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Family Law: Cases, Text, Problems

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 FAMILY LAW: CASES, TEXT, PROBLEMS
3D EDITION

2002 Teachers’ Supplement

Ira Mark Ellman

Willard Pedrick Distinguished Research Scholar and Professor of Law
Arizona State University

Paul M. Kurtz
J. Alton Hosch Professor of Law
University of Georgia

Elizabeth Scott
University Professor
University of Virginia
 Table of Contents

Chapter 1 - Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Chapter 2 - Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Chapter 3 - Dissolving the Marital Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Chapter 4 - Property Division and Spousal Maintenance Upon Divorce . . . . . . . 24

Chapter 5 - Child Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Chapter 6 - Child Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Chapter 7 - Divorce Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Chapter 8 - Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Chapter 9 - Nontraditional Families . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

Chapter 10 - Procreational Liberties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

Chapter 11 - State Regulation of the Parent-Child Relationship . . . . . . . . . . . . 122

Chapter 12 - Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Troxel v. Granville . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Stan Baker, et al. v. State of Vermont, et al. . . . . . . . . . . . . . . . . . . . . . . . 154

Vermont Statutes Dealing with Civil Union . . . . . . . . . . . . . . . . . . . . . . . 176

i
 FAMILY LAW: CASES, TEXT, PROBLEMS (3D EDITION)
Ira Mark Ellman, Paul Kurtz, Elizabeth Scott
2002 Teachers’ Supplement

The material that follows is of course keyed to the casebook, and provides a summary of
relevant developments since preparation of the teacher’s manual to the text. Material discussed in
the original teachers’ manual that arose too late to be included in the text itself is not repeated here.
Please also note the appendix, which contains copies of Troxel and Baker v. Vermont, as well as the
new Vermont statutory provisions, edited for use as teaching material. Teachers who have adopted
the casebook for the class are welcome to duplicate any portion of the main body of this supplement,
or the appendices, for distribution to their class.

Chapter 1
Introduction

Page 3. The Themes of Family and Family Law. For an historical overview of the family
law as it developed in the 20th century, with a special emphasis on changes in women’s rights, see
Herma Hill Kay, From the Second Sex to the Joint Venture: An Overview of Women’s Rights and
Family Law in the United States During the Twentieth Century, 88 Calif.L.Rev. 2017 (2000).

Page 40. Marriage and Changing Gender Roles. Ira Mark Ellman, Divorce Rates, Marriage
Rates, and the Problematic Persistence of Traditional Marital Roles, 34 Fam.L.Q. 1 (2000) provides
a comprehensive review of recent data on gender roles in marriage and relative earnings in the
market place of husbands, wives, mothers and fathers, and relates them to declining marriage rates.
Among other things, it finds that the data suggests that one important explanation for the increased
participation of married mothers in the workplace is the declining hourly earnings of all but the
highest earning men. A slightly earlier draft of this article is available for download at
<http://papers.ssrn.com/toptens/tt_jrnl_157489.html>. The labor force participation rates of mothers
with infant children fell from a record-high 59 percent in 1998 to 55 percent in 2000, the first
significant decline since the Census Bureau developed the indicator in 1976. These overall figures
reflect the decline among white and Hispanic mothers; the percentage of Black and Asian-Pacific
Islander mothers who worked continued to rise. Bureau of the Census, Current Population Reports
P20-543RV, Fertility of American Women: June 2000 (October 2001), available on the web at
<http://www.census.gov/prod/2001pubs/p20-543rv.pdf>; more detailed tables and earlier reports are
available at <http://www.census.gov/population/www/socdemo/fertility.html>.

1
 Chapter 2
Marriage

Page 53. Carabetta. Variations on the question raised in Carabetta recur with what might
seem surprising frequency. The impact of failure to comply with marriage formalities was at the
heart of Fryar v. Roberts, 57 S.W. 3d 727 (Ark. 2001). Responding to a divorce petition, “wife”
denied the marriage’s existence. Her claim was based on the fact that immediately after the
ceremony she burned the marriage license (with “husband’s” consent) and, therefore, it had never
been returned to the county clerk for filing. She alleged the parties never intended to be married and
failure to file the certificate with the clerk meant the parties were never married. Her contention was
accepted by the trial court which granted summary judgment dismissing the divorce. On appeal,
however, the Arkansas Supreme Court reversed, finding that failure to comply with the registration
requirements “does not by itself defeat the existence of the alleged marriage....” While Arkansas
does not recognize common law marriages, the court noted there had been a license and a ceremony.
Describing the filing as a ministerial act, the court wrote that the “return of the license is only
evidence that a marriage has been performed and does not itself constitute the marriage.”

Though Fryar can be seen as following Carabetta’s guidance in interpreting formality rules
as directory and not mandatory, a recent California case dealing with Carabetta-like facts points in
a different direction. In Estate of DePasse, 97 Cal. App. 4th 92 (2002), decedent, hospitalized during
her final illness, went through a marriage ceremony with petitioner on the day before she died. The
parties had cohabited for some period of time before decedent’s hospitalization. While the
ceremony was presided over by a hospital chaplain, the parties did not obtain a marriage license
“because there was no time.” Decedent’s estate responded to petitioner’s spousal property claims by
asserting the lack of a marriage.

Recognizing that some states interpret licensure statutes to be directory, the court interpreted
a state statutory definition of the word “shall” as mandatory to make the absence of a marriage
license fatal to the validity of the marriage. The court cited statutory provisions stating that “a
marriage shall be licensed” and “the parties shall first obtain a marriage license” and the officiating
party “shall require the presentation of the marriage license.” Ironically, in litigation occurring
before the statutory definition of “shall” was added to the California Code, a New York court found
a prior California statute which provided that the parties “must” obtain a license to be merely
directory. See Maxwell v. Maxwell, 273 N.Y.S.2d 728 (1966). The DePasse court went on to reject
petitioner’s assertion of putative spousehood, concluding no reasonable person could believe a
marriage was valid where no license had been obtained. For a similar case involving a deathbed
marriage without a license reaching the same result as DePasse, see Nelson v. Marshall, 869 N.W.2d
132 (Mo. App. 1993).

Page 56, Note 1. Licensing Process. Congress, in the welfare reform legislation of 1996,
discussed in the casebook in Chapter 5 on Child Support, required the disclosure of Social Security
numbers in the application process for a range of state licenses, including marriage licenses. In State
ex rel. 10 Residents of Franklin County v. Belskis, 755 NE.2d 443 (Ohio App. 2001), the court

2
ordered a probate judge to issue marriage licenses to 10 people who did not provide a number in the
licensing process. Perhaps acknowledging the possible relevance of the fundamental right to marry,
the majority noted the state’s refusal to place major impediments in the path of those who want to
marry. The court refused to read the statute requesting provision of the Social Security number as
requiring them as a pre-requisite for the issuance of the license. The court noted that a refusal to
issue a license without a number being provided made some sense when, as under prior law, the
number was to appear on the license itself. That latter requirement, however, had been repealed and
the court interpreted the word “shall” in the phrase “shall provide the Social Security number to the
clerk” as directory and not mandatory. A holding that this was mandatory would render non-
Americans incapable of marriage, held the court.

Page 64, Note 1. History of Common Law Marriage. A recent student note traces the
history of common law marriage in the nineteenth century, concluding that the doctrine “represents
one private, common law antecedent of later public policies to handle the problem of female
poverty.” Note, Governing Through Contract: Common Law Marriage in the Nineteenth Century,
107 YALE L.J. 1885 (1998).

Page 65, Note 2. Present Status of Common Law Marriage. The Utah statute mentioned
in the note was part of an unusual fact pattern in Kelley v. Kelley, 9 P.3d 171 (Utah App. 2000). In
Kelley, the parties divorced for “business” reasons related to protecting property against creditors.
They had no intention of actually breaking up their family and, indeed, did not even tell their
children. They continued to live together, maintained joint finances and joint social lives. After the
relationship ultimately broke up, wife sought to modify the financial arrangements of the divorce
decree based on an alleged post-divorce common law marriage. The trial court found such a
marriage existed and modified the original divorce decree. The appellate court affirmed the finding
of a common law marriage, but found that the marriage itself did not constitute a sufficient change
of circumstances.

In the course of analyzing the situation, Kelley noted that the Utah statute requires that a court
or administrative order establishing a common law marriage must be obtained within a year of the
relationship’s termination, though under a state supreme court decision the filing of such an
administrative or judicial action seeking such a declaration will be sufficient to toll the statute. A
dissenter in Kelley criticized the statute, saying “Utah should not recycle this great experiment” of
common law marriage which has been rejected by the vast majority of other states.

See Crawley, Is the Honeymoon Over for Common-Law Marriage: A Consideration of the
Continued Viability of the Common-Law Marriage Doctrine, 29 CUMB. L. REV . 399 (1998-99).

Page 68, Note 6. Conflict of Law and Common Law Marriage. The “circle” situation
involves a couple which lives as if married by common law in a non-recognizing state, establishes
some attachment to a recognizing state and then returns to their original abode. A recent case
presenting such a situation was Charmack v. Office of Personnel Management, 2001 US App.
LEXIS 24914 (Fed. Cir.). A man sought federal employee survivor benefits as the widower of an

3
employee of the Immigration and Naturalization Service. He and decedent had lived for 10 years
as a common law couple in Arizona, which does not recognize domestic non-ceremonial marriages.

The administrative agency which determines eligibility for survivor benefits denied the claim,
despite the fact that during their ten-year relationship the couple had spent a month in Pennsylvania
(a recognizing jurisdiction). The claimant admitted to the agency that during that visit the parties
had not agreed to be married in “words in the present tense.” The Federal Circuit vacated the
decision and remanded the matter to permit claimant to introduce evidence from his adult son that
the couple “exuded the general reputation” of being married to each other while in Pennsylvania.
Though the son had previously refused to testify, the court noted that the purpose of the Pennsylvania
trip was for the claimant to introduce his son to his “wife.” Under these “exceptional
circumstances,” the court found it appropriate to give the claimant another chance to convince his
son to testify. It also pointed out the possibility of issuing a subpoena to compel such testimony.

Pages 87-104. Same-Sex Prohibitions. Since the casebook’s publication, the Vermont
Supreme Court delivered its 1999 opinion in Baker v. State. An edited copy of that opinion appears
as an Appendix to this Update. As a result of the decision, which found denial of marital benefits
to same-sex couples violative of the Vermont constitution, the Vermont Legislature created the
institution of “civil union” for same-sex couples. Portions of the relevant state legislation also
appear in the Appendix.

A 2002 article reports that only 600 of the first 3,500 couples to enter a civil union in
Vermont were state residents. McDonough, A Hard Union to Break, EREPORT OF THE ABA JOURNAL,
(available on Lexis at 1 ABA Journal eReport 8) (quoting Vermont Secretary of State Deborah
Markowitz). Because of the fact that termination of a Vermont civil union requires a termination
proceeding (indeed a divorce) which requires residence of at least six months by one party (one year
if it is contested), non-resident couples may face serious difficulties, or at least inconveniences, in
terminating their civil unions. Because a divorce action in another state would likely require a
marriage to exist as a predicate, it would seem unlikely that another state would permit use of its
divorce mechanism to terminate a Vermont civil union. Indeed, state statutes refusing to recognize
same-sex marriages might be viewed as forbidding that use of the divorce statutes.

Late in 2001, the Vermont Supreme Court, in Brady v. Dean, 790 A.2d 428 (Vt. 2001),
rejected an action seeking to enjoin implementation of the civil union statute. A group of taxpayers
and legislators claimed that 14 members of the state House of Representatives should have been
disqualified from voting on the bill because they had entered a betting pool on the outcome of the
vote. A separate group of plaintiffs consisted of three town clerks who claimed that the law’s
requirement that they either issue civil union licenses or appoint an assistant to do so violated their
free exercise rights under the state constitution. The court stated that the claims raised by the
taxpayer/legislator plaintiffs were political questions and, thus, nonjusticiable. As for the town
clerks’ claims, the court wrote that these public officials did not have the right under the constitution
to “become a law unto themselves and hold the State’s neutral and generally applicable laws hostage
to their beliefs.”

4
 An Alaska law suit patterned after Baker was properly dismissed, according to the Alaska
Supreme Court. Brause v. State, 21 P.3d 357 (Alaska 2001). Basing claims on both the federal and
state constitutions, the couple challenged the refusal to issue them a marriage license, asserting that
their inability to get married resulted in a loss of at least 115 benefits under state law which are
reserved to married couples. They also challenged an Alaska statute which specifically bars the
extension of the “benefits of marriage” to same-sex couples. Over the dissent of one justice, the
Alaska Supreme Court held that the claim lacked ripeness.

The extraterritorial impact of a Vermont civil union came before the Georgia Court of
Appeals in Burns v. Burns, 560 S.E.2d 47 (Ga. App. 2002). In Burns, a Georgia divorce decree
(based on an agreement between the parties) provided that neither parent could exercise custody or
visitation during any time when either is cohabiting with or engaging in “overnight stays with any
adult to which such party is not legally married or to whom party is not related within the second
degree.” Immediately after enactment of the Vermont civil union statute, mother traveled there to
enter a civil union with her lover.

In an action for contempt of the custody decree filed by father, he claimed mother was in
violation by exercising visitation while living with her civil union partner, because she is neither
married nor related within the second degree to her lover. Mother’s response asserted compliance
under the theory that her civil union was the equivalent of legal marriage in Vermont. The Vermont
statute entitles her to all rights and benefits of married people, she must get a dissolution to enter into
any new relationship, etc. The appellate court, however, accepted the trial court conclusion
(buttressed by language in the civil union statute) that such a union is not a marriage.

Beyond that, Mother’s argument ran squarely into Georgia’s statutory non-recognition of
same-sex marriages in other states, which in turn was authorized by the federal Defense of Marriage
Act (both the federal act and representative state statutes are discussed in Note 4 on pp. 106 et seq.
in the casebook). The court held that even if the Vermont relationship is viewed as a marriage, the
Georgia statute prohibits it from recognition as such. While mother sought to anticipate this
argument by asserting the unconstitutionality of the state and federal statutes, based on her Zablocki
right to marry, the Court of Appeals could not address this claim because under Georgia law the
constitutionality of a statute can only be considered by the Georgia Supreme Court. In dicta, though,
the court opined that any privacy claim mother might make was waived by her agreement to the
original consent decree (which was entered before the existence of the Vermont civil union statute).

Although this argument was apparently not made at the appellate level, it would seem that
a legitimate position to have taken by mother would be to argue that the decree should be interpreted
to authorize visitation with a parent so long as that parent was participating in any legally sanctioned
relationship and that the civil union statute made this such a relationship.

The literature on same-sex marriage, the federal Defense of Marriage Act and the parallel
state statutes continues to blossom, especially after the Baker decision. For a representative
sampling of this literature please consult the Annual Review of Periodical Literature published by

5
the Family Law Quarterly. The citations for the most recent editions are 33 FAM . L.Q. 1051 (2000);
34 FAM . L.Q. 809 (2001); 35 FAM . L.Q. 775 (2002).

The casebook, at p. 102, alludes to developments in other countries. Same-sex marriages

were the subject of a Canadian provincial court ruling in the summer of 2002:

A provincial court has ruled that the Ontario government is obliged to recognize the right of
gays and lesbians to marry people of their own gender ....

The 3-to-0 ruling by the Superior Court on Friday came in response to a lawsuit filed by a
lesbian couple and a gay male couple to compel the provincial government to register their
marriage ceremonies as legally binding. A Toronto church performed a joint wedding
ceremony for the two couples in January 2001, but the Ontario government refused to
register the marriages.

The court, citing Canada's Charter of Rights and Freedoms, which prohibits discrimination,
also ruled that the federal Parliament had two years to enact legislation extending marriage
rights to same-sex couples. If the Parliament refuses, the definition of marriage will change
in the province alone.

.... An eventual Supreme Court hearing on the issue is considered likely.

....

... experts expect considerable legal wrangling before the Supreme Court decides.
Regulations about marriage are divided between the provincial and federal governments. The
provinces have the power to register marriage ceremonies, but the federal government
regulates marriage qualifications. A federal regulation states that marriage is between a man
and a woman.

....

A suit similar to the Ontario one was struck down in British Columbia, but the lower court
decision is being appealed. Another similar case is being considered in a Quebec provincial
court.

Last month, the Quebec Legislature unanimously granted same-sex couples the right to form
"civil unions"....

The new Quebec law also gives gay couples equal rights to adopt children, and include them
in wills, pensions and insurance plans. Under certain circumstances, a birth certificate in
Quebec can now include the names of two men or two women as equal parents.

6
 Ontario and Quebec have the two largest populations of the 10 provinces, and they usually
set the agenda for policies across Canada. Six provinces already grant some parental rights
to same-sex couples.... Krauss, Court Rules That Ontario Must Recognize Same-Sex
Marraige, N.Y. TIMES, July 14, 2002, at p. 9.

Page 104, Note 7. Marriage Involving a Transsexual. In a dispute over the estate of a
wealthy former state legislator, the Kansas Supreme Court reinstated a trial court grant of summary
judgment which declared that the alleged marriage between the decedent and the alleged widow was
void because she was a post-operative male to female transsexual. In re Estate of Gardiner, 42 P.3d
120 (Kan. 2002). The decedent, at the time of the attempted marriage, was aware that his partner
had been born a male and had undergone reassignment surgery for four years. The issue arose in a
challenge to the widow’s administration of the estate filed by the decedent’s adult son from a prior
marriage. The Kansas Supreme Court held that “J’Noel [the widow] does not fit the common
meaning of female” and, thus, the marriage to the decedent violated the state statute requiring “two
parties who are of the opposite sex.”

Page 108, Note 1. Age Regulations. A conflict between a fairly standard age regulation and
a divorced father’s interest in continuing his parental relationship was presented in Kirkpatrick v.
Crow, 43 P.3d 998 (Nev. 2002). Under Nevada law, parental consent is required for the marriage
of a child under the age of 16. As is true under the statutes of many states (the Kirkpatrick dissent
identified 25 state which authorize one-parent permission at least under some circumstances),
however, permission of one parent is sufficient. A court decree finding “extraordinary
circumstances” must also be entered in order to authorize such a marriage.

In Kirkpatrick, in a California divorce father and mother were granted joint custody of their
daughter. Mother and child moved to New Mexico where the 15-year old child fell in love with her
48-year old piano teacher. Because New Mexico law would not permit such a marriage, the parties
went to Las Vegas, where mother gave her permission and, without a hearing, the district judge
entered the statutorily-required order. After the wedding was performed, the bride’s father, upon
learning of the marriage, petitioned the Nevada trial court to annul the marriage and vacate its
authorization of the marriage. He appealed the denial of his motion to the Nevada Supreme Court.

Noting that father had not been notified of the proceeding which could result in his
daughter’s marriage which would “place [daughter] beyond his parental control and releases him,
without opportunity to be heard, from his obligations as her father,” the appellate court held that, as
applied to an active father who had consistently demonstrated parental commitment, this statute was
unconstitutional. Acknowledging that the statute tries to strike an appropriate balance between the
rights of the parties and the “status of families today,” the court accepted father’s procedural due
process claim after applying Matthews v. Eldridge, 424 U.S. 319 (1976). It went on to interpret the
statute to require a hearing on whether extraordinary circumstances justified the marriage and the
minor’s best interests. Additionally, before the marriage can be authorized, the trial court must make
written findings on whether the circumstances justified the marriage. The trial court was ordered
to annul the marriage.

7
 Page 114, Note 1. Consanguinity Prohibition. Contrary to widely held beliefs and
longstanding taboos in America, first cousins can have children together without a great risk of birth
defects or genetic disease, scientists are reporting today. They say there is no biological reason to
discourage cousins from marrying.

First cousins are somewhat more likely than unrelated parents to have a child with a serious
birth defect, mental retardation or genetic disease, but their increased risk is nowhere near
as large as most people think, the scientists said.

In the general population, the risk that a child will be born with a serious problem like spina
bifida or cystic fibrosis is 3 percent to 4 percent; to that background risk, first cousins must
add another 1.7 to 2.8 percentage points, the report said.

Although the increase represents a near doubling of the risk, the result is still not considered
large enough to discourage cousins from having children, said Dr. Arno Motulsky, a
professor emeritus of medicine and genome sciences at the University of Washington, and
the senior author of the report.

`In terms of general risks in life it's not very high,’ Dr. Motulsky said. Even at its worst, 7
percent, he said, `93 percent of the time, nothing is going to happen.’

...

He and his colleagues said no one questioned the right of people with genetic disorders to
have children, even though some have far higher levels of risk than first cousins. For
example, people with Huntington's disease, a severe neurological disorder that comes on in
adulthood, have a 50 percent chance of passing the disease to their children.

The researchers, a panel convened by the National Society of Genetic Counselors, based their
conclusions on a review of six major studies conducted from 1965 to August 2000, involving
many thousands of births.

...

Twenty-four states have laws forbidding first cousins from marrying, and seven states have
limits like requiring genetic counseling. But no countries in Europe have such prohibitions,
and in parts of the Middle East, Africa and Asia, marriages between cousins are considered
preferable.
....
Dr. Motulsky said researchers did not know why marriage between cousins was viewed with

8
 such distaste in the United States. He said some of the revulsion might have stemmed from
the eugenics movement, which intended to improve the human race by deciding who should
be allowed to breed. The movement flourished in this country early in the 20th century.

It is not known how many cousins marry or live together. Estimates of marriages between
related people, which include first cousins and more distant ones, range from less than 0.1
percent of the general population to 1.5 percent. In the past, small studies have found much
higher rates in some areas. A survey in 1942 found 18.7 percent in a small town in Kentucky
and a 1980 study found 33 percent in a Mennonite community in Kansas.

The report made a point of saying that the term "incest" should not be applied to cousins but
only to sexual relations between siblings or between parents and children. Babies who result
from those unions are thought to be at significantly higher risk of genetic problems, the
report said, but there is not enough data to be sure.
....

The small increase in risk is thought to occur because related people may be carrying some
of the same disease-causing genes, inherited from common ancestors. The problems arise
from recessive genes, which have no effect on people who carry single copies, but can cause
disease in a person who inherits two copies of the gene, one from each parent. When two
carriers of a recessive gene have a child, the child has a one-in-four chance of inheriting two
copies of that gene. When that happens, disease can result. Cystic fibrosis and the fatal Tay-
Sachs disease, for example, are caused by recessive genes. Unrelated people share fewer
genes and so their risk of illness caused by recessive genes is a bit lower.

Keith T., 30, said he married his cousin seven years ago and in 1998, frustrated by the lack
of information for cousins who wanted to marry, he started a Web site, cousincouples.com.
It is full of postings from people who say they have married their cousins or want to do so.

The site highlights famous people who married their first cousins, including Charles Darwin,
who, with Emma Wedgwood, had 10 children, all healthy, some brilliant. Mr. T. asked that
his full name not be used because he said he did business in a small town and feared that he
would lose customers if they found out his wife was also his cousin.
....

Grady, Few Risks Seen to the Children of First Cousins, N.Y. TIMES, Apr. 4, 2002, Section A, p. 1,
col. 3.

A recent article attacks the legitimacy of incest regulations prohibiting marriage to those
related by affinity. Metteer, Some “Incest” is Harmless Incest: Determining the Fundamental Right
to Marry of Adults Related by Affinity Without Resorting to State Incest Statutes, 10 KAN . J.L. &

9
PUB. POL’Y 262 (2000)

Page 116, Note 1. One Spouse at a Time. In Atwell v. Atwell, 730 So.2d 858 (Fla. App.
1999), the court reversed the trial court’s annulment of the couple’s 16-year marriage. The trial court
had based its order on the fact that at the time of the marriage, the previously-married wife had not
yet moved to finalize her California divorce. At the time of the wedding, the parties believed the
divorce to have been finalized and, upon learning of their mistake soon after their wedding, wife
successfully obtained a nunc pro tunc California divorce dissolving the prior marriage on the date
the interlocutory divorce had been entered. The appellate court here found that the trial court was
required to give full faith and credit to the California nunc pro tun divorce even though such a decree
could not have been entered under Florida law. Thus, the annulment of the current marriage was
inappropriate and the marriage was valid.

In Ellis v. Estate of Toutant, 633 N.W.2d 692 (Wis. App. 2001), the appellate court affirmed
the trial court’s rejection of a marriage contracted in violation of a statutory provision requiring 6
months between a divorce and a remarriage. In this case, two Wisconsin residents married in Texas
30 days after the man had divorced his first wife in Scotland. Noting that the Wisconsin statute
provided that it is unlawful for a person who has been divorced in Wisconsin “or elsewhere” to
marry within 6 months, the appellate court held that the trial court had not “annulled” the marriage
after the death of the wife, but instead was declaring it null and void. According to the court, while
an annulment after the death of a party is inappropriate, a declaration of voidness is permitted. The
court rejected the man’s argument that Wisconsin was required to recognize the marriage under the
rule that a marriage valid where performed is valid everywhere (see casebook, p. 104). The court
pointed out that state statutory law specifically made an exception to this general rule where parties
left the state to avoid the application of the waiting period.

The casebook (Note 3, pp. 116-17) quotes Owen Allred, the head of the Apostolic United
Brethren, a Utah sect which practices polygamy, as estimating that 20,000 Utah residents were
members of plural marriages. A more recent profile of Allred quotes unidentified state officials who
estimate that 50,000 Utahans were members of polygamist families. LeDuff, A Holdout Polygamist,
88, Defies the Mormons, N.Y. TIMES, Feb. 23, 2002. For recent literature arguing that polygamy is
constitutionally protected under the First Amendment, see Sealing, Polygamists Out of the Closet:
Statutory and State Constitutional Prohibitions Against Polygamy are Unconstitutional Under the
Free Exercise Clause, 17 GA . ST . U. L. REV . 691 (2001); Note, The Absolution of Reynolds: The
Constitutionality of Religious Polygamy, 8 WM . & MARY BILL RTS. J. 497 (2000).

10
 Page 125, Note 1. Breach of Promise Action. The casebook mentions the Tennessee statute
requiring either written evidence of the contract to marry or testimony by two disinterested
witnesses. In Rivkin v. Postal, 2001 Tenn. App. LEXIS 682 (Tenn. App.), the court reversed a
$150,000 trial court award for breach of promise. As for the claim that a quitclaim deed to the
expensive home where the parties were living together sufficed as evidence of promise to marry, the
court noted that there was nothing about marriage mentioned in the deed and plaintiff conceded that
she had never been told a reason for the conveyance of the deed by defendant. As for disinterested
witnesses, the court noted that the only two witnesses in this case were plaintiff’s parents. After
expressing doubt that a party’s parents could ever be disinterested, the court noted that plaintiff had
testified that she intended to pay debts to her parents from the expected recovery in the breach of
promise action.

A federal district court, in a diversity action, dismissed a law suit filed by the parents of a
young woman against the latter’s former fiancé. In Yang v. Lee, 163 F. Supp. 2d 554 (D. Md. 2001),
the parents sought damages from the defendant who broke the engagement. They asserted
defendant’s intentional misrepresentations concerning his sexual preferences and his sexual history,
along with his breach of an agreement to pay a lump sum of $500,000 as security in the event he
violated his marital obligations to their daughter. The court found that Maryland’s 1945 anti-
heartbalm statute would preclude a suit by the daughter and, a fortiori, operated to bar the parents’
suit. The court went on to note that their consent to the marriage upon their discovery of defendant’s
homosexuality would estop them from asserting a misrepresentation claim even if breach of promise
lawsuits had not been abolished.

Another attempt to avoid the hurdle of an anti-heartbalm statute failed in M.N. v. D.S., 616
N.W.2d 284 (Minn. App. 2000). In this case, plaintiff asserted four different tort claims against
defendant: emotional distress, battery, fraud and misrepresentation. The court concluded, however,
that each tort theory was premised on a claim that defendant (who was then married as well as
plaintiff’s boyfriend) promised her that in exchange for his giving her $75,000 and her obtaining an
abortion, he would divorce his wife, marry her and have children with her. The appellate court
affirmed summary judgment for defendant, holding “if no cause of action can exist in tort for a
fraudulent promise to marry, then logically no cause of action can exist for a fraudulent promise by
a married man to leave his wife and impregnate a woman who is not his wife.”

Page 127, Note 3. The Engagement Ring and Other Conditional Gifts. In Busse v.
Lambert, 773 So.2d 182 (La. App. 2000), the issue was whether a ring given by plaintiff to defendant
was a birthday present (and thus irrevocable) or an engagement ring (and thus conditional on
marriage). Rejecting the trial court’s dismissal of the action, the appellate court held that “this four-
time-married defendant was not a neophyte in the protocols of engagements and weddings” and
noted that, after accepting a telephone proposal of marriage, defendant began a search for rings
which resulted in the purchase by plaintiff of the ring in question. It also pointed out that soon after
the transfer of the ring the wedding date was finalized.

While the engagement ring in Meyer v. Mitnick, 625 N.W.2d 136 (Mich. App. 2001) was

11
custom-designed and worth almost $20,000, the appellate court indicated that, regardless of the value
of the ring, the no-fault trend of case law ought to be adopted and donor is entitled to return of the
ring or its value without regard to the presence or absence of fault by either party. This approach,
held the court, is consistent with the no-fault divorce era. The court concluded that “the policy
statements that govern our approach to broken marriages are equally relevant to broken
engagements.” See Blecher, Broken Engagements: Who is Entitled to the Engagement Ring?, 34
FAM . L.Q. 579 (2000).

In Jury v. Ridenour, 1999 Ohio App. LEXIS 3145 (5th Dist.), the court made clear that anti-
heart balm legislation did not preclude suit for unjust enrichment where plaintiff made gifts to
defendant conditional on their marriage, which never took place. The court held that the promise
to marry is revocable at will, but that gifts given in reliance on such a promise should be returned.
Failure to do so constitutes unjust enrichment.

Page 138, Note 1. Necessaries Doctrine. Some states have codified the necessaries doctrine
in what are generally known as Family Expense Statutes. In North Shore Community Bank and Trust
Co. v. Kollar, 710 N.E.2d 106 (Ill. App. 1999), the court affirmed the dismissal of an action under
the statute by the plaintiff bank which was seeking payment of a promissory note signed by
defendant’s now-deceased husband. Even where money has been alleged to have been borrowed for
family expenditures, the court held, there is no coverage by the statute. The court noted that the
Illinois statute was borrowed from Iowa and cited three 19th century Iowa cases specifically rejected
coverage of loans by such a statute. “To hold otherwise,” wrote the court, “would open up every loan
to minute dissection, tracing every dollar to its ultimate use. Such dissective analysis of a promissory
note for cash only does not accord with the prior use or intention of the Act.”

While reversing a trial court order that a widow repay the funeral expenses of her husband
which were paid by the decedent’s son (her stepson), the Tennessee Court of Appeals, in Francis v.
Francis, 2001 Tenn. App. LEXIS 434 (Tenn. App.), held that such an expense would be covered
under the necessaries doctrine if it were proven. In this case, however, plaintiff stepson did not
allege or prove who arranged the funeral, the terms of the arrangements, why he paid for the
funeral, whether he expected reimbursement or the status of decedent’s marriage to defendant at time
of death. The court noted that if decedent and defendant were separated at his death, there could be
no recovery unless the separation was wife’s fault.

Pages 141-49. Spousal Control Over Earnings and Property. Two recent cases explored
the nature of the spousal interest in property during marriage vis a vis third party creditors. In State
ex rel. Industrial Comm. v. Wright, 43 P.3d 203 (Ariz. App. 2002), the marital partners, in a
prenuptial agreement, opted out of the ordinary community property rules to designate the earnings
of each to be separate property. After a judgment against husband in a workers’ compensation case,
the couple modified their agreement to designate individual earnings to be community property.
Husband then objected to a garnishment on his wages to satisfy the judgment. His assertion was that
marital property, as his earnings now were, cannot be reached by a separate creditor. The appellate
court agreed with this proposition, but affirmed the trial court’s finding that the modification of the

12
prenuptial agreement under these circumstances constituted a fraudulent conveyance.

The Supreme Court of the United States, in United States v. Craft, 122 S. Ct. 1414 (2002),
faced as parallel question in a common law property jurisdiction. The issue was the amenability of
husband’s interest in a tenancy by the entireties to attachment of a federal tax lien. In a majority
decision by Justice O’Connor, the Court held that “[w]hether the interests of [husband] in the
property he held as a tenant by the entirety constitutes ‘property and rights to property’ for the
purposes of the federal tax lien statute is ultimately a question of federal law.” Noting that Michigan
law grants such a tenant “some of the most essential property rights” including the rights to use it,
receive income from it, exclude others from it, the Court held such an interest in real property was
attachable by the tax lien. Acknowledging husband’s lack of ability to unilaterally alienate his
interest in the property, the Court noted that if this were to exclude his interest from the definition
of property, it would “exempt a rather large amount of what is commonly thought of as property,”
including much community property which requires consent of both parties for conveyance. The
Court further buttressed its decision by relying on the legislative history of the federal tax lien statute
as well as the argument that:

if the conclusion were otherwise, the entireties property would belong to no one for the
purposes of the [federal tax lien statute]. [Wife] had no more interest in the property than her
husband; if neither of them had a property interest in the entireties property, who did?

Pages 149-56. Varying the Marriage “Contract”. For a recent article discussing the
possibilities of such contracting, see Silbaugh, Marriage Contracts and the Family Economy, 93 NW .
U. L. REV . 65 (1998) (asserting courts ought to give same treatment to nonmonetary and monetary
aspects of marriage).

Page 156. Names, Natale. Defining common law name change to mean “the adoption and
use of a name different from the one by which a person was formerly known, without resort to
judicial process or other intervention by the state,” a California Attorney General Opinion in 2000
affirmed that such a name change is valid in that state. 83 OP . ATTY . GEN . CAL. 136 (2000). Pointing
out that use of the statutory judicial procedure for name change has the advantage of “placement of
the new name on the public record,” the Opinion concluded that the validity of a common law name
change is not negatived by the “refusal of others to accept it.”

The common law method of obtaining a new name was relied upon by the appellate court
in Smithers v. Smithers, 804 So. 2d 489 (Fla. App. 2001) to affirm the trial court rejection of a
man’s attempt to force a woman to stop using his surname after their marriage had been annulled.
While the annulment was based on the fact that the woman’s prior marriage had not been annulled,
the court noted the trial court finding of no fraudulent intent on her part. The court noted that the
woman had adopted the man’s surname during the later-annulled marriage and the man had no
standing to seek a name change for another person.

13
 Page 161, Note 6. Name Change in Cohabitational Relationship. Recent litigation has
raised the question of name changes in same-sex non-marital relationships. In In re Application of
Bacharach, 780 A.2d 579 (N.J. Super. App. Div. 2001), the appellate court reversed the trial court
rejection of a petition to hyphenate petitioner’s surname to include that of her lesbian partner. While
the trial court had announced that approval of such a name change might give judicial “imprimatur”
to “this type of arrangement,” the appellate court concluded that name changes should not be denied
on the basis of a judge’s personal view of appropriate public policy. Acknowledging that same-sex
marriages are not legally recognized in the state, the appellate court noted that the couple could
“exchange rings, proclaim devotion in a public or private ceremony, call their relationship a
marriage, use the same surname, adopt and rear children” without being “offensive to the laws or
stated policies of this state.”

On similar facts, an Ohio case rejected the joint petition of two cohabiting women to change
their different surnames to a new name which combined letters from each of their names. In re
Bicknell, 2001 Ohio App LEXIS 650. The trial court denied the petition, concluding that it was not
“reasonable and proper” using the statutory language defining judicial discretion in this type of case.
The trial court found that granting the petition would give an “aura of propriety and official sanction”
to the women’s relationship. The appellate court held that public policy was an appropriate
consideration in such cases and the judicial determination should not be limited to an inquiry into
possible fraud. Though the petitioners had invoked the interests of a future child or children they
might choose to raise together, the court dismissed such a factor as speculative. A state interest in
favor of solemnized marriages was cited in support of a policy against cohabiting couples (whether
homosexual or heterosexual) using the same last name. There was a dissent.

A later case in the same court involved a name change not related to a marital or
cohabitational relationship. In In re Maloney, 2001 Ohio App. LEXIS 3550, a transsexual petitioner
was refused permission to change his name from Richard to Susan. In affirming trial court rejection
of the petition, the appellate court noted broad discretion in such a case was vested in the court.
While petitioner alleged the name change was necessitated by future gender reassignment surgery,
none had been scheduled and trial court was fearful that petitioner had not considered the
consequences of his proposed action. The court held that fraudulent intent was not the sole rationale
which could support rejection of a name change petition and that public policy is a relevant
consideration. A claim of gender-based Equal Protection violation was also rejected. The dissenting
judge (who also dissented in Bicknell) concluded his opinion as follows:

...appellant testified that he lives his life as a transsexual male and seeks a name change to
continue living this lifestyle. Although transsexuals may not be understood or even socially
accepted by the general public, there is nothing illegal about the transsexual lifestyle nor does
this lifestyle contravene any public policy of the state of Ohio. It was not the trial court's
place to use legal language as a mask of its moral view of appellant's transsexual lifestyle in
denying this name change request.

Now that the petition has been rejected, could petitioner use the self-help method discussed

14
in the casebook to adopt a new name?

Page 165, Note 1. Estimates of Family Violence. For a recent article focusing on domestic
violence in China, see Zhao, Domestic Violence in China: In Search of Legal and Social Responses,
18 UCLA PAC. BASIN L.J. 211 (2001).

Page 167, Note 3. Criminally Prosecuting Family Violence. Despite the title of this Note,
its text also deals with federal civil rights litigation filed by plaintiffs alleging inadequate
governmental response to domestic abuse. While the DeShaney case in the Supreme Court
(casebook, p. 168) appears to foreclose a Due Process claim, a recent Ninth Circuit confirms the
viability of Equal Protection claims, as suggested in law review literature cited in the casebook. In
Fajardo v. Los Angeles County, 179 F.3d 698 (9th Cir. 1999), the court again dealt with the Navarro
litigation cited in the casebook. Again reversing the district court’s dismissal of the plaintiff’s
Equal Protection claim against the County for giving low priority to domestic violence 911 calls, the
Ninth Circuit instructed the court on remand to determine: 1) if there was a policy giving domestic
violence calls a lower priority than other calls and, if so, 2)whether such a distinction was a rational
one sufficient to satisfy Supreme Court Equal Protection analysis. The court noted that nothing in
the pleadings indicated that domestic violence victims are less likely to suffer severe injury or death
than the victims of other 911 emergency crimes.

Page 168, Note 4. Requiring Criminal Arrest and Prosecution. A recent article discusses
the trend toward mandatory arrest statutes and the reluctance of law enforcement officials to
intervene in domestic violence. Fedders, Lobbying for Mandatory-Arrest Policies: Race, Class and
the Politics of the Battered Women’s Movement, 23 N.Y.U. REV . L. & SOC. CHANGE 281 (1997). See
also Mills, Killing Her Softly: Intimate Abuse and the Violence of State Intervention, 113 HARV . L.
REV . 550 (1999); Robbins, No-Drop Prosecution of Domestic Violence: Just Good Policy, or Equal
Protection Mandate?, 52 STAN . L. REV . 205 (1999); Egan, The Police Response to Spouse Abuse:
A Selective, Annotated Bibliography, 91 L. LIB. J. 499 (1999); Saccuzzo, How Should the Police
Respond to Domestic Violence: A Therapeutic Jurisprudence Analysis of Mandatory Arrest, 39
SANTA CLARA L. REV . 765 (1999); Coker, Crime Control and Feminist Law Reform in Domestic
Violence Law: A Critical Review, 4 BUFF . CRIM . L. REV . 801 (2000); Niemi-Kiesilainen, The
Deterrent Effect of Arrest in Domestic Violence: Differentiating Between Victim and Perpetrator
Response, 12 HASTINGS WOMEN ’S L.J. 283 (2001).

Page 171, Note 6. Non-Criminal Response to Spousal Abuse. The scope of coverage of
civil protective statutes has produced a number of recent cases. In Bartsch v. Bartsch, 636 N.W.2d
3 (Iowa 2001), the Iowa Supreme Court rejected the assertion by an out of state defendant that the
trial court had no jurisdiction to enter a protective order against him. He was a resident of Colorado
and his former wife, after the couple’s Utah divorce, had returned to Iowa with their child. While
conceding that there were insufficient minimum contacts to support personal jurisdiction over
defendant, the court affirmed a finding that such jurisdiction was unnecessary in this situation. The
court analogized this to the adjudication of the termination of the marriage and to litigation

15
concerning custody. Noting that both of those kinds of cases can be adjudicated without personal
jurisdiction over defendant, the court majority concluded that the state had at least as great an interest
in litigating this case in order to protect the actual or potential domestic abuse victim. The dissenters
argued that this was not an adjudication of status, but instead was a grant of injunctive relief against
a party outside the court’s jurisdiction.

In Turner v. Lewis, 749 N.E.2d 122 (Mass. 2001), the court had to determine whether the
petitioner and respondent in a protective order case were related by “blood or marriage” as required
by the statute. In this case, petitioner was the paternal grandmother of a non-marital child who had
custody of that child. The respondent was the child’s mother, who allegedly threatened the petitioner
during a visit to the child. In interpreting the statute, the court acknowledged that parental hostility
is likely to accompany grandparental custody and, thus, it is “imperative” that grandparents be
protected in such situations. The court concluded that because the grandmother was related by blood
to the child and the child was related by blood to the mother that the grandmother and mother were
“related by blood” for purposes of the statute. The dissenters argued that this was a misreading of
the statute. Unmarried parents are covered under the statute because of their status as parents, not
because of blood connection “through” the child. If they are not related by blood, argued the
dissenters, neither is related by blood to the other’s parent.

