is NOT a reason to get a divorce. Rule: to get divorced b/c of indignities you must be injured and an innocent spouse.

ii. Connivance- basically: you set me up to do the harm/cheat. If you encourage behavior = consent. Sargent v. Sargent - H is filing for divorce arguing that W had an adulterous affair w/ his driver. Ct finds that it was his fault that this happened--he set her up to facilitate all that happened to have an adulterous affair. He cannot encourage the behavior b/c if he does, then he means the result--he consented to the affair no divorce. Rule: A spouse providing the other spouse w/ the opportunity ; inducement to commit adultery cannot obtain a divorce when such adultery is committed. iii. Condonation- basically forgiveness Willan v. Willan - The man wants to get a divorce and says she is abusing him, pulls his hair, drives him crazy, pesters him to have sex in the morning--Ct finds that maybe she is cruel when she is doing this, but he has the sex condones behavior ; the sleight is wiped clean--no fault! Rule: Condonnation of cruelty eliminates the cruelty as viable ground for divorce. Comment: critics argue that this defense is irreconcilable w/ society's interest in promoting reconciliation between spouses. iv. Collusion- attempting to go around the law to get the divorce- unlawful conduct, typically fraud. Fuchs v. Fuchs - Ct awarded H default divorce finding W at fault. H;W agreed before that if she doesn't challenge, he'd give her full custody of the children, but he changed his mind. Ct reopens finds case- Private parties can't contract around the law- it is up to the ct when and under what circumstances to get the divorce. Rule: A party who collusively allows a default judgment of divorce to be entered against him may set the judgment aside and litigate the case on the merits. The state has an interest in the integrity of the marital rel; collusively entered divorce attempts to abrogate the state's right to regulate the process of divorce. v. Insanity- makes the person using the defense faultless, BUT presumption of sanity. Anonymous v. Anonymous: W is adulterous and claims that she should not be held responsible for her actions b/c she was insane at the moment. A battle of the psychiatrists ensues and the ct believes the husband more she is not insane and the H can get a divorce from her. Rule: Insanity as a defense to a divorce action must be proven by D by a preponderance of the evidence, overcoming the presumption of sanity. Bottom line: grounds and defenses were used up to the 60's when reform was needed no fault divorce- marriage more of a K that can be terminated at will. B. NO FAULT DIVORCE Need for reform: suicide, domestic violence, and spousal murder contributed to the need. Increase indep of women. Effects: changes marital dynamics by increasing the bargaining power of the dissatisfied spouse. Newer philosophy: family is autonomous in both our law and culture--enhanced by the decision about family privacy. Another reason for the change is the change in moral life: sexual revolution ; less active religious participation. Plus, we have become a therapeutic nature. The marriage can be salvageable and a period of separation is imposed or the marriage can be just irretrievably broken. Marriage begins to be viewed as a K that can be dissolved at will, allows adults to decide. Separation: UMA recommends 6 m to 1y, although different from state to state. Being separated has not much to do with living under the same roof, but rather about sharing a bed, having sex, doing laundry together, and sharing meals. Generally, the standard is that the couple must live separate and apart and not cohabit (have sex) for the required period. The separate residences is not a strict req--more of an emotional inquiry than a physical one. If however the parties have sex (reconcile)- the time resets and parties need to prove to the ct that they lived separate ; apart and didn't cohabit, etc. Minority of states (14) have a no fault regime. Most states at this point have both fault and no fault systems alongside. Parties can choose from the 2 and weight the positive and negative aspects of each. Possibilities for divorce legislation--different systems :pros and cons: (1) Completely NF(2) NF w/ significant waiting period 2 years Pro: Increases chance of reconciliation, trial separation period, cooling off time, increase settlements, good for state interest in stability. Cons: Doesn't protect vulnerable spouse; HOT not cool period (domestic viol); prolongs painful experience, paternalistic, doesn't encourage remarriage. (3) NF w/ fault for alimony purposes, etc- Pro: (4) Covenant marriage; (5) Elizabeth Scott's proposal- like covenant marriage, but let everyone come up with their own rules in the marriage contract--the parties come up with their own covenant that the cts would then have to enforce; (6) Fault-based-Pro: Discourage hasty marriage, State interest in stability, Incentive to work things out b/c it is hard to get out of marriage, Protects innocent or vulnerable spouse, Increases stigma ( decreases divorce increases benefits of marriage). Con: Collusion; Does not ensure happy marriages; Increases antagonism, hostility, in divorce proceedings; Study about suicide, domestic violence murder, Intrusive; higher econ cost.

Generally, 2 ways for no fault divorce--after separation or if irreconcilable break-down (CO only has the latter). California Reforms eliminate fault from all aspects of marriage dissolution; offered counseling first + irrec difference. i. Adjudicating no-fault divorce- statutes may give cts a lot of latitude and discretion. In re Marriage of Dennis Kenik H wants to reverse the judgment of dissolution of marriage b/c the ct erred in finding that they lived separate and apart for the required statutory period. H lived in the same house, but NO rel w/ W, didn't share sex or anything related to H;W relationship. Leg intent was to let cts construe that time broadly- same roof or not.

ii. Contractual divorce-Covenant marriage as a way to prevent divorce James Herbie Difonzo- Customized marriage- there is a move towards this that started w/ prenuptial agreements and is continuing w/ covenant marriages. No fault divorce was the revolution, which didn't work to make divorce rarer ; now there is a divorce counterrevolution, w/ covenant divorce being its weapon. Couples agree to the more restrictive divorce provisions available. Assumption that private marriage K will limit access to divorce ct is untested and likely unfounded. Covenant marriages impose counseling (premarital, full disclosure and in case of marital problems) and limit the reasons for which divorce may be sought. Couples already married may execute a declaration to designate their marriage a CM. To separate legally, must wait 2 y of separation. To get a divorce in a CM, must wait at least 3y if no kids, in which case, more BUT: Once a covenant couple leaves their state and moves to, say, CO, they can get divorced based on CO laws (b/c the idea that couples CANNOT avoid their states laws by going to another state ONLY applies to marriage, and not divorce). Divorce Laws and Family Violence, National Bureau of Economic Research- States that passed unilateral divorce laws saw total female suicide decline by around 20 percent in the long run- Gov. Reagan in CA took the lead--b/c of NF divorce marriage dynamics changed, shift fo bargaining power, impacts on domestic violence (though not always positive)

C. RELIGIOUS LIMITS ON CIVIL DIVORCE Aflalo v. Aflalo - Orthodox Jewish couple- W wants to get divorce and the husband denies granting her a get (Jewish divorce which would allow her to marry again in accordance to Jewish law). H wants to go to the Beth Din (mentioned as authority in the Ketoubach to be able to assess whether the marriage is over or not). W wants ct to order him to give her the get and she relies on the Minkin case to help this claim. The ct doesn't buy the Minkin case - violation of religious freedom as protected by the Free Exercise Clause of the 1st Amendment. Rule: where resolution of the disputes cannot be made w/o extensive inquiry by civil cts into religious law ; polity, the 1 st ; 14th Am mandate that civil cts do not disturb the decisions of the highest ecclesiastical tribunal, BUT must accept such decisions as binding on them, in their application to the rel issues before them. Minkin enforced the Ketoubach, which is not like a prenuptial and it could be construed as not a - our ct is distinguishing that b/c now the ct would order them to go in front of 3 rabies who would have decide--which sounds like entanglement w/ religion to the ct.

D. DISSOLUTION OF RELATIONSHIP OF UNMARRIED COHABITANTS ALI Principles domestic partners and compensatory payments: 2 persons of opposite sex not married to each other who share residence and life as couple; common household; w/ child; for continuous period; intermingled finances,; intimacy, reputation as a couple; etc. Ann Laquer Estin, Ordinary Cohabitation, 76 NOTRE DAME L. REV. 1381 (2001)- Marvin v. Marvin discussion. Annulment-legal significance: divorce (no fault, abandonment, adultery, etc) ends marriage as a result of something that has happened during the marriage; annulment: no marriage b/c there was some impediment to the couple getting married (fraud, insanity, mental capacity, impotence, age, duress, etc)- Very different procedurally. Divorce requires usually a residency requirement. Annulment doesn't req the time of residence. It used to be that a lot flowed from the 2--no longer the case. Now, alimony can be awarded, property separated, children are legitimate, etc (not the same in the past). Annulment is associated with the Catholic Church canonical annulment, but don't forget that there is a civil annulment marriage is legally annulled. Civil unions, like marriages, also need to get dissolved. Such a procedure gives rise to the same kinds of claims re property, alimony, children, and residency requirements. COHABITATION -ALI principles: Principles of the law of marital dissolution. Under those principles, could 2 very good friends qualify as domestic partners? Most likely not because the romantic and sexual relations are usually factors that weigh into the scheme of things much more. Generally, cts rely on K law when they conclude that cohabiting parties may acquire fin obligations that survive the rel. The majority recognizes express Ks and a small min requires that the K be written rather than oral. There is a split on recognizing implied Ks. Cts in general look at particular set of facts and may stretch the meaning of K law to fit a particular set of circs where compensation is required. Cohabitating ; marriage are different states although people are increasingly cohabitating. Financial things that come out of cohabitation are very diff; married people will be able to assert greater claims against the other person. Cohabitants may be able to make some claims about co-mingled property, etc but not the same more equitable rules that come out of a marriage. Married people might not mind as much if co-mingled.

IV. CONSEQUENCES OF DIVORCE

A. CHILD CUSTODY CL

Kids automatically went to the father, presumed to be able to care for them ($) + children considered property Mid 19th Century showing that father is fit- away from kids as objects ; see them as objects of affection. 1839 HUGE SHIFT origin of Tender Years Presumption young kids (under 7) go with mom b/c it violates the laws of nature to take kids away from their mother. TYD is a Judicial Presumption Before the age of 7, the kids go to mother After, they go to same-sex parent. 1. Applying the Best Interest Standard Divorce: harder decisions are alimony, child custody and support (kids and $). What would decrease feuding between spouses? About half of all divorced people have kids. Which custody rules are used are impt and disputed. What are the values that the court is advocating? What does each parent do for child? Primary caregiver, breadwinner, etc.? Put yourself in position of parties: do you want cts deciding these issues: who is a good parent, what a good parent does? If a ct is deciding custody, ct asks 2 questions: 1) is each parent fit? 2) if yes (and usually yes), how to choose which one? i. Fitness In re Marriage of Carney 2 policies in conflict: best interest of child v. civil rights of physically handicapped not to be deprived of kids. Ct erred b/c didn't conduct appraisal of handicapped's abilities to fulfill role of parent and used outdated stereotypes when awarding custody. H; W 2 kids, separate, H has another child H in military accident- quadriplegic. H files for divorce from W and she seeks custody although no visits or $ for years. Ct says you can't rely on a person's physical handicap as prima facie evidence of the person's unfitness as a parent. Mother can't just prove that he has physical disability and then shift burden to him. Rule: A physical handicap that affects the parent's ability to participate in his child's life in purely physical activities, may not, by itself, be used to deny custody. Bottom line: Every parent has a C-al right to his/her child. We need a very low threshold of who is fit to be a parent. If one is unfit, it goes to fit parent but usually both are considered fit, and it goes to 2 nd question. ii. Weighing Multiple Factors Hollon v. Hollon - Beth ; Tim Zach. She had kid from previous marriage- Beth kept kids. Then lesbian rel, sleeping in same bed. Her kid lived there too. Tim - inappropriate + tried to get custody; Beth moved out and in w/her parents and planned to get her own house. Both said that the other would be a good parent except for Tim's hesitance about Beth's rel. BUT Tim was not the fittest parent -drank, not primary caregiver, Ct asked which parent had care of kid before they separated. Beth did and during both separations primary caregiver. Tim was behind in child support payments, didn't pay sometimes, she had to garnish his wages, etc so in Beth's favor. Beth did 90% of caretaking. Also, Beth's employment situation was better: just day job, Tim had 2 days on, 2 off as police officer. So tc relied on moral fitness factors primarily while appellate court just awarded custody to Beth and didn't actually overrule anything trial ct said. iii. The Child's Preference- could tip the balance if both parents are fit McMillan