The status of college dormitory suitemates as members of the same “household” was before
the court in Hamilton v. Ali, 795 A.2d 929 (N.J. Ch. Div. 2002). Because the state statute does not
define “household member,” the term has been left to judicial interpretation. Applying criteria
announced in Desiato v. Abbott, 617 A.2d 678 (N.J. Ch. Div. 1992), the court decided that the living
arrangement was a “family-like setting” where all suitemates had keys to the suite, had daily contact
and interaction, a common area and a common bathroom. The same court, in Storch v. Sauerhoff,
757 A.2d 836 (N.J. Ch. Div. 2000), held that petitioner had standing to seek a protective order
against her stepmother even though the two had not lived under the same roof for 19 years. The
court noted that the petitioner had been living for 11 years in a separate residence on the same street
and that defendant had been a member of petitioner’s family for 30 years. The court found that the
two litigants were a blend of “present household members” and “former household members.”

The casebook mentions same-sex domestic violence and the increasing number of states
which deal with it in their civil statutes. For recent scholarship on this topic, see Knauer, Same-Sex
Domestic Violence: Claiming a Domestic Sphere While Risking Negative Stereotypes, 8 TEMP. POL.
& CIV . RTS. L. REV . 325 (1999); Comment, Trouble in Paradise: Barriers to Addressing Domestic
Violence in Lesbian Relationships, 9 LAW & SEX . 311 (1999-2000).

An extralegal response to domestic violence is suggested in Jefferson, The NFL and

Domestic Violence: The Commissioner’s Power to Punish Domestic Abusers, 7 SETON HALL J.
SPORT L. 353 (1997). For other recent scholarship on domestic violence, see Robertson, Addressing
Domestic Violence in the Workplace: An Employer’s Responsibility, 16 LAW & INEQ . 633 (1998);
Comment, Employer Liability for Domestic Violence in the Workplace: Are Employers Walking a
Tightrope Without a Safety Net?, 31 TEX . TECH . L. REV . 139 (2000); Hopkins, Rank Matters But

16
Should Marriage?: Adultery, Fraternization, and Honor in the Military, 9 UCLA WOMEN ’S L.J. 177
(1999) (linking military proscription of adultery and domestic abuse in the armed services); Erskine,
If It Quacks Like a Duck: Recharacterizing Domestic Violence as Criminal Coercion, 65 BROOK.
L. REV . 1207 (1999); Jones, Guardianship for Coercively Controlled Battered Women: Breaking the
Control of the Abuser, 88 GEO . L.J. 605 (2000); McFarlane, Mandatory Reporting of Domestic
Violence: An Inappropriate Response for New York Health Care Professionals, 17 BUFFALO PUB.
INT . L.J. 1 (1998/99)

Page 173, Note 7. Federal Response to Domestic Violence. The most significant litigation
involving the Violence Against Women Act occurred in the Supreme Court case of United States
v. Morrison, 529 U.S. 598 (2000). Morrison was the name under which the Brzonkala case
mentioned in the casebook was litigated in the Supreme Court. In a 5-4 decision, the Court held that
Congress exceed its Constitutional power in creating the private cause of action granted by VAWA
to victims of gender-motivated crimes of violence against the perpetrators of such violence. In
affirming the en banc decision of the Fourth Circuit (which had reversed the panel opinion cited in
the casebook), the Supreme Court majority rejected assertions of Congressional power based on the
Commerce Clause and on Section 5 of the Fourteenth Amendment. Applying its Lopez decision
mentioned in the casebook, the Court found that “[g]ender-motivated crimes of violence are not, in
any sense of the phrase, economic activity.” It also pointed out that there was no “jurisdictional
element” tying the cause of action to interstate commerce. It also found insufficient the
Congressional findings of an impact on interstate commerce by domestic violence. Section 5 of the
Fourteenth Amendment was rejected by the Court majority as a source of Congressional authority
for the private cause of action for lack of state action. Two dissenting opinions were filed.

Despite the fate of VAWA’s private cause of action in Morrison, the Sixth Circuit has upheld
the constitutionality of the Act’s interstate stalking provision which criminalizes the behavior of
those who “travel in interstate . . . commerce . . . with the intent to kill, injure, harass, or intimidate
another person and in the course of, or as a result of, such travel places that person in reasonable fear
of the death of, or serious bodily injury to, that person, [or] a member of the immediate family . . .
of that person . . .” 18 U.S.C. § 2261A. In United States v. Al-Zubaidy, 283 F.3d 804 (6th Cir.
2002). The court noted that this provision satisfied Supreme Court Commerce Clause jurisprudence
in that Congress was here regulating the “channels of interstate commerce” themselves rather than
relying upon the impact of intrastate activities on interstate commerce.

Related criminal provisions in VAWA were at issue in other Courts of Appeals. In United
States v. Gluzman, 154 F.3d 49 (2d Cir. 1998), the court rejected a Commerce Clause attack on 18
U.S.C. §2261(a)(1) which punishes those who travel in interstate commerce “with the intent to kill,
injure, harass, or intimidate a spouse or intimate partner, and who, in the course of or as a result of
such travel, commits or attempts to commit a crime of violence against that spouse or intimate
partner....” While this decision predated the Supreme Court decision Morrison, it would appear to
survive it because the Second Circuit explicitly relied on Congressional power to regulate the
channels of interstate commerce directly. The same court had previously upheld against
constitutional attack the VAWA provision criminalizing the crossing of state lines with the intent

17
to violate a protective order. See United States v. Von Foelkel, 136 F.3d 339 (2d Cir. 1998)
(upholding constitutionality of §2262(a)(1) ). See also Note, The Lautenberg Amendment: An
Essential Tool for Combating Domestic Violence, 75 N.D. L. REV . 365 (1999) (discussing federal
legislation punishing gun possession by anybody convicted of domestic violence); Comment, The
Lautenberg Amendment: Congress Hit the Mark by Banning Firearms from Domestic Violence
Offenders, 30 ST . MARY ’S L.J. 801 (1999); Note, At the Intersection of Domestic Violence and Guns:
The Public Interest Exception and the Lautenberg Amendment, 85 CORNELL L. REV . 822 (2000).

In United States v. Helem, 186 F.3d 449 (4th Cir. 1999), the court had to interpret §2261(a)(2)
which criminalizes the behavior of a defendant who “causes a spouse or intimate partner to travel
in interstate or foreign commerce ... by force, coercion, duress, or fraud, and who, in the course of,
as a result of, or to facilitate such conduct or travel, commits or attempts to commit a crime of
violence against that spouse or intimate partner....” The court rejected an assertion by appellant that
conviction under this provision requires that the domestic violence occur during or after the interstate
travel and, thus, his conviction was improper in a case where it was alleged that the domestic
violence preceded the interstate travel. The court pointed out that the beating administered in
Maryland, before transportation to North Carolina, enabled the defendant to force the victim across
state lines and rendered her unable to resist him physically or verbally. “In addition, the evidence
showed clearly that [defendant] removed her...because he did not want anyone to see her in that
condition, knowing the possible consequences for himself and knowing that interstate travel would
make it more difficult for law enforcement to hold him liable for this crime. This situation is
precisely the type of situation that the Violence Against Women Act was intended to cover.” See
also United States v. Page, 167 F.3d 325 (6th Cir. 1999) (en banc decision dividing evenly on this
issue).

The Second Amendment became an issue in United States v. Emerson, 270 F.3d 203 (5th Cir.
2001), which was a prosecution for possession of a handgun by a defendant who was subject
to a temporary restraining order. He was prosecuted under 18 U.S.C. §922(g)(8) which
covers possession of gun by one who is subject to a protective order against domestic abuse.
In addition to rejecting a statutory argument that the statute required a finding in the prior
proceeding that defendant posed a credible threat to the physical safety of the protected
individual(s), the court rejected an argument that the Second Amendment right to bear arms
was violated by application of the statute to this defendant.

Page 175, Note 9. Marital Rape Exemption. For recent scholarship on the marital rape
exemption, see Comment, The Resurgence of the Marital Rape Exemption: The Victimization of
Teens by Their Statutory Rapists, 61 ALB. L. REV . 237 (1997); see also Note, Lawful Wife, Unlawful
Sex–Examining the Effect of the Criminalization of Marital Rape in England and the Republic of
Ireland, 27 GA . J. INT ’L & COMP. L. 139 (1998); Hasday, Contest and Consent: A Legal History of
Marital Rape, 88 CALIF . L. REV . 1373 (2000).

Page 181. Privileged Refusal to Testify Against a Spouse. As the casebook relates in its
discussion of Trammel, some states vest in a married witness a privilege not to testify against his or

18
her spouse. California is one of those states and the scope of the privilege was tested in Jurcoane
v. Superior Ct., 93 Cal. App. 4th 886 (Cal. App. 2001). In this case, husband was being prosecuted
for a 17-year old pair of killings and his wife refused to testify against him. The state argued,
however, that the privilege was unavailable because the couple had not had any contact since 1984,
shortly after the killings. The appellate court, in reversing an order for her to testify, held that it had
no power to engraft any exceptions onto the statutory language which was neither vague nor
equivocal. The statute, the court pointed out, has other exceptions which were not at issue in this
case.

Pages 183-85. Torts. The disfavor with which modern courts view interspousal immunity
was underscored by the South Carolina Supreme Court in Boone v. Boone, 546 S.E.2d 191 (S.C.
2001). Plaintiff wife sued her husband for injuries she suffered in a car accident as a passenger while
he was driving. The accident occurred in Georgia, which continues to recognize interspousal
immunity. The South Carolina court, while recognizing that conflict of laws principles ordinarily
would apply the Georgia rule, refused to do so, utilizing the public policy exception to traditional
choice of law doctrine. It described the immunity rule as contrary to “natural justice” and concluded
that the rationales offered for immunity are “simply not justified in the twenty-first century.”

Courts continue to enforce the abolition of such torts as alienation of affections and criminal
conversation by rejecting claims of intentional infliction of emotional distress as disguised attempts
to revive the traditional marital torts. In Quinn v. Walsh, 732 N.E.2d 330 (Mass. App. 2000), the
court affirmed the dismissal of a suit by a man and his son against the wife/mother’s alleged lover.
It rejected assertions that the intentional infliction of the injury and the emotional harm suffered by
plaintiffs differentiated this action from the traditional alienation of affection and criminal
conversation actions.

By contrast, the Ohio Court of Appeals, in Bailey v. Searles-Bailey, 746 N.E.2d 1159 (Ohio
App. 2000), held that an intentional infliction of emotional distress action brought by a husband
whose wife and lover concealed the parentage of her child born during marriage could survive a
claim that it was merely a disguised alienation of affections/criminal conversation action. The court
held that this suit was based on the emotional trauma incurred by plaintiff’s discovery that the child
born during his marriage to his wife was not his. The court went on to reverse a judgment for the
plaintiff, however, concluding that the required level of outrageousness had not been proven. See
also Rosenthal v. Erven, 17 P.3d 558 (Ore. App. 2001)(affair with wife not “so far beyond the
bounds of social toleration that it should be actionable...”).

Emotional distress claims continue to be brought against clergy for sexual relationships with
plaintiff’s spouse. In Osborne v. Payne, 31 S.W.3d 911 (Ky. 2000), the court reversed the trial
court’s summary judgment against plaintiff husband who alleged defendant priest had engaged in
an adulterous relationship with plaintiff’s wife during a counseling relationship. The court held that
abolition of the amatory torts did not eliminate recovery in this situation and that the allegations, if
proven, would constitute outrageous conduct sufficient for recovery under intentional infliction of
emotional distress. See also Jacqueline R. v. Household of Faith Family Church, 97 Cal. App. 4th

19
198 (Cal. App. 2002) (church pastor in such a case should not be held to the same standard of care
as licensed marriage counselor); Odenthal v. Minnesota Conference of Seventh -Day Adventists, 632
N.W.2d 783 (Minn. App. 2001)( First Amendment bars negligent counseling claim based on
relationship between pastor and plaintiff’s wife which began during counseling). The Osborne court,
however, did affirm the dismissal of the church as a defendant under vicarious liability, concluding
that while the priest’s work as a counselor was well within his job, his employment responsibilities
do not included the commission of adultery. See also Mercier v. Daniels, 533 S.E.2d 877 (N.C. App.
2000)(rejecting vicarious liability of defendant’s employer for alienation of affections); Thornburg
v. Federal Express Corporation, 62 S.W.3d 421 (Mo. App. 2001) (same).

As the casebook reports, there remain some holdouts in the trend toward abolition of the
marital torts. In Bland v. Hill, 735 So. 2d 414 (Miss. 1999), the Mississippi Supreme Court, in
refusing to abolish the alienation of affections tort, wrote:

...the marital relationship is an important element in the foundation of our society. To abolish
the tort ... would, in essence, send the message that we are devaluing the marriage
relationship. We decline the invitation....

For other recent alienation of affections litigation, see Hutelmyer v. Cox, 514 S.E.2d 554 (N.C. App.
1999)(upholding $1 million jury verdict); Heiner v. Simpson, 23 P.3d 1041 (Utah 2001)(permitting
joining claims for intentional infliction of emotional distress and alienation of affections); Cooper
v. Shealy, 537 S.E.2d 854 (N.C. App. 2000)(accepting long-arm jurisdiction in alienation of
affections suit where out of state defendant’s telephone calls into the state were the basis of the
claim); Gorman v. McMahon, 792 So. 2d 307 (Miss. 2001)(rejecting claim that damages should be
limited to damages traditionally available in loss of consortium actions); American Manufacturers
Mutual Insurance Co. v. Morgan, 556 S.E.2d 25 (N.C. App. 2001)(finding insurer not liable to
defend alienation of affections action against insured under provision insuring “bodily injury” caused
by “accident”); Pharr v. Beck, 554 S.E.2d 851 (N.C. App. 2001)(post-separation events before
divorce are inadmissible in alienation of affections action).

20
 Chapter 3
Dissolving the Marital Status

Page 187. Historical Origins. For a recent article by Lawrence Friedman on the historical
practice of fault divorce, see A Dead Language: Divorce Law and Practice Before No-Fault, 86
VA .L.REV . 1497 (2000).

Page 215. Continued use of fault grounds. Those nostalgic for the old days can take heart
in Mississippi, Tennessee and Virginia, which all continue to produce fault divorce cases. Harmon
v. Harmon, 757 So.2d 305 (Miss.App. 2000) (an unembarrassed parsing of the facts to conclude that
neither the recrimination nor the condonation defense barred the wife’s divorce action, since a)her
adultery did not occur until after the parties’ separated (hence, no recrimination), and b)while she
had sexual relations with H after she learned of his adultery, trial court was entitled to believe her
claim that it was not really consensual (hence, no condonation); Hughes v. Hughes, 531 S.E.2d 645
(Va.App. 2000) (trial judge erred in granting divorce on adultery grounds because wife’s
cohabitation in same home with the man she intended to marry was insufficient proof of adultery,
given their testimony that they maintained separate bedrooms; even “highly suspicious
circumstances” are insufficient as proof of adultery; remanded to consider granting of a divorce on
grounds of one year’s separation); Brooks v. Brooks, 2001 WL 1181609 (Tenn.App.) (detailed
review of wife’s odd and sometimes wrongful behavior (e.g., removing couple’s money from joint
account) in concluding that she did not make out her claim that H had engaged in inappropriate
marital conduct and indignities and was therefore not entitled to divorce). In Earls v. Earls, 42
S.W.2d 877 (Tenn. App. 2000) the trial court declined to grant a divorce to H on the same fault
ground of inappropriate marital conduct (apparently the old fault ground of “cruel and inhumane
treatment”, renamed) but was reversed by the appellate court, which found the trial court’s
demanding application of this standard reflected a basic misunderstanding of state law. The parties’
relationship had deteriorated after W became quadriplegic as a result of medical misfortune, and they
had ceased living together; the appeals court found these facts sufficient as a matter of law to
establish the divorce grounds. It noted that W did not oppose the divorce from any love or interest
in H, but only to preserve her access to his medical insurance. The trial court’s award of custody to
W was also reversed. There is a dissenting opinion; the case offers an alternative to Mitchell as a
case a vehicle for addressing in class the policy questions arising from no-fault divorce, for any who
are tired of teaching the Mitchell case.

Page 221. Impact of divorce laws on divorce rates. There has been some additional debate
over the impact of divorce laws on divorce rates. Perhaps the most widely disseminated recent article
claiming some connection is Leora Friedberg, Did Unilateral Divorce Raise Divorce Rates, 88
Amer.Econ.Rev. 608 (1998). Friedberg only looked at divorce rates after 1968, however, which
excluded the years earlier in the 1960's during which divorce rates rose while the divorce law had
not yet changed; her model does not show any significant impact of no-fault laws if the longer time
series is employed. See footnote 7 in Ira Mark Ellman, Divorce Rates, Marriage Rates, and the
Problematic Persistence of Traditional Marital Roles, 34 FAM .L.Q. 1 (2000).

21
 Page 228. Additional notes. Constitutionality of No-Fault. Some no-fault opponents have
recently taken to mounting constitutional claims. They have lost. E.g., Waite v. Waite, 64 S.W.3d
217 (Tex.App. (2001) (no-fault does not violate Federal Establishment or Free Exercise Clauses or
various state constitutional provisions); Richter v. Richter, 625 N.W.2d 490 (Minn. App. 2001)
(marriage is not a "contract" within meaning of state and federal constitutions prohibiting restrictions
on contracts). Richter of course echoes Maynard v. Hill as well as the old Gleason case in N.Y. It
also held that the state’s no-fault divorce provisions did not allow “divorce on demand” because the
petitioning wife was required to show that there was irretrievable breakdown of marriage. This
questionable conclusion (the court cites no instance in which the petitioning party’s assertion that
the marriage was “irretrievably broken”, as required under state law, was not met) was not really
essential the court’s judgment, however.

Page 230. Premarital Agreement Limiting Grounds for Termination. An agreement which
injects fault into the allocation of property or alimony, when state law does not so provide, presents
a policy question similar to that presented by the Penhallow case mentioned in this note. In Diosdado
v. Diosdado, 118 Cal.Rptr.2d 494 (App. 2002), the parties entered a written marital agreement when
they reconciled after the wife learned of the husband’s affair. Their agreement specified that neither
would engage in any sexual conduct with a third person (including, for example, “kissing on the
mouth”) and provided, inter alia, for $50,000 in liquidated damages for any breach (in addition to
the normal property settlement). The court held the provision unenforceable as contrary to the public
policy underlying California’s no-fault divorce law. The court’s holding echoes (although it does not
cite) the position taken in § 7.08 of the ALI Principles of the Law of Family Dissolution.

Page 231. Covenant Marriage. The Teacher’s Manual provides information on the Arizona
version of Louisiana’s covenant marriage law. Arizona enacted its version in 1998. It’s not been very
popular. During the entire period from enactment through to January of 2000, the Maricopa County
(Phoenix) Recorder issued 316 licenses for covenant marriages. Over that same time period, 16, 168
ordinary marriage licenses were issued. Covenant Marriages Haven’t Exactly Caught On In State,
THE ARIZONA REPUBLIC , February 18, 2001, at page A12. A recent examination of the Louisiana
experience with covenant marriage reported similar results–1.5 % of newly contracted marriages in
Louisiana during 1998 were covenant marriages. Laura Sanchez, Steven Nock, James Wright,
Jessica Pardee and Marcel Ionescu, The Implementation of Covenant Marriage in Louisiana, 9 VA .J.
SOC.POL’Y & L. 192, 198 (2001). Their study was presented at a conference on marriage; the same
journal issue which includes the other articles of interest. Among the authors are Paul Amato,
Elizabeth Scott, Mitt Regan, Michael Wald and Martha Fineman. For commentary on the Sanchez
et al. study by Louisiana’s chief proponent of covenant marriage, see Katherine Shaw Spaht, What’s
Become of Louisiana Covenant Marriage Through the Eyes of Social Scientists, 47 LOYOLA L.REV .
709 (2001). Arkansas adopted a covenant marriage law in 2001. H.B. 2039 (Act No. 1486), reported
at 27 FAM .L.REP. 1351.

Page 240. The Effect of Divorce on Children. A recent article reviews the methodological
difficulties in finding any causal link between divorce and outcomes for children, concluding that
the existing literature has no dealt adequately with it. Máire Ní Bhrolcháin, ‘Divorce Effects’ and

22
Causality in the Social Sciences, 17 EUROPEAN SOCIOLOGICAL REVIEW 33 (2001). See also M.N.
Bhrolcháin, R. Chappell, I. Diamond, and C. Jameson, Parental Divorce and Outcomes for
Children: Evidence and Interpretation, 16 EUROPEAN SOCIOLOGICAL REVIEW 67 (2000). One author
who claims to have solved the methodological problem is economist Jonathan Gruber, Is Making
Divorce Easier Bad for Children? The Long Run Implications of Unilateral Divorce, NBER
WO R K IN G PA P E R NO . W7968,available for download at
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=245850>. See also the article by Paul Amato,
and the commentary on it by Elizabeth Scott, in the Virginia Social Policy and Law Symposium
noted in the preceding paragraph.

A Maryland trial judge apparently believed that the petitioning couple’s children would be
better off if their parents parties did divorce, and therefore refused to accept the parents’ joint request
to dismiss the divorce action (which the parents filed after they had reconciled). The appeals court
reversed. It held that the spouses were the only parties to the action, even though the children’s
interests were obviously affected, and that therefore the court was required to accept the spouses’
joint stipulation to dismiss the divorce action. Milburn v. Milburn, 790 A.2d 744 (Md. Sp. App.
2002).

Page 246. Effect of Incompetence on Divorce Actions. The Illinois Supreme Court has held
that a guardian may continue a divorce action originally brought by the ward before the adjudication
of the ward’s disability, even though guardians may not initiate divorce actions on behalf of their
ward. Marriage of Burgess, 725 N.E.2d 1266 (Ill. 2000).

23
 Chapter 4
Property Division and Spousal Maintenance Upon Divorce

American Law Institute Principles. They were published in their final form in May of 2002.
There are no dramatic differences between the drafts discussed in this chapter and the final version
of these sections, but there are small changes sprinkled throughout, and sections have been
renumbered. Commentary on the Principles began to appear even before the final publication. This
includes a symposium, Gender Issues in Divorce: Commentaries on the American Law Institute's
Principles of the Law of Family Dissolution, at 8 DUKE J. GENDER L. & POL'Y i-viii, 1-341 (2001).

Page 295. Effect of Premarital Cohabitation on Classification of Property As Marital. A

Tennessee appeal court held that the husband’s stock accounts, acquired over the course of their 20
year cohabitation that immediately preceded their marriage, must be treated as his separate property
and were not divisible at divorce. In a decision notable for its reliance on technicalities to the
exclusion of any consideration of the substance of what had happened, it found that to treat the
property as marital would effectively recognize the parties’ premarital cohabitation as a common law
marriage. Stoner v. Stoner, 2001 WL 43211(Tenn.App.). It would seem that Tennessee does not
recognize Marvin in any of its forms; cohabitation itself apparently cannot give rise to claims on
property acquired during the course of it, whether as a tack-on to a marital property claim or in its
own right. The court in footnote noted that

We do not suggest that there cannot be reasons for dividing pre- marital assets in a related
situation. For example, if the parties had, in addition to maintaining a pre-marital
relationship, run a business together, a court could find that a business partnership existed
between the parties. See Bass v. Bass, 814 S .W.2d 38 (Tenn.1991). We note, however, that
such a finding would most likely not be based in the law of domestic relations but in some
other area of law such as business partnership law.

In contrast are the decisions of the North Dakota Supreme Court in Northrop v. Northrop, 622
N.W.2d 219 (N.D. 2001) ( holding that the portion of the husband’s pension plan that had been
accumulated during the parties’ 7½ year cohabitation should count as marital property in dividing
the assets of their immediately following marriage (of 1½ years’ duration)), and the Wisconsin
Supreme Court in Meyer v. Meyer, 620 N.W.2d 682 (Wis. 2000) (disapproving earlier appeals court
decision which disallowed consideration of the contribution one spouse made to the other’s
education during their premarital cohabitation).

Page 295. Treatment of Separate Property in Dissolution of Long Marriage. The top of this
page makes reference to the ALI Principles § 4.18 (§ 4.12 in the final published version) under which
property owned by either spouse prior to marriage is gradually transformed from separate to marital
over the course of a long marriage. A recent Alaska Supreme Court case presents the kind of claim
contemplated by this provision. Among other things the wife claimed that she had cashed in her
retirement benefits in reliance upon the couple’s intended use of the husband’s inheritance to fund

24
their retirement. While reversing the trial court’s use of these facts as grounds for transmuting the
property from separate to marital, the court’s remand did permit the trial court to award the wife a
portion of the separate property after considering whether the expected availability of the inheritance
did in fact cause the parties to make different decisions during the marriage with respect to their use
of their marital property. Sampson v. Sampson, 14 P.3d 272 (Alaska, 2000).

Page 307. Personal Injury and Worker’s Compensation Awards. There appears to be a
consensus forming in favor of the position urged by the ALI, under which disability benefits are
classified according to the character of the asset they replace–so that benefits that replace post-
dissolution earnings are separate, while benefits received during marriage are marital. See Holman
v. Holman, 2002 W.L. 1307435 (Ky.).

Page 310. Appreciation During Marriage of Separate Property. In Robbie v. Robbie, 654
So.2d 616 (Fla. App. 1995), the court held that the appreciation in value during the marriage of
husband’s stock in the corporation owning the Miami Dolphins, which he owned prior to the
marriage, was marital property because that increase resulted from his efforts as general manager of
the Dolphins. On remand the trial judge then awarded 65% of the value to the husband, and 35% to
the wife. On appeal this allocation was reversed, the court holding that an equal division was
required because no evidence was offered to justify a departure from it. In reaching that result, the
court noted that the uncontradicted evidence on remand was that the increase in the teams value was
due to the efforts of H’s father, not him, (nor the wife, who did not work in it). It relied on this fact
to conclude that there was no reason to depart from equal division. Of course this same fact casts
doubt on the initial classification of the appreciation as marital, but that matter was treated by the
court as resolved. Robbie v. Robbie, 788 So.2d 290 (Fla.App. 2000).

Page 321. Valuation of Pensions. A recent case approving use of the relative-time rule for
valuing the marital community’s interest in a defined benefit pension plan is Hunt v. Hunt, 43 P.3d
777 (Idaho 2002).

Page 325. Federal Preemption of State Pension Rules. In Egelhoff v. Egelhoff, 532 U.S.
141, 121 S.Ct. 1322 (2001) the Court dealt with the interaction of a Washington statute and ERISA.
While Washington is a community property state, the issue presented in Egelhoff is relevant in all
states. ERISA specifies that it "shall supersede any and all State laws insofar as they may now or
hereafter relate to any employee benefit plan" covered by it. The husband had designated his wife
as the beneficiary of his employer-provided pension and life insurance plans, both of which were
covered by. He was then divorced, and died unexpectedly two months later, intestate and unmarried,
and without having removed her as the beneficiary. Under Washington law, as that of many other
states, her beneficiary status was revoked automatically by the divorce. If the Washington law
prevailed, the husband’s children from a prior marriage would succeed to these assets. ERISA directs
the plan administrator to make payments to a beneficiary "in accordance with the documents and
instruments governing the plan." 29 U.S.C. § 1104(a)(1)(D). The majority held that this language
effectively required that payment be made to the wife despite the Washington law, thus preempting
it. As with most of the Court’s decisions with respect to federal preemption of state marital property

25
rules, this result makes little sense. The wife had of course already been allocated her fair share of
the community property, including the pension entitlement, in the divorce proceeding itself, in which
she received certain stock and business assets as a setoff against her share of the pension, which was
allocated entirely to H. Under this decision she now receives the pension as an add-on to her divorce
settlement, overriding the claims of H’s children who would otherwise have succeeded to it. This
kind of result is likely to be repeated in many other cases, and it is difficult to believe that Congress
intended by its general language to override state laws designed to avoid it. These points were made
by Justice Breyer, in a dissent joined by Justice Stevens. He argued as well that there “is no direct
conflict or contradiction between the Washington statute and the terms of the plan documents here
at issue. David Egelhoff's investment plan provides that when a "beneficiary designation" is
"invalid," the "benefits will be paid" to a "surviving spouse," or "if there is no surviving spouse," to
the "children in equal shares." The life insurance plan is silent about what occurs when a beneficiary
designation is invalid. The Washington statute fills in these gaps, i.e., matters about which the
documents themselves say nothing. Thus, the Washington statute specifies that a beneficiary
designation--here "Donna R. Egelhoff wife" in the pension plan--is invalid where there is no longer
any such person as Donna R. Egelhoff, wife. And the statute adds that in such instance the funds
would be paid to the children, who themselves are potential pension plan beneficiaries.”

ERISA requires qualified plans to provide a survivor’s annuity to the surviving spouse, unless
the spouse waives the annuity in writing before a notary or plan representative.(See casebook page
145.) Hagwood v. Newton, 282 F.3d 285 (4th Cir. 2002) held that this provision overrode the
spouses’ premarital agreement in which the husband waived any rights in the wife’s property that
might otherwise arise at her death. The wife had desired the agreement to ensure that her pension
entitlement would pass on to her father, for his care. But the court found that it failed to comply with
ERISA because it was signed before marriage, and was thus not a waiver by a “spouse”, and did not
specify a beneficiary (other than a general reference to the wife’s heirs).

Page 339. New York’s Struggle with O’Brien. It continues. Some lower courts have
developed rules of equity under which the degree, while necessarily property, really shouldn’t be
divided between the spouses anyway, or at least, not very much. In Gandhi v. Gandhi, 724 N.Y.S.
2d 541 (App.Div. 2001), the court said that neither the husband’s accounting degree, earned partially
before marriage, nor the wife’s paralegal degree, earned partially after the marriage, should be
allocated. To explain why, the court observed (among other things) that the husband’s CPA license
was attributable in part to his intelligence and hard work. In Brough v. Brough, 727 N.Y.S. 2d 525
(App.Div. 2001), which found the husband entitled to only 10% of the wife’s enhanced earnings
arising from the B.A., M.A. and teacher’s certificate she earned during their 20 year marriage,
because even though the husband, a correctional officer and landscaper, fully supported her and their
family during her education, and gave her personal assistance with her studies, the degrees and
licenses were primarily the result of her own abilities and efforts. Corsanti v. Corsanti, 2002 WL
1434380 (App. Div.), allocated 30% of the value of the husband’s medical degree to his wife, rather
than half, because “while [the wife’s] efforts certainly contributed to the ability of [the husband] to
obtain his medical license and advanced degrees, those achievements were accomplished primarily
through [his] own ability and Herculean effort as well as his own capacity for hard work” (citing

26
Brough). But why then 30%? Who knows. Of course, the references in Gandhi, Brough and Corsanti
to the degree holder’s own efforts and talents do not distinguish the degrees in those cases from any
other degrees, or from the medical license in O’Brien itself. These cases therefore undermine the
logic of O’Brien, although the N.Y. courts obviously have to do something to avoid the absurd
results which that case would otherwise force upon them. But this approach, requiring the court in
each case to decide upon the relative importance of the student’s and the spouse’s contributions to
the student’s achievements, in order to determine the “equitable” allocation of the decree’s “value”,
wildly inconsistent results appear inevitable. Their one reliable common feature is that as property
rather than alimony awards, their allocations of post-divorce income will not be modifiable to correct
the erroneous projections of the degree-holder’s future economic circumstances that courts will
inevitably make in some cases.

Page 360. Treatment of Goodwill. The Rhode Island Supreme Court has joined the trend to
distinguish between personal and enterprise goodwill, holding that valuation of the husband’s
landscaping business must not include value dependent upon his continued presence, but may
include true enterprise goodwill that did not depend upon the husband’s personal services. This
approach is similar to that of Talty (described page 363) and the ALI Principles. Moretti v. Moretti,
766 A.2d 925 (R.I. 2001). The Idaho Supreme Court, on the other hand, failed to make such a
distinction in a recent case in which it appeared that the husband’s restaurant business in fact had
no enterprise goodwill at all; it therefore accepted a valuation of the business that effectively
included the present value of the husband’s post-divorce labor as its manager. Chandler v. Chandler,
32 P.3d 140 (Idaho 2001).

Page 388. “Need” in High-Income Divorces: Does It Include Savings? In Drapeau v.

Drapeau, 114 Cal.Rptr.2d 6 (App. 2001), H, a partner in Arthur Anderson, earned $1 million
annually (this was pre-Enron; who knows what the poor fellow’s situation is now). W argued that
the trial court’s $12,206 monthly alimony award was too low because it would not allow her to save
at the same rate as the parties saved during the marriage ($15,000 monthly). The appeals court
remanded with directions to the trial court to consider this savings history, although it did not require
an award that would allow W to duplicate it. The Florida Supreme Court took precisely the opposite
view in Mallard v. Mallard, 771 So.2d 1138 (Fla. 2000). The Mallard parties lived modestly despite
their high income, allowing them to save at least 25% of their income and amassing considerable
assets. Lower courts has allowed the wife an alimony award based upon that income rather than their
life style, intentionally allowing her to continue the savings pattern. The Florida Supreme Court held,
however, that amassing savings was not part of the purpose of an alimony award and therefore could
not be considered in setting its amount. Note how this debate mirrors the old debates in child support
(“does this kid need designer clothing) before child support moved from assessing needs to the
modern approach of simply assuring the custodial household a particular percentage of the income.
Whether alimony should be needs based, or also based instead on a notion of an entitlement to share
in the income, is really the question underlying these two decisions. Note 5 on page 277 considers
the companion question, whether a different property allocation rule is appropriate for divorces in
high-asset cases.

27
 Page 394. The Importance of Marital Duration; Counting Premarital Cohabitation. Cox
v. Cox, 762 A.2d 1040 (N.J.App.Div. 2000) provides a nice overview of the various forms of
alimony traditionally recognized by most courts. The wife had completed college and law school
during the parties’ 22-year marriage but had not yet passed the bar examination. The husband earned
$120,000 annually as a crane operator. The wife had $100,000 in students loans, responsibility for
which was allocated between the parties in proportions not reported in the decision. The divorce
court awarded her alimony of $200 weekly for five years “to enable her to establish herself as an
attorney,” providing for a review of the award after two years, at which she would have the burden
of proof to establish that the award should continue. As the appeals court observed, this sounds like
either a rehabilitative award, or an award of limited-duration alimony. The wife sought a permanent
alimony award instead and the appeals court agreed, holding that after a 22-year marriage a
permanent award is appropriate in the absence of a clear statement of reasons explaining otherwise.
The court explained that limited-duration alimony is meant for short marriages in which the obligee
has a need justifying an award but the marriage’s short duration makes a permanent award
inappropriate. The court thus read the statute as establishing marital duration as basis for imposing
a limit upon the alimony claims that may arise at divorce. A rehabilitative award was also
inappropriate because it failed to consider the wife’s contributions to the marriage during its long
term. The matter was remanded to allow the trial court to consider the wife’s current situation, in
which she had lost her legal employment after failing for the third time to pass the bar examination.

In Meyer v. Meyer, 620 N.W.2d 682 (Wis. 2000), the court held that an alimony award at the
dissolution of a four-year marriage could take account of the claimant’s contributions to the other
spouse’s education during their 7-year premarital cohabitation, thus justifying an award of 8 years’
duration.

Page 400. Factors Affecting Size of Award After Long-Term Marriage: Alimony as
Disguised Child Support; Obligor’s Work Schedule; Income of Second Spouse. In Marriage of
Serna, 102 Cal.Rptr.2d 188 (App. 2000), the court made clear that the obligee’s expenses in
providing assistance to adult children could not be considered in setting the size of an alimony
award. To do so, the court observed, would be to allow child support for an adult child under the
guise of alimony, which would violate the legislative policy that all child support ends no later than
the child’s 19th birthday. The same case also reaffirmed the rule of Marriage of Smith described in
the Teachers’ Manual discussion of Problem 4-20 on page 421, that spousal support cannot be set
at a level that assumes an income that the obligor can realize only by working an unreasonable
number of hours. The obligor in this case lost his job as an off shore worker when his employer was
bought out; his new employment as a school district groundskeeper paid much less well. The trial
court expected him to maintain higher support payments by working additional part-time jobs; the
appeals court applied the Smith rule to conclude that there was no basis for assuming the obligor was
not already earning at full capacity, and he could not be required to work overtime or to pay support
based upon the assumption that he would. In Marriage of Romero, 2002 Cal. App. LEXIS 4380 ,
the court applied California Family Code § 4323(b), which provides that the “income of a supporting
spouse's subsequent spouse or non-marital partner shall not be considered when determining or
modifying spousal support.” The trial court had declined to reduce the husband’s obligation when

28
he took early retirement after having developed Parkinson’s Disease, relying upon the income of the
husband’s new spouse; the appeals court reversed in reliance upon the statute.

Page 423. Fault As a Factor in Alimony or Property. In Rodriguez v. Rodriguez, 13 P.3d

415 (Nev. 2000), the court confirmed that a 1993 statutory amendment excluded the consideration
of marital misconduct in either property allocations or alimony determinations.

Page 473. Remarriage of the Obligee. Oregon apparently allows alimony to continue past
remarriage unless the purpose of the initial award has been met, thus justifying its termination. A
recent case involved a couple who divorced after retirement; the wife subsequently remarried and
the husband sought termination or modification of the award. The court held that the purpose of the
initial award of $517 monthly was the parties’ long-term income equalization, and that termination
could not therefore be justified. It did conclude, however, that the wife and her new husband
commingled their finances so that portions of the new husband’s assets were available to her,
effectively reducing their expenses. It therefore ordered a reduction in the alimony award to $420
monthly, concluding that this adjustment would maintain the award’s initial goal of equalizing the
original spouses’ post-divorce incomes, at a new, higher level of $1212 monthly. Marriage of Jones
and Jones, 17 P.3d 491 (Ore.App. 2001). In contrast, a California court recently reversed a trial court
for failing to terminate a spousal support obligation at the obligee’s remarriage, despite the fact that
the parties’ initial stipulated decree did not include remarriage among the events that would
terminate the husband’s support obligation. The statutory rule terminating support at the obligee’s
remarriage can only be overridden by the parties’ express agreement to that effect; their omission
of remarriage in an agreement specifying other terminating events is not sufficiently explicit to meet
this requirement. In re Thornton, 115 Cal.Rptr.2d 380 (App. 2002).

Page 476. The Annulled Second Marriage. A South Carolina court reinstated an alimony
award when the obligee wife’s remarriage was annulled because of her would-be husband’s previous
undissolved marriage, holding that the annulled second marriage does not terminate a prior alimony
award when it is void rather than voidable–thus relying upon a distinction that has always given
courts difficulty. (See casebook pages 59-60.) The court surveyed other state court decisions,
claiming to find a majority favoring the view it adopted, although it also conceded that a sizeable
minority decline to reinstate the award in any circumstance. Consistent with its decision, it held the
husband liable for arrearages as well. Joye v. Yon, 547 S.E.2d 888 (S.C.App. 2001).

Page 488. The Obligee’s Cohabitation. The note describes a Georgia case, Van Dyck, in
which the state high court held that Georgia’s cohabitation statute did not apply to same-sex intimate
relationships, but was later overruled by the legislature. A Pennsylvania court reached a similar result
in Kripp v. Kripp, 784 A.2d 158 (Pa. App. 2001), holding the former wife’s live-in relationship with
another woman not “cohabitation” within the meaning of their agreement terminating her alimony
payments were she to “co-habitate”.

29
 Page 491. Obligor’s Retirement as Justifying Reduction. The Tennessee Supreme Court
recently reviewed this question in a comprehensive opinion concluding that the obligor’s
“objectively reasonable” choice to retire is a proper basis upon which to modify the award. It also
held, however, that such a showing by the obligor did not necessarily establish his entitlement to the
modification, as the court had to consider all the circumstances including the obligee’s needs. The
court did not adopt the rule urged by a partially dissenting member that a decision to retire by an
obligor at least 62 years of age be considered presumptively reasonable. Bogan v. Bogan, 60 S.W.3d
721 (Tenn. 2001).

30
 Chapter 5
Child Support

Page 498, Note b. Post-Majority Support for Disabled Children. The Tennessee Court of
Appeals held a divorce court lacked jurisdiction to order child support for a couple’s 45-year old
disabled daughter residing with her mother. Mora v. Mora, 2001 Tenn. App. LEXIS 422. The court
held that mother’s appropriate relief was to seek appointment of a conservator for the child. The
conservator might then seek financial support from one or both of the parents.

In In re Thurmond, 715 N.E. 2d 814 (Ill. App. 1999), the appellate court reversed a trial court
order extending support for a 20-year old “slow learner.” While obligee asserted that child was
“mentally or physically disabled” in the statutory language, the court found child had graduated from
high school in four years, had received relatively high grades as a senior, had been accepted to two
colleges and obtained a job to help with his expenses. The court also noted that the child had not
been able to qualify for Social Security disability benefits.