c. McMillan - son wanted to live w/father b/c he didn't like stepfather who was mean to him and mom didn't do anything about it. Mom wouldn't go to his sporting events, etc and he likes his stepmother and father and wants to live there. Both parents were fit so child's preference tipped the balance. Problems w/giving child's preference too much weight: doesn't know which parent is more fit for him, one parent might let child get away w/more, and plus it's asking child to tell his parents who he likes better which could have ramifications for child (child might feel guilty, parent might take it out on child, etc.). But SC at least recognizes that it's a factor that should be involved, although not determinative. Although child should be mature enough and have good reasons to pick one parent over the other. Most states are somewhere in the middle, saying it's one factor, although some says it's more impt than other factors, while others say less. Should it be who child prefers as child or who the child would prefer as an adult? At 30, might wish that other parent had been taking care of him. iv. Race and Ethnicity- can't be a factor in not awarding custody, BUT it could be positive. Palmore v. Sidoti -Burger - White W divorces white M ; receives the custody of the child. Later, she remarries a black M. Dad appeals custody; requests it b/c of the drastically changed circumstances--arguing- bad for the child b/c of social biases to be raised in a multi-racial family. SC holds that cts ; the C cannot control the prejudices of society, but neither can it tolerate it! Race should NOT be a factor in decision making- violates EPC. Rule: A natural mother may not be divested of the custody of her child merely because she remarried to a person of a different race. - Why isn't JC C-aly proteced? Who is the state to come up w/ factors to give it to one or the other? Many reasons--state compelling reasons. Parents decide most things w/o state interference except for WHEN the parents divorce!!! Jones v. Jones - Father- Am Indian, mother white- 3 kids. Father is an alcoholic and she is depressed. They get a mutual fault-based divorce on grounds of mental cruelty. The physical custody is given to the dad. Racial neutral base decision is made by the ct--but the mother claims that the race played a big role. The ct mentions race as a benefit in the upbringing of the child, self-identification, ethnic heritage that one parent can foster and expose the child to. v. Religion Kendall v. Kendall Jewish mom and Catholic dad divorced--three kids raised Jewish. Kids caught in the middle, dad thinks that they should be brought up Catholic--he tells kids they will burn in hell, etc. MA SC- is there substantial harm ; clear evidence of substantial harm. Ct sets standard (554): the judge must find demonstrable evidence of substantial harm to the children (physical, mental, etc). Rule: when demonstrable ev of substantial harm to the children has been found, a judgment limiting the kids rel indoctrination doesn't burden the parent's right to practice rel under Free Ex clause. Problem: how far to go demonstrate the damage--ct decides that only the potential of the damage is enough. State-child- parents' dilemma: the state cannot tell much to the parents if they are married and have a kid, but once parents are divorced, the state has the right to interfere and impose certain things, under the justification of defending the best interest of the child. vi. Psychological Parent (PP) ; Troxel implications In re E.L.M.C.- Lesbian mothers--one adopts child legally, but share parenting w/ clear evidence. Legal mother argues that she is the parent and the other is not a parent- she is a legal stranger and the ct erred in awarding them joined custody. CO recognizes non-parents making claims if they are, for example, psychological parents. Troxel--grandparents visitation rights refused b/c the parent has the C-al right to make decisions for child. Here, Troxel doesn't apply--Elsie is a psychological parent and the doctrine of psychological parent is not new in CO--what the ct does here is to recognize the doctrine as applied to same sex couples. CO statute passes C-al muster relying heavily on PP doctrine, but it is still hard to determine who would fit in the psychological parent image: a nanny doesn't fit; b/c the parent should have such a responsibility from altruistic motives. FOUR factors to determine PP: (1) Legal parent must consent ;contribute to the rel formed between the psychological parent ; child; (2) They live together; (3) Parenting responsibilities are assumed for no financial reasons, only for the interest in the rel ; love of the child; (4) If a rel has actually formed w/ child--a bond exists--who the child considers a PP. 2. Alternative Approaches below and child's preference. i. Tender Years Presumption- TYP- has gone away in favor of PCP Historically, used to be that kid always went to dad, never mother, b/c kid was property ; only dad could own property. Mid 19th century, changed to: only went to father if fit. After, things shifted a lot and kids were not seen as just laborers for the family and seen that kids should go to mothers, if young (0-6 yrs of age), 7 or older get divided by gender (boys w/father, girls w/mothers). Young idea went to the fact that it would violate nature to take young kids from their mothers. Then - best interests of the child and often would be that young kids should be w/mothers still. Pusey v. Pusey - even a light presumption in favor of mom is un-C-al (under state ; fed C)- Time to get rid of this idea all together. Such a light preference for mom, in many cases, results in custody to the mother since usually the parents are equal in other areas. ii. Primary Caretaker Presumption- PCP-notes on p 574 Children go to primary caretaker parent up to 14 y v. tender years presumption (7 y) Less acrimony ; take other parent's bargaining chip away. Other parent can't say I'll try for custody unless you give me the house, etc. b/c primary caretaker already has presumption. Other reason: people need predictable rules to can settle issues of custody. Garska v. McCoy 15y old mom w/ small child ; father out of picture. She wants grandparents to adopt child- who is sick ; go on their health insurance. Father gets more involved ; tries to get custody. TC says that he makes more $, highly motivated to get custody, he's smarter, speaks English better, etc. SC recognizes that legislature eliminated TYP. New presumption/preference: primary caretaker. PC Factors: bathing, cleaning, clothes, food, medical, putting into daycare, taking care of kid in middle of the night, discipline, teaching, waking child in morning, arranging for social interaction, etc. Parent is there who is physically doing the things, not the one who is out earning the $ to do these things. The PC is entitled to a presumption of fitness for custodial duties as compared to the other parent. BOTTOM Line: for custody, the Court asks: 1. Threshold q: Are both parents fit? 2. If so, who should get custody?--best interest of the child- multiple factors, tender year presumption (with mother--off the table), primacy CT presumed, joint custody, ALI. The joint custody trend began--many states authorize it and some actually state a preference for it as awarded by the ct. iii. Joint Custody- Legal and Physical JC was in the beginning favored by feminists thinking that it would equalize the sexes, but they became opposed to it because it is hard to assess the responsibilities- each little thing that the dad would do was disproportionately made more important while the mom's contribution was minimized.

CO best interest of the child statute (a joint custody statute)--never uses the word custody; instead, parenting time and decision-making responsibilities are used. Historically they tried to talk about the parental responsibilities rather than custody. That is broken down to decision-making and parenting time. Parental responsibilities: decision-making and parenting times v. Custody: legal and physical custody ALI standard recommends that not the primary care taker applies, but rather a JC proportional w/ the caretaking time. Squires v. Squires - ct should only grant JC if the parents were fit. Although that ct was aware of that, many cts are not. Jim Brantz-- in determing the time allocated to each parent, practical factors are considered- no exact test on best interest. 3. Modification of circumstances--Relocation and Visitation Ciesluk v. Ciesluk- After divorce, mother gets primary physical custody, but dad has a significant visitation rights. Mom wants to move to AZ, but ct says no. CO SC must weigh the mom's fund right to travel, the dad's fundamental right to parenting and the child's best interest--it is hard to balance these and states treat these situations very differently. CO SC finds that a presumption for one parent or another is not reasonable and rejects the best interest of a child as a compelling state interest that would outweigh the C-ally protected interests of the parents--ct did not say that best interest of child is an important governmental interest (standard for intermediate scrutiny). Study compared children of divorced parents that live nearby w/ other where a parent is far away. On 2nd case, child does much worse. Not clear however that it is the move that creates this--it is a correlative factor, not necessarily a causal one. After a divorce, the ct has j/d over the parent BUT NOT over the parents. Children cannot leave (move from) the state w/o a ct order. Primary custody parent cannot leave w/ parent. RELOCATION ALI principle: ask threshold q- will the move significantly impair the other parent from doing what they were doing before? (a) if custodial parent was the main caretaker, she may just have to show a good faith intention for the move (b) if the split is more like 50/50, then the moving parent will have show that the move is in the child's best interest. CO- ask whether the move substantially changes the geographical ties between the child and non-moving parent. VISITATION Historically, one parent gets custody and the other gets visitation, which is not cast in C-al terms and states differ a little, but it looks much like a right. Visitation can only be denied if a high standard is reached. See page 612. For ex, if a parent didn't pay alimony, the parent can still see the child. Generally, the best interest of the child applies, rather than the convenience of parents. Restrictions--a huge issue is overnight visitation- with the backdrop of morality, non-marital cohabitation, etc. There are studies speaking to child sexual abuse. Girls are generally most likely to be abused right after the divorce by someone within the family unit-- the dad or by mom's new boyfriend. To prohibit visitation altogether, the judge must find that visitation would endanger seriously the child's physical, mental, moral, or emotional health. this standard is vague and more stringent than the best interest and it was chosen this way to prevent the non-custodial parent from visiting and maintaining a rel w/ the child based on moral judgments about the parent than are irrelevant to parental interests or capacity. Same standard applies to restrictions of visitation rights. ALI principle: the parent who missed visitation time will have to be reimbursed by the other party. Eldridge v. Eldridge- mom has custody, she turns lesbian and the dad gets custody and argues that the mom should be restricted for overnight visitation to times when the lesbian partner is not there. TC found no harm if the partner is there, not evidence of substantial abuse. Zumo v. Zumo - Both parents have the right to give religious teachings of their choice--kids are raised Jewish. In order to justify restrictions upon one parent's right to inculcate rel beliefs in their kids, the party seeking the restriction must demonstrate by competent evidence that the belief or practice of the party to be restricted actually presents a substantial threat of present or future physical or emotional harm to the particular child and that the restriction is the least intrusive means to prevent the specified harm. Here, insufficient evidence--dad must take kids to mother's Sunday school. Bottom Line Analysis for Custody: 1. Are both parents fit? If no goes to fit parent. If yes, best interest standard and analyze as below 2. TYP is Un-C-al so - PC presumption ( gender neutral, protects homemaker who gave up career, but affects parent who worked), OR ALI Principles (which also affects working parent, but allows greater split) OR JC- impt to minimize conflict. B. PROPERTY DISTRIBUTION AND SPOUSAL SUPPORT Who Really Owns the Family Wage?, ANN CRITTENDEN, THE PRICE OF MOTHERHOOD- Everyone ends up worse off financially if the costs are distributed evenly (2 households more expensive than one). Bartlett When 2 people form a union, it's like a partnership. Any income or wealth that's generated belongs to both, and so do any liabilities. If the partnership fails, nobody should pay a higher price than the other. Jack's attorney proposed leaving Jack w/ $40 of the $50k and leaving Jill and 4 kids w/ $10k. Bartlett's students were shocked to lean that no law in OH--or any other state--requires an equal standard of living for all members of divorced households. Jill and the kids stood almost NO CHANCE of receiving as much money as the economics class had calculated they needed.

The goal of family law reformers is for all fam members to emerge form a marital breakdown w/ roughly equal standards of living, so that no one, specifically children ; those who care for them, suffers disproportionately from failure of a marriage. Williams A man can over-invest in his career w/ secure social knowledge that if his marriage fails, he can walk away w/ his wallet ; enter the secondary marriage market largely unimpaired. o BUT women, invest heavily in their children but have NOTHING like the same security. App cts in most states have consistently rejected the arg that degrees and licensees are marital prop, and they are even less likely to swallow the idea that an individual's income is not his personal prop. NEW CONCEPT: COMPENSATION- Not charity based on need, but compensation for something earned. ALI says Wife should be awarded compensation if she can prove 2 things: that she has a lower income at the time of divorce than when she married that she performed substantially more than ½ of the child care The emerging consensus in support of compensation for care-givers is virtually unknown outside academia. Cts still require W to show that she needs alimony, not that she earned compensation. In order to claim any share of a breadwinner's income, a wife has to paint herself as a charity case that her H is morally obligated to assist. Even if W relinquishes her career entirely in order to care for children ; support her H's career, he will not necessarily have to reimburse her. Her unpaid services to family are considered a gift. 1. Property Division- 2 major schemes Community property states- minority- Either separate or community property: each spouse gets what was their own property before (title is impt) + gifts, inheritance and then the rest is community property and it is split upon separation. Traditional rule: whoever had title to the property got the property when the marriage dissolved- eat what you kill! Common law states: distribute property based on equitable distribution, which is now the main scheme for distributing property (about 41 states). There are 2 sub-schemes: - All property states- minority- ct can divide all the property that the couple has at the time of the divorce (MA) - Dual property states: distinguish between marital ; separate property- Ct only distributes marital property. Distinguishing property--general rule: assets gained during marriage until the legal separation are marital assets, even if the asset is not realized (pension funds). This includes debts, which are also considered marital assets. Separate property is that acquired by gift or inheritance, or property acquired in exchange for separate property (acquired let's say with $ from a gift). If you invest the $ from inheritance, the increase in value STILL remains separate property- majority view .In a minority of states (including CO) the increase is NOT separate property. Property acquired if a prenup existed is separate. i. Equitable Distribution UMDA- proposes two alternatives (p.697): (A) proceeds upon the principle that all property of spouses, however acquired should be regarded as assets of the married couple, available for distribution among them, upon consideration of the various factors enumerated; (B) distinguishes between community property ; separate property, distributing only community prop. ALI- Principles of Family Dissolution (p. 698): (1) marital property is property acquired during marriage w/ certain exceptions; inheritances ; gifts remain separate even if acquired during marriage; property received in exchange for separate property is separate even if acquired during marriage; same rules for domestic partners. The consensus for the distinctions is that marriage alone should not affect the ownership interest that each party had prior to marriage. (2) Enhancement of separate property by marital labor is marital property whenever either spouse has devoted substantial time to the management of such property during the marriage. The increase is measured by the difference between the market value when acquired or at the beginning of the marriage and market value when sold or at the end of marriage--the guiding principle here is that the fruits of the labor of a spouse are marital property. (3) Allocation a) quantum meruit- value labor input by reference to prevailing compensation rates ; attributes all remaining gain to capital; b) value capital gain by reference to ordinary rates of return ; attribute all remaining gain to labor. ii. Marital v. Separate property Innerbichler v. Innerbichler - H appeals from an award + alimony to W He was twice married before and had 2 grown kids from that. He married the wife now and had a child--they were together for 14 y and she got a divorce for adultery. The question is mostly whether the company he has was marital or separate. The company was established right before the marriage and at the time of the marriage was in its baby stages. The company took off greatly during the marriage and the ct found the increase to be attributable to his contribution the increase and his portion (51%) is a product of the marriage so the wife is entitled to a portion of that. Ct upholds that the appreciation was marital property. In Dual Property states: Majority Rule: appreciation of separate property is also separate. Min rule (including CO): appreciation is marital property although the underlying property remains separate. iii. Dividing property equitably Many states list in statutes factors for equitable distribution ; alimony- furthering 1 or 5 mutually exclusive principles: 1. Fault- oldest principle; punishes guilty- no fault divorce, but still a factor- hard to assess value of the adultery/fault 2. Need- give enough $ for the spouse to stay of welfare rolls- saves taxpayer $, but fosters life of dependency