A 1998 Rhode Island statute limited judicial authority to extend child support for special
needs children to the age of 21. See Pierce v. Pierce, 770 A. 2d 867 (R.I. 2001) (ruling statute
overruled prior judicial precedent authorizing more extended court orders for disabled children).

Page 499, Note c.1. Authority to Award Post-Majority Educational Support. Three more
courts have rejected constitutional attacks on statutes explicitly authorizing post-majority awards for
purposes of education. See In re Crocker, 22 P.3d 759 (Ore. 2001); In re McGinley, 19 P.3d 954
(Ore. App. 2001); Kohring v. Snodgrass, 999 S.W. 2d 228 (Mo. 1999). The courts all relied on the
state interest in securing educational opportunities for children of broken homes where financial
resources are available.

Page 502, Note 1d. Pre-Majority Termination of Support. The casebook notes the
traditional view that the obligation to support one’s child is ended by obligor’s death. In Benson ex
rel. Patterson v. Patterson, 782 A. 2d 553 (Pa. Super. 2001), the court reluctantly adhered to this rule
in a case where obligor, who had been ordered to support two non-marital children, died with a large
estate created by a settlement in a personal injury action. After cataloguing numerous cases on both
sides of this question, the court felt compelled to follow state law most recently expressed in 1995.
It rejected an attempted distinction based on the fact that in the earlier case there were no pre-existing
support orders. The court concluded its opinion: “Although we must affirm, we do so with the hope
that our supreme court and legislature will revisit this issue.” As this is written, the Pennsylvania
court has granted a petition to review the case on appeal. See 2002 Pa. LEXIS 57.

Litigation continues to define the contours of the concept of emancipation as an event ending
support obligations before the child reaches the age of majority. The Kansas Supreme Court, in In
re Schoby, 4 P.3d 604 (Kan. 2000), held that a 16-year old boy’s marriage did not automatically
terminate his father’s support obligation under a divorce decree. Noting the child continued to be
supported by his mother, who had helped pay his rent, provided food and paid his utilities bills, the

31
court found that the boy now was living with his mother, having separated from his wife. The court
upheld the trial court’s decision that, under these circumstances, obligor’s support should not be
terminated. The court refused to accept as dispositive the parents’ divorce decree incorporating their
agreement that support would be terminated by, among other events, marriage. An agreement to
provide for automatic termination of support because of marriage would be void as against public
policy, said the court. See also Dunson v. Dunson, 2002 Ind. LEXIS 523 (June 12,
2002)(emancipation requires child outside care or control of both parents “but the child must also
(1) initiate the action putting the child outside the parents’ control and (2) in fact be self-
supporting”); In re George, 988 P. 2d 251 (Kan. App. 1999) (child who quit school at 16 and became
a mother was not emancipated for purposes of child support).

Page 506, Note 2b. Imposing Liability on Step-Parents. In W. v. W., 779 A. 2d 716 (Conn.
2001), the court applied the estoppel doctrine announced in Miller v. Miller, the New Jersey case
discussed in the casebook, to impose liability against step-parent. In a preliminary hearing in the
divorce action, the trial court held step-parent equitably estopped from denying an obligation because
he had taken affirmative acts to destroy the ability of child and mother to identify the natural father
and establish paternity. By the final hearing of the divorce, however, the location of the alleged
natural father had been identified. The court rejected stepfather’s argument that this rendered
estoppel inappropriate, noting stepfather had represented the child as his for 12 years, had interfered
with the relationship with the natural father and had caused detrimental reliance by child. Noting
alleged father lived outside its jurisdiction, the court pointed out that there had been no legal
proceedings declaring his paternity.

The casebook, at p. 507, notes that some courts have imposed an obligation on step-parents
for post-divorce child support on the basis of contract. In an extension of this analysis, the Georgia
Court of Appeals recently held that a contract or promissory estoppel theory might impose liability
on a grandparent to support his grandchild after the divorce of the grandparents. In Mooney v.
Mooney, 538 S.E. 2d 864 (Ga. App. 2000), grandparents had been granted legal custody of their
grandchild with the consent of the child’s parents. Subsequent to the grandparents’ divorce, the
grandmother sued the grandfather for support, alleging she would not have consented to legal
custody without her then-husband’s promise to support the child through minority. While
recognizing the legitimacy of imposition of liability on the basis of contract or promissory estoppel,
the appellate court affirmed the trial court’s grant of summary judgment for the grandfather on a
finding of no promissory estoppel or contract on the facts of the case.

In another case involving grandparents with custody of their grandchild, the North Dakota
Supreme Court utilized the “equitable adoption” doctrine to impose support obligations on the
divorcing grandfather. Johnson v. Johnson, 617 N.W. 2d 97 (N.D. 2000). In Johnson, the
grandparents accepted the child “temporarily” from their son upon his incarceration. For ten years,
the child was raised by the grandparents who led her to believe that she was their child. Noting
lengthy recognition of “equitable adoption” in the context of intestate succession, the court pointed
out that two attempted adoptions by the grandparents had been thwarted by military transfers of the
grandfather. Concluding that public policy on behalf of the child’s best interests and welfare

32
counseled in favor of finding a support obligation, the court reversed and ordered a determination
of the appropriate level of support. The dissenter questioned why support was not being sought from
the child’s parents.

See Nolan, Legal Stranges and the Duty of Support: Beyond the Biological Tie–But How Far
Beyond the Marital Tie?, 41 SANTA CLARA L. REV . 1 (2000) (argues duty should extend to legal
strangers “to the extent that their own actions and conduct would bind them under the principles of
in loco parentis, contract law, or equitable estoppel”).

Pages 524-37. Three Models of Child Support. Professor Marsha Garrison, in a recent
article, argues that current guidelines favor support obligor at the expense of child, obligee and
society. Urges Community Model of support which “bases the support obligation on family
membership and mandates income sharing as a basic approach” is superior to what she characterizes
as Autonomy Model which “bases the support obligation on both societal burden produced by
nonsupport and the nonsupporting parent’s contractual obligations to the custodial parent.”
Garrison, Autonomy or Community: An Evaluation of Two Models of Parental Obligation, 86 CAL.
L. REV . 41 (1998). See also Faerber, A Guide to the Guidelines: A Longitudinal Study of Child
Support Guidelines in the United States, 1 J. L. & FAM . STUD . 151 (1999); Graves, Comparing Child
Support Guidelines, 34 FAM . L.Q. 149 (2000).

The Family Law Quarterly recently published a symposium on child support, focusing on
the ALI’s treatment of the subject, the goals of child support and support guidelines. See 1999 Child
Support Symposium, 33 FAM . L.Q. 1-275 (1999).

Page 545, Note 1. Establishing Obligor’s Ability to Pay. A California court has held that
a court may not impute income to an incarcerated obligor absent proof that he has both the ability
and the opportunity to work while in prison. Oregon v. Vargas, 70 Cal. App. 4th 1123 (5th Dist.
1999). In a later case, the court refused to create a “public policy exception” to the Vargas rule in
a case where the incarcerated obligors had been convicted of offenses such as child molestation and
child pornography. Smith v. Smith, 90 Cal. App. 4th 74 (5th Dist. 2001). Acknowledging that other
jurisdictions had refused to exempt prisoners from the imputation of income or had simply included
incarceration as one factor to be considered, the court reiterated that it had chosen a different rule
in Vargas and saw no reason to create an exception to it. In a different type of case involving
imputation of income, another California court found that imputation of income from separate
property owned by obligor which was not regularly income-producing was within trial court
discretion. In re Destein, 91 Cal. App. 4th 1385 (1st Dist. 2001) (imputing income of $145, 950 based
on estimated return of 6% of obligor’s real estate and securities investments).

For an article suggesting that incarcerated parents are often overlooked as a source of child
support, see Cavanaugh & Pollack, Child Support Obligations of Incarcerated Parents, 7 CORNELL
J. L. & PUB. POL’Y 531 (1998). For a Comment on imputation of parental income in general, see
Comment, Imputing Parental Income in Child Support Determinations: What Price for a Child’s
Best Interests?, 49 CATH. U. L. REV . 167 (1999).

33
 Page 549, Note 2. Obligor’s Second Family as Justifying Variance. In Betty v. Betty, 552
S.E. 2d 846 (Ga. 2001), the Georgia Supreme Court noted that obligations to children from a prior
marriage justified variance only, according to the statutory guidelines, in situations where an existing
order requires support of those children. In this case, obligor was the legal custodian of the prior
child, who was living with his mother. The obligor was not under any order to pay support to that
child and there was no evidence that he was doing so. In this situation, the court found, there was
no reason to consider the fact that obligor had legal custody of his prior child in setting the child
support order in the current divorce case. See also State ex rel. Crippen v. Johnson, 2001 Tenn. App.
LEXIS 72 (in setting support for a non-marital child, it is irrelevant that three other children are
living with obligor).

Page 554, Note 1. High Income Obligors. In Downing v. Downing, 45 S.W. 3d 449 (Ky.
App. 2001), the appellate court rejected what it described as a “share the wealth” approach adopted
by the trial court, which ordered payment of 4% of all above-guideline income earned by obligor.
Father in this case earned $57,000 monthly and the trial court calculated child support on the amount
beyond $15,000 based on the 4% rate at which the final amount of income below $15,000 was
assessed. While acknowledging that income beyond $15,000 should be considered by the trial court,
the appellate court insisted that this should not be primarily a mechanical application of some
percentage. Instead, each case should be done on an individual basis, considering income and child’s
needs. The court wrote:

While to some degree children have a right to share in each parent's standard of living, child
support must be set in an amount which is reasonably and rationally related to the realistic
needs of the children. This is sometimes referred to as the "Three Pony Rule." That is, no
child, no matter how wealthy the parents, needs to be provided more than three ponies.

The court in Colonna v. Colonna, 788 A. 2d 430 (Pa. Super. 1999), was faced with the
question of whether a high-income obligor was indeed an obligor at all. In this case, father earned
considerably more than mother and had been ordered to pay child support on divorce to her as
custodial parent. Since the divorce, however, custody had been granted to father for the entire school
year. In consideration of father’s petition to terminate support obligations, the master ordered
reduction, though not elimination, because of the disparity of incomes (father earned approximately
$175,000 annually, while mother earned about $30,000) and the fact that mother had custody of the
children approximately 27% of the time.

The appellate court held father, as custodial parent, might appropriately obtain support from
mother. Because he was not seeking such support, mother could support the children during her
custodial period with the funds she otherwise might be ordered to pay him. Termination of father’s
support obligation was ordered.

Must a high-income obligor reveal exactly high an income obligor he is? The California
Court of Appeals, in Hubner v. Hubner, 94 Cal. App. 4th 175 (2d Dist. 2001), held that he did.
Rejecting father’s contention that so long as he stipulated that he could afford to pay whatever child

34
support order was entered, the court held that the need to have sufficient information to “properly
assess the child’s needs” outweighed the obligor’s desire for privacy. In the case, both parties found
the $19,000 monthly award by trial court inappropriate. “Because the amount of child support
ordered was based on fictional gross income assumptions, we are unable,” wrote the court, “to assess
whether either party is correct. Thus, remand is necessary to ... permit appropriate discovery directed
at obtaining reliable information....”

For recent scholarship concerning the high-income obligor, see Comment, Poor Little Rich
Kids: Revising Wisconsin’s Child Support System to Accommodate High-Income Payers, 83 MARQ .
L. REV . 807 (2000).

Page 560, Note 5. Other Factors Justifying Variance. The impact on child support
obligations of the receipt of Social Security disability benefits is discussed in the casebook in the
context of establishing an initial award. A recent case, in the modification context, adopted the
majority rule and rejected obligor’s motion for a downward modification based on a disability award
to the child. Paton v. Paton, 742 N.E. 2d 619 (Ohio 2001). The court concluded the disability award
was designed to supplement, not replace, ordinary support by the parents. The amount of the award
should not have been used to reduce child’s total needs in support calculations, held the court.

In Smith v. Null, 757 N.E. 2d 1200 (Ohio App. 2001), the trial court, finding the child had
“special needs,” ordered father to pay 40% of the cost of parochial school education. While
conceding that custodial mother had the right to decide which school the child should attend, father
claimed his religious freedom rights under both state and federal constitutions were compromised
by the order to pay his child’s Catholic school tuition. The appellate court, relying on cases in other
jurisdictions, rejected the argument, pointing out that the payments were being made on behalf of
the child to effectuate his best interests, not to the church for its support.

Page 561. Non-Judicial Processes for Establishing Support. Some states have established
administrative processes not only for the establishment of support obligations, but also for their
modification. A recent Montana Supreme Court case found such a provision violated the state
constitution’s separation of powers provisions. Seubert v. Seubert, 13 P.3d 365 (Mont. 2000). The
court found administrative modification was not mandated by federal statutes and found support
modification was a judicial function which could not be delegated to an administrative agency. It
distinguished the systems in other states providing for automatic judicial review of administrative
modifications. The Montana scheme provided for only limited review which had to be initiated by
one of the parties.

Page 567, Note 3. Downward Modifications: Some Special Cases. The Note discusses loss
of income as a grounds for a downward modification and suggested courts look askance at
intentional reduction of income which can be interpreted as designed to reduce available resources.
In In re Malloy, 2001 Iowa App. LEXIS 464, the court permitted a downward modification where
obligor retired from the National Guard. The court noted that the retirement was not done to deprive
obligor’s children of support and that it was caused, in part, by his inability to devote the required

35
time to his Guard duties because of his exercise of visitation rights with his children.

By contrast, the Mississippi Supreme Court reversed itself and held, in Bailey v. Bailey, 724
So. 2d 335 (Miss. 1998), that an obligor-mother who quit her job to care for a newborn baby had not
demonstrated special circumstances warranting a downward modification of her pre-existing support
obligation. Responding to an assertion by the dissenter that obligor had not quit her job in “bad
faith,” the majority wrote:

‘Bad faith’ is defined in BLACK'S LAW DICTIONARY as follows:

...generally implying or involving actual or constructive fraud, or a design to mislead

or deceive another, or a neglect or refusal to fulfill some duty or some contractual
obligation, not prompted by an honest mistake as to one's rights or duties, but by
some interested or sinister motive. ...not simply bad judgment or negligence, but
rather it implies the conscious doing of a wrong because of dishonest purpose or
moral obliquity; it is different from the negative idea of negligence in that it
contemplates a state of mind affirmatively operating with furtive design or ill will.

BLACK'S LAW DICTIONARY 139 (6th ed. 1990). Sandra may not have acted with the express
intent of jeopardizing the interests of her older children. However, she effectively
compromised their interests in favor of her new baby. Her conduct amounts to "a neglect or
refusal to fulfill some duty. . . by some interested. . . motive." Id. Sandra's voluntary
termination of her employment amounts to bad faith and requires reversal in this case.

The court acknowledged that its decision was inconsistent with a prior case, Grace v. Dep’t
of Human Svcs., 687 So. 2d 1232 (Miss. 1997), and therefore reversed it, asserting that the “problem
with [Grace’s] line of reasoning is that it quite literally allows the non-custodial parent to sire
himself out of his child support obligation.”

Imputation of income was authorized in a recent case involving a retired major league
baseball player. In Phelps v. LaPoint, 284 App. Div. 2d 605 (3d Dept. 2001), Dave LaPoint’s
support obligation was set at $100 weekly in 1996 when he was employed as a minor league general
manager, earning $40,000 annually. Subsequently he sought a downward modification based on his
loss of his baseball job. At the time of his modification, he was working as manager of a bar owned
by his current wife with an annual salary of $24,000. Describing this as the “quintessential fact
pattern” demonstrating a purposeful attempt to avoid familial obligations by assigning away assets,
the appellate court affirmed the imputation of $40,000 annual salary to the obligor. It noted his
assignment of a $1,000,000 receivable from a settlement of a major league union dispute to his
current wife, his country club membership and “tens of thousands of dollars in annual credit card
charges,” as well as numerous golf vacations. It found his post-baseball efforts to obtain
employment consistent with his ability to earn “woefully inadequate.”

In a case addressing a downward modification sought by an incarcerated obligor (discussed

36
generally in the casebook), the Ohio Court of Appeals rejected a petition by such an obligor who
claimed a substantial change in circumstances. In Rhodes v. Rhodes, 2001 Ohio App. LEXIS 4542,
the court held that the potential for imprisonment was a foreseeable result when the crime was
committed. It noted that its support statute does not require proof of obligor’s intent to avoid
obligation and also found irrelevant that obligor’s imprisonment stemmed from a jury trial rather
than plea agreement.

In Laudeman v. Laudeman, 92 Cal. App. 4th 1009 (2d Dist. 2001), obligor sought a
downward modification where a divorce-incorporated agreement provided for an above-guideline
level of support. In the modification action, obligor apparently sought to reduce the support level
to the guideline amount. The court rejected the motion, stating that in such a case changed
circumstances would be required. A change of heart would not suffice. While obligee can seek an
upward modification when the agreement provides for less than the guideline amount (and thereby
“renege” on the agreement), the reverse is not true. Changed circumstances must be shown.

Page 571. Rule Against Retroactive Modification. Over the objection of two dissenters who
claimed the court was endorsing a retroactive modification of a support judgment, the Montana
Supreme Court held, in In re Shorten, 967 P. 2d 797 (Mont. 1998), that a woman who had secreted
her child for eight years to thwart the child’s father from contacting her or the child was equitably
estopped from seeking to enforce accrued arrearages. The court noted that father resumed paying
support when mother returned to the state and permitted him to know where the child was. It also
found father had changed his position in reliance on his inability to learn of his child’s whereabouts
during the 8 years of absence from the state. See also In re Vroenen, 94 Cal. App. 4th 1176 (Cal. App.
2001) (rejecting concealment as basis for equitable estoppel where concealment ended before the
child reached majority).

A Massachusetts court rejected a former prisoner’s suit for rescission of his child support
debts which accrued during his imprisonment. D’Avella v. McGonigle, 711 N.E. 2d 882 (Mass.
1999). The court pointed out that there are no explicit exceptions to the statutory ban on retroactive
modification of child support debts which become judgment upon accrual. A similar situation with
an egregious twist was reported recently. Clarence Brandley, a Texas school janitor, was released
from prison in 1992 on a finding by a state appeals court that he had been wrongfully convicted of
killing a high school student. In the spring of 2002, however, it was reported that his wages have
been garnished since his release from prison in 1993 for about $35 weekly for support arrearages
which accrued during his nine years of wrongful imprisonment. Brandley described the situation as
a “double insult,” and asserted the state ought to forgive or pay his arrears because it had wrongfully
placed him on death row for nine years. A spokesman for the Attorney General’s office,
acknowledging “special circumstances,” said the “obligation for child support does not go away.”
An attorney who represented Brandley in a child support arrearage action in 1993 noted the action
was begun “shortly after Brandley filed a $120 million civil rights lawsuit against an array of state
agencies” which was later dismissed on the basis of sovereign immunity. Rice, “It’s Like a Double
Insult”; Free From Prison, Brandley Baffled by Order to Pay Back Child Support, HOUST . CHRON.,
Apr. 27, 2002, p. 1.

37
 Pages 578-80. Note on Federal Involvement in Support Enforcement. The Note discusses
the PRWORA of 1996 and summarizes some of its provisions. The Tenth Circuit rejected an attack
by the state of Kansas on the restrictions imposed by the Act in Kansas v. United States, 214 F.3d
1196 (10th Cir. 2000). The state described as coercive, among other rules, the Act’s provisions
mandating information sharing, mass case processing, and uniformity in exchange for federal
funding for welfare programs. According to the court, the state objected to establishment of “a Case
Registry which contains all child support orders within the state and a Directory of New Hires. These
databases are regularly matched against one another and against a Federal Case Registry and
National Directory of New Hires....” The state also pointed to the statutory requirement that, as a
condition of federal funding, states had to “adopt the Uniform Interstate Family Support Act, ... pass
laws facilitating genetic testing and paternity establishment and authorizing state child support
agencies to take expedited enforcement action against non-paying noncustodial parents.” The state
also complained about requirements for suspension of professional and other licenses, placement of
liens on property and notification of consumer credit reporting agencies. The court held that the
limits on the Congressional Spending Power outlined by the United States Supreme Court in South
Dakota v. Dole, 483 U.S. 203 (1987), had not been breached. The court noted that the new welfare
program actually offered individual states more options than the previous Aid to Families with
Dependent Children.

See Elrod, Child Support Reassessed: Federalization of Enforcement Nears Completion,

1997 U. ILL. L. REV . 695 (predicts improvement of support enforcement along will not solve
problem of child poverty and argues current law reduces public support for families by focusing on
support enforcement rather than assistance to needy families); Estin, Federalism and Child Support,
5 VA . J. OF SOC. POL’Y & L. 541 (1998)( discusses use of Commerce and Spending Power to
promulgate federal support legislation; argues “boundaries between national and state power are
worth preserving in family law and...both Congress and the courts have important roles to play in
helping to preserve the balance”); Note, Collecting and Enforcing Child Support Orders with the
Internal Revenue Service: An Analysis of a Novel Idea, 20 WOMEN ’S RTS. L. REP. 137 (1999).

Page 583, Note b. Income Withholding. A recent opinion by the Texas Attorney General
addressed the constitutionality under the state constitution of collection of certain fees through child
support wage withholding. TEX . ATT . GEN . OP . NO . JC-0346, 2001 Tex. AG LEXIS 31. The state
constitution authorizes garnishment to collect “court-ordered child-support payments.” The Attorney
General concluded attorney’s fees incurred in establishment of child support would not be included
within that phrase, though attorney’s fees for collection of support would be. The opinion also
concludes that the constitutional provision is not offended by inclusion of the costs of collecting
support incurred by state agencies designated to collect and forward the support payments.

Page 586, Note c1. Criminal Prosecution as Enforcement. The appropriate mens rea for
criminal failure to pay a support order was at issue in State v. Collins, 733 N.E. 2d 1118 (Ohio
2000). Relying on criminal law principle which assumes a requirement of culpability and a specific
Ohio statute implying a requirement of recklessness where no mens rea is explicitly stated, the court

38
wrote:

... we find ... sufficient evidence ... to support a jury finding of recklessness.... Where, after
notice and opportunity to be heard, a court order is issued mandating a person to submit child
support payments to a specific agency ... [which] shows no record of any payments having
been received ... over a period of many years, a circumstantial inference arises that the person
was aware of the obligation to pay and yet did not do so.... Where no payments reach the
agency over a period of many years, it may be inferred that the obligor took no action to
ensure payment, and, in fact, intended not to pay. Accordingly, where no evidence [of
mistake or misdirected payments] is presented... a jury has evidence before it sufficient to
establish a culpable mental state of at least recklessness, beyond a reasonable doubt.

The dissenters argued that no mens rea was required and it should be sufficient that the state
prove failure to pay.

Page 589, Note iii. Revocation or Denial of State-Created Privileges. The Indiana Court
of Appeals rejected a claim that revocation of obligor’s license as a certified public accountant was
pre-empted by a finding of contempt for the same failure to pay support. Berntson v. Indiana Div.
of Fam. & Child. 737 N.E. 2d 1208 (Ind. App. 2000). The court also rejected an argument that the
revocation was inappropriately handled by an administrative agency, rather than a court. While
implying inability to pay would have been a valid defense, the court found obligor had raised such
a claim in the trial court, which had rejected it on factual grounds.

Inability to pay is a constitutionally mandated defense to a statutory scheme revoking the

driver’s license of a delinquent obligor, according to the Alaska Supreme Court. Dep’t of Rev. v.
Beans, 965 P. 2d 725 (Alaska 1998). While rejecting a broad substantive due process against the
revocation statute because of significant state interests and effectiveness of the sanction, the court
said obligor has a constitutional right to prove (by a preponderance of the evidence) his or her
inability to pay.

Despite its name, this note refers to a provision of the Welfare Reform Act of 1996 which
authorizes revocation of obligor’s passport where more than $5,000 is owed. See 42 U.S.C. §652(k).
Two recent cases rejected constitutional attacks on this provision. In Eunique v. Powell, 281 F.3d
940 (9th Cir. 2002), the court rejected an assertion that the provision violates the Constitutional right
to travel. Citing Supreme Court precedent, the court noted that the right to travel internationally is
merely a portion of the liberty protected by the Due Process Clause and, as such, is significantly
narrower than the separately guaranteed right to interstate travel. Applying rational relationship
scrutiny, the majority found the scheme related to special concerns about the problems of support
enforcement where obligor has left the jurisdiction. The dissent applied intermediate scrutiny and
found the statute wanting. See also Weinstein v. Albright, 261 F.3d 127 (2d Cir. 2001)(rejecting
Procedural Due Process and Equal Protection attacks on same statutory provision).

Page 592, Note 4c. Delay as Defense to Arrearage Action. A number of recent cases

39
address the laches defense in support arrearage actions. A 1992 California statute exempted child
and spousal support judgments from the general requirement of periodic renewal and made them
enforceable until paid in full. Several courts in recent years have addressed the assertion by support
obligees that this legislative action eliminates laches as a defense. Three separate courts of appeal
have, however, rejected this argument. In Fogarty v. Rasbeary, 78 Cal. App. 4th 1353 (2d Dist.
2000), the court concluded that the defense had been applied in case law for 50 years prior to the
legislation, the legislation did not specifically outlaw its use and the legislative history of the
elimination of the statute of limitations suggested legislators assumed laches would still be available.
The court endorsed case by case analysis of the equitable considerations and rejected the application
of a bright line test in such cases. See also Barnett v. Copeman, 90 Cal. App. 4th 324 (1st Dist. 2001);
Black v. Dancy, 82 Cal. App. 4th 1142 (4th Dist. 2000).

The California cases, however, acknowledge that there is a split among the states on the
issue. For a recent case rejecting laches as a defense so long as the relevant statute of limitations has
been complied with, see Hammond v. Hammond, 14 P.3d 199 (Wyo. 2000)(concluding laches is an
equitable defense and an arrearages action is an action at law); see also S.E.S. v. B.B.O., 24 Fam. L.
Rep. 1628 (D.C. Super. Ct. Fam. Div., 8/28/98)(rejecting laches defense where obligor sought
support for the first time when child was 17 years, 200 days old).

Page 593, Note 4. Equitable Estoppel as a Defense to Arrearage Action. In Hendrickson

v. State, 72 S.W. 3d 124 (Ark. App. 2002), the court held trial court judge erred by refusing to
consider possibility of equitable estoppel as defense in a suit seeking $42,000 in support arrearages.
Defendant had asserted that under an oral agreement with his former wife he had the children 50%
of the time, despite the decree provision granting her total custody. He also alleged that this
agreement eliminated all child support obligations. The trial court should not, according to the
appellate court, relied on its “mistaken understanding that unless the agreement of the parties was
incorporated in a modification to the divorce decree, the agreement was not enforceable.”

Page 594. Special Procedures in Enforcement of Support for Indigent Families. As the
casebook mentions, federal law provides that obligee’s refusal to cooperate with enforcement
support efforts by the agency can be justified by “good cause” where physical or emotional harm to
custodial parent or child is reasonably likely. For an article focusing on the appropriate balance
between protecting against abuse and collecting support, see Notar & Turetsky, Models for Safe
Child Support Enforcement, 8 Am. U. J. Gender, Soc. Pol’y & L. 657 (2000).

Page 609, Note 7. Criminal Enforcement of Interstate Support Obligations. Attempting

to use the rationale adopted by the Supreme Court in United States v. Morrison, 529 U.S. 598
(2000), to strike down the private cause of action for domestic abuse in the Violence Against Women
Act, several defendants unsuccessfully claimed the Child Support Recovery Act of 1992 (CSRA)
was beyond Congressional authority. The courts stressed that Supreme Court Commerce Clause
jurisprudence has identified 3 separate categories of activity regulable under Congressional
Commerce Clause power: 1) use of the channels of interstate commerce; 2) the instrumentalities of
interstate commerce or persons or things in such commerce; 3) intrastate activities having a

40
substantial relation to interstate commerce. The CSRA was a regulation of activities under 1) and
2), while Morrison was restrictive regarding Congressional power to regulate activities under 3).
United States v. King, 276 F.3d 109 (2d Cir. 2002); United States v. Lewko, 269 F.3d 64 (1st Cir.
2001); United States v. Faasse, 265 F.3d 475 (6th Cir. 2001).

In 1998, Congress (in the Deadbeat Parents Punishment Act) amended the CSRA 1992 to
stiffen the punishment for major violations of the statute. Under the new provision, codified at 18
U.S.C. §228, a debt of longer than two years or over $10,000 is punishable by fine or imprisonment
of up to 24 months or both. In United States v. Russell, 186 F.3d 883 (8th Cir. 1999), defendant’s
motion to dismiss an indictment under the amended Act was granted by the trial court on the grounds
that the Ex Post Facto Clause of the Constitution prohibited application of the new punishment
provisions to the defendant because some of the alleged $10,000 arrearages accrued before the 1998
Amendment. The Eighth Circuit, however, reversed the dismissal, rejecting the Ex Post Facto
argument. Relying on a similar result in United States v. Black, 125 F.3d 454 (7th Cir. 1997) (which
rejected the identical argument in a case brought under the original CSRA), the court wrote that
“what is relevant is that [the debt] remained unpaid” after the effective date of the statute. The court
distinguished United States v. Mussari, 152 F.3d 1156 (9th Cir. 1998) which held that the government
could not, in a CSRA prosecution, rely on evidence of wilful failure to pay support which occurred
before the Act. Only post-Act evidence of wilfulness, which is required under the Act, is admissible,
according to the Mussari court. See also United States v. Rose, 153 F.3d 208 (5th Cir.
1998)(rejecting Ex Post Facto claim against restitution award which included arrearages accruing
before statute’s enactment).

In addition to the consideration of Constitutional attacks on the CSRA, the federal courts
have been busy dealing with interpreting the statute. For example, the definition of the word “child”
in the phrase “child support” was at issue in United States v. Molak, 276 F.3d 45 (10th Cir. 2002).
The Molak defendant argued that the trial court had ordered restitution of too much money because
a portion of the child support order which he had failed to pay was attributable to post-majority
support for such items as college tuition and interest. He contended that child support was only
money due before the beneficiary reached his or her 18th birthday. The Tenth Circuit rejected this
argument. Acknowledging that the Act itself does not define “child,” the court noted that the
definition of “support obligation” ties the meaning of child to the specific order alleged to have been
violated. State courts are in a better position than federal courts to determine who the appropriate
beneficiaries of child support order are, held the court, and federal courts “should accept state-court
support orders as they are written and avoid relitigating matters already decided in the family courts.”
Other cases involving the appropriate scope of restitution remedies include United States v. Gill, 264
F.3d 929 (9th Cir. 2001)(restitution award appropriately included interest as well as principal
amount); United States v. Craig, 181 F.3d 1124 (9th Cir. 1999)(arrearage award can appropriately
include all arrearages owed, not simply the amount accruing during the period specified in the
indictment).

Appropriate venue for a CSRA prosecution was the issue facing the court in United States
v. Muench, 153 F.3d 1298 (11th Cir. 1998). The court held that a Texas father who failed to pay child

41
support, under a Texas divorce decree, to his children who now lived in Florida with their mother
could be tried in a Florida federal court. The CSRA punishes the failure to perform under the
support decree and that failure to perform occurs, among other places, in the state where the
beneficiaries are located, held the court. The court also noted that the Deadbeat Parents Punishment
Act of 1998 makes it clear that prosecution in the state of child’s residence is appropriate. In United
States v. Mattice, 186 F.3d 219 (2d Cir. 1999), the court held that the mens rea required for a CSRA
conviction is the intent to violate the support obligation, not an intent to violate the CSRA. See also
United States v. Lamb, 23 F. Supp. 2d 457 (D. Vt. 1998)(proof of receipt of arrearage order by state
court is unnecessary; prosecution need only prove intent to fail to live up to obligation of support)
but see United States v. Kramer, 225 F.3d 847 (7th Cir. 2000) (CSRA defendant can, by way of
defense, collaterally attack for lack of personal jurisdiction the state child support order on which
criminal prosecution is based; obligation to support requires valid underlying support order)

In United States v. Harrison, 188 F.3d 985 (8th Cir. 1999), the court held that the trial court
properly excluded evidence that defendant had a motion for modification of future support payments
pending in state court at the time of his federal criminal prosecution under the CSRA. The court held
that defendant had received lump sum workers’ compensation benefits during the time in which he
had failed to pay his support obligation and, thus, had the ability to pay during the relevant time
period. The court did not mention the fact that retroactive modification of a child support obligation
is inappropriate under the Bradley Amendment (see casebook, p. 571). Thus, any modification for
future support obligations would seem to be irrelevant to the ability to pay past support obligations.

See Note, Deadbeat Dads, Welfare Moms, and Uncle Sam: How the Child Support Recovery
Act Punishes Single-Mother Families, 45 STAN . L. REV . 729 (2000) (arguing state or local
prosecution of obligors is appropriate and federal funds should be devoted to training single mothers
and subsidizing day care facilities).

Page 605, Note 2. Choice of Law and Other Changes in UIFSA. While the casebook notes
the clear language of UIFSA §604(a) that the law of the rendering state determines the “duration”
of a support order, a surprising amount of litigation continues to arise testing the truth of that fact.
E.g., in Robdau v. Commonwealth ex rel. Robdeau, 543 S.E. 2d 602 (Va. App. 2001), obligor
objected to the enforcement of a New York order providing support until the age of 21, rather than
the Virginia age of majority of 18, asserting that the trial court was without jurisdiction to enforce
a support obligation past the domestic age of majority. Pointing out that acceptance of obligor’s
argument would reward and, thus, encourage forum shopping, the appellate court affirmed the trial
court’s enforcement of the New York order. See also Vancott-Young v. Cummings, 1999 Ohio App.
LEXIS 2342; State ex rel. Harnes v. Lawrence, 538 S.E. 2d 223 (N.C. App. 2000); Teare v. Bromley,
753 A. 2d 764 (N.J. Super. 2000)(modification of N.J. decree by Maryland court upon transfer by
the N.J. court did not deprive the N.J. decree of its efficacy in determination of its duration); In re
Morris, 32 P.3d 625 (Colo. App. 2001)(applying §604(b) which provides that in arrearage action
with conflicting statutes of limitation the longer statute is used); Clemmons v. Office of Child
Support Enforcement, 37 S.W. 3d 687 (Ark. App. 2001) (same); Attorney General of Texas v. Litten,
999 S.W. 2d 74 (Tex. App. 1999) (same).

42
 While UIFSA provides a clear answer where the duration of the order is different in two
states, Cavallari v. Martin, 732 A. 2d 739 (Vt. 1999), presented a case in which the UIFSA provision
was inapplicable because the litigation took place before Vermont’s 1998 adoption of the new Act.
In this case, a New York court entered a support order for the benefit of the couple’s child which,
under state law, would last until the child’s 21st birthday. Soon afterward all parties moved to
Vermont where, on the child’s 18th birthday, the obligor moved for termination of support
obligations under domestic state law. The trial court ordered post-majority support until the age of
21 (consistent with the New York decree), but the state supreme court reversed. Refusing to apply
UIFSA retroactively, the court addressed the applicability of the relevant federal legislation (Full
Faith and Credit for Child Support Orders Act). In this connection, it wrote:

Although the provisions of the Full Faith and Credit Act often duplicate those of
UIFSA, the federal statute lacks a prohibition on modifying a provision of a support
order that is nonmodifiable in the issuing state. Thus, the Full Faith and Credit Act
is not an impediment to the modification sought in this case.

The court emphasized that UIFSA, now clearly applicable, would impose a different result in any
future case.

In Department of Human Services v. Frye, 754 A. 2d 1000 (Maine 2000), the court applied
§303(2) of UIFSA (“ a responding tribunal...shall determine the duty of support and the amount
payable in accordance with the law and support guidelines of this State”) to apply Maine guidelines
for child support, rather than the guidelines of Florida, where the obligee resided. It also applied
Maine law in considering child care expenses of children other than the beneficiary of the support
order. See also Groseth v. Groseth, 600 N.W. 2d 159 (Neb. 1999)(finds §303 required use of forum
law in a modification action authorized by UIFSA).

Section 305(d) of UIFSA provides that a responding tribunal “may not condition the payment
of a support order ... upon compliance by a party with provisions for visitation.” In Office of Child
Support Enforcement v. Clemmons, 984 S.W. 2d 837 (Ark. App. 1999), the court held that this
provision prohibited the Arkansas court from considering Arkansas obligor’s claim that he should
not be forced to pay arrearages because obligee had secreted the child and, thus, made visitation
impossible. This was, according to the court, a collateral matter under UIFSA and irrelevant. The
trial court’s refusal to enter judgment on the arrearages by virtue of application of equitable estoppel
was reversed.

Page 607, Note 4. UIFSA in Operation. As the casebook indicates, the heart of the UIFSA
regime, as compared to the previous URESA era, is the drafters’ attempt to reduce and eventually
eliminate the number of situations where more than one order covers a single child or set of children
and, relatedly, to instill restraint in the modification of existing orders, especially orders which were
rendered in a state other than the state where modification is sought. Recent litigation reveals a
number of courts refusing to permit modification of other states’ orders because of the UIFSA rules.
For example, in In re Marriage of Zinke, 967 P.2d 210 (Colo. App. 1998), the parties were divorced

43
in Montana in 1982 with father being ordered to pay support for child who was in custody of mother.
At some later point, mother (remaining in Montana) consented to child living with father in
Colorado.

A Colorado trial court, on motion of father, granted him legal custody and purported to order
mother to pay child support, over her objections that while Colorado did have jurisdiction to decide
custody, it lacked both subject matter and personal jurisdiction over her over child support. The
appellate court agreed with her contention, noting that jurisdiction under the UCCJA covered only
custody questions. The issue of jurisdiction to determine support is governed by UIFSA, which
requires that modification of child support shall be heard in a state with continuing, exclusive
jurisdiction over the issue which, in this case, was Montana. As the casebook points out, the
rendering tribunal (Montana here) retains continuing, exclusive jurisdiction over the support issues
so long as at least one party remains there. In this case, mother remained in Montana. While father
claimed there was long-arm jurisdiction over mother, the appellate court refused to address the claim,
implying that even if personal jurisdiction over mother existed through the use of the long-arm
statute it would be irrelevant because Colorado lacked UIFSA subject matter jurisdiction to modify
the Montana decree. See also Philipp v. Stahl, 2002 N.J. LEXIS 735 (June 12, 2002) (holding
Georgia retained continuing exclusive jurisdiction to modify its divorce decree because obligor
remained there; intervening New Jersey orders enforcing the original decree were not modifications
and did not transfer continuing exclusive jurisdiction to New Jersey); Harbison v. Johnston, 28 P.3d
1136 (N.Mex. App. 2001) (while New Mexico could enforce out of state decree, Texas retained
continuing exclusive jurisdiction to modify its order because father was there; presence of custody
jurisdiction in New Mexico does not create jurisdiction over support obligation); Dep’t of Rev. ex
rel. Cascella v. Cascella, 751 So. 2d 1273 (Fla. App. 2000) (Florida order was enforcement of
Connecticut decree, not a modification; modification jurisdiction is retained by Connecticut); In re
Parenzan, 727 N.Y.S. 2d 163 (App. Div. 2001) (intervening New York decrees were enforcing, not
modifying, Indiana decree; Indiana remains court of continuing, exclusive jurisdiction). In In re
Hartman, 712 N.E. 2d 367 (Ill. App. 1999), the court made clear that Illinois, as the rendering state,
retained continuing, exclusive jurisdiction to modify the existing support order despite the fact that
obligor lived in Florida, where an enforcement order had been issued. The Illinois court emphasized
that the Florida order was not a modification and, thus, did not shift modification jurisdiction.

For other courts finding no jurisdiction to modify a support decree of another state because
defendant remained in the rendering state, see State v. Beasley, 801 So. 2d 515 (La. App. 2001);
Watkins v. Watkins, 802 So. 2d 145 (Miss. App. 2001); Bordelon v. Dehnert, 770 So. 2d 433 (La.
App. 2000); Chisholm v. Chisholm-Brownlee, 676 N.Y.S. 2d 818 (Fam. Ct. 1998).

Conversely, a Minnesota court made clear that the one-order system prohibited establishment
of a new obligation when a valid order existed ordering the obligor to support the child. While this
was ordinary procedure under the URESA system, the premise of UIFSA is that where an order
exists, a new one should not be issued. Instead, the obligee (or in this case the state agency acting
on behalf of the obligee) needs to modify the existing decree, consistent with UIFSA rules on
modification jurisdiction. Thus, in this case, the valid Puerto Rico decree should have been

44
registered in Minnesota and then modified. Rivera v. Ramsey County, 615 N.W. 2d 854 (Minn. App.
2000).