3. Status Principle- windfall view4. Rehabilitation- give enough to rehabilitate and then no alimony. 5. Contribution- marriage as economic partnership- good b/c each spouse feels like he or she earned the benefits to be awarded upon divorce, but it is hard to compute the earned benefits. Four different approaches: (a) Market value of services minus living expense- but generally services are undervalued on the market (b) Partnership- all assets acquired during marriage are split equally- but doesn't offset the labor market disadvantage of the spouse who worked in the home during the marriage. (c) Foregone opportunities- compute what the spouse would have earned over the rest of her working life if she had stayed in the labor market throughout the marriage and subtract her actual earning capacity- very speculative. (d) Enhanced earning capacity- by one spouse that can be attributed at least in part to the stay-at-home spouse, but, again, very speculative, hard to determine the fair share- this looks a lot like the partnership. Ferguson v. Ferguson - Mississippi acknowledges that housewives may be disadvantaged in a system applying the traditional rule, so adopts the equitable distribution system. Another reason to adopt this is that marriage should be viewed as a partnership in which non-monetary contributions are valued and appreciated. Ct says that judges should look at certain factors when determining what is equitable. TC awarded her the house, although she only requested to possess and use the house. App ct had the authority to award her the title to the house, b/c that was equitable. Equitable is not 50/50. Postema v. Postema In a divorce, a spouse's advanced degree should be taken into account in the property distribution. Married in '84, just as (D) entered law school. P postponed her schooling and work full-time to support them while D attended school. He graduated in '87 from law school, the same yr they separated. they later filed for divorce. Graduate/Professional Degrees- CONCERTED FAMILY EFFORT = the basic principle Postema ct is adopting- mutual sacrifice, contribution of both, tangible and intangible means of support, emotional sacrifice. - NOT property, b/c it is not tangible. You cannot buy or sell the degree. Property, b/c of fairness ; equity factors- Ct is willing to stretch its definition of prop slightly to ensure she receives a fair outcome. - Valuing a degree- 2 approaches (a) Net Present Value (Wife's expert relied on this and came to $230k), OR (b) Restitution (Ct used this method focusing on cost of getting a degree - $80k) NOTE: Net Present Value is too hard to determine, there is no way to tell what any of us will make in 5 yrs. MAJORITY ; CO have held that educational degrees do NOT constitute marital prop, but is a factor in alimony. Downfall: she wouldn't get back everything she put in, and if she gets remarried, or is financially stable, she might not get anything + need is often the principle for determining alimony, and she doesn't need it. iv. Financial misconduct- 2 approaches: distribution OR dissipation (Siegel) Siegel v. Siegel After P filed for divorce, D executed a note for alleged gambling debts to a closely held corporation of which he was an equal 1/3 shareholder. When the ct denied his application to compel P to execute joint income tax returns for the '98 calendar yr, D forged her signature on return. P claimed that the gambling debts should be borne by D alone, and appealed. The contribution of each party to the acquisition or dissipation of the marital property is to be considered in determining the equitable distribution. The debt belongs to the gambler. v. Pensions and other deferred income Laing v. Laing Non-vested pension rights are property characterized as marital property. When the Ls' 22 yr marriage ended, TC awarded H his non-vested pension, set its present value at $27k, and W offsetting marital assets. H challenged the award on the grounds that there was insufficient ev to support the $27,000 figure, and that W's share should not have been awarded in a lump sum. TREND is to consider pensions as marital prop regardless of whether they have vested. Pensions 2 approaches- lump sum to be paid now or reserved j/d- ct will determine laterReserved J approach more fairly allocates the risk of forfeiture b/w the parties. If and when pension vests and matures, payments are made directly to the non-employee former spouse. This solves the problem of continuing financial entanglement b/w former spouses, and ensures that the non-employee spouse receives the deserved payments. Pension benefits are a K-ual right contingent upon future events does not degrade that right to an expectancy. Vested -you have already gotten the benefit. Non-vested -speculative. If he got fired, he may not get them. Valuing a pension- 2 approaches: (a) Present value approach ; Reserved J approach Bottom Line Analysis for Property Distribut ion: 1. Identify the assets: what is there to split- watch for degrees, etc which may not be viewed as property (majority). 2. Characterize the assets: separate or marital property. 3. Value the assets- often expert accountants and other expertise may be needed. 4. Allocate the assets- figure out what is equitable.

2. Alimony CL -H supports W, & in return, received things from the wife, (i.e., sex, etc.) So this duty of support continues after the marriage (w/o rights to sex and other benefits). Benefits: This is a disincentive for divorce & kept women from being pauper. Available to Ws ONLY, on the assumption that wives lack the ability to provide for themselves. Alimony was only available to the INNOCENT spouse, so if W cheated, she wouldn't get it. MODERN -gender-neutral rules. Award of alimony: Complete discretion of ct OR Discretion of ct PLUS a number of factors (length, ability to work, etc.). Almost NEVER get permanent alimony. i. Standards ALI-(p.746) compensation for loss of marital living standard, loss of earning capacity, presumption of entitlement, need. Clapp v. Clapp H is appealing support ; property award- he is a lawyer who makes $130K. W makes $40K as a guidance counselor. She was w/ him through law school ; stayed home to raise children for a while then pursued masters and got job. Both parties reached max levels of employability, but his income will grow at a faster rate. Her homemaker contributions are important and significant over many years- the ultimate weighing process is judgmental, but she is entitled to support for the non-monetary contributions made. ii. Summary see above on dividing property equitably 1. Need; 2. Status; 3. Rehabilitation; 4. Contribution (restitution; compensation for foregone opportunities; return on investment); 5. Partnership

C. CHILD SUPPORT AND CHILD FAMILY INVESTIGATORS Two aspects of child support: Calculating it ; Enforcing it Even when child support IS paid, it is sometimes not enough to have the kids enjoy the standard of living they did before the split, b/c you have the same amount of family income that has to support 2 separate households. TWO Calculation Approaches: (a) Flat Percentage Model: A certain % of non-custodial parent's income is paid over to the custodial parent, and that amount increases w/ each child. (b) Income Shares Model: If family income is X, then Y should be dedicated to child support. Figures out what support amt would be according to the income levels of the parents. The amt a child needs depends on his standard of living before the divorce. BOTH SYSTEMS ACCOUNT FOR WHERE THE CHILD LIVES. E.g., In CO, if the child is with a parent fewer than 92 nights a year, then you don't factor in any of this, there is a full award from one parent to the other. BUT, if the child spends 93+ nights with dad, there will be a 25% deduction in the support he owes his wife-- much negotiation over this. Tough Child Support Laws Put Poor Fathers in a Bind, Leslie Kaufman, NEW YORK TIMES -Generally, people who have the means, pay their child support. There is a lot of debt at the national level for child support, but that money is generally not available to be paid. About 4% of the whole $ owed belongs to people making more than 40k/year. 70% of the debt is owed by people who earn less than 10k/year. Now, there are all kinds of penalties when you don't pay your CS--for example, not being able to get a trucking license, which, in turn, can lead to not being able to get a job. Is Staying Home w/ Children Shirking Work for Child Support Purposes? Joana Grossman- FindLaw- H is arguing that by not going to work, the ex-W is shirking for purposes of child support- cts treat parents that choose not to go to work at their full earning capacity differently depending on the situation. In the Chen case, she was making a lot as an anesthesiologist. There are 4 different ways to slice the cake: (1) Impute the earning capacity; (2) Actual earning; (3) No imputed income for pre-school kids; (4) No imputed income as long as you have any kids at home. For Arbiters in Custody Battles, Wide Power and Little Scrutiny, Leslie Eaton, THE NEW YORK TIMES (May, 23, 2004) Les Katz guest speaker- what is the role of CFIs? TAX IMPLICATIONS- parties can contract terms to make up for any disadvantages - Spousal Support: is tax deductible for the person who pays it and taxable income to the person receiving it. - Child Support: not deductible to payor or income to payee. One issue is who can claim child as a dependent.

V. MARRIAGE

A. HISTORY, TRADITIONAL RIGHTS & DUTIES, AND FAMILY PRIVACY

John Demos- Images of the Am Family- The family was first about the community and it evolved into a refuge, then turning into an encounter group. In the second stage, domestic fiction played a very impt role. The encounter group seems to be a spin of the refuge in the context of our daily grind/rat race which replaced the jungle of the 19th cent. The last two stages have been loaded w/ the most urgent human needs & responsibilities. The last stages is plagued more and more w/ the q of the roles & responsibilities in the family. The changes throughout the years are not entirely broken into period- overlap. John Boreman & Laurie Kain Hart An Elastic Institution- cult of romantic love is a recent innovation in the history of marriage- traditionally marriage regulated property. Alexis de Toqueville- in our time, several members of the family stand on entirely new footing w/ each other, the distance between father & son has been lessened and the paternal authority, if not destroyed, lessened. Aristocracies vs. Democracies fathers have entirely different positions; brothers are treated differently (eldest son v. siblings); young women can have the free power to choose or not. Norma Basch- further develops the link between revolution & divorce. After the French Rev, the French went from seeing marriage as indissoluble to instituting the most permissive divorce code in the Western world. After the independence from England, divorce became permitted in the states, first in New England, then everywhere--notice the timing- revolution!