UIFSA §611(a) provides for modification jurisdiction in situations where all parties to the
original decree are no longer in the issuing state. Essentially, UIFSA provides that where all parties
have left the rendering jurisdiction any petitioner seeking a modification must litigate the issue in
the jurisdiction of the respondent, unless all parties agree to a different jurisdiction (a 2001
amendment to UIFSA permits the parties to agree to the original rendering jurisdiction as the
appropriate site for modifications). Several recent cases have relied on these provisions to reject
modification petitions sought in the petitioner’s, rather than respondent’s, state. LeTellier v.
LeTellier, 40 S.W. 3d 490 (Tenn. 2001)(obligee cannot invoke jurisdiction for upward modification
even though long arm jurisdiction might be exercised over obligor; obligee’s state lacks subject
matter jurisdiction over cause and personal jurisdiction alone is insufficient); Gentzel v. Williams,
965 P.2d 855 (Kan. App. 1998)(obligor in Kansas must seek downward modification in Texas, the
current residence of obligee and children); Compton v. Compton, 1999 Ohio App. LEXIS 2592
(Ohio obligee must seek upward modification of Texas decree in Florida, obligor’s current
residence). In another case where all parties had left Kansas, the decree state, the Kansas Court of
Appeals noted that the parties had not agreed to Kansas retaining continuing, exclusive jurisdiction
and reversed a trial court order modifying the original decree. In re Abplanalp, 7 P.3d 1269 (Kan.
App. 2000); see also Loden v. Loden, 740 N.E. 2d 865 (Ind. App. 2000) (forum state had lost
continuing, exclusive jurisdiction and could only enforce, not modify, foreign decree); Jurado v.
Brashear, 782 So. 2d 575 (La. 2001) (rejecting argument that rendering court retained modification
jurisdiction during period after parties left state and before another state assumed jurisdiction); but
see Sherman v. Fritz, 2001 Ohio App. LEXIS 3419 (holding neither UIFSA nor FFCCSOA should
be retroactively applied and, thus, a 1990 modification issued by decree state after all parties had left
state was valid).

Under UIFSA, even if the rendering state has been supplanted as the state with continuing
exclusive jurisdiction to modify an order, it retains the power to enforce the original decree. Thus,
if arrearages had accrued in the rendering state before the parties left the state and another state
modified the decree, the original rendering state could enforce the arrearages. See Linn v. Delaware
Child Support Enforcement, 736 A.2d 954 (Del. 1999) (registering Minnesota order enforcing
arrearages which was entered after all parties had left the state).

Registration Under UIFSA—Section 607 of the Act outlines seven available defenses for
one seeking to vacate registration of an order. According to the statute, the objecting party must
carry the burden of proof. The question of whether this list is exclusive was presented in Tepper v.
Hoch, 536 S.E. 2d 654 (N.C. App. 2000). The Tepper obligor objected to the registration claiming
that laches (obligee had waited 7 years to seek registration and enforcement) would prevent
enforcement of the decree in Illinois, the rendering state. While acknowledging that UIFSA’s seven
defenses did not include laches or a broad incorporation of rendering state’s defenses, the appellate
court held that FFCCSOA, the federal statute, did not track UIFSA’s limitation of defenses and
federal pre-emption thus permitted assertion of such a defense. But see LeTellier, supra (rejecting

45
argument that FFCCSOA’s failure to include same limit as UIFSA does on modification jurisdiction
indicates an intent to pre-empt state law). The Tepper court distinguished an earlier case, North
Carolina v. Bray, 503 S.E. 2d 686 (N.C. App. 1998), in which it refused to permit defendant to assert
a defense recognized in the responding, rather than the rendering, state. It is not at all clear,
however, why that would make a difference. If indeed Tepper is correct that the federal statute’s
failure to limit defenses thus permits all defenses, it would seem that defenses under either rendering
or forum state law would apply.

In another case dealing with an objection to registration, the North Carolina Court of Appeals
held that the mere assertion of payment of the underlying obligation should not have resulted in the
vacation of the registration and the shifting of the burden of proof to the registrant. In Martin Cty.
ex rel. Hampton (Babalola) v. Dallas, 535 S.E.2d 903 (N.C. App. 2000), the court held that the trial
court erred in vacating the registration simply because there was conflicting evidence on the issue
of prior payment. While §607(a)(6) of the Act provides a defense of prior payment, the obligor has
the burden of proving it and vacation should not occur short of a finding that the burden has been
satisfied. See also Henderson v. Henderson, 598 N.W. 2d 490 (N.D. 1999) (refusal to register
appropriate under §607(a)(3) where underlying order has been validly terminated); Mallon v.
Cudahey, 38 P.3d 946 (Ore. App. 2001) (trial court erred in vacating registration of court order under
which a 1999 judgment had been obtained in New York; statute of limitations issue should be based
on 1999 judgment, not original 1969 order of child support).

Support Orders from Foreign Countries—In its original form, UIFSA’s definition of “State”
in §101(18), included foreign countries which had a reciprocal relationship with a state within the
United States or who had enacted substantially similar legislation. (The Act was amended in 2001
to include within its definition all countries which were declared to be a foreign reciprocating
country under federal law.) This definition of “state” permits, among other things, support orders
from qualifying foreign countries to be registered and enforced, as if they had been the orders of a
state within this country. In an action to register a Luxembourg decree of child support, a New
Jersey court refused to register the order because it found that the Luxembourg order had been
obtained without personal jurisdiction over obligor. Finding a due process violation, it held that
public policy would be offended by the registration of such a decree. Luxembourg ex rel. Ribeiro v.
Canderas, 768 A.2d 283 (N.J. Super. Ch. 2001): see also Foreman v. Foreman, 550 S.E. 2d 792
(N.C. App. 2001) (finding Great Britain is a reciprocal jurisdiction with a substantially similar law);
Haker-Volkening v. Haker, 547 S.E. 2d 127 (N.C. App. 2001) (finding Switzerland is not state under
UIFSA because there was no evidence that its statute was substantially similar to the North Carolina
statute; comity also rejected as basis for registration).

Remedies Under UIFSA—The statute, in §305, makes clear that all remedies which are
available under domestic law to enforce a support obligation are likewise available in an interstate
case. A New York case relied upon this provision in reversing a lower court decision rejecting
incarceration as a remedy for willful violation of an out-of-state order. The court noted that wilful
violation of a New York order could result in incarceration. Child Support Enforcement Unit ex rel.
Judith S. v. John M., 283 App. Div. 2d 40 (4th Dept. 2001).

46
 Forum Non Conveniens—An Oklahoma court, in dealing with a paternity action filed by
a resident asserting jurisdiction over a Wisconsin woman, invoked the doctrine of forum non
conveniens to order the trial court to utilize §203, the basic provision establishing the two-state
proceeding whereby the court where petition is filed serves as the initiating tribunal and the court
in respondent’s state serves as responding tribunal. The appellate court reversed a dismissal and
ordered a transfer. Perdomo v. Fuller, 974 P.2d 185 (Okla. App. 1999).

Page 607, Note 5. Transition Rules Between URESA and UIFSA. In a recent case, the
court found that there had been a URESA order entered in New Jersey and then an administrative
order in Maryland. While both were valid orders, the court found that under §207 of UIFSA the
original New Jersey order, as the continuing home state of the child (the obligor having moved to
Maryland), was the controlling order. Because it provided for continued support throughout the
child’s enrollment in college, it trumped the Maryland administrative decree which purported to
terminate support on the child’s 18th birthday. Teare v. Bromley, 753 A.2d 764 (N.J. Super. 2000);
see also Cohen v. Powers, 43 P.3d 1150 (Ore. App. 2002) (applying transition rules of UIFSA to
determine controlling order where three prior orders existed).

Page 608, Note 6. Federal Full Faith and Credit for Child Support Orders Act of 1994.
The restrictive provisions of the federal act limiting the ability of a second state to modify another
state’s support order has been relied on in several recent cases which were litigated before UIFSA’s
effective date. See Stansbury v. Stansbury, 1999 Ohio App. LEXIS 3667; Connell v. Woodward, 509
S.E. 2d 647 (Ga. App. 1998).

Recent Literature on Interstate Child Support—See Ferrette, A Critical Analysis of the

International Child Support Enforcement Provisions of the Social Security Act: The (In)Ability of
States to Enter into Agreements with Foreign Nations, 6 J. INT ’L & COMP. L. 575 (2000); Hatamyar,
Interstate Establishment, Enforcement, and Modification of Child Support, 25 OKLA . CITY U.L. REV .
511 (2000); Comment, Child Support Guidelines Encourage Forum Shopping, 37 DUQ . L. REV . 287
(1999); Kemper, Annotation: Construction and Application of Uniform Interstate Family Support
Act, 90 A.L.R.5th 1 (2001).

47
 Chapter 6
Child Custody

Page 620. Perspectives From Social Science: Children and Divorce. Mavis Hetherington
has published a book that draws on her 30 years of research on the impact of divorce on children.
E. MAVIS HETHERINGTON & JOHN KELLY , FOR BETTER OR FOR WORSE : DIVORCE RECONSIDERED
(2002). The book combines a description of the major findings of her research, including the famous
Virginia Longitudinal Study and a study of stepfamilies in Philadelphia, with her reflections and
observations on a subject to which she has devoted a lifetime. Hetherington describes a great deal
of variety in the way people respond to divorce; she observes several patterns: enhanced (better off
because of the divorce); competent loners (adjusted, but not remarried); good enough ((the largest
category) few lessons learned; different partners, but the same problems); seekers (quickly remarried,
or if not, unhappy); libertines (pursued a fast-track life, but usually found it unsatisfactory); and
defeated (embittered losers). Hetherington acknowledges that her research confirms some
conventional wisdom about the costs of divorce for spouses and children: “The end of marriage is
usually brutally painful.” Id. at 10. However she also finds that most children whose parents
divorced grew up to be adults who are coping successfully with adult roles and tasks. Indeed, some
children are better off because of the divorce.

Page 626, Note 1. Gender Roles. The Alaska Supreme Court, in a case that cites Burchard
v. Garay, rejected a trial court’s conclusion that the father should be awarded custody because he
was planning to remarry, and the child could benefit from a two-parent household. West v. West, 21
P.3d 838 (Alaska 2001). The mother lived in Oregon with the child, 6-year-old Cody, and her 16-
year-old daughter, who helped with his care while the mother worked. Her parents lived nearby.
The father served in the Coast Guard in Alaska, and was subject to deployment and transfer as part
of his military duty. The trial court was positively impressed by the father’s romantic relationship
with a nurse, who would care for Cody when his father was away, and on that basis found that the
father’s household was better. The Alaska Supreme Court rejected the theory that the “presumed”
advantages of a two-parent household should determine which parent obtained custody, and chided
the trial court for ignoring the close relationship between Cody and his sister and grandparents
(whereas he hardly knew his father’s fiancé). The court recognized that the trial court’s view
disproportionately disadvantages women, because divorced men are more likely to remarry spouses
who are not employed outside the home.

A Maryland court rejected another gender-based assumption, in reversing an order that

transferred custody of a young teenage girl from father to mother because the girl was reaching an
age when she showed “the need for a female hand.” Giffen v. Crane, 716 A.2d 1029 (Md. 1998).
The appellate court rejected this finding as a “changed circumstance” that justified a modification
of the original custody order. The court based its decision in large part on the Maryland Equal
Rights Amendment, which, the court found, “flatly prohibits gender-based classifications.”

Feminist authors continue to show interest in child custody as a context in which women are
discriminated against under the gender-neutral best-interest standard. See, for example, Penelope

48
Byran, Reasking the Woman Question at Divorce, 75 CHI.-KENT L. REV . 713 (2000) (discussing how
gender stereotypes disadvantage women in custody proceedings, and examining feminism’s
relevance to these problems); Margaret F. Brinig, Feminism and Child Custody Under Chapter Two
of the American Law Institute’s Principles of the Law of Family Dissolution, 8 DUKE J. GENDER L.
& POL'Y 301 (2001) (noting that Chapter 2 of the Principles reflects feminist ideology, observing that
the Principles will have to be “sold” to men before they will be adopted by states other than West
Virginia, and arguing that the Principles will benefit men, too, as the approximation rule of the
Principles is more beneficial to both parents than joint custody); Martha Fineman, Fatherhood,
Feminism and Family Law, 32 MCGEORGE L. REV . 1031 (2001) (arguing that the movement for
gender-neutrality in custody proceedings focuses too much on achieving egalitarian results, ignoring
important differences between the sexes and ultimately doing mothers a disservice); Katharine T.
Bartlett, Comparing Race and Sex Discrimination in Custody Cases, 28 HOFSTRA L. REV . 877
(2000) (discussing the parallels between racial and gender bias in custody proceedings, and arguing
that the similarities between them support a categorical ban on all types of discrimination in the
A.L.I. Principles).

Page 630, Note 5. Domestic Violence as a Factor in Custody Disputes. Domestic violence
has recently gained importance as a factor in determining custody allocations. Although abuse
against the child has long been recognized as a matter for concern in custody proceedings, abuse
against a spouse or partner has sometimes been disregarded as a factor that reflects on the abusive
parent’s ability to raise a child. Today, almost every state considers whether a parent has engaged
in domestic violence as a factor in the custody analysis. Recently, courts and legislatures have taken
a tougher stance, and there has been a trend toward creating a presumption against granting custody
to perpetrators of domestic violence, instead of treating domestic violence as merely one factor
among many to be considered.

Several states have recently codified such presumptions. Some state legislatures have taken
a narrow approach, applying the presumption only in cases where there has been a substantial history
of domestic violence. The Massachusetts statute provides that a pattern or serious incident of
domestic violence creates a rebuttable presumption that awarding custody to the abusive parent is
not in the best interests of the child. MASS . GEN . LAWS ch. 209A, § 3 (2001). Arizona’s custody
statute also provides for a rebuttable presumption that it is not in the child’s best interests to grant
custody to the parent who committed the act of domestic violence. Domestic violence is again
defined as a serious incident of violence, or a pattern of abusive behavior. The presumption does
not apply if both parents have engaged in domestic violence. ARIZ . REV . STAT . § 25-403(N) (2001).
Texas also has a rebuttable presumption against granting custody to a parent where that parent has
a “history or pattern” of domestic violence. TEX . FAM . CODE ANN . § 153.004 (Vernon Supp. 2002).
Other states, in contrast, have been willing to apply the presumption without limiting it to recurring
or egregious incidents of abuse. Oregon’s rebuttable presumption, for example, does not require a
pattern of domestic violence or a “serious” incident for the presumption against the abusive parent
to apply. OR. REV . STAT . § 107.137(2) (2001). California also does not require a pattern or serious
incident, but does require that the incident of domestic violence have occurred within five years of
the custody dispute before the presumption will be applied. CAL. FAM . CODE § 3044 (West Supp.

49
2002).

Courts have also recognized the significance of domestic violence in custody proceedings.
In Caven v. Caven, the trial court found that the husband had a history of domestic violence, but still
granted the husband and wife mutual decision-making power under a parenting plan. The trial judge
interpreted Washington’s domestic violence statute to require both a history of domestic violence
and an assault causing “grievous bodily harm” or fear of such harm. The Washington Supreme
Court reversed, holding that a history of domestic abuse alone is sufficient to prohibit granting joint
custody. 966 P.2d 1247 (Wash. 1998). In a recent case, the Supreme Court of North Dakota held
that the abuse triggering a presumption against custody must be proximate in time to the custody
proceeding. The court found that the trial court did not err in declining to apply the statutory
presumption against awarding custody to a domestic abuser, where the alleged pattern of abuse
occurred long before the custody proceeding. The court noted that the alleged incidents were not
severe, that they were alleged to have occurred during the parties’ marriage (which ended three years
prior to the custody proceeding), and that the statute at issue required the pattern of violence to be
within a reasonable time proximate to the proceeding. Tulintseff v. Jacobsen, 615 N.W.2d 129 (N.D.
2000). In another case, the Supreme Court of Alaska similarly declined to take a broad view of such
domestic violence statutes. In a case in which a grandmother alleged that she had been assaulted by
her daughter-in-law and sought to gain custody of her grandchildren, the court held that she, as a
nonparent, did not have standing to seek custody in a domestic violence proceeding. The court held
that the domestic violence statute at issue, which provides that a protective order “may award
temporary custody of a minor child to the petitioner,” does not apply to a nonparent. J.M.R. v.
S.T.R., 15 P.3d 253 (Alaska 2001).

For a helpful overview of the law in this area, see Nancy K. D. Lemon, Statutes Creating
Rebuttable Presumptions Against Custody to Batterers: How Effective Are They?, 28 WM .
MITCHELL L. REV . 601 (2001).

Page 634, et. seq. Sexual Conduct and Moral Fitness. Although many courts continue to
view with alarm a child’s exposure to his parent’s homosexual relationship, a few recent cases
suggest that categorical judicial hostility toward lesbian and gay parents may be declining. For
example, the Mississippi Supreme Court recently reversed a custody award to a father who had
shown no interest in having custody of his young son until he suspected the mother of having a
lesbian relationship. Hollan v. Hollan, 784 So. 2d 943 (Miss. 2001). The mother had provided
most of the child care, and since the separation, the father often paid child support only through wage
garnishment. Moreover, the mother’s work schedule was more conducive to caring for the child.
The chancellor weighed the mother’s homosexual relationship heavily in his decision, and suggested
that she be charged with perjury for denying it in the proceeding. Moreover, after implicitly
threatening her in the proceeding for continuing to live with the alleged lesbian partner in an
apartment where she was resident manager, the chancellor found the mother’s living and
employment situations to be “unstable,” because she responded by moving out and getting a new job.
The supreme court emphasized that adultery per se was not a ground for denial of custody, and that
it was irrelevant whether the affair was heterosexual or homosexual. Finding that the clear weight

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of the evidence favored the mother as the child’s custodian, the appellate court determined that the
chancellor abused his discretion in giving too much weight to one factor (“moral fitness”) and
ignoring evidence favoring the mother.

A few courts have considered overnight visit restrictions, and have varied in whether harm
to the children must be shown. An Indiana court recently rejected an order restricting the custodial
mother from having overnight visits in the home with her homosexual partner, because there was
no showing that the visits would be harmful to the child. Downey v. Muffley, 767 N.E.2d 1014 (Ind.
Ct. App. 2002). (Interestingly, even the trial court issuing the order expressed concern that the
lesbian mother, because she could never marry a same-sex partner, was indefinitely restricted in her
ability to have an intimate relationship.) Pointing to evidence that the children were extremely well
adjusted, the appellate court directed that a determination of harm must be made on a case-by-case
basis before such a restriction could be ordered. Other courts have disagreed. See Taylor v. Tayor,
47 S.W.3d 222 (Ark. 2001) (upholding overnight visit restrictions as a way of reducing the
likelihood of harm to the children).

Many courts continue to assume that exposure to a parent’s homosexual relationship is likely
to be harmful to children, and therefore it can be the basis of a custody award to the other parent
without a showing of adverse effects. In a recent North Carolina case, the trial court ordered custody
changed from the father to the mother, because the father’s partner moved into the home. The North
Carolina Supreme Court held that this constituted a changed circumstance justifying modification
of the custody award, and that there was no need to demonstrate that the situation had an adverse
impact on the children. Pulliam v. Smith, 501 S.E.2d 898 (N.C. 1998). Denying that the order was
based on the father’s sexual orientation, the court justified the change of custody on the ground of
the father’s improper conduct.

Page 641. Race as a Factor. An important issue in biracial custody disputes was addressed
by a Nebraska court recently. Ebirim v. Ebirim 620 N.W.2d 117 (Neb. Ct. App. 2000). A Nigerian-
born father argued that he should have been awarded custody of his son, because he, and not the
child’s white mother, would raise him to appreciate his biracial heritage. The father pointed out that
there were no other black children in the town where the mother lived, and that some members of
the mother’s family had made racist comments in the past. The court rejected the father’s claim,
positing that when individuals of different races have a child, neither gains priority on grounds of
race alone. Race is one factor among many to be considered in the custody decision, and the court
upheld the custody award to the mother.

Page 652. New Topic: Parental Alienation. In recent years, courts have focused increasingly
on the extent to which each parent is supportive of the other’s relationship with the child. An
important goal of modern custody law is to promote continued contact between the child and both
parents, and some custody statutes direct courts to consider which parent is more likely to support
the child’s relationship with the other parent. This can be important when one parent opposes joint
custody, allowing the other to benefit from the “friendly parent” provision (and perhaps win sole
custody). See discussion in casebook on page 678.

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 An extreme version of this consideration in custody cases has become rather common
recently, when one parent claims that the other has purposely alienated the child’s affections. This
claim became more common (and has gained some notoriety) due to its designation as a pathology
– parental alienation syndrome. Child psychiatrist Richard Gardner described this syndrome in
which one parent “brainwashes” the child to hate and fear the other parent, and parent and child
become enmeshed in a folie a deux. RICHARD GARDNER , THE PARENT AL ALIENATION SYNDROME
(2d ed. 1998). Gardner argues that the syndrome is implicated in many (false) allegations of child
sexual abuse in custody disputes, but beyond this in many other custody disputes. Separation of the
child and the offending parent is often important in Gardner’s view, a conclusion that has important
implications for custody decisions. Other researchers have studied parental alienation and advocate
remedial intervention, although they reject Gardner’s syndrome as having little scientific foundation.
Joan B. Kelly & Janet R. Johnston, The Alienated Child: A Reformulation of Parental Alienation
Syndrome, 39 FAM . CT . REV . 249 (2001). Carol Bruch has recently offered a strong critique of
parental alienation syndrome and of the position of other researchers as well. Carol S. Bruch,
Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases,
35 FAM . L.Q. 527 (2001). She challenges Gardner’s theory as having little scientific basis, and
argues that focusing on parental alienation places an unjustified burden on the complaining parent
and child, and may divert attention from actual abuse. Bruch strongly objects to alienation being a
factor in the custody decision. She points out that the child’s alienation is usually a transitory
response, which the child regrets as she matures.

Some courts are reluctant to give excessive weight to this factor. Recently, the Vermont
Supreme Court upheld the award of custody to a mother, despite the fact that she had undermined
the child’s relationship with the father by filing baseless abuse charges against him. Renaud v.
Renaud, 721 A.2d 463 (Vt. 1998). Although the court found that the mother’s groundless suspicions
were harmful to the child, it determined that disrupting their close relationship would be highly
detrimental. The court affirmed that a parent could lose custody on the basis of a “continual course
of conduct . . . designed to poison the child’s relationship with the other parent,” but it relied on
expert opinions that the mother’s response was the product of transient emotional stress, and that she
would eventually be able to foster a healthy relationship with the father.

Page 652. The Role of the Child’s Preference. Courts seeking to elicit the child’s preference
in a custody dispute face a difficult dilemma. If the child is privately interviewed in camera, the
court may base the custody decision on information provided by the child that the parties have not
heard. This could result in a denial of due process that undermines the fundamental fairness of the
proceedings. On the other hand, if the child must testify in open court and face her parents, she may
experience significant emotional stress. The Michigan Supreme Court is currently addressing this
issue in response to a recent Court of Appeals ruling that a trial court can interview a child who is
the subject of a custody contest in camera, but only for the limited purpose of eliciting the child’s
preference about custody. Molloy v. Molloy, 637 N.W.2d 803 (Mich. App. 2001). Pointing to a
national trend, the appellate court further held that the interview must be recorded, and that if the
child provides information that affects the custody decision and goes beyond the expression of
preference, the court must permit the parties access to the record and an opportunity to be heard. The

52
supreme court upheld the appellate court’s ruling, but vacated the requirement that interviews must
be recorded. It also opened an administrative file to examine procedures by which testimony is taken
in camera in custody proceedings and invited interested parties to address the court on the matter.
Molloy v. Molloy, 643 N.W.2d 574 (Mich. 2002).

Page 655. The Role of the Child’s Attorney. Can children who are the subject of a custody
dispute hire an attorney to represent their interests in the proceedings? In a recent Maryland case,
the children were denied the right to intervene in their parents’ custody proceeding through their own
attorney. Auclair v. Auclair, 730 A.2d 1260 (Md. Spec. App. 1999). Vanessa and Austin AuClair,
ages 12 and 14, argued that their interests were not represented by their parents’ attorneys, and that
they were dissatisfied with the representation of their guardian(s) ad litem, who they claimed failed
to communicate their preferences forcefully to the court. The trial court dismissed one guardian ad
litem and replaced her with a second (with whom the children refused to meet), but rejected the
petition to intervene by their chosen attorney, and further ordered the attorney not to speak with
them. The appellate court adopted the majority position in holding that the children were not entitled
to independent representation in a custody proceeding, since they are not parties to the proceeding.
Moreover, the court noted that where attorneys have been allowed, they are appointed by the court
and not chosen by the children, to assure competence and independence from either parent (here, the
mother had chosen the attorney). In rejecting the children’s right to independent representation in
the proceeding, the court pointed to the added burden of time and expense that would be incurred.
However, the lower court erred in prohibiting the children from consulting with counsel of their
choice. Since the primary task of the guardian ad litem is to investigate and obtain information from
the children, private counsel could play an important role in providing the children with information
and legal advice on effective formulation of their preferences.

Page 658. Primary Caretaker Preference. In 2000, West Virginia effectively abandoned
the primary caretaker preference adopted in Garska v. McCoy, the principal case (see casebook, page
658), and became the first state to adopt a statutory custody standard based on the Principles of the
Law of Family Dissolution of the American Law Institute. W. VA . CODE § 48-9-206 to 207 (2001).
The A.L.I. standard, based on the Scott approximation standard in the excerpted article on page 681
of the casebook, bases custody allocation on the responsibility assumed by each parent when the
family was intact. The West Virginia statute directs:

[T]he court shall allocate custodial responsibility so that the proportion of custodial time the
child spends with each parent approximates the proportion of time each parent spent
performing caretaking functions for the child prior to the parents’ separation . . . .

Like the primary caretaker preference, the A.L.I. standard looks to past parental roles as the
basis of future custody. Unlike the primary caretaker preference, however, application of the A.L.I.
standard does not result in sole custody in one parent. In fact, the A.L.I. standard effectively
abolishes the categories of custody and visitation and simply allocates time and decisionmaking
responsibility between the parents. Both parents presumptively have decisionmaking responsibility,

53
and the residential allocation will vary depending on each parent’s prior caretaking role. Thus, in
some cases, the custody arrangement may be similar to one ordered under a primary caretaker
preference. Where the parents have shared child care responsibilities equally, on the other hand, the
arrangement will be similar to a joint physical custody arrangement. Statutory exceptions to this
custody allocation method are permitted to accommodate a number of objectives: to accommodate
the preferences of older children, to keep siblings together, to protect the child’s welfare where there
is a gross disparity in the quality of the emotional attachments between each parent and the child or
in the parenting capacity of the parents, to take account of an agreement between the parents, and
to avoid impractical arrangements (due to the distance between parents’ homes, for example).

With the statutory change in West Virginia, no state has a formally adopted primary caretaker
preference. Of course, past caretaking roles continue to be extremely important as a basis of custody,
and many statutes direct courts to weigh this factor as an important component of the decision.

Page 684. A.L.I. Custody Standard. See discussion of adoption of the A.L.I. Standard by
the West Virginia legislature, above (page 658). See also Brinig, above (page 626).

Page 684. Rights of the Non-Custodial Parent. The A.L.I. Principles (see above) represent
a reconceptualization of the allocation of parents’ right and responsibilities, and may well mark the
beginning of a trend away from the hierarchical categories of custodial and non-custodial parent (and
custody and visitation). An important feature of the Principles is that they create a rebuttable
presumption that shared decisionmaking authority is in the child’s best interest (Ch.2 § .2.10 (2)),
an allocation that resembles joint legal custody. This approach reflects a view that parents who do
not reside with their children will be more likely to stay involved if they are given rights and
responsibilities – in other words, if they are treated like parents.

Under the traditional approach, courts sometimes divide decisionmaking responsibility

between parents. For example, recently the Vermont Supreme Court upheld a court order giving the
father responsibility (and authority) to make medical and educational decisions, while the mother
was awarded residential custody and other decisionmaking authority. Shea v. Metcalf, 712 A.2d 887
(Vt. 1998). The court pointed out that the mother made unsound medical decisions, based on her
desire to be different and in control (declining childhood inoculations, for example). Further, she
had failed to teach her son to read in two years of home schooling.

Page 691, Note 1. Religion and Visitation. Some courts recently have shown a willingness
to restrict non-custodial fathers’ rights where religious practice is involved – in contrast to Zummo,
the principal case (see casebook, page 686). Two cases involve fathers seeking to involve their
children in Jehovah’s Witness practices. The Vermont Supreme Court upheld a trial court order
prohibiting a non-custodial father from taking his children to Jehovah’s Witness religious meetings
or inculcating them as Jehovah’s Witnesses. Meyer v. Meyer, 789 A.2d 921 (Vt. 2001). The court
found that the conflict between the religious beliefs of the mother and father was causing extreme
confusion and anxiety in the children. The court found no First Amendment Establishment Clause
violation, noting that it was not interfering with the father’s ability to practice his religious faith or

54
favoring one parent’s religion over the other, but merely giving effect to the mother’s decision as the
custodial parent charged with the legal responsibility for the children. In a similar case, a Tennessee
appellate court upheld the lower court’s order prohibiting the non-custodial father from taking the
children to religious services, where he sought to teach the children the Jehovah’s Witness faith and
criticized the mother’s Baptist faith. Baker v. Baker, No. 03A01-9704-GS-00115, 1997 WL 731939
(Tenn. Ct. App. Nov. 25, 1997). The court pointed to expert testimony that the children were
confused and withdrawn, and that the daughter had stomach problems, concluding that the children
had experienced clear and affirmative harm as a result of exposure to their parents’ conflicting
religious beliefs – the Tennessee standard for restricting religious exposure. In another case, a court
order was upheld requiring the father to return the children to their mother on weekends when he has
visitation, so that she could take them to church. This restriction did not impermissibly interfere
with the father’s own religious practices. Nelson v. Nelson, 736 N.Y.S.2d 532 (App. Div. 2002).

In an interesting Massachusetts case, the state’s highest court upheld a divorce judgment
imposing visitation restrictions on a father, based on his religious beliefs. Kendall v. Kendall, 687
N.E.2d 1228 (Mass. 1997). In this case, the mother was Jewish while the father was Christian. The
children had been raised in the Jewish faith during the parties’ marriage and identified themselves
as Jewish, but as the parents gravitated toward the doctrinal extremes of their respective faiths, the
father wished to indoctrinate the children as fundamentalist Christians. The trial court ordered that
neither parent was permitted to indoctrinate the children in a way that would alienate them from the
other parent, and that the father could not take the children to his church nor involve them in
religious activities that would cause worry for their mother or themselves, or cause conflict with their
Jewish self-identities. On appeal, the court found that there was clear evidence that exposure to the
father’s religion caused substantial harm to the children, as the father’s beliefs (which included a
belief that those not of his religion were damned to go to hell) distressed the children by interfering
with their religious identities, alienating them from their mother, and forcing them to choose between
their parents. Promoting the best interests of the children was an interest compelling enough to
justify the burden on the father’s constitutional rights to practice religion and to determine the
religious upbringing of his children.

In contrast, a Colorado court reversed a trial court order prohibiting a homosexual father from
taking his daughter to his gay church, where no evidence was presented that the child was harmed.
Dorworth v. Dorworth, 33 P.3d 1260 (Colo. Ct. App. 2001).

Page 694, Note 4. Restrictions on Parents’ Sexual Activities. Several courts have addressed
the question of whether gay and lesbian parents should be allowed to expose their children to their
gay social world or to have overnight visitation with their children in the presence of their partners.
Some courts take a conservative view, and approve of these restrictions. For example, the Alabama
Supreme Court recently upheld an order directing that the children should not be around the mother’s
partner during the visitation period. Ex Parte D.W.W., 717 So. 2d 793 (Ala. 1998). The restriction
was justified, in the court’s view, to protect the children from exposure to their mother’s lesbian
lifestyle. The court emphasized that the mother’s conduct was immoral and violated the criminal
law, and thus could greatly traumatize the children. An Indiana court approved visitation conditions

55
that not only restricted overnight visitation, but prohibited the gay father from involving the children
in social, religious or educational activities that were “sponsored by or otherwise promote the
homosexual lifestyle.” Marlow v. Marlow, 702 N.E.2d 733 (Ind. Ct. App. 1998). Before divorce,
the family had been fundamentalist Christians, and the children’s mother continued to raise them as
such. The father took the children to conferences sponsored by gay organizations, workshops, social
events and religious services. In the court’s view, he over-emphasized the issue of homosexuality,
and the children were too young to understand or resolve the conflicts between their mother’s and
father’s lifestyles. The court suggested that the father could appropriately familiarize the children
with his lifestyle when they were adolescents. The court rejected the father’s constitutional
challenge, based on Palmore v. Sidotti (see page 638, casebook), that the restriction was based on
private bias against homosexuality, and thus was a violation of his Equal Protection rights. In this
case, the court did not find the prejudice to be based on private bias, but on concern for the welfare
of the children.

Increasingly, courts take a different view of the appropriateness of these restrictions, holding
that they are impermissible, absent a finding that the child was physically or emotionally harmed by
the experiences. Thus, for example, the Dorworth court (above) reversed a trial court ruling
prohibiting the father from having overnight visitors. The court pointed out that under Colorado’s
statutory provision (the Uniform Dissolution of Marriage Act), parenting time could not be restricted
on the basis of sexual orientation, and observed that no evidence was presented that the child was
physically or emotionally harmed. The Tennessee Supreme Court reinstated a trial court order
(reversed by the intermediate appellate court) authorizing unrestricted overnight visitation for a
lesbian mother who lived with her partner. Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001). The
supreme court emphasized that the trial court had authority to order restricted visitation under
Tennessee law, but that the case involved no abuse of discretion. Although there was conflicting
expert testimony about the impact on the child of unrestricted visitation, there was no evidence that
the child had been, or would be, subject to physical or emotional harm from staying with her mother
while her partner was in the house.

Page 698. Naming the Child. Several recent decisions dealing with name-change petitions
suggest that the trend away from favoring the father’s surname has continued. The Ohio Supreme
Court, for example, reversed a lower court’s rejection of a divorced mother’s petition to add her
surname to that of the father in the child’s name. In re Willhite, 706 N.E.2d 778 (Ohio 1999). The
supreme court abolished an earlier test, under which the child retained the father’s surname if he
provided financial support and maintained the relationship through visitation. Although it
acknowledged that the father was very involved with the child, the court directed that a full inquiry
should be made as to whether the mother’s proposed name change was in the child’s best interest.
Such an inquiry would consider several factors: the effect of the change on the child’s relationship
with each parent, the identification of the child as part of a family unit, the length of time the child
has had the surname, the preference of a child with sufficient maturity, and whether the child’s
surname is different from the residential parent’s and any embarrassment that might cause. The
court spoke approvingly of the mother’s proposed hyphenated surname (Williams-Willhite), as a way
of fostering the child’s identification with both parents. In another case, the Montana Supreme Court

56
considered the petition of an unmarried father who had taken no financial responsibility for his child
until ordered to do so, and who seemed primarily concerned with carrying his name into future
generations. Workman v. Olszewski, 993 P.2d 667 (Mont. 1999). The court emphasized its “non-
sexist, non-paternalistic manner” in upholding a lower court’s decision that the child should retain
his mother’s surname – and it acknowledged a subtle preference for the father’s surname in its
earlier decisions. See also Huffman v. Fisher, 987 S.W.2d 269 (Ark. 1999) (rejecting a lower court’s
decision to change surname of a child of unmarried parents to the father’s name, and directing that
a best interest inquiry should be undertaken).

Page 704. Modification of Custody: Follow-up to Burchard. The California Supreme

Court has revisited the changed circumstances rule recently, adding complexity and some uncertainty
to the rule announced in Burchard v. Garay, the principal case (see casebook, page 623). While
affirming that custody arrangements based on final judicial order are subject to the rule, whether the
decision is pursuant to parties’ agreement, default judgment or adversary proceeding, the court
announced in Montenegro v. Diaz that the best interest standard should be applied in subsequent
proceedings unless the parties clearly intended that the stipulated order was a final judgment. 27
P.3d 289 (Cal. 2001). In Montenegro, the father requested that the earlier stipulated order be
modified to provide for joint physical custody. The court upheld the trial court’s application of the
best interest standard, because it was not clear that the parties had intended that the stipulated order
be final. In the court’s view, stipulated orders are often meant to be temporary, and parties would be
wary of entering such orders if they were treated as final judgments. Interestingly, the court
suggested at the end of the opinion that it would be open to reevaluation of the changed
circumstances rule altogether, in light of social science evidence about children’s changing needs.

Page 704. Future Automatic Changes in Custody and Party Control of Modification. Can
custody orders include directions for an automatic change of custody upon the happening of some
condition in the future? Courts recently considering this question have rejected efforts by trial courts
to include in futuro modifications. In a Maryland case, the Solomonic custody order awarded
custody of the two-year-old child to his mother until 30 days following the completion of the fifth
grade, at which time custody was to go to the father, who would have custody until the child was
eighteen years old. Schaefer v. Cusack, 722 A.2d 73 (Md. Ct. App. 1998). The mother appealed and
the appellate court reversed, holding that modification of custody must be based on a
contemporaneous assessment of whether substantial changed circumstances exist that warrant the
change. “We have not the faintest idea of what the situation of the parents may be at the time when
this child finishes the fifth grade . . . [or] what effect a change of custody might have on the child.”
722 A.2d at 78. Future automatic custody changes also cannot be dictated by agreement of the
parties, according to the North Dakota Supreme Court. Zeller v. Zeller, 640 N.W.2d 53 (N.D. 2002).
The parents in this case were both members of the Air Force, stationed in North Dakota. Upon
divorce, the couple stipulated that the mother should have primary physical custody of their children,
unless she accepted an assignment to be transferred out of state, at which point custody would go to
the father. This stipulation was included in the divorce judgment. When the mother was assigned
to Fort Leonard Wood, Mo., she petitioned to relocate and the father sought to enforce the custody-
change provision. The appellate court rejected the trial court’s order changing custody to the father,

57
finding the stipulation to change custody to be unenforceable as against public policy. The trial
court, instead, should have applied the standard for considering a petition by the custodial parent to
relocate.

Parties also can not change the legal standard governing modification by agreement,
according to the Minnesota Supreme Court. Frauenshuh v. Geise, 599 N.W.2d 153 (Minn. 1999).
In this case, the trial court reviewed the father’s motion to modify custody (in response to the
mother’s decision to move to another town) under the best interest standard, as stipulated in the
parties’ divorce agreement. The supreme court held that the court should have applied the statutory
standard for modification, under which the previous custody arrangement is retained unless the
child’s physical or mental health is endangered, and the harm caused by a change is outweighed by
the advantages. Although the court expressed general approval of stipulations by parties as a means
of resolving marital disputes, it concluded that the state’s overriding interest in permanence and
stability for children precluded a policy of allowing the parties to create their own “law of the case”
in resolving disputes about modification.

Page 707, Note 5. Modification and Joint Custody. The issue of whether joint custody
arrangements are subject to the same standards for modification as are sole custody arrangements
has been the focus of recent litigation. The implicit (and sometimes explicit) concern about joint
custody arrangements is that they may be undesirable if cooperation between the parents breaks
down, but that this may not be seen as a basis for modification. Some courts have resolved the
problem by explicitly holding that the parents’ inability to cooperate is a material changed
circumstance, warranting modification. Word v. Remmick, 58 S.W.3d 422 (Ark. Ct. App. 2001).
Other courts have held that the changed circumstance rule does not apply to joint custody
arrangements, and that petitions to modify joint custody should be considered under the best interest
standard. In re Pasquale, 777 A.2d 877 (N.H. 2001). In this case, both parents agreed that the joint
custody arrangement was not working, but the mother, after losing custody, challenged the use of
the best interest standard. See also Lewis v. Lewis, 557 S.E.2d 40 (Ga. Ct. App. 2001); Weigle v.
Weigle, 43 P.3d 740 (Colo. Ct. App. 2002).

The doctrine regulating modification of joint custody arrangements has followed a

convoluted course in Kentucky, a state with rigorous general modification requirements (including
a two-year waiting period and restricted grounds for modification). An appellate court recently
swept away 15 years of doctrine that was constructed to respond to the unique concerns of joint
custody. Scheer v. Ziegler, 21 S.W.3d 807 (Ky. Ct. App. 2000). Under prior law, the general
modification requirements had been held not to apply (effectively establishing a best interest
standard), but a threshold requirement for considering modification petitions in joint custody cases
had later been established – the parents’ inability to cooperate. The upshot was that joint custody
modification was impossible unless the parties could not cooperate – a rule that, at a minimum,
created undesirable incentives. Thus, the trial court had ruled against the father in Scheer, because
the parties were able to cooperate (and thus he failed to meet the judicially created threshold
requirement), even though he established that the child was integrated into his family, a statutory
requirement for modification. The appellate court concluded that the general statutory modification

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requirements applied to joint custody cases, but that the statute should be interpreted to also permit
modification in cases in which the parents could not cooperate.

Page 708. Relocation of the Primary Custodial Parent. In general, the legal trend toward
regulation that is more favorable to the relocating parent has continued in recent years. Courts
express sympathy for custodial parents who desire to move to better their (and their children’s) lives,
and increasingly see the child’s best interest as interwoven with the well-being of her custodial
parent. Although the cases are not uniform, many courts recently have concluded that conditioning
custody on remaining in a location where the other parent resides is a violation of the custodial
parent’s right to travel. In some instances, the family’s former place of residence, where the non-
custodial parent lives, is given no preferential weight in comparison with the custodian’s new home,
and courts contemplate that the non-custodial parent can maintain his relationship with the child by
moving to the child’s new home. Even where parties have joint custody, serious restrictions on
relocation by parent with primary residential custody are often rejected. In a mobile society,
relocation is likely to continue to be a difficult issue, but one that is currently often resolved in favor
of the relocating parent.