Hendrik Hartog- Divorce has never been the only way to end a marriage- mobility allowed to get out of a relationship and build a new life. Mobility also required that to happen since families didn't always move together. The intent may have been to return or to abandon, but either way, the result was a new wife and new family--much of this during the gold rush.

CONTRACT OR STATUS English law: H & W consent to being married, but once married, the terms of the marriage are supplied by the public and it is a status that leads to the same obligations for all married people. Women, at CL, if unmarried- had a considerable legal capacity- make K, own property, sue or be sued. H & W became one unit--one person, legally speaking--and that person is the H. This comes from the doctrine of coverture- covering the woman into the marriage. The legal being of the W is covered now by the H. This is where the taking the husband's name. All the wife's property becomes his and doesn't revert to her upon his death. Any legal claim she had, become those of her H. If she worked waged go to H; if she worked at home the product is HIS. W cannot have custody of the children, can't sue or be sued, can't testify.

Marriage Women's Property Act- state laws that were passed in every state to protect the woman's separate property. M as status exit is difficult, people are not autonomous, the public has established the role and functions of the parties. In this context, cohabitation, adultery, etc would be crimes. Intestacy laws would favor the spouse, etc, M as K parties make their own rules then separation, pre-nuptial, wills, testamentary agreements would be much easier; no fault divorce, kids from wedlock treated differently, etc. State has a more limited role and people have free choice.

1. Traditional model of marriage

• Bradwell v. Illinois (gender roles) - woman requested to be admitted to the IL Bar and was denied. Issue was whether she can be denied just because she was a woman. Holding: yes! A state under its police power may deny entry into an occupation or profession on the basis of sex. Bradley, c- Man should be the protector & defender of the woman whose natural timidity & delicacy makes the fair sex unfit for much of civil life.

2. Rights and duties of marriage

• Graham v. Graham- gender roles- As H & W you are one legal person so you CANNOT K w/ yourself. Moreover, the married woman cannot K. Even if the K was valid, parties cannot change the definition of marriage by K--duties and obligations include that the man must work to provide for the couple, the W must follow him and listen to him, etc.

3. Family privacy

• McGuire v. McGuire- trad model of marriage/privacy- W sues in equity (she can do that during this time) to enforce his duty of support to her, but w/o filing for divorce. Family privacy is the short hand for this case, but what it expresses is the cts' reluctance to intervene in existing marriages. Hypo: if W's parents bought blankets or other necessary b/c H refused to provide them to the W parents can then sue the H under other contract or tort doctrines.

B. DOMESTIC VIOLENCE- ENCROACHMENT INTO FAMILY PRIVACY

1. Traditional Immunity and Exemption Historically, marriage meant a certain thing, doesn't matter what you wanted your marriage to be. Cts could enforce those rights and obligations of the marriage as long as the marriage was ongoing. Lawrence (overturning Bowers) was based on privacy. What goes on behind closed doors, the state has no interest in. (As well as birth control, Roe v. Wade, other cases like that.) family privacy doctrine!

Family privacy & Domestic violence- although the state will not interfere w/ the family's privacy, what goes on behind closed doors is presumed to be harmonious, even if we know that it is not always true. Domestic violence occurs and family privacy basically gave the state an excuse not to intervene. Marital rape- didn't used to be a crime for husband to rape a wife. Marriage was consent of all sexual acts, another was a woman as property, another was unity of marriage as one person- can't rape yourself. Exemptions are justified as the they may remove obstacle to normal marital resolving of fights. Domestic violence statistics: 1 in 3 women at some point. W more likely to have serious physical injuries, injuries are worse, more likely to be killed. W at most danger in their homes than anywhere else. Especially at risk when pregnant and just got pregnant. Elder abuse is also a huge issue. Teenagers abusing adults is also a big issue. Gay and lesbian relationships (underreported/recorded but just as high statistically). Child Custody after domestic violence is differ Jill Hasday- Contest & Consent- A legal history of marital rape (p 281)- 17 states and D.C. have done away w/marital exemption (CO is one of them). BUT 33 states still have some statutory limits on when a spouse can be prosecuted for raping his spouse. First wave of contest of marital rape came with the women's rights movement in 19th century but didn't really make a difference till the end of the 20th century. Arguments for marital rape exemptions include privacy, not a gender specific issue that benefits both parties and the couple; facilitation of marital reconciliation, denying the harm caused by the injury; the vindictive wife argument. The original & contemporary feminists have different approaches. For modern feminists, marital rape/privacy safeguards only protects & exacerbates the current distribution of power w/in the marriage. They argue that this exception denies women the right to control their sexuality and their chances for sexual pleasure. The first women's rights movement was more focused on limiting the downside risks of marital intercourse as women's sexuality was viewed as being weaker. In response to calls for changes many states just enacted gender blind exemptions, although research shows that women are the victims--EP sees women in a gender neutral manner--interchangeable roles. Another explanation for the exemption is the cultural need to understand marital rels as consensual & harmonious. Resistance to denying the harm and focus on the injury may lead to comprehensive reform.

2. Battered Women's Syndrome

People v. Humphrey (self-defense) W has been abused multiple times by her current H, but also in past rels and by her father. The day before incident, H shot at her and missed. The next day, drunk again, hit her and threatened to kills her--she grabbed gun and shot him. Expert testimony showed that she has a severe case of the battered W syndrome. The judge instructed the jury to consider the syndrome but only for her subjective perception that she was in danger and not for the reasonableness of her belief. The appellate ct disagreed and held that the cases supporting that argument too narrowly interpreted the reasonableness element, failing to consider that the jury must see the situation from the D's perspective. The ct added that they are not changing the standard from objective to subjective or replacing the reasonable person with the reasonable battered woman standard. The syndrome is relevant to the credibility of the D and the jury makes the ultimate determination as to whether the actions of the D were objectively reasonable. The ct doesn't hold that the doctor's testimony is relevant to both prongs of the perfect self-defense--the q is whether a reasonable person in D's circumstances would have perceived a threat of imminent injury or death, NOT whether killing the abuser was reasonable in the sense of being an understandable response to ongoing abuse. Ultimate judgment of reasonableness rests w/ the jury!

3. Mandatory Arrest

Policy Attorney General's Task Force on Family Violence 22-24

For a long time, law enforcement has not been encouraged to make arrests when assaults occurred between family members that would be seen as felonies between strangers. Law enforcement tried to remedy those problems though expeditious solutions like sending one party away and then the parties to mediation--which had a commendable goal but was inappropriate. Research showed that arrest & overnight incarceration are the most effective interventions to reduce the likelihood of subsequent violence new policy to arrest offender. Notes: those conclusions have been called into q by recent studies mixed correlations between arrest & recidivism; procedures employed might make a difference; income, educations, etc also change the outcomes of arrest-recidivism.

Liz Mundy, Fault Line

Mandatory arrest policies were imposed in a county in VA and had many unintended consequencea couple going through divorce ended up having the W locked up and charged w/ assault when they got in an argument over the custody of the children, a mom got the daughter arrested as they were arguing about the girl's boyfriend, a husband called 911 when the W threw the peanut butter jar on the floor b/c he refused to talk to her about something. The new approach is a huge change and victory for advocates on behalf of domestic violence victims, but while it helps the real victims, looking at the arrests made, it creates a new category of victims--rendered the word domestic violence/abuse so diffuse that it is meaningless. Some officers think that the law is weighted against men since def of primary aggressor is the person who has the potential to commit greater violence. While it is clear that there are intended consequences, the q is what is domestic violence and what measures should be taken against it, how far should they go?

VI. JURISDICTION

Fed ct j/d can be obtained 2 ways: (1) C-al challenge or fed law- like Loving v. VA; (2) diversity + min amount BUT there is a domestic rel exception for fed ct- if the case is for a divorce or directly related to the divorce, then fed cts will NOT hear those cases. When Cs passed the j/d-onal statutes meant to incorporate the domestic rel cases as it was done in English Cts in the past-- Nudau--Pledge of Allegiance case--Supreme ct didn't hear the case b/c of the domestic relations case b/c embedded in the case was the fact that he wasn't the custodial parent. State laws: For the divorce itself, state applies its OWN laws--where the divorce was filed, regardless of where the marriage, domicile PROBLEM: forum shopping. It doesn't matter that you lived there for 2 weeks-Michigan question. Ex parte Divorce- Ct needs j/d only for one person to grant a divorce ex parte divorce is permissible- ct doesn't need pj over the other spouse- Rational is that in a divorce, the marriage was treated as in in rem proceeding (ct needs j/d over the thing) marriage is considered to be in the state so long as one person/spouse is there. BUT person must establish domicile--go and intend to stay there (you can have multiple domiciles) + meet the residency requirement FFCC- Ex parte divorces are valid in other states under the Full Faith & Credit Clause, UNLESS it is clear that the state granting the divorce NEVER had j/d for reasons like lack of domicile, etc. - If both parties are there technically consenting to j/d-- one party cannot come back and challenge the j/d of the granting ct.

A. TO DISSOLVE A MARRIAGE GENERAL RULE

Usually a person filing for a divorce must be domiciled in the forum state- Domestic Relations Exception: Fed cts will not hear divorce, alimony, and child support- DR exception does not apply to cases of child abuse Domicile: Intent determined by conduct (Intent to make the forum state permanent home +Physical presence)Objective factors test: use MANY facts Duration: Statutory Period (one year, six months, etc.). Arguments: only a delay, not a deprivation of the right to divorce; state interest in preventing state proceedings from becoming divorce mills + Assures that divorce decrees receive FFCC. Venue (County): Last known marital domicile; 's residency or 's residency, if 's residency is unknown Foreign Divorces: Recognition & Enforcement - No FFCC applies (not state to state). Recognition: discretionary principles of comity if the foreign divorce was granted for the same reason that the state would grant divorce, then the ct should recognize the foreign divorce. Exception: Party in the foreign divorce proceeding was not afforded procedural due process Sosna v. Iowa - Married in CA, moved in NY and lived there. After separation, she moves to Iowa and a month later files for divorce. Iowa has a residency requirement of 1 year. H appears specially to challenge the j/d of Iowa over him. States as opposed to Cs have exclusive j/d over marriage, but she is challenging the C-ality of the Iowa residency requirement. Ct does not view the residency req as only an impediment clearly and rationally related to a legitimate state interest. States may constitutionally provide for durational residency requirements for divorce decrees. The state has an interest in the wait for divorce--they don't want to become a divorce mill or have citizens of Iowa go into different states to get divorces. Another interest of the state is connection to the state must exist. B. FOR PROPERTY DIVISION, ALIMONY, AND CHILD SUPPORT Doctrine of Divisible Divorce: Obtain a divorce in one state under that jurisdiction; Divide other claims (alimony, property, child support) in other jurisdiction.

Jurisdiction Generally:

(1) Long Arm Statute;

(2) based on minimum contacts with the state (marriage K, residency & domicile, voting, working in the state);

(3) state must have a manifest interest in the outcome of the case.

Child Support Jurisdiction:

(1) Relocating to another state does not eliminate duty to pay child support;

(2) Duty to pay does not lapse with the passage of time.

(3) Analogy: 3rd party beneficiary Ks never lapse--same thing here (child is 3rd party)

1. Divisible Divorce

Vanderbilt v. Vanderbilt NV ct dissolves the marriage and says that all obligations have been extinguished. She brings action in NY ct for alimony. Ct doesn't have pj over him, but he has property in the state in rem j/d over the property. Husband brings an action arising under the C fed ct, claiming that the NY Ct was not honoring the Full Faith & Credit Clause by not recognizing the NV divorce. In Estin v. Estin- a NV ct terminated an alimony award of a spouse over whom they had no pj SC found that the ct cannot decide a fin claim w/o pj. Here, there is no alimony order but ct finds that there is no difference. Cts cannot decide claims for financial matters

2. Long-Arm Jurisdictions Which State Law to Apply? - If you move to CA and were divorce in NY, the NY law will be applied even by the CA ct. The domicile at the time of divorce--that state's law is what determines property, alimony, etc. Kulko min contacts- Parties was married in CA, but that was in a passing by trip by him for 3 days. The only claim for pj over the dad/husband is his consent for his daughter to live in CA and buying her an airplane ticket. International Shoe applies to this case: enough min contacts so that the suit does not offend traditional notions of fair play and substantial justice. DPC requires to pj to enter a judgment that affects the person--so, you need reasonable NOTICE and SUFFICIENT CONNECTION with the state so that it makes it FAIR and REASONABLE to Rule purposeful availment is necessary to obtain pj over a non-resident D and the parent-child relationship is not enough. Comment, PJ & Child Support: Establishing the Parent-Child Relationship as Min Contacts - article holds that the parentchild relationship should be the rule.

3. UIFSA improvement over prior law URESA. Child Support Enforcement v. Brenckle Parties married in CA and moved to Alaska and had a child. H filed for divorce and was obligated to pay child support. H moved to MA and stopped paying child support. W filed an action in Alaska to recover child support from H when boy was ready to go to college--big amount accumulated. Held: H still has to pay no matter where he lives. Once one ct enters a support order no other ct can modify unless parent and child live there. Q is whether new statute applies--yes, parent + child still live in that jurisdiction. To get j/d over him, UIFSA

- As a preliminary matter- to issue a child support order a ct must have 2 things:

(1) be home state of child +

(2) PJ over payor--unlike in child custody where all you need is to be the home state of the child.