The relocation standard adopted by the American Law Institute in its Principles of the Law
of Family Dissolution follows this trend, directing that the primary custodian should be allowed to
relocate, “so long as the relocation is in good faith for a legitimate purpose to a location that is
reasonable in light of that purpose.” Ch. 2 § 2.20(4)(a) (2000). Courts have begun to adopt this
standard. In a thoughtful and comprehensive opinion, the Connecticut Supreme Court announced
a relocation standard based on the A.L.I. standard. Ireland v. Ireland, 717 A.2d 676 (Conn. 1998).
Connecticut’s method involves a burden-shifting approach: it places the initial burden of proof on
the relocating parent to show that the relocation was for a legitimate purpose and the location
reasonable in light of that purpose. At that point, the burden is shifted to the other parent to
demonstrate that the move is not in the child’s interest. This approach is consistent with the
implication of the original custody decision – that the child’s best interest is served by that parent’s
primary custody.

Page 712. Relocation in the Internet Age. The Internet creates opportunities for long
distance contact between parents and their children that perhaps should be considered by courts in
deciding about relocation. A New Jersey appellate court recently decided that the trial court erred
in declining to consider the benefits of Internet communication, in reaching the conclusion that the
New Jersey father could not continue his involvement in his daughter’s day-to-day life if the
custodial mother relocated to California. McCoy v. McCoy, 764 A.2d 449 (N.J. Super. App. Div.
2001). Although the appellate court conceded that the non-custodial parent’s interest in the
relationship is always adversely affected by relocation, it faulted the lower court for failing to
consider the benefits of the move for the mother and child, and for failing to consider creative
alternatives. Particularly, the lower court erred in dismissing the mother’s proposed visitation
schedule, which included building a web site with digital camera technology, so that the father and
his family could communicate face-to-face with the child on a daily basis.

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 Page 716. New Issue – Joint Custody and Relocation. An issue that has become more
prominent in recent years is how courts should consider petitions to relocate by a parent with joint
custody. The issue has unique salience in Nevada, which has a preference for joint physical custody
where the parties agree. Trial courts in Nevada had interpreted this preference to severely limit
relocation by either party, in the interest of preserving joint physical custody. The Nevada Supreme
Court recently interpreted the relocation standard more flexibly. In a case in which the trial court
ordered joint custody although neither parent sought this arrangement, and then denied the mother’s
relocation petition, the supreme court directed that courts should consider the established relocation
factors (the extent to which relocation improved the quality of life for parent and child, the motives
of each parent, opportunities for reasonable visitation, etc.), and that a joint custody order should not
be considered a bar to relocation. McGuiness v. McGuiness, 970 P.2d 1074 (Nev. 1998). In
language that is consistent with the recent trend that is more sympathetic to relocating parents, the
court chided trial courts for “chain[ing] custodial parents, most often women, to the state of
Nevada.” 970 P.2d at 1079. The court emphasized that the needs of the parents must be considered
in the decision, as parents’ needs are integral to the child’s interest. The dissenting justice pointed
out that the court’s holding was in tension with its previously announced preference for joint
custody, and that the relocation standard was designed to evaluate the desire of a primary custodial
parent to move.

Some courts take the approach that a petition to relocate by a parent with joint custody is a
modification action. (See above.) A New York court decided that Tropea (see casebook, page 712)
provided limited guidance in a case where the divorced parents had shared physical custody in
Rochester, and the remarried mother moved to South Carolina. Sara P. v. Richard T., 670 N.Y.S.2d
964 (N.Y. Fam. Ct. 1998). Thus, the court concluded that it was necessary to undertake a broader
best interest inquiry, together with consideration of the relocation factors, in determining custody.
Based on this assessment, the court concluded that the child should remain with her father in New
York

Page 712, Note 1. Conditional Custody and the Right to Travel. The practice of
conditioning a parent’s primary custody on her remaining in the locale of the non-custodial parent
has not been viewed positively by most courts that have considered the issue recently. Several courts
have found that this practice violates the parent’s constitutional right to travel. The Wyoming
Supreme Court found that the right to travel “carries with it the right of a custodial parent to have
the children move with that parent,” and that it could only be impaired upon a clear showing that
another change of circumstances exists and that the move would have a detrimental effect on the
child. Watt v. Watt, 971 P.2d 608, 616 (Wyo. 1999). Other courts give the right to travel somewhat
less deference, emphasizing that it is qualified by the state’s compelling interest in the child’s best
interest. This does not mean that restrictions on custodial parents are generally upheld, however.
The Montana Supreme Court rejected a trial court directive that the mother return to Montana from
Oregon or relinquish custody, holding that interference with the right to travel is justified only where
the party seeking the restriction demonstrates that it is in the that it is in the child’s best interest. In
re D.M.G., 951 P.2d 1377 (Mont. 1998). For a comprehensive analysis of the right to travel and
relocation, and discussion of the cases, see Braun v. Hedley, 750 A.2d 624 (Md. Ct. App. 1999).

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 An interesting case that applied the Montana court’s analysis, with a contrary result, is
LaChapelle v. Mitten, in which a Minnesota appellate court upheld the trial court order conditioning
the mother’s primary physical custody on her return to Minnesota from Michigan. 607 N.W.2d 151
(Minn. Ct. App. 2000). This was necessary to allow substantial contact between the child and her
de facto parent (the mother’s former lesbian partner) and her sperm donor father, with whom she had
an established relationship. The court recognized that the custody order implicated the mother’s
right to travel, but found that the record supported the trial court’s finding that the return was in the
child’s best interest. It observed that the order did not prevent her from staying in Michigan; it only
required that the child return.

Page 713, Note 2. Relocation in the Initial Custody Decision. How should the court
resolving a contested custody dispute consider one parent’s desire to relocate? Since the liberal
approach to relocation is predicated on the presumed identity of interest between the custodial parent
and child, the relocation standard may not be useful in evaluating a relocation plan in custody
proceedings. Recently, courts considering this issue have reached this conclusion. A Connecticut
court determined that the Ireland two-step burden-shifting standard (see above, page 708) does not
apply. Ford v. Ford, 789 A.2d 1104 (Conn. App. Ct. 2002). Rather, the court should determine
custody on the basis of the best interest of the child, considering the relocation plan along with other
evidence that is relevant to that determination. For a similar case, see Moeller-Prokosch v.
Prokosch, 27 P.3d 314 (Alaska 2001) (court erred in failing to consider mother’s relocation plans
under best interest test).

Page 717 et seq. Parent-Non-Parent Custody Disputes. The issues surrounding custody
and visitation disputes between parents and non-parents have received a great deal of attention
recently. The most prominent example, of course, is the United States Supreme Court opinion in
Troxel v Granville, 530 U.S. 57 (2000), indicating that the authority of courts to order grandparent
visitation over the objection of fit custodial parents has limits – although the Court was not very clear
about the extent of those limits. Troxel led many state courts to reconsider grandparent visitation
statutes. It also cast a shadow on custody disputes between parents and non-parents; some courts
interpreted Troxel’s affirmation of parental rights to impose limits on the freedom of courts to award
custody to non-parents, while other courts have readily distinguished Troxel. Aside from Troxel,
courts have sought to develop standards for evaluating custody and visitation claims by non-parents
in established parent-child relationships. In general, partly influenced by Troxel, courts have
affirmed the presumption favoring the fit parent who has cared for the child in contests with non-
parents for custody. However, non-parents generally have been more successful in winning custody
where they have lived with and cared for children, and the parents, whether fit or not, have defaulted.
Courts have particularly focused on the interests of stepparents and domestic partners in the role of
de facto parents, living with the child and custodial parent. Doctrine in this area has been
substantially influenced by the American Law Institute’s new Principles, which establish
requirements for recognition as de facto parents. (A.L.I. Principles of the Law of Family
Dissolution, Ch. 2 § 2.03(c) (2000)).

Many courts recently have affirmed a general legal presumption favoring parents over non-

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parents in custody disputes, although the strength of the presumption (and how readily it will be set
aside) varies. The New Jersey Supreme Court, in a divided opinion, affirmed a strong parental
presumption in custody disputes. Watkins v. Nelson, 748 A.2d 558 (N.J. 2000). The case involved
a contest between father and the grandparents (parents of the mother who died, while living with
them and the child) who were caring for the child under a temporary order. The court reversed the
trial court’s application of the best interest standard, holding that a rebuttable presumption in favor
of a fit parent operates in disputes with non-parents. That presumption can be rebutted only by proof
that the standard for termination of parental rights is met (gross misconduct, abandonment, unfitness)
or that “extraordinary circumstances” exist. (See note 1, page 724, in casebook). Only at that point
should the court determine whether custody in the non-parent is in the best interest of the child. A
sharply worded dissenting opinion charged the court with creating a rigid standard that would give
parents custody despite clearly established detriment to the child. The Supreme Court of Missouri
went one step further in reversing a custody award to the older half-sister of the children on the death
of the mother, in a case in which the father had little previous involvement and failed to pay child
support. Cotton v. Wise, 977 S.W.2d 263 (Mo. 1998). The court concluded that under the Missouri
statute, custody must go to the father unless he was unfit, unwilling, or unable to assume
responsibility for the children, even if their welfare would be detrimentally affected. See also Lewis
v. Donoho, 993 S.W.2d 1 (Tenn. 1999) (mother awarded custody over non-parent, with whom eight-
year-old child had lived almost since birth, absent showing of “substantial harm”); Ex Parte S.T.S.,
806 So. 2d 336 (Ala. 2001) (father wins custody over grandmother, absent unfitness or voluntary
relinquishment); Froelich v. Clark, 745 N.E.2d 222 (Ind. Ct. App. 2001) (de facto custodian (with
whom child lived for 8 years) must overcome presumption favoring parental custody to retain
custody).

In a case that garnered much media attention, O.J. Simpson sought custody of his two
children, who had been under the guardianship of their maternal grandparents, the Browns, during
Simpson’s trial and acquittal for the murder of their mother, Nicole Brown. The trial court granted
Simpson custody, but the appellate court reversed, finding that evidence of Simpson’s involvement
in the murder (based on the verdict against him in the civil action) must be admitted in the custody
determination. Simpson v. Brown, 79 Cal. Rptr. 2d 389 (Ct. App. 1998). However, the Browns
subsequently relinquished physical custody to Simpson by agreement. O.J. Getting the Kids / In-
laws Will Let Them Go to Fla., L.A. Times, Aug. 7, 2000, at A08.

Some courts point to Troxel (see below), in upholding parental rights in custody disputes with
non-parents. In a recent Michigan case an appellate court rejected precedent applied by the trial
court, under which parents carried the burden of persuasion in challenging the custody of a non-
parent with custody in an “established parental environment.” Heltzel v. Heltzel, 638 N.W.2d 123
(Mich. Ct. App. 2001). In light of Troxel, the court held, courts must give “special weight” to the
mother’s fundamental liberty interest in raising her children, under a presumption that can be
rebutted only by clear and convincing evidence.

Several courts have recently concluded that the presumption favoring parents in custody
disputes with third parties has constitutional importance, but with different results. The Florida

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Supreme Court struck down a statute that applied the best interest standard to custody disputes
between a parent and grandparent with whom the child resided in a stable relationship. Richardson
v. Richardson, 766 So. 2d 1036 (Fla. 2000). The statute was facially unconstitutional, in the court’s
view, because it equated grandparents with parents, and did not require a finding that parental
custody would be detrimental as a predicate to awarding custody to a non-parent. The Georgia
Supreme Court took a different approach in evaluating the constitutionality of a statute providing
that parent/non-parent custody disputes be resolved under the best interest standard. In reviewing
two cases involving children who had lived with grandparents for most of their lives, the court
reversed a trial court’s finding that the statute was unconstitutional. Clark v. Wade, 544 S.E.2d 99
(Ga. 2001). The court upheld the statute by construing it to require non-parents to demonstrate by
clear and convincing evidence that custody in the parents would result in physical or emotional harm
the child, and that the non-parent’s custody is in the child’s best interest. The court distinguished
Troxel, pointing out that the grandparents in the cases at bar were not intruding in the parent-child
relationship; rather, the parents were intruding in an established family relationship.

Although with the possible exception of Hawaii, courts maintain the presumption favoring
parents in disputes with non-parents, some courts do not treat this as much of a hurdle. For
example, in upholding a custody award to a stepfather in a recent case, the Pennsylvania Supreme
Court concluded that the presumption favoring the father was overcome by a clear showing that the
stepfather’s custody was in the child’s best interest. Charles v. Stehlik, 744 A.2d 1255 (Pa. 2000).
Another Pennsylvania court upheld custody in the child’s aunt and uncle, remarking that the parent’s
interest must get “special consideration”, but expressing some uncertainty about whether that interest
creates a presumption or is a “factor to be weighed.” McDonel v. Sohn, 762 A.2d 1101 (Pa. Super.
Ct. 2000). In an interesting Virginia case, the Virginia Court of Appeals seems to have abandoned
this state’s very traditional approach to parental rights in rejecting a mother’s challenge to an award
of primary physical custody to the stepfather and joint legal custody to the stepfather and father.
Brown v. Burch, 519 S.E.2d 403 (Va. Ct. App. 1999). The court did not view the presumption
favoring the mother to be overcome by the father’s support of the stepfather’s custody; however, it
concluded that the presumption should be set aside because the child had lived for many years with
the stepfather (and mother!), was exceptionally well-adjusted, and expressed a desire to stay with
his stepfather. The court pointed to psychiatric testimony that the child’s well-being would be
adversely affected if the mother received custody.

The parental presumption is most likely to be set aside where the child has resided with the
non-parent, and the parent is the intervenor. Thus, where the voluntary relinquishment of custody
is a ground for setting aside the parental presumption, some courts interpret this to mean that the best
interest standard should apply when a parent seeks to obtain custody from a non-parent with whom
the child has lived for some period of time, or who has previously been awarded custody of the child.
See Price v. Howard, 484 S.E.2d 528 (N.C. 1998) (where parent voluntarily relinquished child to
non-parent, with whom child has lived for substantial period, best interest test applies). In a recent
Alaska case, the court held that the parent seeking to regain custody of his child from the
grandparents must meet the same standard of showing a substantial change in circumstances as
would be applied in a contest with the other parent. C.R.B. v. C.C., 959 P.2d 375 (Alaska 1998).

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The grandparents in this case obtained custody after their daughter, who had been awarded custody
upon divorce, became unable to care for them due to her cocaine addiction. The father was in and
out of his children’s lives, but sought modification of the custody order after he established himself
with a new wife and business in Seattle. At that time he had begun to communicate with his sons
after almost three years without contact. The court rejected the father’s argument that the changed
circumstance standard should be relaxed when a parent seeks modification of custody in a non-
parent. Although parents are preferred in the initial custody proceeding, once a non-parent is granted
custody in spite of this preference, the goal of preserving stability in the child’s life weighs against
also applying a parental preference at modification. The court said that the parents’ interest was
adequately protected by the operation of the preference at the initial custody proceeding, where it
serves as a safeguard against improper removal of children from their parents.

Page 724. Establishing De Facto Parenthood. Recently, courts have reviewed many claims
for visitation rights by non-parents who have lived with the child and her legal parent for a
substantial period and acted in the role of parent. Many of these claims are brought by the domestic
partners of mothers (see casebook, page 731), who often assume a parental role with the child. In
the past few years, a number of states have extended visitation rights to these parties. Some courts
responded to these claims by announcing generally applicable tests for determining de facto parent
status, drawing on the A.L.I. standard, and earlier Wisconsin case law that established a similar
standard. In re Custody of H.S.H.-K. 533 N.W.2d 419 (Wis. 1995). The New Jersey Supreme Court,
for example, in a far-reaching opinion dealing with the custody claim of the lesbian domestic partner
of the mother, announced a four-part test for determining de facto (or psychological) parent status.
V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000).

1) the biological or adoptive parent consented to and fostered the establishment of a

parentlike relationship with the child;

2) the claimant lived in the same household with the child;

3) the claimant fulfilled the obligations of parenthood, taking responsibility for the child’s
care, education and development, without expectation of financial compensation. Financial
support of the child is not required;

4) the length of time that the claimant acted in this parental role was sufficient to form a
bonded parent-child relationship.

The New Jersey court elaborated on these requirements, and on the legal status of the de facto
parent. The court viewed the requirement of parental consent to the relationship as critical, and
clarified that it constituted protection against claims by nannies or baby sitters. It also gave the
parent control over her child’s relationship with third parties, and clarified the consequences of
ceding parental authority in a way that creates a bond. Once parental consent is given and a de facto
parent-child relationship is created, it cannot be terminated unilaterally by the parent. The court also
emphasized that the duration requirement was not a fixed amount of time; what is important is the

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establishment of a parent-child bond. (In contrast, the A.L.I. Principle sets a two-year time period,
an approach that is likely to considerably reduce litigation.) A party who is determined by the court
to be a child’s de facto parent stands in parity with the legal parent. Custody and visitation claims
between them are resolved under the best interest standard. The court hastened to add, however,
that a party’s status as the child’s legal parent was a factor that usually should be given substantial
weight in evaluating the child’s best interest, because children will eventually be interested in their
roots. Thus, under ordinary circumstances, the legal parent is likely to be awarded custody, but a
presumptive rule favors visitation for psychological parents.

Other courts have recognized the visitation claims of de facto parents, often citing with
approval the A.L.I. Principles or New Jersey tests. See Rubano v. DiCenzo, 759 A.2d 959 (R.I.
2000) (enforcing a written visitation agreement, after determining that the domestic partner was
the child’s de facto parent); E.L.O. v. L.M.M, 711 N.E.2d 886 (Mass. 1999) (upholding
recognition of lesbian domestic partner as de facto parent, citing A.L.I. standard, and awarding
visitation). To date, as the New Jersey court implicitly suggests, courts see de facto parenthood
status in domestic partnerhood cases as implicating visitation and not custody rights. (The A.L.I.
approach provides that the de facto parent should not get the majority of custodial responsibility.
A.L.I. Principles of the Law of Family Dissolution, Ch. 2 § 2.21 (2000).) In fact, one recent case
held that a de facto (psychological) parent does not have the same parental rights as biological or
adoptive parents, and has no standing to seek custody. Kazmierazak v. Query, 736 So. 2d. 106
(Fla. Dist. Ct. App. 1999). Courts have also recognized de facto parents other than domestic
partners. In a recent Massachusetts case, an aunt who had cared for the child for 11 years was
awarded visitation, in a contest with the father, who was taking the child to his home in Georgia.
Citing the A.L.I. principles, the court determined that the aunt was the child’s de facto parent.
Youmans v. Ramos, 711 N.E.2d 165 (Mass. 1998).

Some courts use other doctrinal paths to protect the relationships of children and de facto
parents. The Pennsylvania Supreme Court, for example, invoked the common law doctrine of in
loco parentis in awarding visitation to the mother’s domestic partner, who lived with the child
until she was almost three years old. T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001). Equitable
estoppel has also been applied to these disputes, where parents held the non-parent out as the
child’s parent. For example, a mother who married the petitioner when she was pregnant and
held him out to the world (and the child) as the child’s father was estopped from denying his
standing to seek custody or visitation. Jean Maby H. v. Joseph H., 676 N.Y.S.2d 677 (App. Div.
1998).

The de facto parent test is not expansive. For example, a New Jersey court, after V.C.
(above), denied de facto parent status to the mother’s romantic partner, who lived with the
mother and was very involved with the child, but was not held out to the child or to others as the
child’s parent by the mother. A.F. v. D.L.P., 771 A.2d 692 (N.J. Super. Ct. App. Div. 2001).
The court reasoned that this requirement was essential to afford constitutional protection to the
parent-child relationship. See also Swiss v. Cabinet for Families and Children, 43 S.W.3d 796
(Ky. Ct. App. 2001) (foster parents were not de facto parents because agency provided financial

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support).

Page 728, Note 3. Grandparent Visitation: Pre-Troxel. Several courts struck down
grandparent visitation statutes as unconstitutional on either state or federal constitutional grounds
before the 2000 Supreme Court opinion in Troxel v. Granville. These courts rejected the burden on
parental rights in language more unequivocal than Troxel. The Florida Supreme Court held an order
for visitation after the death of a parent to violate parents’ fundamental right of privacy under the
U.S. and Florida constitution. Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998). Similarly, the
Oklahoma visitation statute was found to be an unconstitutional violation of parents’ right to raise
their children, as applied to parents in an intact family, unless the parents’ decision causes
demonstrable harm to the child or the parents are unfit. Herbst v. Sayre, 971 P.2d 395 (Okla. 1998).
See also Williams v. Williams, 501 S.E.2d 417 (Va. 1998) (state-ordered visitation over parents’
objection is unconstitutional, unless petitioner demonstrates that denial would harm child).

Page 728. Grandparent Visitation: Troxel and its Aftermath. The Supreme Court, in Troxel
v. Granville, found that the grandparent visitation order in favor of the Troxels was a violation of
Ms. Granville’s constitutionally protected interest in rearing her children and making decisions to
promote their welfare without undue interference from the state. 530 U.S. 57 (2000). The plurality
opinion in Troxel was quite narrow, and far from clear about the extent to which the state might be
restricted in ordering grandparent visitation over the objection of parents in other situations. The
statute was not held facially unconstitutional. Not surprisingly, the reactions to Troxel by courts
across the country interpreting state statutes have been extraordinarily varied, from courts that
interpret Troxel narrowly and view the problem in the case to have been the breadth of the
Washington statute (under which “any person” could petition for visitation), to courts that interpret
Troxel as a broad statement about parents’ authority to make decisions about their children’s
associations, and conclude that grandparent visitation over a parent’s objection is per se
unconstitutional. Moreover, some courts draw on constitutional authority beyond Troxel in their
analysis of what is constitutionally required. Courts also vary in the extent to which they are willing
to rewrite statutes to pass constitutional muster. Compare Roth v. Weston, 789 A.2d 431 (Conn.
2002) (creating standards for evaluating visitation petitions (see below)) with Seymour v. DeRose,
643 N.W.2d (Mich. Ct. App. 2002) (statute facially unconstitutional as it fails to give deference to
parents’ decision; rewriting is task for legislature). It is a daunting task to coherently present judicial
reaction in this context. In what follows, we will seek to describe these responses, and to suggest
what various courts seem to believe is constitutionally required after Troxel. To the extent possible,
the following discussion is organized to present judicial responses on a continuum, from the broadest
to narrowest reading of Troxel (or from most restrictive to most supportive of grandparent visitation).

a. Categorical Prohibition of Visitation Over Fit Parents’ Objections. A number of state

courts have found grandparent visitation statutes to be facially unconstitutional in light of Troxel.
The Illinois Supreme Court recently held that the Illinois statute was fatally flawed because it put
non-parent and parent on equal footing, and contravened the presumption that parents are fit and act
in the best interest of their children. In unqualified language that is far broader than Troxel, the court
stated, “A fit parent’s constitutionally protected liberty interest to direct the care, custody and control

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of his or her children mandates that parents – not judges – should be the ones to decide with whom
their children will and will not associate” (emphasis added). Wickham v. Byrne, 769 N.E.2d 1 (Ill.
2002). See also Lulay v. Lulay, 739 N.E.2d 521 (Ill. 2000) (finding the statute unconstitutional, as
applied to parents’ joint decision to deny visitation).

Similarly, Arkansas’ highest court found the state’s statute flatly unconstitutional as applied
to fit parents. Moreover, the court concluded that a parent could not be found unfit for the purpose
of making this decision, but fit for all other purposes. Linder v. Linder, 72 S.W.3d 841 (Ark. 2002).
Like other courts that view grandparent visitation as a major intrusion on the fundamental right of
parents to rear their children, this court is considerably more rigorous than the Troxel majority in
evaluating the constitutionality of the statute; it adopts strict scrutiny as the standard of review, a
position advocated only by Justice Thomas. The Arkansas statute avoided facial unconstitutionality
only because the court concluded that it could be applied constitutionally to an “entity” that has no
parental rights – such as an agency with custody of a child.

b. Harm Requirement as Predicate to Visitation. Many state supreme courts have

rewritten grandparent visitation on appeal, creating their versions of constitutionally acceptable
standards (an option that the Supreme Court in Troxel suggests could have been followed by the
Washington Supreme Court). The Connecticut Supreme Court recently held the state statute to be
unconstitutional as applied, and established elaborate and rigorous requirements for grandparent
visitation that would be sufficiently protective of parental rights to pass constitutional muster. Roth
v. Weston, 789 A.2d 431 (Conn. 2002). The court prescribed that the party seeking visitation must
establish a parent-like relationship with the child and demonstrate that denial of visitation would
cause real and significant harm to the child, of a kind that is contemplated by the neglect/dependency
statute. For the intrusion of visitation over a parent’s objection to satisfy a compelling state interest,
these factors must be alleged as a jurisdictional predicate, and then proved by clear and convincing
evidence. The court acknowledged that Troxel itself avoided the question of whether harm to the
child is required, but concluded that earlier Supreme Court opinions support this requirement. See
also Neal v. Lee 14 P.3d 347 (Okla. 2000) (unless parent is unfit, court should order grandparent
visitation only on the basis of clear and convincing evidence that children would suffer harm without
visitation).

Several courts have explicitly found a showing of harm to the child not to be constitutionally
required before visitation can be ordered over a parent’s objections. Kan. Dep’t of Soc. and Rehab.
Serv. v. Paillet, 16 P.3d 962 (Kan. 2001) (petitioner must rebut presumption that a fit parent acts in
child’s best interest, by showing that visitation is in child’s best interest); Zeman v. Stanford, 789
So. 2d 798 (Miss. 2001) (best interest of child is paramount); State ex rel Brandon L. v. Moats, 551
S.E.2d 674 (W. Va. 2001) (test of best interest and no substantial interference); Rideout v. Riendeau,
761 A.2d 291 (Me. 2000) (parentlike relationship and harm of denial are alternative means of
showing compelling state interest).

Some courts have rejected visitation orders as unconstitutional, where parents had voluntarily
agreed to some visitation, but wanted to control the amount and scheduling. These courts note that

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this fact pattern seemed to be important to the plurality in Troxel, and view any judicial interference
in these cases to be particularly intrusive. See Brice v. Brice, 754 A.2d 1132 (Md. Ct. App. 2000)
(reversing court order scheduling visitation according to parent’s preferences); Punsley v. Ho, 105
Cal. Rptr. 2d 139 (Ct. App. 2001) (statute unconstitutional as applied to fit parent who was willing
to schedule visitation).

c. Statutes Upheld as Meeting Troxel Requirements. A number of courts have upheld

grandparent visitation orders under state statutes that are somewhat narrower than the Washington
statute. These courts often emphasize the narrower focus of the statutes in question, as well as the
fact that they give special weight to the parents’ decision and/or restrict (or are interpreted to restrict)
visitation that substantially interferes with the parent-child relationship. Thus, the Supreme Court
of Maine upheld an order for visitation under a statute that includes a threshold standing requirement
that the grandparent has a sufficient existing relationship with the child, and that directs the court
to consider the parent’s objection and to only order visitation if it does not significantly interfere with
the parent-child relationship. Rideout v. Riendeau, supra. The case involved a grandmother who
had resided with the child in a parentlike relationship, and the court concluded that the statute was
sufficiently narrowly tailored to promote a compelling state interest.

Some grandparent visitation statutes have been upheld that appear to restrict courts minimally
in imposing visitation over the parent’s wishes. For example, the Mississippi Supreme Court
approved a statute that restricts petitioners seeking visitation to grandparents (unlike Troxel), but
gives courts rather broad authority to order visitation. Zeman v. Stanford, 789 So. 2d. 798 (Miss.
2001). The court emphasized that the statute had been interpreted earlier to require courts to analyze
numerous factors in deciding whether visitation is in the child’s best interest, including that the
grandparent would not interfere with the parents’ child rearing. The court offered a rather narrow
view of the burden to parents’ interests imposed by court-ordered grandparents visitation, and
emphasized that the child’s best interest is paramount. Similarly, the Louisiana Supreme Court
upheld a visitation statute allowing courts to award grandparent visitation under a best interest
standard to the parents of a non-custodial, deceased or absent parent. Galjour v. Harris, 795 So. 2d
350 (La. 2001). The court concluded that the Louisiana statute did not amount to a constitutional
interference with the rights of parents because it was limited to a narrow category of petitioners, and
because the statute does not contemplate a substantial intrusion in the child’s relationship with the
parent. (The court did not elaborate on the second point.) See also Kan. Dep’t of Soc. and Rehab.
Serv. v. Paillet, supra (statute upheld, although unconstitutionally applied, that is limited to
grandparents with “substantial relationship” and places burden on petitioner to demonstrate that
visitation is in the child’s best interest). The West Virginia statute places the burden on the
grandparent petitioner to demonstrate by a preponderance of the evidence that visitation is in the
child’s best interest and does not substantially interfere with the parent-child relationship; it includes
twelve best interest factors to guide the court – including the parent’s preferences. The West
Virginia Supreme Court concluded that the statute does not have the constitutional deficiencies of
the Washington statute in Troxel. State ex rel Brandon L. v. Moats, supra.

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 d. Post-Troxel Statutory Changes. In response to Troxel, a number of state legislatures
reexamined their grandparent visitation statutes, and narrowed the circumstances in which such
visitation would be permitted. See, e.g., N.D. CENT . CODE § 14-09-05.1 (2002) (permitting
grandparent visitation only where a finding is made that it would be in the best interests of the minor
and would not interfere with the parent-child relationship, and removing the presumption that
grandparent visitation is in the best interests of the child); 2001 Me. Laws 696 (providing that a
grandparent who has been designated as an interested person or participant, or who has been granted
intervenor status, may petition for reasonable visitation); ORE . REV . STAT . § 109.119 (2001)
(permitting any person having a parent-child relationship with a child to be awarded custody,
guardianship, or rights of visitation if it is in the child’s best interests, but requiring the petitioning
party to overcome by clear and convincing evidence the presumption that the legal parent acts in the
best interest of the child); S.D. CODIFIED LAWS § 25-4-52 (2001) (permitting grandparent visitation
if it would be in the best interests of the child, and either the visitation would not significantly
interfere with the parent-child relationship, or the parent or custodian of the child has unreasonably
denied the grandparent reasonable opportunity to visit the child; also providing for a presumption
that grandparent visitation is in the best interests of a grandchild if a parent of that grandchild, who
is also the child of that grandparent, has died); TENN. CODE ANN . § 36-6-306 (2001) (setting forth
a number of conditions which necessitate a hearing when a grandparent petitions for visitation, and
providing that grandparent visitation may be ordered upon a finding of danger of substantial harm
to the child, and a finding that such visitation would be in the best interests of the child); UTAH CODE
ANN . § 30-5-2 (2000) (creating a rebuttable presumption that the parent’s decision as to grandparent
visitation is in the best interests of the child, and permitting courts to consider the child’s wishes in
regard to visitation).

e. Literature on Troxel. Much has been written about Troxel and its implications. For an
excellent analysis and critique of the opinion, see Emily Buss, Adrift in the Middle: Parental Rights
After Troxel v. Granville, 2000 SUP . CT . REV . 279 (2000). See also Emily Buss, “Parental” Rights,
88 VA . L. REV . 635 (2002) (arguing that the Constitution grants strong protection to parental rights
but weaker protection to any individual's claim to parental identity); Janet L. Dolgin, The
Constitution as Family Arbiter: A Moral in the Mess?, 102 COLUM. L. REV . 337 (2002) (arguing that
constitutional jurisprudence is inadequate to the task of determining the proper scope of familial
relationships, because constitutional law presumes individual autonomy); Earl M. Maltz, The
Trouble With Troxel, 32 RUTGERS L.J. 695 (2001) (an in-depth critique of all the opinions in Troxel
v. Granville, arguing that Troxel is an example of the problems inherent in constitutionalizing values
not found in the text of the Constitution); David D. Meyer, Constitutional Pragmatism for a
Changing American Family, 32 RUTGERS L.J. 711 (2001) (approving of the Supreme Court’s
“pragmatic approach” to the problem of parental rights in adopting a flexible, discretionary mode
of review and balancing traditional parental decision-making against non-traditional caregiving
relationships); Margaret F. Brinig, Troxel and the Limits of Community, 32 RUTGERS L.J. 733 (2001)
(arguing that there are limits to the amount of outsider-involvement that a family unit can tolerate
and those limits are reached when third parties are granted contact with spouses and children that
interferes with the ability to parent and live in a functioning marriage); Sally F. Goldfarb, Visitation
for Nonparents After Troxel v. Granville: Where Should States Draw the Line?, 32 RUTGERS L.J.

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783 (2001) (suggesting that Troxel provides little guidance for states seeking to determine where the
line should be drawn for third-party visitation, and proposing guidelines); Nancy D. Polikoff, The
Impact of Troxel v. Granville on Lesbian and Gay Parents, 32 RUTGERS L.J. 825 (2001) (arguing
that Troxel permits states to define nonbiological lesbian mothers as parents, and that post-Troxel
court should accord parental status to gay and lesbian parents rather than third-party status, and
develop criteria that protect gay and lesbian families without opening to door to unwarranted
intrusions by outsiders).

Page 720, Troxel v. Granville, 530 U.S. 57 (2000). See Appendix.

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 Chapter 7
Divorce Jurisdiction

Pages 739-41. Durational Residency Requirement. While Sosna tests the constitutional
sufficiency of a durational residency requirement, in Bridgeman v. Bridgeman, 63 S. W. 3d 686 (Mo.
App. 2002), the issue was whether a durational residence requirement had been satisfied. In this
case, the couple had been long-time residents of Missouri. In January, 1999 husband moved to
Wisconsin to open a new plant for his employer. The following month wife and children joined him
in his employer-provided housing. While listing the Missouri home for sale, the couple refused a
full-price purchase offer. Most of the couple’s personal property remained in the home. In August,
1999, the couple separated and wife returned with children to the Missouri home. Husband filed for
divorce in August and, in the divorce action, both parties alleged and testified to Missouri residence.
Wife appealed the divorce decree, asserting a lack of subject matter jurisdiction on the grounds that
neither party satisfied the 90-day durational residency requirement. The court found that she had
remained a Missouri resident during her stay in Wisconsin and jurisdiction had vested in the trial
court.

Page 745, Note 6. Foreign Divorces. The Mississippi Supreme Court affirmed a trial court’s
refusal to recognize a foreign divorce in Carr v. Carr, 724 So. 2d 937 (Miss. 1998). In this case,
husband was refused a divorce by a Mississippi trial court which instead awarded wife separate
maintenance and child support. Seeking to remarry, husband traveled to the Dominican Republic
for a “two-day visit” during which he obtained a divorce in an ex parte proceeding of which wife
was notified. He then went to Nevada to remarry and he returned to Mississippi with his second
spouse.

Subsequently, first wife filed a petition seeking to limit or eliminate visitation with the
couple’s children because “husband” was living in a bigamous relationship with his alleged second
wife which was harmful to the children. This claim, of course, was premised on the Dominican
Republic divorce’s invalidity. Trial court, in responding to the petition, refused to recognize the
divorce (and ensuing “remarriage”) and restricted visitation to times and places where second “wife”
was not present. On appeal, the supreme court affirmed in part and reversed and remanded in part.

As for recognition of the foreign divorce, the court, citing the United States Supreme Court
holding in Williams II, held domicile was the cornerstone of jurisdiction to terminate a marriage and
this clearly was not present here, in light of husband’s testimony that the purpose of his Dominican
Republic trip was to “get a divorce.” Additionally, the court noted husband’s original divorce
petition in Mississippi and described his trip as an attempt to “circumvent the denial.” The court
additionally concluded that neither the child support nor the custody provisions of the foreign
divorce were to be recognized because of lack of jurisdiction. On the merits of the visitation order,
however, the court noted prior precedent requiring a specific link between parental behavior and the
child’s welfare as a predicate for a visitation restriction. While husband’s new relationship was
clearly adulterous, said the court, it was insufficient standing alone to justify a limitation on
visitation.

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 Pages 746-58. Jurisdiction to Issue Support Orders and Divide Property. Relitigation of
Personal Jurisdiction—Although the casebook does not address the issue specifically under
personal jurisdiction (but see discussion of relitigation of domicile in termination actions at p. 745),
it is hornbook law that personal jurisdiction which is exercised in a law suit where both parties
participate cannot be collaterally attacked for lack of personal jurisdiction in a second state. This
principle was relied upon in Smith (Mason) v. Smith, 964 P.2d 743 (Mont. 1998). This case involved
a 20-year old judgment for support arrearages originally obtained in Utah which periodically had
been renewed by obligee consistent with Utah law. The most recent Utah judgment, obtained in
1993 with obligor’s participation, specifically had addressed his claim of lack of personal jurisdiction
over him. The Montana court, faced with a claim that the 1993 judgment lacked personal
jurisdiction, held that full faith and credit precluded relitigation of this assertion.

Page 746. Divisible Divorce. The Supreme Court of Appeals of West Virginia relied upon
Estin (cited in the casebook) and endorsed the concept of divisible divorce in Snider v. Snider, 551
S.E. 2d 693 (W. Va. 2001). In Snider, husband was living in Illinois and wife was in West Virginia.
He filed and obtained a termination of the marriage in his state, though the court did not enter any
judgment concerning property division or alimony. Subsequent to his filing, wife filed suit in West
Virginia seeking resolution of those issues. Husband claimed that the existence of the Illinois action
deprived West Virginia of subject matter jurisdiction and West Virginia trial court had no personal
jurisdiction over him. The appellate court affirmed the trial court’s rejection of both arguments.
Citing Estin, the court held that a prior West Virginia case in which the ex parte divorce in a foreign
jurisdiction followed the in-state decree for child support and alimony was indistinguishable from
this case. Sufficient minimum contacts were found to support long-arm personal jurisdiction in West
Virginia.

Page 753, Note 2. Long-arm Statutes. A number of courts have recently approved the
exercise of personal jurisdiction on what might be described as extreme facts. For example, in
Sherlock v. Sherlock, 545 S.E. 2d 757 (N.C. App. 2001), the couple had never had a house in the
state. Instead, after having been married within the state, they had spent their entire married life
traveling working in various spots around the world as husband obtained different positions in
business. Indeed, the only time during their 16-year marriage during which they were resident in the
United States was a six-month stay in Georgia. In 1999, after the separation, wife apparently
returned to North Carolina to live with her parents. Faced with a trial court exercise of personal
jurisdiction under a long-arm statute which requires that a cause of action “arises out of a marital
relationship in this state,” the appellate court conceded this was a close case, in terms of
constitutional sufficiency, but held that personal jurisdiction was appropriate. The Court noted:

(1) their marriage ceremony was performed in Durham.... Consequently, their marriage
license was filed there, and the provisions of Chapter 52, "Powers and Liabilities of Married
Persons," governed various legal aspects of their relationship during the marriage; (2) while
he was overseas, the defendant used his father-in-law's Durham address to receive important
mail, including federal income tax documents; (3) [for six years] defendant's salary was
directly deposited into a Wachovia bank account in Durham...; (4) [for 11 years] defendant

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 had a North Carolina drivers' license....; (5) in 1984, the defendant executed a Power of
Attorney in Durham, and made ... his father-in-law, his Attorney in Fact. This document was
filed in the Durham County Registry; (6) ... [father-in-law] conducted business on behalf of
plaintiff and defendant while they were overseas; (7) in 1984, the defendant made a Last Will
and Testament, naming [father-in-law] ... the executor of his will, and Mary Meschter, also
of Durham, as alternate executor; (8) [for 3 years] defendant retained ... a Durham
accountant, to receive and pay bills on his behalf; and (9) in 1992, plaintiff and defendant
opened an investment account with [a Durham investment house].

These contacts, held the court, were sufficient to satisfy both the statute and the Constitution. In
Poindexter v. Poindexter, 594 N.W. 2d 76 (Mich. App. 1999), a Michigan court found that a
Mississippi court had properly exercised long-arm jurisdiction under a statutory provision covering
those who contract with a resident of the state. Citing a Mississippi Supreme Court case holding that
begetting a child constitutes a quasi-contractual obligation, the court held that the fact that defendant
had not resided in Mississippi for 22 years “is not determinative of whether he is amenable to suit
in Mississippi.” See also Panganiban v. Panganiban, 736 A. 2d 190 (Conn. App. 1999)(11 years’
absence from forum state did not defeat jurisdiction where couple had lived in state for 6 years;
defendant, who had recently won $16 million in out of state lottery was amenable to personal
jurisdiction).

A number of courts, by contrast, have rejected assertions of personal jurisdiction over out of
state defendants. For example, in Sharp v. Sharp, 765 A. 2d 271 (N.J. Super. App. 2001), plaintiff-
obligee sought jurisdiction over California defendant under a UIFSA-type long-arm statute. In
Sharp, the couple had lived in California, been divorced there and obligee had settled in New Jersey
with their child. Father remained in California and all upward modification litigation throughout the
ensuing 16 years had been conducted under URESA in two-state proceedings. Father had only been
to New Jersey a couple of times for vacation. After the daughter turned 18, support had been ended
pursuant to the divorce decree. Subsequently, obligee in New Jersey filed an action seeking support
for college for the child. Rather than file a two-state proceeding, she asserted long-arm personal
jurisdiction. Father appealed a trial court order requiring him to pay half the college costs, asserting
lack of personal jurisdiction. The appellate court reversed, finding no power to assert personal
jurisdiction over obligor. No “effects” had been caused by obligor in New Jersey and no other basis
under the statute was supported under the facts. The court also noted that a separate reason for
dismissing the action would be lack of subject matter jurisdiction. Because there had been a prior
order and obligor had remained in the issuing state, UIFSA would render California the court of
continuing, exclusive jurisdiction.