The main purposes of UIFSA:

(1) to clarify which state has j/d in the first place,

(2) to ensure that subsequent states don't modify support orders, and

(3) to help enforce the orders. UIFSA did not and could not alter the C-al rule that a ct must have pj to decide a legal claim affecting a person's interests ($). A ct may not impose a support order w/o pj over payor. Interstate Family Law Jurisdiction: Simplifying Complex Questions, Angela R. Arkin, COLORADO LAWYER

4. Inter-state Custody Disputes Jurisdiction in Custody Cases- Standards: UCCJA; Determines Jurisdiction in Custody Cases Enforcement of Custody Orders: Contempt; Tortious interference with custody order; Kidnapping; UCCJA. Chaddick v. Monopoli- P & D divorced in MA and P got custody of children. P moved to FL and D moved to VA. During a visit of the children, D filed for custody in VA, claiming that the airline would not allow children to travel w/o P's address & P refused to give D her address. VA ct gave D custody and P challenged the order in VA. A month after her failure in the challenge, P petitioned in FL for the enforcement of the MA custody order. FL judge called VA judge and they decided that the FL judge did not have j/d under UCCJA--P challenged the order of the VA ct in VA and cannot get 2 bites at the apple. However, on future situations, judges should allow parties to be present when the judges confer w/ each other. Thompson v. Thompson- P & D divorced on CA and D got custody of their son- when D moved to LA pending a ct ordered investigation as to custody. D petitioned LA ct to modify CA order & give her final custody. LA ct made the order final, but 2 months later CA ct changed its initial order to give P custody. Under PKPA, the state that first properly exercises j/d in a custody dispute retains j/d and all states must accord FFC to the 1 st state's decree. However, the PKPA does not create an implied fed cause of action to determine which of the 2 conflicting state custody decisions is valid. Remember- FFCC has 2 sections--First, give credit to other states, then second one is the effects clause - Cs may determine the effects/ how the states are going to give effects to the orders of other state cts. That is how the PKPA was passed and also DOMA. That's why Cs can get involved in this custody issue. UCCJA was passed to eliminate conflicting decrees resulting from concurrent j/d in more than one state. These acts focus on the contacts of the child w/ the forum state rather than domicile or presence of child or pj over parents. PKPA fed solution to child kidnapping- permits a state to modify an out-of-state decree only when the forum state has j/d under its own law and PKPA and when orig forum state no longer has j/d or declined j/d to modify decree. UCCJA and PKPA were often in conflict UCCJEA was passed and most states adopted it (35 and CO included). Clarifies who has j/d in the first place--if a kid lives in a place for 6 months home state and jd. If no home state the state who has the most significant connection and possesses the most substantial info to be in a position to make the best determination. Exception if the person seeking the benefit of UCCJA had unjustifiable conduct. Bottom line analysis: exception for domestic rel based on practice and history, fed cts will decline to exercise j/d over domestic rel cases (and all relevant matters) All cts needs is j/d over one party- b/c in rem proceeding and the res (marriage) is in the state so long as one spouse is in the state marriage can be dissolved. Under FF; C a sister state must give credit, but sister state may decide for itself whether the granting state had j/d. BUT can't challenge the divorce if both parties appeared in the original proceeding and the ct made an explicit ruling on j/d. In an ex parte divorce, notice must be given but it is construed very loosely--almost fake notice, by publication etc. For all other matters re property division & spousal support you need pj over both parties. If there is property in the state ct has in rem j/d over that property. To enforce property awards, use UIFSA.

Summary of Family Law Interstate Jurisdiction

Jurisdiction to grant a divorce - Ex parte divorces are permissible a court needs personal jurisdiction (which usually means domicile) over only one of the parties to adjudicate issue of divorce. - The party who didn't participate in divorce proceedings in one state can challenge that ex parte divorce in another state claiming the first state lacked jurisdiction. BUT, no challenge on jurisdictional grounds in the second state if both the husband and wife participated in the proceedings in the first state and that first state ruled on jurisdiction. Jurisdiction over marital property - Traditionally, only a court in the state in which real property is located has in rem jurisdiction to determine its ownership and thus to enter property division orders. - This rule survives, but as a practical matter, although there is no constitutional requirement that it do so, many courts today will recognize property division orders from courts in states in which the property is not located if the court validly asserted in personam jurisdiction over the parties. - Usually courts avoid directly ordering title changes of property that is not in its state, and instead orders the person to do whatever is necessary to effect the property disposition. Jurisdiction to decide spousal support -C-al rule: a ct must have pj over both parties to resolve spousal support (that it should be awarded or should not be awarded). For enforcement, see discussion of UIFSA infra at IV.C.iv. Jurisdiction over support orders- UIFSA - Support orders are generally not final, so parties may seek a ct more favorable to them to modify an order previously entered by another state BUT all 50 states have adopted the Uniform Interstate Family Support Act (UIFSA) to address all aspects of interstate support orders relating to child and spousal support. - Key provisions: - Only one state at a time can exercise j/d. All other states must enforce the initial support order w/o modifying it - Jurisdiction for initial orders - J/d: for child support determined by home state definition- the state in which a child lived w/ a parent or a person acting as parent for at least 6 consecutive months immediately before filing a petition. If child younger than 6 months old, HS is the state in which the child lived from birth w/ a parent or person acting as a parent. Q: a child is conceived in a state but the father moves away before the child is born. Does that state have personal jurisdiction over the nonresident father? Yes, because one of the provisions for long-arm jurisdiction under the UIFSA is the nonresident parent conceiving a child in the state issuing the support order. - Jurisdiction to modify existing orders

I. Child support

(A) The state issuing a support order has continuing, exclusive j/d to modify the order as long as that state remains the residence of either the obligor, the obligee, or the child;

(B) If modification of the order by the issuing tribunal is no longer appropriate, another tribunal may become vested with the continuing, exclusive j/d necessary to modify the order. This occurs when neither the individual parties nor the child reside in the issuing state, or when the parties agree on the record that another tribunal may assume modification j/d. Only then may another tribunal with pj over the parties assume continuing, exclusive jurisdiction and have jurisdiction to modify the order,

II. Spousal support jurisdiction to modify stays with state in which support order was initially entered. -

Enforcement: two methods I. Obligee or a state may register a support order with a sister state; thus the obligee need not go to the state where the obligor resides. The court in the sister state enforces the original support order as if it was its own order. II. If obligor doesn't object, obligee sends order directly to obligor's employer; portion of wages sent directly to obligee - Choice of law: the law of the issuing state (not the enforcing state) is relevant to determining whether support should be awarded. Jurisdiction to decide child custody issues The state with jurisdiction over the child decides custody. Custody decrees are always subject to modification. For years, this resulted in judicial complicity in parental kidnapping. (A noncustodial parent would take the child, move to another state, get a new custody decree awarding him or her custody.) The UCCJA (and now the UCCJEA) was implemented to deal with this problem. UCCJEA - Approved by the commissioners on uniform laws in 1997. In 2004, adopted in 35 states, (CO). Purposes: discourage/eliminate child snatching avoid j/dal competition, avoid relitigation of child custody, ensure that custody determinations are made in the state that can best determine the best interests of the child. Provisions: Initial order -- if there is a home state, that state must make initial custody order, unless it declines j/d.. (A) A home state is the state in which a child has lived with a parent (or person acting as a parent) for six consecutive months before the custody proceedings began. If the child is younger than six months old, the home state means the state in which the child has lived since birth. (B) If there is no home state, then look at the state with which the child has the most significant connection and possesses the most substantial information about the child's care, protection, and personal relationships Modification: once a state has validly asserted jurisdiction, it has exclusive, continuing jurisdiction so long as the child or any party resides there. For a second state to modify custody. (A) Second state must have jurisdiction (e.g., home state, etc.) (B) First state must determine it no longer has jurisdiction or that the second state would be more convenient b/c of evidence in that state about the child, etc. Emergency j/d - a court can take emergency jurisdiction if a child is abandoned in the state or if necessary to protect a child, sibling, or parent from abuse. This order lasts only until a court with jurisdiction under other provisions of UCCJEA takes charge. Parental Kidnapping is discouraged: (A) A state may decline to exercise its jurisdiction under the UCCJEA if the person seeking to invoke the jurisdiction of the state has engaged in unjustifiable conduct; (B) The very stringent jurisdictional standard for modifying a custody order. See supra at V.D.ii.