In Windsor v. Windsor, 700 N.E. 2d 838 (Mass. App. 1998), the court reversed trial court
exercise of personal jurisdiction over defendant who was absent from Massachusetts for over 30
years and had, through alleged abuse and cruelty, driven plaintiff out of their Florida home
approximately 18 years before the instant suit. Rejecting assertion of jurisdiction under §5 of
UIFSA’s long-arm provision, the court held that obligee could not unilaterally create jurisdiction in
forum state by leaving Florida even if the allegations of abuse and neglect had been proven, which

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the court found they weren’t. For other recent cases finding no personal jurisdiction, see Outten v.
Campbell, 2002 Tenn. App. LEXIS 339 (trial court did not gain personal jurisdiction over defendant
by virtue of his filing a motion seeking to quash a wage assignment based on a judgment obtained
without personal jurisdiction); Freethy v. Maconi, 2000 Tenn. App. LEXIS 498 (non-resident
paternity defendant’s stockbroker license in forum state and presence of several out-of-state clients
who moved to forum state insufficient to satisfy constitutional requirements for personal jurisdiction;
only physical presence was on brief visit to a relative 10 years prior to litigation); Bushelman v.
Bushelman, 629 N.W. 2d 795 (Wis. App. 2001) (long-arm statute requiring “substantial and not
isolated activities” in state at time of action’s commencement not satisfied by non-resident’s 1)
consent to his children living in forum; 2) sending support payments there; 3) regularly phoning the
children; and 4) visiting forum state briefly 7 months prior to action’s commencement); Strickland
v. Strickland, 534 S.E. 2d 74 (Ga. 2000) (no personal jurisdiction over Georgia native whose
marriage occurred in forum in 1978, but had spent entire 20-year marriage in North Carolina);
McCubbin v. Seay, 749 So. 2d 1127 (Miss. App. 1999) (payment of court-ordered child support to
obligee by itself insufficient to confer personal jurisdiction for contempt proceeding; nothing in
FFCCSOA extends reach of personal jurisdiction).

Page 755, Note 5. Real Property Outside the Forum State. In a case involving personal
property, the Kansas Court of Appeals held that a trial court had no jurisdiction over such property
outside the state in a case where personal jurisdiction had not been obtained over defendant. Salas
v. Salas, 19 P.3d 184 (Kan. App. 2001). The court went on to find in rem jurisdiction appropriate
in such a situation where the property was located within the state, so long as the litigation involved
a dispute over the ownership of the property.

Pages 761 et seq. UCCJ EA. As noted in the Teacher’s Manual in 1997 a replacement for
the UCCJA was promulgated by the National Conference of Commissioners on Uniform State Laws.
The text of the statute is available at the Conference’s web site, www.nccusl.org. As of the summer
of 2002, a total of 30 jurisdictions, including the District of Columbia had enacted the new statute.
For analyses of the new statute, see Coombs, Child Custody and Visitation by Non-Parents Under
the New Uniform Child Custody Jurisdiction and Enforcement Act: A Rerun of Seize-and-Run, 16
J. AM . ACAD. MATRIM . LAW . 1 (1999); Stoner, The Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA)–A Metamorphosis of the Uniform Child Custody Jurisdiction Act
(UCCJA), 75 N.D. L. REV . 301 (1999).

Pages 764-66. Text of PKPA. Congress has twice amended the PKPA since the publication
of the casebook. Its current text is as follows:

28 USCS §1738A. Full faith and credit given to child custody determinations, as amended
in 1998 and 2000 (strikeouts reflect original language and bold indicates newly enacted
language)

(a) The appropriate authorities of every State shall enforce according to its terms, and shall
not modify except as provided in subsection (f) of this section, any child custody

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determination subsections (f), (g), and (h) of this section, any custody determination
or visitation determination made consistently with the provisions of this section by a court
of another State.

(b) As used in this section, the term--

(1) "child" means a person under the age of eighteen;
(2) "contestant" means a person, including a parent or grandparent, who claims a right
to custody or visitation of a child;
(3) "custody determination" means a judgment, decree, or other order of a court providing
for the custody or visitation of a child, and includes permanent and temporary orders, and
initial orders and modifications;
(4) "home State" means the State in which, immediately preceding the time involved, the
child lived with his parents, a parent, or a person acting as parent, for at least six consecutive
months, and in the case of a child less than six months old, the State in which the child lived
from birth with any of such persons. Periods of temporary absence of any of such persons are
counted as part of the six-month or other period;
(5) "modification" and "modify" refer to a custody or visitation determination which
modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody or
visitation determination concerning the same child, whether made by the same court or not;
(6) "person acting as a parent" means a person, other than a parent, who has physical
custody of a child and who has either been awarded custody by a court or claims a right to
custody;
(7) "physical custody" means actual possession and control of a child; and
(8) "State" means a State of the United States, the District of Columbia, the Commonwealth
of Puerto Rico, or a territory or possession of the United States; and
(9) "visitation determination" means a judgment, decree, or other order of a court
providing for the visitation of a child and includes permanent and temporary orders
and initial orders and modifications.

(c) A child custody or visitation determination made by a court of a State is consistent with
the provisions of this section only if--
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:

(A) such State (i) is the home State of the child on the date of the commencement of the
proceeding, or (ii) had been the child's home State within six months before the date of the
commencement of the proceeding and the child is absent from such State because of his
removal or retention by a contestant or for other reasons, and a contestant continues to live
in such State;

(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and
(ii) it is in the best interest of the child that a court of such State assume jurisdiction
because (I) the child and his parents, or the child and at least one contestant, have a

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 significant connection with such State other than mere physical presence in such State, and
(II) there is available in such State substantial evidence concerning the child's present or
future care, protection, training, and personal relationships;

(C) the child is physically present in such State and (i) the child has been abandoned, or
(ii) it is necessary in an emergency to protect the child because the child, a sibling,
or parent of the child has been subjected to or threatened with mistreatment or abuse;

(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B),
(C), or (E), or another State has declined to exercise jurisdiction on the ground that the State
whose jurisdiction is in issue is the more appropriate forum to determine the custody or
visitation of the child, and (ii) it is in the best interest of the child that such court assume
jurisdiction; or

(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.

(d) The jurisdiction of a court of a State which has made a child custody or visitation
determination consistently with the provisions of this section continues as long as the
requirement of subsection (c)(1) of this section continues to be met and such State remains
the residence of the child or of any contestant.

(e) Before a child custody or visitation determination is made, reasonable notice and
opportunity to be heard shall be given to the contestants, any parent whose parental rights
have not been previously terminated and any person who has physical custody of a child.

(f) A court of a State may modify a determination of the custody of the same child made by
a court of another State, if--
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such
jurisdiction to modify such determination.

(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody or
visitation determination commenced during the pendency of a proceeding in a court of
another State where such court of that other State is exercising jurisdiction consistently with
the provisions of this section to make a custody determination.

(h) A court of a State may not modify a visitation determination made by a court of
another State unless the court of the other State no longer has jurisdiction to modify
such determination or has declined to exercise jurisdiction to modify such
determination.

The 2000 amendment added the language in (c)(2)(C)(ii) which broadens emergency
jurisdiction to include situations where abuse or threatened abuse affects not only the child but also

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siblings and parent. The 1998 amendment added grandparent to the list of possible contestants in
a custody action and also makes explicit that visitation determinations are non-modifiable in the
same way as custody determinations are. While the goals of recognizing grandparents’ rights and
respect for visitation may seem laudable, their interaction may lead to an awkward situation in the
following, not atypical, fact pattern. A and B are divorced in State 1 and A is granted custody of the
three children. B’s parents are granted visitation under a grandparents’ visitation statute.
Subsequently A, B and all three children wind up in State 2, while B’s parents remain in State 1. It
would seem that State 2 could not modify (or at least not modify with any assurance of recognition
elsewhere) any of the terms of the custody decree, even with both parents and all children within
State 2, so long as the grandparent, a “contestant” under (b)(2) remained in the rendering state.

Page 776, Note 4. Interstate Competition. A recent example of a state court declining
jurisdiction in favor of another state is Barnett v. Barnett, 1998 Tenn. App. LEXIS 765. The
appellate court held that despite the presence of significant connection jurisdiction in Tennessee and
the lack of a home state for the two children who were recent transplants to Florida with their
mother, the trial court should have declined to exercise custody jurisdiction. The court pointed out
that mother had filed a separate maintenance action in Florida and custody would have been
appropriately decided there. See also Edwards v. Edwards, 2002 Ga. App. LEXIS 418 (deferring
under UCCJA to a custody decision made in the Bahamas under home state jurisdiction even though
there was a prior Georgia decree; Bahamas order rejecting Hague Convention petition entitled to
recognition under federal legislation implementing Convention); Welch-Doden v. Roberts, 42 P.3d
1166 (Ariz. App. 2002) (deferring to Oklahoma under UCCJEA as home state because it had been
home state within 6 months and had not yet been replaced by any other home state).

Page 777, Note 5. Tribal Jurisdiction. Two recent cases raised questions about whether a
parent (and consequently the parent’s child) was indeed an Indian and, thus, covered by the Indian
Child Welfare Act of 1978. In In re Williams, 2002 N.C. App. LEXIS 364, a welfare agency was
seeking to terminate parental rights of defendant, who had been incarcerated since shortly after his
child’s conception and had never spoken to or seen the child. In his motion to dismiss and in cross-
examination on a hearing, petitioner referred to his “Indian heritage.” The appellate court, in dealing
with his appeal of the termination order, noted defendant “fail[ed] to provide any supporting any
evidence to prove the Act’s applicability to him, such as documentation or the testimony of a
representative from his tribal government.” While acknowledging other possible ways of proving
Act’s applicability, court concluded litigant’s “equivocal testimony” standing alone was
“insufficient” to meet burden placed upon party seeking to invoke the Act’s protection.

By contrast, in In re [A.L.W.] , State v. [B.D.W.], 32 P.3d 297 (Wash. App. 2001), the court
held in a dependency hearing that an Indian band’s determination that a child is either a member or
eligible for membership is “is conclusive evidence that a child is an ‘Indian child’ under the ICWA.”
The court wrote that in assessing whether a band had made such a determination, it had not power
to “go behind the internal decision-making processes of the tribe.” See also In re S.N.R., 617 N.W.
2d 77 (Minn. App. 2000). Thus, the court rejected litigant’s argument that an Indian band did not
have authority to determine its own membership and that such authority, according to Indian law,

77
properly belonged solely to the Indian tribe of which the band members are members. The court
pointed out that the Indian band in this case was itself recognized by the Bureau of Indian Affairs
as a tribe and eligible for services provided to tribes.

As the Note in the casebook suggests, in some situations the ICWA provides for exclusive
jurisdiction in the tribal court and in other cases, there is concurrent jurisdiction with the possibility
of transfer by the state court to the tribal court. In State ex rel. Children, Youth and Families Dep’t
v. In re: Andrea Lynn M., 10 P.3d 191 (N. Mex. App. 2000), the appellate court, over father’s
objection, approved transfer to tribal court of abuse and neglect petition against Indian parents.
Section 1911(b), which defines situations where there is concurrent state and tribal court jurisdiction,
depends on a finding of child’s domicile and residence. While the trial court found the child not
domiciled within the reservation, there was no evidence in the record on the question. The appellate
court held that lacking contrary evidence, it would assume the “record supports the ruling of the
lower court.” The court also noted that transfer helped effectuate Congressional intent to “protect
the best interests of Indian children and to promote the stability and security of Indian tribes” and
that both mother and father now were living “within or in proximity to the boundaries of the Navajo
Nation, or at the very least in Indian Country.”

In litigation involving an Indian parent’s three children, the Ohio Court of Appeals held that
the Eastern Band of Cherokee Indians tribal court had jurisdiction in a custody proceeding involving
the two older children, while jurisdiction over the youngest sibling, a daughter, was properly in the
Ohio courts. In re Absher Children, 750 N.E. 2d 188 (Ohio App. 2001). The appellate court
recognized, however, the anomaly of having custody disputes over three children tried in two
different courts in two different states. It, therefore, remanded the case involving the daughter for
trial court consideration of whether to continue the litigation or transfer it to the Cherokee tribal
court.

See generally Annot., Construction and Application of Indian Child Welfare Act of 1978
Upon Child Custody Determinations, 89 A.L.R.5th 195 (2001)

Page 784, Note 1. Broad and Narrow Interpretations of UCCJA Modification Jurisdiction.
Without regard to arguments about the extent of modification jurisdiction, clearly a court has no
responsibility to defer to a prior custody adjudication in another state which was obtained without
jurisdiction. In Consford v. Consford, 271 A.D. 2d 106 (4th Dept. 2000), the court held that the prior
Texas decree was obtained without any UCCJA-based jurisdiction. It was not the home state, had
no significant connection, there was no emergency and the child was not even physically within the
forum state at the time of the decree. See also Jorgensen v. Vargas, 627 N.W. 2d 550 (Iowa 2001)
(finding New York lacked jurisdiction under both UCCJA and PKPA and therefore Iowa need not
recognize it and could enter decree inconsistent with New York decree). Thus, New York, now the
home state, had jurisdiction to enter what was, from a jurisdictional perspective, an initial decree.
In reaching its conclusion, the court characterized UCCJA jurisdiction as subject matter jurisdiction
which could not be waived by participation of both parents (see Note 5, casebook p. 789).

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 The casebook states: “when State 2 is asked to modify State 1's decree, State 2 must
determine if State 1 retains modification jurisdiction under State1's construction of State 1's
UCCJA.” The same point is true when it is alleged that a pending proceeding in State 1 is not an
exercise of jurisdiction substantially in conformity with the UCCJA. Thus, in Hines v. Tilimon, 2001
Tenn. App. LEXIS 35, the court held that it need not defer to a California proceeding because, in the
Tennessee court’s view, the California proceeding was not being conducted in accord with binding
California precedent on significant connection jurisdiction under California’s version of the UCCJA.

Page 788, Note 3. State Law Variations from the Official Text of the UCCJA. The
casebook mentions a Tennessee variation which permits modification of an existing decree only if
a home state has deferred to it or there is no home state. A similar local variation was enacted in
Texas under which there was no modification jurisdiction of an existing decree so long as there was
a new home state. Thus, in McGuire v. McGuire, 18 S.W. 3d 801 (Tex. App. 2000), the trial court
lacked modification jurisdiction even where it had issued the initial decree and one of the parents
remained in the jurisdiction. The court found that the state where custodial parent had moved with
child was now home state and, thus, modification jurisdiction in Texas had been lost. The court
noted Texas’ adoption of UCCJEA (which became law after the McGuire litigation) may render
McGuire obsolete.

Page 788, Note 4. Emergency and Residual Jurisdiction. Emergency jurisdiction under the
UCCJA, in §3(a)(3), clearly required the presence of the child in the forum state (“the child is
physically present in this state and (i) it has been abandoned or (ii) it is necessary in an emergency
to protect the child....”

Emergency jurisdiction is defined in the UCCJEA in §204(a) as follows:

A court of this State has temporary emergency jurisdiction if the child is present in this State
and the child has been abandoned or it is necessary in an emergency to protect the child
because the child, or a sibling or parent of the child, is subjected to or threatened with
mistreatment or abuse.

The court in P.E.K. v. J.M. and C.Y.M., 52 S.W. 3d 653 (Tenn. App. 2001), had to decide
whether the language change resulted in a grant of emergency jurisdiction for a child not within the
forum state who might be in need because of threatened or actual abuse. The trial court, apparently
viewing the provision as providing two alternative predicates for jurisdiction (abandoned in the state
OR in need of protection because of abuse, actual or threatened) entered an order concerning an out-
of-state child. Having examined the prior UCCJA provision, appellate court rejected this
interpretation of the successor statute, finding “no indication that the legislature intended to involve
the courts of this state in emergencies existing in other states.”

UCCJA §3(a)(4)’s residual jurisdiction mentioned in the casebook was relied upon court in
Gullett v. Gullett, 992 S.W. 2d 866 (Ky. App. 1999), to justify trial court jurisdiction to enter an
order in an unusual case. In Gullett, father filed a Kentucky divorce action seeking custody of

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couple’s unborn child. Mother at that point was living with her family in Ohio. On the day of the
child’s birth two weeks later, she filed an answer to the divorce action, seeking custody. After a
proposed settlement fell through, wife sought to attack Kentucky jurisdiction over custody, claiming
that at commencement of action child’s home state was Ohio.

The appellate court rejected the claim, noting that at the time of the commencement of the
action the child had not yet been born. Thus, it had no home state, significant connection jurisdiction
was missing because child didn’t exist and there was no emergency. This left the residual
jurisdiction of §3(a)(4) [see casebook, p. 762 for text]. Accepting the fact that upon birth child’s
home state became Ohio thus creating concurrent jurisdiction there, court held jurisdiction had
already attached in Kentucky in the divorce suit. There was no evidence demonstrating any reason
why Kentucky, at this point, should defer to Ohio.

Page 789, Note 5. Can the Parties Jointly Confer Jurisdiction Outside UCCJA Provisions?
A forum selection clause granting New Jersey exclusive modification jurisdiction over custodial
arrangements was upheld in Hendry v. Hendry, 771 A. 2d 701 (N.J. Super. 2001), despite the fact
that none of the parties lived there when modification was sought. While this would appear to be
a grant of custody jurisdiction in violation of the UCCJA, the court rejected the claim that this was
an attempt to confer subject matter jurisdiction on a court without authority. The court concluded
that other sources of law, including the state constitution and general statutory provisions granting
jurisdiction to decide custody issues, were sufficient. The court appeared to find especially relevant
that the modification arose within 3 years of the agreement and the forum selection clause was
apparently an integral part of negotiation process. Father, who lived in New York, had agreed to let
mother take children to North Carolina in exchange for assurance that litigation would take place
close to him in New Jersey, where the family had lived together and was site of the divorce.

Page 793, Note 8. International Custody Disputes. Article 13 of the 1980 Convention was
explored in March v. Levine, 249 F.3d 462 (6th Cir. 2001). The appellate court affirmed trial court
finding that respondent-grandparents had wrongfully taken them from their father in Mexico and
should be returned. The grandparents, believing their daughter to have been murdered by petitioner
who was her husband, obtained Illinois visitation order which was enforced by a Mexican court.
They refused to return the children at the end of the visit, triggering father’s petition under the
Convention (and the implementing federal legislation mentioned in the casebook). The court
rejected grandparents’ claim that petitioner should be “disentitled” from bringing the action because
of his unclean hands. Noting that the Convention mandates proof by clear and convincing evidence
of an Article 13 exception to the return requirement, the court upheld summary judgment by the
district court in favor of petitioner. See also Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) (refusing
to overturn district court order requiring United States father to return his two daughters to his
former wife in Canada under Convention; children had been forcibly removed from mother’s
possession and no Convention exception was proven by clear and convincing evidence); Escaf v.
Rodriquez, 200 F. Supp. 2d 603 (E.D. Va. 2002) (return of child to Colombia required under
Convention after father wrongfully retained child in Virginia); Vaile v. District Court, 44 P.3d 506
(Nev. 2002) (finding Norway children’s habitual residence as matter of law and ordering their

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return).

For recent scholarship on the Hague Convention, see Symposium, The Past and Promise of
the 1980 Hague Convention on the Civil Aspects of International Child Abduction, 33 N.Y.U. J.
INTL. L. & POL’Y 1 (2000); Johnson, The Foul Rag-and-Bone Shop of the Heart: Enforcing the
Hague Convention Through the Tort of Intentional Interference with Parental Rights, 10
TRANSNAT’L L. & CONTEMP. PROBS . 665 (2000); Lopez, U.S./Mexico Cross-Border Child
Abduction–the Need for Cooperation, 29 N.M. L. REV . 289 (2000); Note, Blondin v. DuBois: A
Closer Step to Safeguarding the Welfare of Abducted Children?, 26 BROOK. J. INT ’L L. 721 (2000);
Comment, The Hague Convention on the Civil Aspects of International Child Abduction: When
Domestic Violence and Child Abuse Impact the Goal of Comity, 13 TRANSNAT’L LAW . 391 (2000);
see also Kreston, Prosecuting International Parental Kidnaping, 15 NOTRE DAME J. L. ETHICS &
PUB. POL’Y 533 (2001).

Of course, the most famous international custody case in recent years centered around Elian
Gonzalez. Because there was no allegation that the child was wrongfully taken from Cuba by his
custodial mother, the Hague Convention was not implicated. Instead the case revolved around the
law of asylum, separation of powers, judicial review and related matters. For an explanation of the
facts and resolution of legal issues involved, see Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000);
see also Comment, Where to Decide the “Best Interests” of Elian Gonzalez: The Law of Abduction
and International Custody Disputes, 31 U. MIAMI INTER -AM . L. REV . 323 (2000).

The most recent Hague Convention dealing with international custody disputes is the 1996
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect
of Parental Responsibility and Measures for the Protection of Children. Probably its primary
objective is, in the words of an American law professor who served as one of three U.S. delegates
negotiating the Convention, to “establish international standards of jurisdiction and enforcement of
judgments for custody cases.” Silberman, The 1996 Hague Convention on the Protection of
Children: Should the United States Join?, 34 FAM . L.Q. 239 (2000) (analyzing Convention’s
provisions). As of summer of 2002, a total of seven States have signed the Convention and three
have ratified it. It went into force in those three States (Monaco, Czech Republic and Slovakia) in
January, 2002, according to information from the Hague Convention web site (http://www.hcch.net)

Page 794. Domestic Relations Exception to Diversity Jurisdiction. Several recent cases
have applied the Ankenbrandt decision to various fact patterns in defining the contours of the
domestic relations exception. In McLaughlin v. Cotner, 193 F.3d 410 (6th Cir. 1999), the court
affirmed trial court’s dismissal for lack of jurisdiction in a dispute between two former spouses.
Essentially, ex-wife alleged defendant had breached a term included in their decree-incorporated
separation agreement. Asserting his failure to sell the marital home as required by the agreement,
she sought an order of contempt in the divorce court. While that motion was pending, she filed a
federal diversity action claiming a breach of contract. Subsequently, the state court dismissed her
contempt petition upon a finding of substantial compliance with the agreement and decree. The
federal trial court, relying on Ankenbrandt, dismissed the diversity action for lack of subject matter

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jurisdiction.

Distinguishing Ankenbrandt as a case involving a tort which happened to involve formerly

intimate parties, the Sixth Circuit held plaintiff was trying to “disguise the true nature of the action”
by describing it as a mere contract action. Instead, this case involves issues involved in the couple’s
divorce and, indeed, the precise issue which was presented in the state court contempt action. The
appellate court thus concluded that a sua sponte dismissal for lack of jurisdiction by the district court
was appropriate. See also Bidwell v. Baker, 2001 U.S. Dist. LEXIS 12503 (D. Ore.) (relying on
McLaughlin to dismiss suit alleging violation of a post-judgment oral agreement to modify result of
a divorce action; “because plaintiff’s suit asks this court to alter a divorce decree, the domestic
relations exception is applicable”); Johnson v. Rodrigues, 226 F.3d 1103 (10th Cir. 2000)(finding
diversity action seeking return of child to biological father because of alleged constitutional
invalidity of adoption notification procedure falls within domestic relations exception and should
be dismissed).

Two recent appellate decisions, however, found the domestic relations exception
inapplicable. In Rash v. Rash, 173 P.3d 1376 (11th Cir. 1999), the court faced a declaratory judgment
action seeking to resolve issue of which of two competing divorce decrees was valid. In this case,
husband filed for a divorce in Florida less than a month before wife sought a decree in New Jersey.
The Florida court, in a proceeding in which wife did not enter an appearance, entered a judgment
divorcing the parties and determining the property issues. Subsequently the New Jersey court held
a hearing on jurisdiction, a proceeding in which both parties participated. Soon thereafter it granted
the divorce and divided the parties’ property. Husband then filed a federal action under the
Declaratory Judgment Act seeking a declaration that the Florida action, which was filed first and
concluded first, was valid and entitled to Full Faith and Credit from New Jersey.

Without explicitly referring to Ankenbrandt, the Eleventh Circuit wrote that:

this case is a dispute over assets–alimony, rights to pension, and real property in New Jersey
and Florida–and only secondarily of domestic differences. It is not a dispute over a single
decree but over which of two competing state decrees should be enforced. Also it concerns
the interests of two states and of their respective courts in protecting their judgments and
their constitutional entitlement to full faith and credit. It does not raise the types of concerns
that justify application of the domestic relations exception.

Proceeding to the merits, the court held that both parties had participated in the New Jersey litigation
and that husband thus had been unsuccessful at convincing the New Jersey court that it was without
jurisdiction and/or that it should stay its hand awaiting judgment in Florida. The New Jersey court
had reached a conclusion that the Florida court lacked personal jurisdiction over wife. The appellate
court concluded New Jersey “is the only court with jurisdiction over both parties to have determined
the issue of jurisdiction. That judgment is entitled to full faith and credit.” The court noted Williams
II specifically held federal courts remain open to consider “claims that the courts of one state have
not given the full faith and credit to the judgment of a sister state that is required by” the

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Constitution.

In Dunn v. Cometa, 238 F.3d 38 (1st Cir. 2001), the appellate court also found Ankenbrandt
distinguishable. In this diversity action, plaintiff sued on behalf of his disabled son and himself.
Defendant was son’s former wife. Plaintiff alleged financial misfeasance by his former daughter-in-
law during the waning days of the marriage. Discovery into these matters had been conducted in the
divorce action, but not pursued. The trial court judge in the divorce action found “not a shred of
evidence to support a finding of economic misconduct or fraud.” Soon after the divorce, the federal
action was filed.

While conceding that the economic misconduct alleged by plaintiff could have had an impact
on the level of alimony in the divorce, the federal appellate court held that “the question now posed
is whether tort claims based on these same events, later asserted in a separate lawsuit, are within the
domestic relations exception.” Pointing out that sometimes events can simultaneously have
relevance to different types of relationships, the court held that this litigation did not involve claims
for divorce, alimony or child custody. It did note that plaintiff might have some res judicata
problems on the merits.
The appellate court went on to conclude that a different rationale would support the trial court
refusing to decide the tort claim on the merits. Rather than the domestic relations exception, the
court held that Burford abstention, a doctrine mentioned in Ankenbrandt itself, would justify a stay
of the federal proceedings, pending final resolution of the state court litigation. Such abstention
is appropriate when a case “presents difficult questions of state law bearing on policy problems of
substantial public import whose importance transcends the result in the case then at bar.”

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 Chapter 8
Agreements

American Law Institute Principles. At the time of the text’s publication, the Institute had
not yet published even a tentative draft of its treatment of Premarital and Separation Agreements.
These topics comprise Chapter 7 of the final published Principles, which appeared in May of 2002.
Chapter 7 recognizes the value of private agreements to the parties, but also that formal contracts,
even when made, can never be the exclusive source of the rights and obligations that arise between
persons who live in a family relationship. It thus provides for the enforcement of agreements within
the limits of constraints appropriate to the family context that supplement the rules of contract
applicable to commercial arrangements. As to premarital agreements, the Institute’s position is
therefore quite different than that taken by the Uniform Premarital Agreement Act, although portions
of it could be adopted as a judicial gloss upon the UPA by determined courts in UPA states.
Adoptions of the UPA itself have slowed, and there have been some significant departures from its
provisions among states that have adopted it. This is recounted in detail in the Reporter’s Notes to
§ 7.04 and § 7.05 of the Principles, which are its two key provisions. Section 7.04 details the
procedural requirements for entry into a valid premarital agreement, while § 7.05 establishes
substantive limits grounded on fairness concerns.

Section 7.04 requires the person seeking to enforce a premarital agreement to show that the
other parties' consent to it was both informed, and not given under duress, but establishes a
rebuttable presumption that this burden is met when the agreement is executed at least 30 days before
the wedding, both parties had a reasonable opportunity to consult independent counsel, and (if either
party did not have counsel) the agreement contains plain language explaining how it alters rights
otherwise arising at dissolution. There is also a separate disclosure requirement. Analogous
procedural requirements apply to marital contracts and contracts between domestic partners that
would waive claims otherwise recognized under Chapter 6 (the Institute’s treatment of unmarried
cohabitants).

Section 7.05 deals with concerns about unfairness at the time of enforcement of an agreement
whose terms may not have been objectionable on their face at the time of execution. Some courts
have of course relied upon an extended–some would say distorted–version of the classic
unconscionability doctrine to deal with these cases. Having dealt with them instead through the rules
set forth in § 7.05, the Principles limit unconscionability to its classic meaning as understood in the
Restatement, 2d of Contracts. But as pointed out in § 7.01, Comment e, the classic doctrine has
important potential application to agreements made during marriage. See this memorandum below,
at the update notes for page 800 of the text.

To deal with unfairness at the time of enforcement, § 7.05 establishes circumstances under
which a court must ask whether enforcement of an agreement would work "a substantial injustice."
This section recognizes that a family dissolution may occur under circumstances different than those
at the time of execution in ways that alter the agreement's impact upon the parties, and that even if
contracting parties are able to anticipate the possibility of altered circumstances, they may not be able

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to project how the new circumstances would affect their evaluation of the agreement's terms. It thus
provides that a court should consider whether enforcement of an agreement would work a substantial
injustice if, since the time of execution, the parties have had children (when they did not before) or
if a fixed period of time has passed. While the specific time period is not set by this section, the
commentary suggests that a ten-year period would be reasonable for this purpose. Section 7.05
applies to agreements between domestic partners as well as those between prospective or current
spouses. Later sections of Chapter 7 contain the usual rules denying binding effect to agreements
concerning child support and custody, and also generally deny effect to agreements that would alter
the grounds for divorce allowed under the applicable state law.

A separate set of sections in Chapter 7 address separation agreements. These sections avoid
the traditional analysis that unrealistically assumed courts would review all such agreements at the
time the decree is entered, focusing instead on clarifying the circumstances under which courts
should deny enforcement of the parties' agreement, or modify it, to take changed circumstances into
account. The separation agreement sections specially protect parties with residential responsibility
for children, or with substantially fewer financial resources than the other party, from the
enforcement of agreements that would substantially and unjustly impair their economic well-being.

For commentary on the ALI’s provisions on premarital agreements, see Brian Bix, Premarital
Agreements in the ALI Principles of Family Dissolution, 8 DUKE J. GENDER L. & POL’Y 231 (2001).

Page 800. Separate Treatment of Agreements Made During Marriage. The text notes the
occasional statement one still finds that agreements entered after the parties have already married
are vulnerable to attack on consideration grounds, and suggests that the real problem with the
agreements is otherwise. It should be noted that the Uniform Marital Property Act, which applies to
agreements made during marriage, also dispenses with the consideration requirement in §§ 10(a) and
10(b). More important is further thought about the important differences, if any, there are between
premarital and marital agreements. The Principles take the position that there is no need to provide
different rules for each, but that marital agreements present a heightened risk of unfairness in the
terms at the time contracting, because of a greater potential of one spouse’s exploiting the other’s
fear of divorce. It proposes that this heightened risk be addressed by a sensitive application of the
standard unconscionability rule. See § 7.01.

There are statutes and cases which state explicitly that premarital and during-marriage
agreements are governed by the same rules, as well as statutes that apply special rules to during-
marriage agreements. See the Reporter’s Notes to § 7.01 of the Principles for a fuller treatment. A
recent case holding that marital and premarital agreements should be treated differently is Pacelli
v. Pacelli, 725 A.2d 56 (N.J. App. Div. 1999) (inappropriate to treat a “mid-marriage” agreement
similarly to a premarital agreement because “the dynamics and pressures” are different). However,
the court’s conclusion that the agreement before it was not enforceable is grounded on an application
of the unconscionability doctrine that is consistent with current understandings of that principle, and
can thus be explained as an application of standard contract rules rather than any special treatment
of marital agreements. The ALI Principles rely upon this construction of Pacelli. For a thoughtful

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piece that discusses some of the difficulties with contracts between persons already married, see
Michael Trebilcock & Steven Elliott, The Scope and Limits of Legal Paternalism: Altruism and
Coercion in Family Financial Arrangements, in THE THEORY OF CONTRACT LAW (Peter Benson ed.,
Cambridge University Press, 2001).

Page 803. Formalities of Execution: Statute of Frauds. Two recent decisions apply the
statute of frauds to unusual facts. The marital agreement at issue in Lowinger v. Lowinger, 733
N.Y.S.2d 33 (App.Div. 2001) was between the wife and her mother-in-law. The wife claimed that
their oral agreement called for her to convert to Judaism in exchange for the mother-in-law's promise
to provide her and her children “a wonderful home”, a generous monthly allowance for the rest of
her life, and other attractions, such as the opportunity to be invited to family functions. When the
wife converted her mother-in-law performed as promised, but then withdrew all the benefits at
divorce. (As one might guess, it appears from the limited facts provided that the husband was not
fully functional, and was wholly dependent himself upon his mother.) The wife then sued on the
contract, and the jury found for her on the facts, but the appeals court held that the agreement was
within the statute of frauds, was not taken out by part performance, and that portions of it were too
vague to be enforced in any event. Note that the mother-in-law would appear to have received the
benefit of her bargain, if, as seems likely, her principal motivation was to have her grandchildren
raised as Jews. In Marriage of Shaban, 105 Cal.Rptr.2d 863 (App. 2001) the parties had married in
Egypt in 1974 but had lived in the United States for 17 years. The husband presented a document
in Arabic signed by himself and the wife’s father (but not the wife herself) which he claimed
constituted a premarital agreement that the marriage would be governed by Islamic law--under
which, he claimed, each spouse would retain sole ownership of his or her property and earnings. The
result would override California community property law to deny the wife any share in the multi-
million dollar estate accumulated by the physician-husband during their marriage. The court had
three English translations of the purported agreement; the husband relied upon a clause asserting that
their marriage was “concluded in Accordance with Almighty God’s Holy Book and the Rules of the
Prophet”. The trial court denied H’s offer of expert testimony that this phrase signified the parties’
intention to have their property relations governed by Islamic law. The appeals court affirmed,
concluding that the document had too little content to constitute the required written agreement, and
to supply the purported agreement’s essential terms through the parol evidence of the purported
expert testimony would violate the statute of frauds.

Page 822. The General Trend. The ALI Principles note that adoptions of the UPAA have
waned. Only three states adopted the Act after 1995, and of the 25 states that have adopted it in total,
8 departed from the official text in some important substantive respect, as recounted in the ALI
Principles at page 1001. Both the commentators and the ALI Principles have been critical of the
UPAA’s unacknowledged departure from the law prevailing in most states at the time of its
promulgation (see the Principles for citations) and perhaps some doubts about the Act have
successfully been sown.

Page 823. The Voluntariness Requirement. In a decision construing the UPAA, the
California Supreme Court concluded that the Uniform Act’s severe limitation on claims that a

86
premarital agreement is unconscionable were adopted on the understanding that questionable
agreements could instead be avoided under the rubric of voluntariness. The court notes, however,
that the Commissioners “did not supply a definition of the term ‘voluntarily,’ nor was there much
discussion of the term.” Marriage of Bonds, 5 P.3d 815, 823-24, 99 Cal. Rptr. 2d 252, 261-62 (Cal.
2000). A review of the debate on adoption of the Uniform Premarital Agreements Act by the
Commissioners supports both the court’s points. E.g., a spokesman for the drafting committee, asked
why it had deleted, as a requirement for an agreement’s enforcement, that the parties had
“understood [its] effect,” (“[W]as it that the ‘voluntary’ carries the freight . . . or you don’t care
whether they understood it or not?”), responded “We think the ‘voluntary’ covers it.” National
Conference of Commissioners on Uniform State Laws, Proceedings in the Committee of the Whole,
Uniform Premarital Agreements Act, at p. 63 (July 23, 25, and 26, 1983). Similarly, when concern
was raised over the case of a young pregnant girl, asked to sign a one-sided agreement as a condition
of marriage to the father, defenders of the draft responded that the agreement would be unenforceable
as involuntary because that doctrine would reach cases of “oppression,” id. at 72-73. But nowhere
in the debate is attention paid to defining the term “involuntary.” This history is reviewed in the
Reporter’s Notes to § 7.04 of the ALI Principles.

A recent Iowa decision provides yet another illustration of the slippery nature of the term
“voluntary”. Four days before their planned marriage husband drove his fiancee to his attorney’s
office, having told her that they were going to get their marriage license. At the attorney’s office she
learned for the first time of her intended husband’s interest in a premarital agreement. The court
nonetheless enforced the agreement: “For Eugene to somehow trick Frances into going to Don
Carlos' office just days before their marriage, and then condition the marriage on her signature, was
certainly not laudatory. However, while these actions may be fairly characterized as surprise pressure
tactics, they did not negate the knowing and voluntary nature of the execution. . . . Once Frances was
aware of the prenuptial agreement, she was fully capable of reading it, securing a copy, reviewing
it with independent counsel, discussing the matter with Eugene, delaying or even declining to sign
the agreement. Because under our case law the terms of the agreement were fair, and as Frances
knowingly and voluntarily executed the agreement, we affirm the district court's determination that
the prenuptial agreement was valid.” Estate of Ingmand, 2001 Iowa App. LEXIS 476 (unpublished).
It seems clear that what really motivated the court in this case was its view that the agreement did
not, under the circumstances, work a substantial injustice: the parties were older when married; the
agreement kept each party’s assets separate, and while the husband had $500,000, the wife herself
had half that amount; the wife’s claim arose at death rather than divorce. Unfortunately, by also
describing this process as voluntary, the court robs the requirement of most of its force, although
things could indeed be worse. Compare Marriage of Gonzalez, 561 N.W.2d 94 (Iowa App. 1997),
in which the husband’s explanation of the agreement in Spanish to the wife made no mention that
the agreement waived her right to certain marital property.

Page 828. Independent Counsel. Perhaps there has been a small trend toward emphasizing
the importance of independent counsel. Under § 7.04 of the ALI Principles, if a party resisting
enforcement of a premarital agreement was not advised before signing to seek independent counsel,
or did not have a “reasonable opportunity” to do so, then the party seeking to enforce the agreement

87
will have the burden of proving that the other party’s consent was informed and not obtained under
duress. The commentary goes on to explain that a reasonable opportunity to consult counsel requires
both time and money. One UPAA state has held that the absence of independent counsel is a
“significant factor” in determining whether an agreement is voluntary, Lutz v. Schneider, 563
N.W.2d 90 (N.D. 1997). Connecticut, although adopting the UPAA, modifies its language to require
the opportunity for independent counsel for the enforcement of a premarital agreement. Conn. Gen.
Stat. Ann. § 46b-36g(a)(4) (“A premarital agreement or amendment shall not be enforceable if the
party against whom enforcement is sought proves that . . . Such party was not afforded a reasonable
opportunity to consult with independent counsel.”). The California Supreme Court, while holding
that the absence of counsel cannot alone subject an agreement to heightened scrutiny under the
UPAA, concluded that it is a “factor” in deciding whether the agreement meets the UPAA’s
requirement of voluntariness, and that “obviously, the best assurance of enforceability is independent
representation for both parties,” Marriage of Bonds, 5 P.3d 815, 833, 99 Cal. Rptr. 2d 252, 272 (Cal.
2000). Bonds nonetheless sustains the agreement on the basis, inter alia, of the trial court’s
determination that the objecting wife had “reasonable opportunity to obtain counsel”, id. at 835, 99
Cal. Rptr. 2d at 274. But consider this discussion in the Reporter’s Notes to § 7.04, Comment e, of
the Principles:

While parties must be allowed to waive counsel, the waiver itself may be so
uninformed as to cast doubt on the voluntariness of the agreement, under the traditionally
broad interpretation of the voluntariness requirement....The Bonds case may inadvertently
provide an example of this problem. The court twice notes that witnesses reported the wife
as saying, when presented with the agreement, that the requested arrangement was similar
to “the practice in Sweden” (from where the wife had recently emigrated). The court
apparently took this as evidence that, even though the wife was a recent immigrant whose
command of English was in dispute, she had understood and was comfortable with the
agreement’s terms. But in fact it appears that the agreement in question was not at all
consistent with Swedish legal practice, indicating that the wife was indeed confused, either
about Swedish practice, or the agreement’s terms, or perhaps both. (Under Swedish law, “all
property of a spouse (not just property acquired during marriage) is marital property, to be
shared at the end of the marriage.” Perhaps because of this expansive definition of marital
property, “contracts exist in perhaps 15% of all marriages.” But the “normal type transforms
property owned before the marriage or acquired during marriage through gift or inheritance
to separate property.” Contracts such as the one in Bonds, keeping property acquired during
marriage separate, are “unusual.” Email Communication from Professor Anders Agell,
Faculty of Law, University of Upsala, Sweden (Jan. 22, 2001).)

After the decision in Bonds, the California legislature amended its statutes with provisions
on independent counsel quite similar to the ALI recommendations, Calif. Family Code § 1615(c)(3):
the section creates a presumption that the agreement was not executed voluntarily if the party against
whom enforcement is sought was not represented by independent legal counsel, or waived such
representation in writing after receiving advice to obtain it. The legislature further added that waivers
of spousal support are unenforceable altogether against a party not represented by independent

88
counsel. Calif. Family Code § 1612 (c). By its terms, § 1615 (c) applies to premarital agreements
only, and in Marriage of Friedman, 2002 WL 1507642 (Cal.App.) the court declined to apply it to
an agreement the parties entered after they had married. The agreement provided that the parties’
income, assets and debts would remain their separate property; at the dissolution of their nine-year
marriage the wife sought to characterize the husband’s business (which had prospered well beyond
either spouse’s expectations) as community. The wife was advised by the husband’s attorney to seek
independent counsel, but she was herself a practicing attorney at the time of the agreement’s
execution, and chose instead to represent herself. It is thus unclear whether the result would have
been any different had the court applied the statute to this case.

Page 829. Disclosure and Unconscionability Under the UPAA. The text here notes the
surprising UPAA provision under which both nondisclosure and unconscionability must be shown
to successfully challenge an agreement. In Bonds, noted above, the California Supreme Court also
concluded that this language means what it says, with the result that disclosure immunizes the
agreement from an unconscionability attack. The Reporter’s Notes to Comment g of § 7.04 of the
ALI Principles recounts in some detail the confusion that apparently reigned when the Uniform
Commissioners debated these provisions, and cites the departures from the UPAA in adopting states
intending to avoid them. The notes conclude:

Unconscionability is normally understood as involving the use of exploitative tactics to

achieve an extremely one-sided bargain (see Comment d of § 7.01) and there is no reason
why disclosure or its waiver renders such defects impossible or unobjectionable. Nor is there
authority for the UPAA formulation in the context of commercial agreements. The UPAA’s
effect is thus to narrow significantly the ability of courts to police extremely unfair
agreements, as compared to the ambit of judicial review in the commercial context. This is
a truly extraordinary result, and one that seems contrary even to the approach of the Bonds
court, which nonetheless accepted it as the statute’s meaning.

Note that in response to the Bonds decision the California legislature changed the statute, by adding
subdivision (c) of Calif. Family Code § 1612, as explained in the next paragraph.

Page 832. Different Rule for Alimony Provisions? Four states (California, Iowa, New
Mexico, and South Dakota) deleted spousal maintenance from the official text’s list of subjects that
a valid agreement may address. The California Supreme Court subsequently held this omission was
not intended to bar agreements on maintenance, Pendleton v. Fireman, 5 P.3d 839, 99 Cal. Rptr. 2d
278 (2000)), but the California legislature then amended its version of the UPA to specify that
agreements waiving spousal support are not enforceable if “unconscionable at the time of
enforcement.” Calif. Family Code § 1612 (c).

Page 840. Premarital Agreement Establishing Fault Rules. In Diosdado v. Diosdado, 118
Cal.Rptr.2d 494 (App. 2002), the parties entered a written marital agreement when they reconciled
after the wife learned of the husband’s affair. Their agreement specified that neither would engage
in any sexual conduct with a third person (including, for example, “kissing on the mouth”) and

89
provided, inter alia, for $50,000 in liquidated damages for any breach (in addition to the normal
property settlement). The court held the provision unenforceable as contrary to the public policy
underlying California’s no-fault divorce law. The court’s holding echoes (although it does not cite)
the position taken in § 7.08 of the Principles of the Law of Family Dissolution. In Atkinson v. Evans,
787 A.2d 1033 (Pa.Super. 2001), the parties separated after 21 years of marriage when the husband
discovered the wife’s affair with Evans. They then reconciled, pursuant to an agreement under which
the wife committed to terminating that relationship and to not engaging “in any other adulterous
relationship”. W’s affair with Evans apparently later resumed, and H brought this action against him
for interference with a contractual relationship–claiming Evans had induced W to break her
agreement. The court sustained a general demurrer, viewing the claim as an attempted end run
around the state’s abolition of the tort of alienation of affections.

Page 872. Arbitration Clauses, Especially Those Dealing with Children. For recent
commentary on this topic, see E. Gary Spitko, Reclaiming the “Creatures of the State”: Contracting
for Child Custody Decisionmaking in the Best Interests of the Family, 57 WASH . & LEE L.REV . 1139
(2000).

Page 877. No-Modification Clauses. In Toni v. Toni, 636 N.W.2d 396 (N.D. 2001) the court
enforced a provision in the parties’ separation agreement barring modification of the alimony terms.
At the1999 dissolution of the parties’ 28-year marriage the husband earned $14,000 monthly as a
urologist while the wife earned only $1,000 as a bookstore clerk. Their agreement allowed her
$5,000 monthly in alimony but terminated all payments at her remarriage or in April 2001,
whichever occurred first. She agreed to this limited term because she expected soon to remarry.
When her marital plans fell through she sought the extension which the court here denied. One might
wonder why she made this bet on her remarriage; the answer may lie in the fact that she had no legal
counsel at the time of the agreement, which the husband’s lawyer prepared. The wife apparently
made no claim of fraud or misrepresentation, and naivete is not normally a defense. Yet it would
appear that her better-informed husband exploited her naivete. The case is troublesome. Note that
under § 7.12 (3) of the ALI Principles, an agreement to limit the modifiability of “compensatory
payments” (the ALI’s replacement for alimony) is not enforceable if “the court finds that
modification is required to avoid a substantial injustice.”

Page 889. Procedural Review: Is the Process Sufficiently Careful? In Steadman, described
in this note, the court held the wife bound to an agreement negotiated in the hallway before the
hearing, and presented orally to the court immediately afterward. While there was no written
agreement here, the oral stipulation was presented to the court in a formal hearing in which the wife
participated. Stookey v. Stookey, 554 S.E.2d 472 (Ga. 2001) would seem to go a step further. The
wife’s attorney negotiated a deal on her behalf in a telephone conversation with the husband’s
attorney, in which the wife also participated. Her attorney then informed the court that a scheduled
hearing could be cancelled because settlement has been reached. But the wife refused to sign the
agreement later prepared by the husband’s attorney, denying she had authorized a settlement on those
terms. Finding the wife bound by her attorney’s representations because she had authorized him to
settle on her behalf, the Georgia Supreme Court held that a binding agreement had in fact been

90
entered. Note that the ALI Principles would distinguish between these cases: it accepts oral
stipulations before a court as creating a binding agreement, but requires nonjudicial agreements to
be in writing. See § 7.09. In contrast to both the ALI Principles and Stookey is the decision of the
Virginia Supreme Court in Flanary v. Milton, 556 S.E.2d 777 (Va. 2002) which held unenforceable
the wife’s oral agreement, entered into before the court, to accept a lump-sum payment in settlement
of her marital property claims. Virginia law includes a general statutory provision applying the
state’s version of the Uniform Premarital Agreement to agreements between spouses; the court held
that the UPA’s requirement of a writing therefore applied to this agreement as well.

Page 893. Joint Representation in Separation Agreements. In his beautifully written

opinion in Ishmael, Justice Friedman cautions (page 897) that “the attorney’s professional
obligations do not permit his descent to the level of a scrivener.” His successors have a different
view. Marriage of Egedi, 105 Cal.Rptr.2d 518 (App. 2001) was not a malpractice action, but an
effort by the husband to avoid enforcement of the settlement agreement he had signed by claiming
that the attorney’s disclosures were insufficient to permit his informed consent to the dual
representation. The trial court agreed with him, but was reversed on appeal. In one sense it is difficult
to see what more the attorney could have done. He resisted the parties’ request that he represent them
both (he had previously represented each of them individually in unrelated matters), forcefully
asserted his concern over a conflict of interest, and insisted on their signed acknowledgment of the
problem and his advice that they seek independent counsel. The parties reached an understanding
and reduced it to writing without any participation by the attorney, who explained that his only role
would be to type up their agreement after adding some “standard provisions”. He thus obtained their
consent to excluding any “advisory capacity” from his role, and he consistently refused to discuss
the substance of the agreement’s terms with either spouse. The appeals court explained in sustaining
the agreement that it could not imagine what more the attorney could have disclosed, and even
observed that a “single attorney acting as a scrivener should not advise the parties of the pros and
cons of their agreement so that they might ‘unagree’. This would defeat the very purpose for which
they sought assistance.” Id. at 523. What if the agreement contained terms that the attorney believed
grossly one-sided? Is he supposed to remain silent in the face of such facts? Might not the parties,
despite their understanding, assume from his silence that their agreement contained no unreasonable,
unconscionable, or obviously unenforceable provisions, or provisions that, for example, subject them
to avoidable tax liabilities? Recognizing this possibility the court observes in footnote that in such
a case the attorney might “decline to act as a scrivener” (id. at n. 5) but the court believed this case
presented no such facts. But what if it did? Would the agreement then be unenforceable, or the
attorney liable for malpractice? That question is not addressed. Justice Friedman’s vision of the
attorney’s role is surely more comfortable. If all the parties want is a scrivener, why do they need an
attorney at all, one might ask. This court didn’t.

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 Chapter 9
Nontraditional Families

American Law Institute Principles. On Page 971 the text quotes an early ALI memorandum
urging a status rather than a contractual approach to cohabitation. That approach was adopted by the
Institute and is set forth as Chapter 6 (Domestic Partners) of the final, hardbound volume. The
chapter follows recent trends in other English-speaking jurisdictions, such as Canada and Australia,
of giving legal significance to nonmarital relationships when the partners live together and share a
life together for a sufficient period of time. Under the formulation adopted by the Institute, parties
who live together with their common child, for the required minimum time period, are deemed
domestic partners. The required time period is left for the adopting jurisdiction to choose, but the
commentary suggests that a two-year period would be reasonable. Unrelated parties who do not have
a common child are presumed to be domestic partners if they share a common household for a
separately-established minimum period, the commentary suggesting a three-year period as a
reasonable choice in this case. For these childless couples, the resulting presumption is rebuttable
by evidence that the parties did not "share a life together as a couple," a defined phrase that is
elaborated upon in the commentary. Parties may also be treated as domestic partners if one of them
shows that they shared a common household and a life together for a "significant period of time,"
even if that time is less than the minimum periods set in the other provisions. Once parties are
considered domestic partners, the dissolution of their relationship triggers property and
compensatory payment (alimony) remedies that overlap almost entirely with those available at the
dissolution of marriage. The ALI makes no distinction between opposite-sex and same-sex couples,
treating both by the same rules. It should be noted that Chapter 6 addresses only the legal claims that
the domestic partners have against one another at the dissolution of their relationship; it does not
address the treatment of domestic partners by third parties, such as employers or government
agencies, because that topic was not within the scope of the ALI project. For a succinct presentation
of the argument against relying on contract as the primary basis for claims between cohabitants, and
for the kind of status-based approach adopted by the ALI, see Ira Mark Ellman, Contract Thinking
Was Marvin’s Fatal Flaw, 76 NOTRE DAME L.REV . 1365 (2001); for an attack on the ALI approach,
see the article in the same issue by David Westfall, Forcing Incidents of Marriage on Unmarried
Cohabitants: The American Law Institute’s Principles of Family Dissolution, 76 NOTRE DAME
L.REV . 1467 (2001).

Page 932. Nonmarital Cohabitation. The Notre Dame Law Review published a symposium
marking the 25th anniversary of Marvin v. Marvin in Volume 76, No. 5 (October, 2001) with articles
by Grace Blumberg, Margaret Brinig, David Chambers, Ira Ellman, Ann Estin, Thomas Oldham,
Milton Regan, and David Westfall. While many of the articles contain commentary on the ALI
approach, they are not limited to this subject, and provide a wider range of commentary on the
treatment of cohabiting couples generally.

Page 929. Data On Frequency of Unmarried Families. For an updated presentation of the
data here, see pages 929-930 of the ALI Principles.

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 Page 954. Household Services v. Market Labors. A key consequence of maintaining
Marvin’s distinction between contracts that do or do not rest on “meretricious sexual services”, or
Latham’s improved formulation of it (as discussed in the text) is the need to limit Marvin claims to
parties who have actually cohabited. When parties do not live together, and also have no joint
economic venture, one has difficulty explaining what, apart from the sexual relationship, constituted
the required consideration (or, in Latham’s terms, one has difficulty saying the parties contemplated
“all the burdens and amenities of married life”). This is part of the analysis of Problems 9-4 and
especially 9-7. The issue was recently addressed directly in Cochran v.Cochran, 106 Cal.Rptr.2d 899
(App. 2001) in which the question was whether Johnnie Cochran had cohabited with the plaintiff
sufficiently to permit her Marvin action to go forward. They never lived together full time, but
Cochran stayed at her house (which he had paid for) several nights a week during much of their
relationship, and routinely ate meals there as well. They had a child together, and during a portion
of their 25-year relationship held themselves out as husband and wife (Cochran was married to
another for some years during both the first and last decade of their relationship). She claimed he had
promised her support for the rest of her life; he sought summary judgment on the ground that they
had never cohabited so that any agreement, assuming she could show one, did not qualify under
Marvin. The court held that if Marvin really required cohabitation (a point on which they
inexplicably reserved judgment), it did not require full-time cohabitation, and the facts alleged here
were sufficient “to raise a triable issue of fact on the cohabitation element.” See also the additional
discussion below of Problem 9-5.

Page 963. Washington’s Status Alternative. The Washington Supreme Court may have
backtracked a bit in Marriage of Pennington, 14 P.3d 764 (Wash. 2000), which reviewed two
separate cases in which trial courts had allowed relief on claims by the woman at the end of a
relationship it found met Washington’s test of a “meretricious relationship”. (Note the potential
confusion: in Washington a meretricious relationship is the term of art describing relationships that
give rise to a claim, while in California it describes a prostitution-like relationship that does not give
rise to a claim.) The state high court disagreed with the trial courts, holding in both cases that the
relationship gave rise to no claim. In the first case the parties had lived together continuously for
eight years and for portions of an additional four years, in what certainly seems from the facts to have
been a marriage-like relationship. In holding it did not qualify as a meretricious relationship, the
court noted a) that the woman did not make “constant or continuous payments jointly or substantially
[invest] her time and effort into any specific asset so as to create any inequities” (even though the
parties pooled many resources); b) the man’s refusal to marry despite the woman’s expressed desire
to do so; and c) that during the relationship’s early years the man was still married to another woman,
and that at point during the 4 years the parties did not continuously live together, the woman had a
relationship with another man. In the second case the relationship was shorter than in the first,
although the trial court had found the couple “functioned as one would expect a married couple to
function.” The court’s emphasis in the first case on the man’s refusal to marry is particularly
disappointing; there would seem little purpose to Washington’s “meretricious relationship” doctrine
if it applied only when both parties intended marriage. Moreover, if a mutual intent to be married
were necessary to the doctrine’s application, its requirements would begin to approach the standard
elements of common law marriage, which the court took pains to note is not recognized in

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Washington.

Despite its treatment of these two cases, it seems clear that the court is not abandoning the
doctrine altogether. It carefully attempted to distinguish rather than overrule earlier cases, and in a
second decision rendered soon after, it left open the possibility of the doctrine’s application to claims
in probate by same-sex partners. See Vasquez v. Hawthorne, described just below. After the
Pennington decision a Washington appellate court affirmed a judgment of a meretricious relationship
in another case in which the man did not wish to marry. Fleming v. Spencer, 110 Wash.App. 1017,
2002 WL 171249 (unpublished).

Page 963. Does Washington’s Status Alternative Reach Same-Sex Relationships? In

Vasquez v. Hawthorne, 33 P.3d 735 (Wash. 2001), the court considered a claim for a share in an
intestate estate, brought by a man who said he was the decedent’s partner in a same-sex
“meretricious relationship” (Washington’s term for a couple who qualify under their status
alternative to Marvin). The trial court granted the plaintiff summary judgment; that clearly seemed
wrong, as the Washington Supreme Court explained, because there were relevant contested facts
about the nature of the parties’ relationship. But the majority’s remand left open the possibility of
the plaintiff prevailing, whether on the meretricious relationship doctrine or other “equitable
grounds”. Two judges concurred in the conclusion that the trial court was wrong in granting
summary judgment but would have held that their meretricious relationship doctrine does not apply
to probate claims. One of those two would also have held that the meretricious relationship doctrine
cannot apply if the parties have no capacity to marry, and he would thus exclude its application to
a same-sex relationship. The majority did not resolve that question, however.

Page 976. Problem 9-5. One can compare the facts of this problem to the recent case of Della
Zoppa v. Della Zoppa, 103 Cal.Rptr.2d 901 (App. 2001), in which the woman making claim
conceded that an integral part of the agreement was that she would have the man’s children. The
court nonetheless upheld the claim and enforced the agreement. The difference is the court’s
acceptance of the woman’s claim that their relationship was of one of “total mutual commitment”,
of which having his child was only one aspect. It surely also helped that the parties in fact married
subsequent to the cohabitation period during which they acquired the property at issue in this case.

Page 977. Domestic Partnerships. There has been a wealth of activity in the general area of
creating new legal categories that recognize intimate relationships but are not quite marriage.
Various names are used: “domestic partnerships” (California); “reciprocal beneficiaries” (Hawaii);
and “civil unions” (Vermont). As a general matter these enactments are concerned primarily with
same-sex couples who remain ineligible for marriage. The newly created legal status extends to them
(and sometimes, to some heterosexual couples) some of the legal benefits available to married
couples. Being born of political compromise, it is not surprising that they sometimes exhibit a
certain schizophrenia, simultaneously extending benefits to same-sex couples but attempting to make
clear that they are not truly married. For example, while the Hawaiian statute confers certain rights
to reciprocal beneficiaries, it also confirms that marriage is limited to unions between men and
women, and states that “reciprocal beneficiaries shall not have the same rights and obligations under

94
the law that are conferred through marriage.” Haw. Rev. Stat. §572C-6. For a review of the political
debate, see Strasser, The Future of Same-Sex Marriage, 22 HAW . L. REV . 119 (2000). For a
thoughtful examination of the trend and a proposal of his own, see David Chambers’ essay,
Unmarried Partners and the Legacy of Marvin v. Marvin: for the Best of Friends and for Lovers of
All Sorts, A Status Other Than Marriage, 76 NOTRE DAME L. REV . 1347, 1350 (2001). For an
overview and critical discussion of these and other rules governing the treatment of unmarried
cohabitants, placing some of the international variations in the context of these nations’ varying
public welfare systems, see Grace Blumberg, The Regularization of Nonmarital Cohabitation: Rights
and Responsibilities in the American Welfare State, 76 NOTRE DAME L.REV . 1265 (2001). The
Vermont civil union provisions were enacted in response to the decision of the Vermont Supreme
Court finding the denial of marital benefits to same-sex couple violative of the Vermont constitution;
the description of these developments in this memorandum is located in the update material for the
Chapter Two, Marriage, supra. Note that an edited version of both the Vermont Supreme Court
decision and the civil union statute is included in the appendix to this memorandum.

The Hawaiian statute is not limited to same-sex couples, but applies to others barred by legal
restrictions from marrying, such as a widowed mother and her unmarried son. Haw. Rev. Stat
§572C-1 (1997). Couples become reciprocal beneficiaries after they jointly file a notarized
declaration. They then enjoy health benefits for partners of state employees and the right to inherit
by intestate succession. See Haw. Rev. Stat. Ann. 571C-4-(6); 560:2-102 (intestate succession).

As one might expect, there has been considerable activity in California. In 1999 it enacted
a statewide law extending benefits to “domestic partners”, defined as two individuals “who have
chosen to share one another’s lives in an intimate and committed relationship of mutual caring,”
more specifically as couples of the same sex who are at least 18, or unmarried heterosexual couples
with one partner who is at least 62. Cal. Fam. Code § 297(a). To qualify for a domestic partnership,
two consenting adults who are not blood relatives must share a residence, assume joint responsibility
for each other’s basic living expenses and must not be a part of another domestic partnership. Both
intended partners must file a Declaration of Domestic Partnership with the Secretary of State. Cal.
Fam. Code § 297b(1)-(9). In October of 2001 the Governor signed Assembly Bill 25, which
expanded considerably the impact of the domestic partnership status by sprinkling amendments
through the California statutes that include domestic partners within provisions previously applicable
only to traditional family members. By January 2002, over 16,000 gay, lesbian and senior domestic
partners had registered in California. Ventura County Star (Associated Press), January 17, 2002.
Exhibiting the same kind of schizophrenia previously noted, California voters, on March 8, 2000 the
California voters passed Proposition 22, providing that “only marriage between a man and a woman
is valid or recognized in California,” thus emulating provisions adopted by many others states. Cal.
Fam. Code §308.5 (West 2000).

The California domestic partnership law, in its current form, provides procedures for
partnership dissolution including the division of property acquired during the domestic partnership.
Cal. Fam. §299.5(e). It grants domestic partners rights to visit one another and their children in
health facilities (Cal. Health & Safety. Code §1261) and provided health care coverage for the

95
domestic partners of some state employees. Cal. Gov. §§22868, 22871. The 2001 amendments
enabled domestic partners to sue for the wrongful death of a partner, make medical decisions for a
hospitalized partner and use sick leave to care for an ill or incapacitated partner. It revised portions
of the probate code to create a preference for the selection of a conservatee’s domestic partner as his
or her conservator, Probate Code §§1460(b)(3), 1811(a), 1820(a)(2). It treats domestic partners
similarly to spouses in various provisions applicable to wills, such as the automatic revocation of a
bequest to a domestic partner upon the dissolution of the partnership. And it authorizes domestic
partners to adopt a partner’s child using the simplified procedures that the preexisting law set out for
stepparents. Cal. Fam. Code §§ 9000, 9002, 9004. There are other provisions as well.

For an international perspective, see ROBERT WINTEMUTE AND MADS ANDENAES , EDITORS ,
LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS: A STUDY OF NATIONAL, EUROPEAN AND
INTERNATIONAL LAW (2001).

Page 978. Lilly v. Minneapolis. This case illustrates that statewide legislation is often needed
not merely to provide a statewide remedy, but even to allow cities to act with respect to their own
employees. For a similar result, see Connors v. City of Boston, 714 N.E.2d 335 (Mass. 1999) holding
that city’s extension of employee health insurance benefits to domestic partners of its employees was
not authorized by state law. New York City’s analogous statute survived a similar challenge in
Slattery v. New York, 179 Misc.2d 740, 636 N.Y.S. 683 (App.Div. 1999), as did an analogous
ordinance of Vancouver, Washington in Heinsma v Vancouver, 29 P.3d 709 (Wash. 2001).

Page 982. Note on Domestic Partnership Ordinances. The Seventh Circuit rejected an equal
protection challenge to the policy of the Chicago public schools under which spousal health benefits
were extended to an employee’s same-sex partner, but no similar benefit was available to domestic
partners of the opposite sex. The court applied a rational basis test to the classification, easily
sustaining it. Irizarry v. Bd. of Education, 251 F.3d 604 (7th Cir. 2001).

Page 1035-36. Data on Nonmarital Births. As detailed in the text, between 1970 and 1992
nonmarital births increased from 10.7 percent of all births to 30 percent. The climb is now much less
steep, the percentage rising only a bit, to 33 percent, by 1999.1 This increased proportion of
nonmarital births resulted from both a substantial increase in the birth rate of unmarried women and
a decline in the birth rate of married women.2 As a result, unmarried mothers (as compared to

1. Center for Disease Control and Prevention, National Center for Health Statistics, National Vital Statistics
Rep ort, Vol. 48, No. 16, October 18, 2000, at Table 1, page 17. Available at <http://www.cdc.gov/nchs/data/
nvs48_16.pdf>.

2. The birth rate per 1000 unmarried women ages 15 to 44 increased fro m 26 .4 in 19 70 to a pea k of 46 .9 in
1994, retreating slightly to 43.9 in 1999. The corresponding rate for married women was 121.1 in 1970, declining rap idly
to 94.7 by 1973. Since then it has b een m uch m ore steady, bottom ing in 19 96 at 83.7 percent and rebo unding to 87 .3
percent in 19 99. Id.

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divorced or separated mothers) grew from 17% of all single mothers in 1976, to 46% in 1997.3

Page 1038 et seq. New Uniform Parentage Act; New Procedures for Establishing Paternity;
the Marital Presumption. In 2000 the Commissioners adopted a new version of the Uniform
Parentage Act. It is an ambitious revision, with many changes meant to reflect both the latest federal
legislation and modern scientific evidence on paternity. The Act supplants the Uniform Putative and
Unknown Fathers Act as well as the older Parentage Act. Some of the policy implications of the new
provisions are described in Ira Mark Ellman, Ambiguous Father Families (forthcoming, Fall 2002
in Family Law Quarterly, a slightly earlier version of which is available for download at
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=300965>) from which some excerpts follow
(footnote numbering of the original has not been retained):

On challenges to the husband’s paternity:

The 1973 Uniform Parentage Act, adopted in about nineteen states,4 requires that an
action to challenge the husband’s paternity of his wife’s child be brought “within a reasonable
time after obtaining knowledge of the relevant facts”. That means, for example, that [a
husband] could raise it when [a child born to his wife] was ten or twelve, if that is when he
first learned of the doubts about his biological paternity. 5 Whether the husband acted promptly
after learning the facts may seem relevant if we are focused on fairness to him, but has little
bearing on the child’s interests, which are affected by the passage of time whether the husband
knew the biological facts before or only after the time passed. Another clause of the Parentage
Act, however, does recommend that challenges to a husband’s paternity be subject to an outer
time limit of five years from the child’s birth, no matter when the facts were discovered.
Unfortunately, few states adopted this provision.6 The Uniform Laws Commissioners
proposed a new version of the Uniform Parentage Act in 2000 that has an improved
formulation barring challenges to the husband’s paternity more than two years after the child’s
birth, so long as the birth occurred during his marriage to the mother, or within 300 days of

3. Elaine Sorenson and Ariel Halpern, Child Support Enforcement Is Working Better Than We Think, Urban
Institute Report No. A-31 (March, 1999). On the web at <http://newfederalism.urban.org/html/anf_31.html>.

4. The notes in Uniform Laws Annotated report its adoption in 19 states as of January 2001.

5. U N IF OR M P ARENTAGE A CT §§ 4, 6(a )(2), 9 B U niform Laws Anno tated 2 98-9 9, 30 2 (1973 ).

6. An examination of the statutes of the states adopting the Parentage Act found 5 that includ ed this provision:
Alabama and New Jersey adopted the recomm ended five year limit; H awaii, M inneso ta and No rth Dakota require that
the action be brought within 3 years of the child’s birth. [For a rece nt exam ple of Alabama’s application of the five-year
rule to reject the wife’s b elated attempt to establish someone other than her former husband as the child’s father, see
J.P.C. v. O.C.B., 797 So. 2d 485 (Ala. App. 2000). For a recent if wrong-headed construction of the Minnesota provision,
see Witso v. Overby, discussed below in this mem orandum , note to text page 10 42.]

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 its dissolution.7 The bar on delayed challenges also applies when the child was born before
the mother’s marriage, if the man she later marries had “voluntarily asserted his paternity of
the child” in a writing or by agreeing to be named as the child’s father on the birth certificate.8
It remains to be seen how many states accept these recommendations.

On Proof of Nonmarital Paternity:

...The original Uniform Parentage Act established a presumption of paternity,

analogous to the marital presumption, in favor of the man who, “while the child is under the
age of majority, [receives] the child into his home and openly holds out the child as his natural
child”.9 But unlike the marital presumption, this “nonmarital presumption” could be
challenged at any time. Nonetheless, like the marital presumption, it could only be rebutted
by “clear and convincing evidence,” a difficult barrier prior to the age of reliable genetic tests.
But with their advent, the draftsman had to choose between strengthening the nonmarital
presumption or dropping it, since there was little point to retaining it in this form. The
provision was dropped. Under the new Parentage Act [a man who lived for years in a
nonmarital relationship with a woman whose children he always treated as his] would have
neither parental claims nor support obligations [if he were not their biological father and his
name had not been put on their birth certificate]....About one-third of all births today are to
unmarried women, and about one-quarter of unmarried mothers are cohabiting with the
child’s father at the time of the birth.10 To invest legal paternity in the absent biological father,
rather than in the social father on the scene with whom the child enjoys a paternal
relationship, seems unlikely to be in the child’s interest.

...

...Another clause of the 1973 Act extends the [nonmarital] presumption to the
man who acknowledged his paternity of the child in a writing filed with the

7. Sectio ns 20 4 and 607 of the new Uniform Parentage Act. Excep tions permit a c hallenge to the husba nd’s
paternity if a) the mother and presumed father neither cohabited nor engaged in sexual intercourse during the probab le
period of concep tion, and b) the p resum ed father never op enly treated the child as his own. In other words, challenges
can be allowed only when the person making the challenge can show that the husband w as neither the social nor the
biological father of the child.

8. Id.

9. Uniform Parentage Act § 4(a)(4).

10. Larry Bumpass, R. Kelly Raley, and James A. Sweet, “The Changing Character of Stepfamilies: Implications
of Cohabitation and N onm arital Ch ildbearing,”Demography 32:425-436 , 1995, 426. O f the 3.8 million heterosexual
couples who id entified themselves to the Census Bureau in March, 2000 as unmarried partners, more than 1.5 million,
or 41% , had minor children living with them. Jason Field s and Lynne Casp er, America’s Families and Living
Arra nge ments, Current Population Reports P20-537, U.S. Census Bureau, U.S. Department of Commerce (2001), at 12-
14. On the web at <http://www.census.gov/prod/2001pubs/p20-537.pdf>.

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 appropriate local agency, if the mother does not contest the acknowledgment within
a reasonable time.11 [These two nonmarital presumptions may have] originally
provided an important basis for assigning legal paternity of a nonmarital child who
had a social father. But for the majority who did not have a social father, paternity was
not easily established. In 1979, only 11 percent of never-married custodial women had
child support orders.12 The great majority of nonmarital children had no legal father.

In succeeding decades most states changed their parentage acts to reflect the
availability of the new genetic tests. The new 2000 revision of the Uniform Parentage Act
reflects these developments. It deletes entirely the presumption arising from the nonmarital
father’s having received the child into his home,13 providing instead that genetic tests
conclusively establish legal paternity for most nonmarital children, rebuttable only if a second
genetic test gives a different result.14 The only important exception to this otherwise exclusive
reliance upon biology arises from the provision of the 1996 federal welfare reform Act15
requiring states, with narrow exceptions, to treat an acknowledgment of paternity signed by
the mother and putative father as establishing legal paternity.16 Massachusetts pioneered this
technique before 1996, obtaining such acknowledgments, before the mother and child left the
hospital, in an astonishing 70 % of all nonmarital births.17 Its success has apparently now been
replicated elsewhere under the press of the new federal law.18 But this program is of course
dependent upon the father’s knowledge that resistance is futile because genetic tests are
available to establish paternity if needed. The 1996 welfare reform act requires states, with
narrow exceptions, to authorize their child support enforcement agency to compel tests
administratively if the agency receives a sworn statement of facts establishing “a reasonable

11. Section 4(a). This summary glosses over some details not relevant here.

12. Dan iel M eyer, Fathers and the Child Support System, in Oldham and M elli, Child Support: The Next
Frontier 88, 9 0. M eyer gets this figure from the C ensus d ata, which in turn relies upo n the mother’s repo rt.

13. S ection 204 of the new Uniform Act.

14. Section 505.

15. Kno wn as P RW OR A, for P erson al Responsibility and Work Opportunity Reconciliation Act, 110 Stat. 2105
(1996).

16. 42 U .S.C. § 666(a)(1)(C).

17. Marilyn Rae Smith, “Child Support Reform in Action: New Strategies and N ew Frontiers in Massachusetts,”
in M artin W hyte, edito r, Marriage in America: A Communitarian Perspective. Lanham: R owm an & Littlefield
Publishers, 2000, 269, 275.

18. Paul Legler, President Clinton’s Assistant Commissioner in the Office of Child Support Enforcement,
reported “astounding success” in the initial results from the new federal laws. Paul Legler, “The Impact of Welfare
Refo rm on the Child Suppo rt Enfo rcem ent System” in O ldham and M elli, Child Support: The Next Frontier, 46, 48.

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 possibility” of the requisite sexual contact.19 While earlier reforms substantially improved the
collection of child support for nonmarital children,20 the 1996 reforms promise much greater
success.

The quoted article argues that the law’s increasing reliance upon biological paternity is a
mistake; that while older rules may have relied more upon social paternity because of the difficulty
of establishing biological paternity, they in fact often yielded more sensible policy results than does
a regime in which biological paternity is the ultimate criterion of legal paternity. For a different view
on this matter, far more accepting of biological paternity as the basis of legal paternity, see Marsha
Garrison, Law Making for Baby Making: An Interpretive Approach to the Determination of
Parentage, 113 HARV .L.REV . 835 (2000). For more on the application of the old UPA rule
establishing a man as a presumed father if he takes the child into his home, and the question generally
of relative importance of social and biological paternity, see the update notes below to Page 1078,
Legal Importance of Biological Paternity.

Page 1042. Marital Presumption and Equitable Estoppel in the Marital Context. In West
v. Floyd, 2001 WL 3562274 (Tenn.App. 2001) the husband sought a divorce after discovering his
wife’s affair with a friend. The divorcing spouses’ settlement agreement, incorporated in their divorce
decree, specified that the husband would have no responsibility for the child the wife was then
pregnant with, which they both believed was likely to have resulted from the affair. Eight years after
the divorce the wife and friend had genetic testing which proved the friend’s nonpaternity, and the
state then sought child support from the former husband. The appeals court held that the earlier
agreement and decree did not shield him from support liability because the parties cannot by
agreement “illegitimize” their child. While the court put emphasis on the public policy underlying the
marital presumption, that analysis does not really explain the court’s view, because it simultaneously
makes clear that the presumption would be overcome by scientific evidence of the husband’s
nonpaternity. It would therefore appear that the driving concern behind the court’s opinion is not the
marital presumption, but the centrality of biological paternity. Compare Ohning v. Driskill, 739
N.E.2d 161 (Ind.App. 2000), in which the court held the divorced mother estopped from challenging
her former husband’s paternity of a child born while they were cohabiting prior to their two-month
marriage, given that she had previously identified him consistently as the child’s father.

For what in this author’s view is an even more ill-considered Tennessee decision, see Poore
v. Poore, 2002 Tenn. App. LEXIS 101, in which the trial court had granted the husband primary
custody of the couple’s three children at divorce, having considered evidence that “the children had
thrived while in husband's care, and were well-cared for and seemingly had all of their needs met. The

19. 42 U .S.C. § 666(a)(1)(B).

20. The prop ortion of never-married mothers reporting receip t of any child support payments increased from
four percent in 1976 to 18 percent in 1997–much greater than the gains reported by divorced mothers. Elaine Sorenson
and Ariel H alpern, Child Support Enforcement Is Working Better Than We Think, Urban Institute Report No. A-31
(March, 1999). On the web at <http://newfederalism.urban.org/html/anf_31.html>.

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evidence preponderates that the husband was the more stable of the two parents, and that his home
would be a suitable place for the children to have the security and continuity they needed. There was
no proof that husband did anything but encourage the children to have a relationship with their mother
and we find that the evidence preponderates in favor of the custodial award of the two children to the
father.” As to two of the children the appeals court affirmed, but it vacated the decision as to the
couple’s middle child because DNA evidence had shown the husband was not that child’s biological
father. Completely misapprehending the Constitutional cases, the court held that the due process
clause required that the mother should therefore be awarded primary custody of that child unless she
were shown unfit, because she was the only parent in this custody contest. The court never considered
the possibility that her husband might be considered the child’s legal father. Because no mention is
ever made of any other man claiming paternity or performing paternal responsibilities, the court’s
decision appears to leave the child fatherless. The appeals court reaches this result despite the trial
court’s findings that while “one of the children was conceived as a result of an affair...neither parent
had made any distinction in his or her love and support in caring for this child [and that] there were
strong bonds between the siblings, that keeping the siblings together would promote the best interest
of the children...”.

Nearly as bad as Poore is the Minnesota Supreme Court’s decision in Witso v. Overby, 627
N.W.2d 63 (Minn. 2001), in which the court allowed a neighbor to litigate paternity of a married
couple’s child over the combined opposition of husband and wife, once the wife had conceded a
single sexual connection with him. Their decision allows any man to require a married mother and
child to submit to paternity tests by filing an affidavit asserting facts that show a reasonable
possibility that he had sexual contact with the mother that could have led to the child’s conception.
The court seems to think it sufficient to note that the successful claimant need not necessarily be
granted custody or visitation rights (as this man desired); they were not concerned with the family
disruption potentially imposed on the child by the mere fact of allowing the claim at all. The court’s
strained construction of the Minnesota statute, which is based upon the UPA, effectively negates its
three-year time limit for challenges to the marital presumption. The court also cites the dissents in
Michael H., in combination with Justice Stevens’ concurrence, to suggest that the biological father
had a constitutional right to assert his legal paternity in such a case. There were three dissents.

Compare, to these questionable Minnesota and Tennessee cases, Paternity of Cheryl, 746
N.E.2d 488 (Mass. 2001) in which a non-marital father was not allowed to challenge a five-year-old
paternity decree with scientific evidence of his nonpaternity because he had waited too long and his
action would now disrupt the parental relationship he had established with the child. This approach
is consistent with Massachusetts’ general emphasis on protecting established paternal relationships;
it allows a man to offer genetic evidence to establish his legal paternity of a child born to another
man’s wife, but only if he can show that he and the child already have “a substantial parent-child
relationship”. C.C. v. A.B., 550 N.E.2d 365, 372 (Mass. 1990). See also this memorandum, below,
at the notes to page 1115 of the text.

Connecticut and Florida have recent decisions applying equitable estoppel to bar claims that
would upset a husband’s paternity of his wife’s children. In W. v. W., 779 A.2d 716 (Conn. 2001), the

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court estopped the husband from denying his paternity where he had treated the child as his for 12
years, even after he had located the purported biological father, from whom support might instead be
sought. It relied for its decision in part on the husband’s conduct in discouraging the wife from
seeking support from the biological father at the time of birth or otherwise involving him in the
child’s life. In C.C.A. v. J.M.A., 744 So. 2d 515 (Fla App. 1999) estoppel was applied to bar a
husband from disavowing at divorce a child of his wife’s by a man she had intentionally chosen as
a “surrogate” biological father in light of the husband’s vasectomy and agreement to such an
arrangement at an earlier time with a different man (but that earlier effort had led only to a
miscarriage). While husband denied having agreed to this second attempt, he did in fact treat the child
as his long enough to persuade this court that he was equitably estopped from now denying his
paternity. “We decline to draw a bright line concerning the length of time the father/child relationship
must exist before estoppel may be applied, but we hold that over two years is sufficient. J.M.A. is
equitably estopped to disavow his status as this child's legal father.” The Florida Supreme Court
initially agreed to review this opinion out of concern that it conflicted with its earlier judgment in
Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997), but then dismissed the review as improvidently
granted, over the vigorous dissent of one judge who opposed the estoppel doctrine altogether. 803 So.
2d 705 (Fla. 2001). Other recent decisions are described in Ambiguous Father Families, cited above:

States which do not set an absolute time limit on challenges to the husband’s paternity
often rely upon estoppel to reach a sensible result in the most compelling cases. The estoppel
doctrine, unlike a simple two-year rule, necessarily requires a case-by-case examination of the
facts, with far more variable results. Some courts apply the doctrine flexibly to bar either
spouse from denying the husband’s paternity whenever they have both treated the children as
the husband’s over a significant time period, if the disavowal has the potential for causing the
children harm.21 But other courts adhere to the estoppel doctrine’s technical requirements and
therefore focus on facts that are irrelevant to the child’s interests, such as whether the husband
knew he was not the children’s biological father when he treated them as his own.22 A narrow
technical analysis leads other courts to reject a claim that the husband is estopped from
denying his paternity, no matter how long he treated the children as his, unless he is directly
responsible for the biological father’s unavailability as a source of support.23 These courts

21. Cases extending custodial or visitation rights to an individual because others are estop ped from d enying their
parentage include Jean Maby H. v. Joseph H., 676 N .Y.S.2d 677 (A pp. Div. 1998) (mo ther who married defendant when
they both knew she was pregnant with another man’s child, and wh o held out defend ant as the child’s father to neighbo rs,
friends, and the child, is equitably estopped from precluding defendant from seeking custody or visitation with the child
at their divorce); In the Matter of Sleeper, 929 P.2d 1 028 (O r. App. 1996), aff’d on other grounds, 982 P .2d 1126 (Or.
1999) (mother estopped from denying husband’s paternity of her children whom both knew were biologically his where
he relied on her representations to develop a parental relationship with the children and both spouses represented to
others that he was their father).

22. See, e.g., Sekol v. Delsantro, 763 A.2d 40 5 (Pa. Super. 2000 ).

23. For example, the Alaska Supreme Court held the husb and could be estopped from denying his paternity of
his wife’s child only if the trial court found that the child had suffered “financial prejudice” from the husband’s having
treated the child as his own during the first three years of the marriage. B.E.B. v. R.L.B., 979 P.2d 5 14, 519 (Alaska

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 treat the mother’s husband as her children’s father if she sought severance of the biological
father’s parental status in reliance upon her husband’s promise to support them, but will allow
the husband to deny paternity (despite having treated the children as his throughout their life),
if the biological father is unavailable because he is dead or cannot be found. Overall, then, the
estoppel doctrine is poorly equipped as a general approach to these cases, although it can
serve as a useful stopgap when better statutory provisions are not available.

Page 1042. Applying Equitable Estoppel to Nonmarital Fathers. What of unmarried couples
who maintain a marriage-like relationship, and raise children together: might the estoppel doctrine
apply to in this case as well, to treat the man as the legal father of the child they raised, even if he is
not the biological father? See this quotation from Ambiguous Father Families:

[T]he estoppel doctrine might benefit the children of unmarried couples, who get
nothing from a statutory rule barring belated challenges to a husband’s paternity.
Unfortunately, many courts do not apply estoppel in this context, despite compelling facts,
as a recent decision of the Michigan Supreme Court illustrates. The mother cohabited with
Van for five years, and continued to see him after that. She led him to believe he was the
father of the two children born to her during their relationship, and Van treated them as his
children. When the children were 7 and 3 the couple’s relationship ended. The mother now
denied Van all access to them. When he sought legal relief she alleged, for the first time, that
he was not their biological father. Tests confirmed her claim. The court refused to apply
estoppel to protect Van because he was not married to the mother. The court conceded that
the case presented “tragic circumstances”:

[T]he children were suddenly separated from Mr. Van, the only father
they had known; Mr. Van lost contact with the children whom he helped raise
and support; and Ms. Zahorik only belatedly introduced the biological fathers
into the picture. However, the current state of child custody law simply
provides no means for Mr. Van, who is not related to the children...either
biologically or by marriage, to pursue parental rights under...equitable
estoppel. In short, he has no legal right to continue a relationship with the
children.24

Or consider Mitchell v. Banary, 759 N.E.2d 121 (Ill.App. 2001). The parties maintained a ten-
year intimate relationship, during which the woman gave birth to twins via artificial insemination. The

199 9).

24. Van v. Zahorik, 597 N.W.2d 15, 23 (Mich. 1999). See also Price v. Howard, 484 S.E.2d 528 (N.C. 1997)
(although man lived together with child’s mother from the time of her birth, held himself out as the child’s father, and
was the child’s primary caretaker at the time of the action, although mother represented to the man and to others that he
was the father, and although the child believ ed that he wa s her fathe r, parental rights d octrine requires awa rd of sole
custody to child’s biological mother, absent a finding of her unfitness or that she engaged in conduct “inco nsistent with
the constitutionally protected status of a natural parent”) and Petition of Bruce, 522 N.W.2d 67 (Iowa 1994) (similar).

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man allegedly urged the procedure on her when it became apparent that he was not capable of
fathering children. He paid for it, accompanied her to the doctors office for examinations, assisted her
with required injections to enhance her fertility, and participated with her in selecting the character
of the anonymous sperm donor. He provided them with support after birth and vacationed with
mother and children. He had promised to marry her when he retired. But when the twins were three
the mother learned for the first time that the man was already married to another women; she then
ended the relationship, and he terminated support. The court held he was not liable for support
because he had not consented in writing to the insemination, as required by the applicable statute, and
his oral promise to support the children was unenforceable. The court never considered applying an
estoppel doctrine. D.R.M. v. Wood, 34 P.3d 887 (Wash.App. 2001) is a similar case involving a
lesbian couple, although here the mother’s estranged partner paid support until the mother restricted
her access to the child when at ten months of age, a fact the court relied upon in denying the mother’s
estoppel claim.

Or what of the unmarried father who agrees to support a child, to find out later that the child
is not his? In Richards v. Read, 1999 Tenn.App. LEXIS 495, Cynthia settled her potential paternity
claim against James for $30,000 in 1984; both were employees of a company owned by James’ father
from whom James sought to conceal their relationship. Over the years James paid additional amounts
despite the agreement, and developed a close relationship with the child. But in 1992, after he
developed a relationship with a woman he then married, he received the results of genetic tests which
showed he was not the child’s father. He then sought to enforce the agreement and cease all payments;
Cynthia sought to enforce the child support guidelines against him, for arrearages as well as
prospectively. Estoppel arguments would have required him to continue paying support; the genetic
tests provided an argument for terminating support; and the agreement (see the update notes below
page 1059 of the text) is of a kind that courts today usually (but not always) refuse to enforce. The
appeals court relieved him of all prospective child support obligations, but rendered a judgment
against for arrearages covering the period from 1990 to 1992.

Some courts may apply the estoppel doctrine to nonmarital “fathers” under a different name.
New Jersey calls it “in loco parentis”. The doctrine allows the court the require support from a man
who is not the biological father, but only when he has lived with the mother in family-like
relationship. As one court has recently explained: “[I]f the putative father is not the biological parent,
he has no obligation of support unless his own actions, considered in the broad context of his
relationship with the child, dictate that, as an equitable consideration, he ought to be estopped from
denying his paternity. Here, it has been conceded that defendant is not the older child's biological
father. We hold, as a matter of law, that in the absence of a family-like structure, or extraordinary
circumstances, the in loco parentis principle and its waiver or estoppel effects may not be used as a
surrogate for biological parenthood. The facts found by the trial court regarding this defendant's
relationship with the older child, in a context where there has been no family-like structure or no
extraordinary circumstance, are insufficient as a matter of law as grounds for invoking the in loco
parentis principle and applying the waiver or estoppel it betokens.” F.B. v. A.L.G., 795 A.2d 331
(N.J.App.Div. 2002).

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 Page 1046. Defense of Nonconsensual Paternity. These cases continue to arise and defense
continues to be rejected. Henson v. Sorrell, 1999 Tenn. App. LEXIS 12 (failure to tell boyfriend that
she is not taking birth control pills anymore is not actionable nor a defense to support claim); Wallis
v. Smith, 22 P.3d 682 (N.M.App. 2001) (contraceptive fraud no defense to support claim). For an
article detailing some interesting cases of this kind, see Sally Sheldon, ‘Sperm Bandits’, Birth Control
Fraud and the Battle of the Sexes, 21 LEGAL STUDIES 460 (2001)

Page 1053-56. Probability of Paternity Calculations. A recent case, like O’Bannon and Cole,
described on these pages, yielded a decision against paternity despite a “probability” of 99.92 percent.
The mother and putative father had lived in different cities (Los Angeles and San Francisco) for
fifteen months prior to the child’s birth. Mother testified that she had been impregnated in a weekend
trip to San Francisco; putative father testified that no such trip ever took place. The trial court
believed the putative father’s testimony, and the appeals court affirmed saying that the court was
entitled to find this evidence sufficient to overcome the presumption that arose from genetic tests. San
Francisco v. Givens, 101 Cal.Rptr.2d 859 (App. 2000). The case may be compelling evidence not of
the frailty of the genetic tests, but of the unwarranted confidence some courts may have in their ability
to determine a witness’s truthfulness.

Page 1059. Lump Sum Agreements Settling Support Claims for Nonmarital Children.
The Michigan Supreme Court declined to follow Gerhardt in Crego v. Coleman, 615 N.W.2d 218
(Mich.,2000), sustaining the constitutionality of nonmodifiable support agreements. The New York
Court of Appeals avoided the constitutional question in Clara C. v. William L., 750 N.E.2d 1068
(N.Y. 2001). It held the mother was not barred by her settlement agreement with the child’s putative
father from seeking to increase his support obligation, but relied on the fact that the agreement had
never been judicially approved, as required by its statute. Three concurring judges would have held
the statute allowing such agreements unconstitutional.

Page 1067 et seq. Natural Differences Between Men and Women. The text here describes,
as a lead-in to Lehr, Justice Stevens’ view (in which he is hardly alone) that “natural differences”
between men and women justify some differences in the legal treatment of their respective parenthood
claims regarding nonmarital children. That issue came before the Court in the context of immigration
law in Nguyen v. Immigration and Naturalization Service, 533 U.S. 53 (2001). The non-marital son
of a U.S. serviceman and a Vietnamese woman was denied citizenship because he had not been
legitimated, or his citizen father’s paternity adjudicated or acknowledged, before he was 18. (His
father did cooperate in establishing his paternity after the son’s 18th birthday, and joined in this
action.) No similar requirement for establishing parentage prior to the 18th birthday was imposed on
nonmarital children of citizen mothers and noncitizen fathers. The Court held 5-4 that this distinction
was constitutional because it reflected natural differences between mothers and fathers whose
consequences were important to the statute’s valid policy objectives. The policy objective is to ensure
that there is a relationship between a child born overseas and the citizen parent, and the court finds
it constitutional for Congress, in pursuing that objective, to rely upon natural differences between men
and women which make it more likely that children will develop a relationship with their mother than
their father. The court emphasized that Congress could take account of the fact that the importance

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of these natural differences is enlarged in the particular circumstances with which this statute is
concerned, because of the likelihood, given the number of citizens and military personnel traveling
abroad, that children will be born to unmarried parents who do not live in the same country. Justice
Stevens joined Rehnquist, Scalia, Thomas, and Kennedy (who wrote the opinion) to provide the five
votes for this result. It is notable how here, as in all the cases since Quilloin, the Court emphasizes
the importance of social paternity: biological paternity alone is insufficient here just as it is
insufficient to establish any constitutional claim to parental rights in Quilloin, Lehr, and Michael H.
Justice O’Connor’s dissent, joined by Souter, Ginsberg, and Breyer, of course emphasizes how the
Congressional purpose could be served by gender-neutral rules, thus avoiding reliance upon gender
as a proxy for the presence of a parental relationship. This statute, Justice O’Connor thunders, is
“paradigmatic of a historic regime that left women with responsibility, and freed men from
responsibility, for nonmarital children.”

Page 1078. The Legal Importance of Biological Paternity. Should the paternal status of an
unmarried “father” who has taken the child into his home, and who is thus a presumed father under
the old UPA, necessarily be subject to rebuttal by biological evidence? The California Supreme
Court, in a significant decision, recently held not. In re Nicholas H., 120 Cal.Rptr.2d 146 (Cal. 2002).
Nicholas was born to Kimberly in 1995, when she was living with Thomas, with whom she continued
to live till the end of 1997, and for a nine month period in 1999. While the two adults agreed to raise
Nicholas as theirs, in fact Kimberly was already pregnant when they began living together and another
man (who could not be found) was in fact Nicholas’ biological father. Kimberly herself was often
homeless, usually unemployed, and used drugs. Thomas had some troubles of his own but did much
better, and was “the constant” in Nicholas’ life. Nicholas lived with Thomas pursuant to a January
2000 custody order, obtained after Kimberly had denied him access, and the child clearly preferred
living with Thomas, according to the family services counselor’s report to the court, because
Kimberly “is mean to him, she hits and slaps him, and she smokes weed.” Nonetheless, the
intermediate appellate court, reversing the juvenile court, held that while Nicholas was a presumed
father under California’ version of the UPA, (as having taken the child into his own and held himself
out as such), that the presumption had been rebutted by his admission that he was not the child’s
biological father. The California Supreme Court reversed, relying on statutory language allowing for
the rebuttal of a presumption of paternity in an “appropriate case”. This was not an appropriate case,
the court decided, emphasizing both the child’s interests and the fact that “no other man claims
parental rights.” Nicholas should not be left fatherless, nor should biological evidence be sought to
make him so.

What then if the biological father had appeared, or reappeared, in a case like this, and sought
himself to rebut the presumption? In Kiana A.,113 Cal.Rptr.2d 669 (App. 2001) the child had a
paternal relationship with Kevin, who was living with the mother at the of the child’s birth, although
Mario’s name appeared on her birth certificate, and Mario married the mother two years after the
child’s birth. Both men were presumed fathers under the UPA, Mario because of the birth certificate
and marriage, Kevin because he had treated the child as his, lived with her, and taken responsibility
for her (not perfectly, but much more clearly so than Mario). The child herself thought of Kevin, not
Mario, as her father. The appeals court held Kevin the father, denied Mario’s request for genetic

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testing as untimely and in any event inappropriate as it could disrupt an established parental
relationship. To similar effect under similar but not identical facts, is Steven W. v. Matthew S., 39
Cal.Rptr.2d 535 (App. 1995). In its Nicholas opinion, the California Supreme Court expressly did not
decide whether biological paternity should have been made to decide these cases, reserving that
question. 120 Cal.Rptr.2d at 157. Similarly, the court reserved judgement on the question presented
by Jerry P., 116 Cal.Rptr.2d 123 (App. 2002), in which a man was held the father even though he was
not the biological father nor had he ever lived with the child. He did live with the mother for a year,
and during her pregnancy, and while they broke up before birth he provided support to her and
attended the child in the hospital after birth, presenting himself as the child’s father. He sought to
establish a paternal relationship but was thwarted by the failure of anyone to tell him that the social
services agency had placed the child, who was born with cocaine in his blood, in a foster home. He
finally found the child after four months and gained the right to see the child at the foster home. But
he was ultimately denied reunification services as having no paternal relationship with the child since
he was neither a presumed father nor the biological father. The appeals court held, however, that this
man fell within the protection accorded biological fathers in Kelsey S. (see text page 1089), essentially
protecting him as a thwarted father (page 1083) who would have established a paternal relationship
with the child had he not been kept by others from doing so.

The California Supreme Court initially granted a hearing in Jerry P., which had the effect of
ordering the appeals court opinion unpublished; when it decided Nicholas, it ordered Jerry P.
published after all. In sum, while formally reserving the question presented in Jerry P. and the other
appellate cases just noted, the court has clearly indicated its receptiveness to rules protecting as
parental the relationship between children and their social (but not biological) fathers, at least when
there is no competing biological father on the scene. This sense is further strengthened by the court’s
favorable references to the appeals court statutory analysis in Raphael P., 118 Cal.Rptr.2d 610 (App.
2002), which held that biological proof of nonpaternity did not necessarily preclude a man from
presumed father status under the UPA, and indeed, decided that courts should not order genetic tests
of presumed fathers. As the court explained, “where there is a man claiming presumed father status
and no indication of another man asserting paternity, we question whether paternity can rightly be
considered ‘a relevant fact’ [as required under the provision authorizing a court to order genetic
testing]”. Raphel P., as quoted in Nicholas H. at 120 Cal.Rptr.2d 156.

Page 1078. The Biological Father’s Procedural Rights. Where mother had never informed
father of her pregnancy, the Oklahoma Supreme Court held that due process did not allow his rights
to be terminated for nonsupport during her pregnancy. His consent was therefore required to adoption
petition filed when the child was four months old. The parents, who had a romantic relationship in
college, each knew where the other was after it ended, but neither sought the other out, and mother
had denied knowledge of the father’s full name or whereabouts in the adoption petition. In re Baby
Boy W., 988 P.2d 1270 (Ok. 1999).

Page 1080. Putative Father Registry. Indiana is among additional states that have adopted
a putative father registry. In one recent decision, an Indiana appeals court allowed an adoption without
the consent of the biological father who had not registered. The mother consented to adoption two

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days after the child’s birth but denied knowledge of the father’s whereabouts. The adoption petition
was filed when the child was a month old, the decree granted at four months of age. The father sought
to have the decree vacated when the child was ten months old. The father had known the mother was
pregnant and his failure to register defeated his claim. Hunter v. Doe, 751 N.E.2d 747 (Ind.App.
2001). See also the supplementary notes below to page 1083.

Page 1083. Belated Claims of a Thwarted Father. An Indiana appellate court followed NY’s
Robert O. in Jones v. Maple, 734 N.E. 2d 281 (Ind.App. 2000), although the facts were less
compelling because the child was younger and the adoption had not yet been finalized. The father
filed with the registry and brought a paternity action promptly after learning that his ex-girlfriend had
given birth 6 months earlier, but the action was dismissed on the motion of the intended adoptive
parents, with whom the child had lived since shortly after birth, because of the father’s registry filing
was more than 30 days after birth, as state law required. The mother had claimed, in consenting to the
adoption, that the father’s identity was unknown. If a thwarted father cannot undo an adoption, can
he get damages? After concealing herself and her plans, the mother placed the child for adoption with
a Canadian couple, knowing that the father opposed adoption; when the father finally learned of the
pending adoption he filed objections in a Canadian court, which dismissed them. Claiming the
mother, her parents and her uncle had acted fraudulently in placing their child for adoption, and had
tortiously interfered with his parental rights, the father won a jury verdict of $ 2 million in
compensatory damages and $ 5.85 million in punitive damages. Kessel v. Leavitt, 511 S.E.2d 720
(W.Va. 1998). In a similar case, a Mississippi father was allowed to proceed with an emotional
distress action against the mother, Smith v. Malouf, 722 So. 2d 490 (Miss. 1998).

Page 1086. Do Father’s Equal Protection Claims Survive Lehr? In Rainey v. Chever, 510
S.E.2d 823 (Ga. 1999) the state high court struck down a Georgia statute which precluded fathers of
nonmarital children from inheriting from the child if they either failed to treat the child as their own
or failed to support the child. It held the statute violated the Equal Protection Clause because it
allowed mothers of nonmarital children to inherit from them without any preconditions. The U.S.
Supreme Court denied certiorari over the dissent of Justices Rehnquist, Scalia and Thomas, 527 U.S.
1044. Writing for all three, Justice Thomas noted that many other states have similar provisions,
which he portrayed as having been recently enacted as part of a general legislative trend to deal with
the rising tide of nonmarital births by, in part, requiring nonmarital fathers to be responsible. As
Thomas describes it, the father here was quite a jerk. He disavowed all interest in his son (or his other
children); had not seen him for years despite living only a mile from him, wouldn’t know whether he
graduated from high school, but when the boy died in an auto accident he was the first to file a claim
for damages. Of course, this father could be excluded by a gender-neutral rule, but Thomas doesn’t
address that. One might argue that the logic of Stevens’ opinion in Lehr should have him join this
dissent, but he did not.

Page 1115. Michael H. in State Courts. The Iowa Supreme Court held that state law, which
denied a putative father any standing to challenge the paternity of the mother’s husband, violated the
Iowa constitution. Mother had conceived the child during a brief period of separation from her
husband, but before the child was born the spouses later reconciled, and they treated the child as theirs

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after birth. The putative father brought his action when the child was six months old, but it was barred
by Iowa law. (Note that California would also bar the action, even though brought within two years
of birth, because the putative father had never lived with the child and held it out publicly as his own,
or otherwise qualified as a presumed father. See Note 5 on page 1118 of the text.) The majority noted
that in allowing the father standing to pursue establishment of his paternity the court did not
necessarily decide that he was entitled to any access to the child; it characterized its decision as
guaranteeing procedural due process to make claim, not as recognizing any substantive right. The
decision nonetheless treats Michael H. with some skepticism, and expressly denies the
constitutionality of protecting the child’s interests in maintaining the integrity of his existing family
at the cost of parental rights, because the family’s integrity “suffered at the time of the extramarital
affair”. One might see the court’s argument as circular, since one might argue that the plaintiff can
have no legal rights to sacrifice unless he is first adjudged the legal father, but this court clearly
believes he has rights based upon his biological paternity alone. Four judges dissented. Callender v.
Skiles, 591 N.W. 182 (Iowa 1999). The inevitable arose on remand. As the Iowa Supreme Court itself
observed the second time around, after the trial court had granted visitation rights to the putative
father, “we have a unique and complicated situation. Samantha knows Rick as her father and has an
established relationship with him in his home. Charles, the biological father, has not had visitation
with Samantha since she was two and one-half years old, and now has only just begun to visit
Samantha after establishing his paternity.” Callender v. Skiles, 623 N.W.2d 852, 855 (Iowa 2001).
The trial court’s order allowing Charles substantial visitation was nonetheless affirmed, and though
it was described as more limited than a divorced father would have been granted (“The district court's
opinion appears to be well thought out and mindful of the parties' anguish”, id. at 856) it is hardly
compatible with the mother and her husband maintaining a normal family relationship for the child
with them, and with her siblings in their home. (The biological father’s access included alternate
weekends, portions of schools vacations, etc.) The Iowa Supreme Court did reverse the trial court’s
order that the mother tell her daughter that Charles was her father, leaving the timing of that
revelation up to her. A year later, it affirmed a judgment in a different case in which the trial court
dismissed the putative father’s paternity action because it was not bought until seven years after the
child’s birth, during which time the mother and her husband (to whom she was married at the time
of conception) raised the child as their own. Huisman V. Miedema, 644 N.W.2d 321 (Iowa 2002).

Page 1128. Permitting Adoptions. A California appellate court held that existing practice
allowing second-parent adoptions by the first parent’s nonmarital partner violated California statutes
in force at the time the proposed adoption before it took place, Sharon S. v. Superior Ct., 113 Cal.
Rptr. 2d 107 (App. 2001), but the opinion was ordered depublished by the California Supreme Court,
39 P.3d 512 (Cal. 2002). In any event, as the appellate court itself recognized, by the time of decision
“the Legislature passed and the Governor signed into law Assembly Bill No. 25, which will, upon
becoming effective in January 2002, allow a member of an unmarried couple that has registered as
a domestic partnership as provided in the Family Code to adopt a child of his or her domestic
partner.”. See description of other features of this recent enactment above, at the update notes to page
977. In B.P. v. Luke, 640 N.W.2d 374 (Neb. 2002) the court held that the mother’s domestic partner
could not adopt her child, conceived through artificial insemination by an anonymous donor, because
the mother, while seeking the adoption, did not relinquish her own parental rights as contemplated

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by the governing statute. The majority and dissenting opinion cite decisions on both sides of the
matter from other states. For a similar result, see Adoption of R.B.F., 762 A.2d 739 (Pa. Super. 2000),
appeal granted, 784 A.2d 119 (Pa. 2001). The Family Law Reporter reports that three states,
Mississippi, Florida and Utah, statutorily ban adoptions by a coparent in a same sex relationship. 28
Fam.L.Rep. 1155. The American Academy of Pediatrics has issued a policy statement endorsing
second parent adoptions: “Children who are born to or adopted by 1 member of a same-sex couple
deserve the security of 2 legally recognized parents. Therefore, the American Academy of Pediatrics
supports legislative and legal efforts to provide the possibility of adoption of the child by the second
parent or coparent in these families.” 109 Pediatrics 339 (2002), also available at
<http://www.aap.org/policy/020008.html>. The accompanying technical report reviews research
literature on parenting by same-sex couples. See also the notes to page 1042, above.

Page 1123. J.A.L. v. E.P.H. The Pennsylvania Supreme Court approved the holding of this
case in T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001), in which it came to the same result on similar facts.

Page 1130. Parenting Disputes Between Former Partners. In V.C. v. M.J.B., 748 A.2d 539
(N.J. 2000), the court held that the mother’s former lesbian partner had established herself a
psychological parent to the twin children during their marriage-like relationship, and was therefore
entitled to a visitation order; the appeals court agreed, however that the trial court’s rejection of the
partner’s joint custody claim was appropriate, because she had never formally adopted the children.
The twins were 23 months old when the two women ended their relationship. A.F. v. D.L.P., 771 A.2d
692 (N.J.App.Div. 2001), a later case applying the V.C. standard, affirmed a summary judgment
granted to the mother against her former lesbian partner’s claim for visitation rights after concluding
that the plaintiff had not shown she was a psychological parent. Two key facts distinguished the cases:
The women in A.F. did not live together with the children, and the mother in A.F. never consented
to the other women’s assuming a parental role, as had the mother in V.C..

Page 1132. The Father’s Status. For a recent N.Y. appellate decision following Thomas v.
Rabin, see Tripp v. Hinckley, 736 N.Y.S.2d 506 (App.Div. 2002) (lesbian woman artificially
inseminated with sperm from gay male friend under agreement that mother and her partner would be
the child’s primary parents but that donor would have some visitation; court orders expanded
visitation over mother’s objection after she ends her relationship with her partner). According to a
recent article in the New York Times, the availability of other treatments for male infertility has
combined with heightened interest by single women and lesbian couples to make the latter an
increasing proportion of sperm bank clientele (30,000 donor offspring are born each year). One might
think this would make cases like Thomas v. Rabin less common, since sperm banks traditionally
maintained the anonymity of donors. But the same article reports a new trend in which sperm banks
offer a variety of programs under which sperm donors and their offspring learn of one another’s
identity. The original such program, of the Sperm Bank of California in Berkeley, allows the donors
the option of having the sperm bank release his identify to the child who becomes 18. But now
“Rainbow Flag Health Services, a San Francisco sperm bank with an almost exclusively lesbian
clientele, [requires donors to agree] to release his identity to the mother when the child reaches 3
months. The donor is required to contact the child at least once before the first birthday.” Linda

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Villarosa, Once-Invisible Sperm Donors Get to Meet the Family, NEW YORK TIMES, May 21, 2002.

Page 1135. Child Support. See the reference to D.R.M. v. Wood, at the updates notes to Page
1042, Applying Equitable Estoppel to Nonmarital Fathers, above.

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 Chapter 10
Procreational Liberties

Page 1156, Note 1. Reaction to Casey and Later Developments. For a recent addition to the
abortion literature, see Reilly, The “Jurisprudence of Doubt”: How the Premises of the Supreme
Court’s Abortion Jurisprudence Undermine Procreative Liberty, 14 J.L. & POL’Y . 757 (1998)(asserts
procreative freedom is “critical to our ethico-political identity as a culture committed to celebrating
and enhancing the moral agency of its individual members” and asserts Court must change its
approach to abortion from its current attitude which deals with abortion as a “barely tolerable evil the
State is forced to permit”)

Page 1159, Note 2. Therapeutic Abortions. For a student piece exploring whether threats to
mental health could or should qualify an abortion as a therapeutic one, see Comment, The Exception
That Swallowed the Rule: Women’s Medical Professional Corporation v. Voinovich and the Mental
Health Exception to Post-Viability Abortion Bans, 49 CASE W. RES. L. REV . 799 (1999)(examines
6th Circuit case dealing with partial-birth abortion ban and therapeutic abortion exception).

Page 1159, Note 4. Abortion Law from a Comparative Perspective. In early 2002, Irish
voters “narrowly rejected a proposal ... that would have tightened what is already a near total ban on
abortions ... by preventing pregnant mothers who are suicidal from terminating their pregnancies.”
Lavery, Irish Voters Reject Broader Ban on Abortions, N.Y. TIMES, March 8, 2002, p. A6. By a
margin of only 10,556 votes in a total vote of 1.2 million, the voters turned down a proposal to close
what was claimed to be a loophole in the 1992 Irish Supreme Court decision mentioned in the
casebook. The article reported that the amendment “would have made little difference to Irish women
seeking abortions. Until last year, the Irish Medical Council’s ethical guidelines prevented Irish
doctors from performing abortions, even under the restrictive circumstances when they are legally
allowed to do so.” The article goes on to report the results of a study by Trinity College Dublin
indicating that 7,000 Irish women annually go to England for abortions, terminating 10% of Irish
pregnancies. See also Lyall, Increasingly, Irish Turns to Britain for Abortions, N.Y. TIMES,
December 24, 2001, p. A3 (quoting women who have traveled for the purpose of an abortion as
describing it as “an Irish solution to an Irish problem”); Note, The Primacy of Democracy over
Natural Law in Irish Abortion Law: An Examination of the C Case, 9 DUKE J. COMP. & INT ’L L. 275
(1998) (analyzing rape exception on abortion ban and urging legislation to codify and shape it).

Swiss abortion law was changed significantly in June of 2002 when voters approved
overwhelmingly (with 72% approval) a measure permitting abortions during the first 12 weeks of
pregnancy, provided that the woman expresses in writing her desire for the procedure and agrees to
counseling and medical advice. Beyond that point, a woman must convince a physician that her
physical health is endangered or that she faces “profound distress.” Olson, Swiss Voters Lift
Restriction on Abortions, N.Y. TIMES, June 3, 2002, p. A4. The article reports that the previous law,
first enacted in 1942, permitted abortions only in cases of rape or where maternal health was at risk.
It had not been enforced very often, the last reported conviction being in 1988. It was estimated that
approximately 12,000 to 13,000 abortions were performed annually before the change in the law, but

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three previous attempts to ease abortion restrictions had failed. For an article detailing the prevalence
of abortion in Kenya, despite the criminality of such procedures in all cases other than where the goal
is “preservation of the mother’s life,” see Lacey, Despite a Ban, Teaching Safe Abortions in Kenya,
N.Y. TIMES, Feb. 17, 2002, p. A3.

Page 1162, Note 3. Notification Requirements. A recent decision by the Tenth Circuit Court
of Appeals struck down a Colorado statute which required parental notification of abortions by
minors. Planned Parenthood v. Owens, 287 F.3d 910 (10th Cir. 2002). The panel, in affirming the
trial court, found that the Parental Notification Act, which was enacted by voter initiative in 1998,
was constitutionally deficient in its failure to provide a health exception to the notification
requirement. The dissent argued that the Colorado Supreme Court could “render a reasonable
limiting construction of the [Act] to preserve it consistent with its intended applications.”

For a recent article asserting the unconstitutionality of parental notice provisions which lack
a bypass provision parallel to that constitutionally required in parental consent statutes, see Friedman,
Parental Notice in State Abortion Statutes: Filling the Gap in Constitutional Jurisprudence, 29
COLUM. HUM . RTS. L. REV . 437 (1998). Another article analyzes a state abortion statute which
provides for a judicial bypass of a parental notification requirement. Collett, Seeking Solomon’s
Wisdom: Judicial Bypass of Parental Involvement in a Minor’s Abortion Decision, 52 BAYLOR L.
REV . 513 (2000) (offers list of questions which should be posed to minors by judges determining
whether to require parental notification).

The United States House of Representatives has three times passed the Child Custody
Protection Act which would criminalize the behavior of anybody except a parent who transports a
female under the age of 17 for the purposes of obtaining an abortion in circumvention of a parental
notification statute in their home state. Fagan, House Oks Hurdle for Teen Abortions, WASH . TIMES,
April 18, 2002, p. A7. Despite the claims by supporters that the Child Custody Protection Act was
aimed at guarding against circumvention of parental involvement in this important decision, "the real
intent in this bill is not to protect young women - who may be helped by a grandfather or a brother
or a sister or a clergy person," said Rep. Jerrold Nadler, New York Democrat. "The real intent of this
bill is simply to try and stop her from having an abortion because the people in this House have
determined that they're right and she's wrong." Id. Violators could face a fine of up to $100,000 and
imprisonment for up to one year under the bill. See also Law, A House of Fools: The Child Custody
Protection Act, 8 AM . U.J. GENDER SOC. POL’Y & L. 717 (2000) (suggests alternative to bill which
is characterized as depriving teenagers of their constitutional rights).

Page 1169, Note 3. Banning Elective Abortions in Public Facilities. While it does not
constitute formal action by a public entity or government, New York’s policy of contracting with
religion-centered health maintenance organizations was alleged by the State Comptroller to have the
effect of limiting access to birth control, sterilization and abortion for many women in public health
programs. Perez-Pena, McCall is Critical of Pataki on Access to Birth Control, N.Y. TIMES, January
27,2002, p. 38. According to McCall, these HMO’s often do not provide such services because of
church doctrine, but “women often do not know when they enroll that their H.M.O. does not provide

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these services, that they are often not told they can obtain those services elsewhere, and that finding
an outside provider needlessly burdens patients.” Id. McCall, who is running for Governor against
the incumbent George Pataki, called for, at a minimum a reform of the current practice of randomly
assigning individuals who make no choice to HMO’s so that women of child-bearing age are not
assigned to church-based plans. Approximately 1.3 million women in Medicaid and similar state
programs in New York are enrolled in managed care plans. Id..

What about a policy forbidding prisoners from obtaining an abortion? A recent lawsuit raised
that question.

Cuyahoga County Jail officials have agreed to several changes in the way they treat female
inmates as part of a settlement reached with a prisoner who had tried to get an abortion,
according to the American Civil Liberties Union.

Yuriko Kawaguchi, who tried to get an abortion while in County Jail in 1998, is expected to
sign the agreement this morning at the Justice Center.

.... "The significance of giving her even $1 is that it recognizes the pain and humiliation she
went through for that three months while she begged and pleaded with everyone in the jail
system to help her," said [her lawyer].

The agreement stipulates that the jail will provide access and transportation to several
facilities for women seeking to terminate a pregnancy, [the lawyer] said.

....

The county also agreed to provide education programs regarding safe sex, contraception and
family planning as well as information on prenatal care and availability and cost of abortion
and adoption services. It also will train social workers on dealing with pregnant inmates.

Hagan, Jail Oks Altered Abortion Policy; Settlement Includes Payment to Woman Jailed by Former
Judge, THE PLAIN DEALER, June 4, 2002, p. B1.

Page 1171, Note 5. Federal Funding Limitations. Parallel to the Hyde Amendment is federal
legislation dealing with use of Defense Department funds. Under 10 U.S.C. §1093(a), no funds may
be used to “perform abortions except where the life of the mother would be endangered if the fetus
is carried to term.” In Britell v. United States, 204 F. Supp. 182 (D. Mass. 2002), this provision
prevented coverage of a military spouse’s requested abortion of her anencephalic fetus. According
to the court opinion, the fetus “had no forebrain or cranium, and no chance of survival outside the
womb. It had no capacity for consciousness. No medical procedure could correct anencephaly.”

The court held that, as applied to this situation, the funding scheme was unconstitutional. In
applying the rational relationship review mandated by Supreme Court cases in the abortion funding

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cases, the court found neither governmental interest identified in McRae --- preserving maternal
health or protecting potentiality of fetal life—was furthered by a scheme which funded childbirth, but
failed to fund the abortion of a fetus with “no ‘potential life.’ ” Plaintiff was granted summary
judgment, with the court noting that after the diagnosis at twenty weeks of pregnancy, the advice from
all quarters—grief counselors, psychiatrists, medical doctors and the parish priest—was for a
termination of the pregnancy as soon as possible. In its analysis, the court responded to a government
argument that the funding scheme could be defended on the ground that “it is immoral to intentionally
terminate the life of an anencephalic fetus, no matter how ephemeral that life may be.” In rejecting
the assertion, the court wrote:

It is certainly true that Congress "legislates morality" all the time, whether by criminalizing
conduct (e.g., nude dancing, sodomy, or prostitution) or by subsidizing some endeavors to the
detriment of others (e.g., childbirth counseling to the detriment of abortion counseling; see
Rust v. Sullivan). It is also true that the Supreme Court has been quite clear that rational basis
review does not mandate the articulation of a legislative purpose at all, much less at any
particular time in the life cycle of the legislation in question.

This case, however, is different. It not only involves legislating morality, it offers that ground
as a post hoc justification for the legislation. In other words, while a morality-based
justification for legislation may be legitimate when articulated at some point during the
legislation's history, and while a more concrete rationale may not require earlier articulation,
the combination of the two--a morality interest and the lack of any evidence as to its actual
salience--threatens to render rational basis review totally meaningless. If the only rationale
offered for a statute is a general, morality-based concern, evidenced nowhere in the record,
and not hashed out in the legislative process, any statute could pass muster. All the
government would need to do is to allege that the statute serves some hypothetical moral
concern, regardless of whether or not that concern reflected the philosophy of a minority of
its citizens, or was shared by others in a diverse, pluralistic society.

Page 1173, Note 7. Abortion Rates. The most recent available data on abortion rates suggests
that they remain fairly constant. In 1997, a total of 1.18 million abortions were reported to the
Centers for Disease Control and Prevention (as compared to the 1.2 million noted in the casebook for
1994). Number of Abortions Fell in 1997, 32 FAM . PLAN. PERSP . 54 (March/April 2000). A total of
20% of those abortions were obtained by teenagers and an additional 32% were obtained by women
in their early 20's. Almost all abortions (88%) were performed in the first 12 weeks of pregnancy.

Page 1181, Note 4. Blurring the Contraception/Abortion Distinction. The controversial

miscarriage-inducing pill RU-486 (or mifepristone) was approved for marketing by the Food and
Drug Administration in the fall of 2000. The drug will induce a miscarriage “up to seven weeks after
their last menstrual period. Although most women who seek abortions do not do so until later in their
pregnancies, the drug has taken on immense symbolic importance for both supporters and opponents
of abortion rights. Many supporters of abortion rights have said its approval will transform the
struggle over legal abortion, making the procedure more accessible and more private, and stall efforts

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by opponents of abortion to identify women who are having the procedure and doctors who are
providing it.” Kolata, U.S. Approves Abortion Pill; Drug Offers More Privacy, and Could Reshape
Debate, N.Y. TIMES, Sept. 29, 2000, p. 1. The president of Planned Parenthood Federation of
America described the drug as “the most significant technological advance in women’s reproductive
health care since the birth control pill.” Id. According to the news account, the FDA required that
the “doctors be able to determine the length of time that a woman has been pregnant and that they
make sure that women who receive mifepristone have ready access to surgical abortions, should they
need them.” In clinical trials, according to the article, the drug failed to accomplish an abortion in
about 5% of cases. At his Senate confirmation hearing, Tommy G. Thompson, currently the Secretary
of Health and Human Services and an opponent of abortion, announced that he would “conduct a new
review of the safety” of the drug. Pear, Transition in Washington: Health and Human Services;
Thompson Says He Will Order a New Review of Abortion Drug, N.Y. TIMES, Jan. 20, 2001, p. A17.
No published results of this review have been found.

For an article alleging that violence against abortion clinics has been responsible for driving
away possible manufacturers of RU-486 in the United States, see Schaff, Redefining Violence Against
Women: The Campaign of Violence and the Delay of RU486, 8 TEMP. POL. & CIV . RTS. L. REV . 311
(1999).

Britain’s largest supermarket chain has recently decided to hand out free “morning-after pills
to teenagers” as part of a nationwide effort to drastically reducing teenage pregnancy. Hoge, British
Store Gives Women Emergency Pill, Igniting Debate, N.Y. TIMES, March 18, 2002, p. 9. According
to the story, the price of the pill is $30, but it can be obtained on a prescription for free, “but many
women avoid taking the time to see a doctor because the pill is more effective the sooner it is taken
after intercourse.” The Tesco chain indicated it was dispensing the pill, distributed under the name
Levonelle, for free to women under 20 without proof of age in two of its stores.
Id..

Page 1183, Note 6. “Partial Birth” Abortion. President Clinton’s insistence that the
Constitution required a maternal health exception to any partial birth abortion bill (mentioned in the
casebook on p. 1184) was vindicated in the only major United States Supreme Court abortion case
since the publication of the third edition. In Stenberg v. Carhart, 530 U.S. 914 (2000), a five-member
majority struck down the Indiana abortion statute which, quoting from the Court’s opinion, provided:

‘No partial birth abortion shall be performed in this state, unless such procedure is necessary
to save the life of the mother whose life is endangered by a physical disorder, physical illness,
or physical injury, including a life-endangering physical condition caused by or arising from
the pregnancy itself.’ Neb. Rev. Stat. Ann. § 28-328(1) (Supp. 1999).

The statute defines ‘partial birth abortion’ as:

‘an abortion procedure in which the person performing the abortion partially delivers
vaginally a living unborn child before killing the unborn child and completing the delivery.’

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 §28-326(9).

It further defines ‘partially delivers vaginally a living unborn child before killing the unborn
child’ to mean

‘deliberately and intentionally delivering into the vagina a living unborn child, or a substantial
portion thereof, for the purpose of performing a procedure that the person performing such
procedure knows will kill the unborn child and does kill the unborn child.’ Ibid.

The law classifies violation of the statute as a ‘Class III felony’ carrying a prison term of up
to 20 years, and a fine of up to $ 25,000. §§ 28-328(2), 28-105. It also provides for the
automatic revocation of a doctor's license to practice medicine in Nebraska. § 28-328(4).

In applying Roe v. Wade and Casey to this statute, the Court found “at least two independent” separate
constitutional deficiencies: 1) lack of any exception for a therapeutic abortion performed for the
preservation of mother’s health; 2) imposition of an undue burden on a woman’s ability to choose a
D & E (dilation and evacuation) abortion.

In analyzing the constitutionally-mandated therapeutic exception to otherwise permissible

abortion regulation, Justice Breyer concluded that

Our cases have repeatedly invalidated statutes that in the process of regulating the methods
of abortion, imposed significant health risks. They make clear that a risk to a women's health
is the same whether it happens to arise from regulating a particular method of abortion, or
from barring abortion entirely. Our holding does not go beyond those cases, as ratified in
Casey.

As for the undue burden analysis, the state had argued the statute merely regulated only D &
X (dilation and extraction) abortions in which the fetus is removed from the uterus intact “feet first.”
The Eighth Circuit, whose decision was affirmed by the Court in this case, had found that the
statutory language was broader and covered other types of abortions. The Supreme Court, in
reviewing the record, held that even “if the statute’s basic aim is to ban D & X, its language makes
clear that it also covers a much broader category of procedures.” The majority noted that the statute
was based on model language which 10 lower federal courts have considered on the merits, with each
of them finding that the language was “potentially applicable to other abortion procedures.” The
Court rejected the state Attorney General’s argument for a different reading of the statute, concluding
that such an interpretation was in conflict with the words of the statute itself.

Three separate dissents were filed by the four dissenters. Chief Justice Rehnquist reiterated
his conclusion that Casey was wrongly decided. At the beginning of a lengthy dissent, Justice Scalia
wrote:

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its

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 rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott.
The method of killing a human child -- one cannot even accurately say an entirely unborn
human child -- proscribed by this statute is so horrible that the most clinical description of it
evokes a shudder of revulsion.

Justice Scalia asserted that the Court’s statutory construction involved a “disregard of fair meaning”
as well as “an abandonment of the principle that even ambiguous statutes should be interpreted in
such fashion as to render them valid rather than void.”

In legislative activity in the area, the House of Representatives in the spring of 2002 passed
by voice vote the Born-Alive Infants Protection Act which would make clear that any aborted fetus
which is breathing or has a heartbeat is included within the definition of “person” for purposes of
federal legislation or regulations. Speaking for Democrats, who had previously opposed the bill,
Representative Jerrold Nadler (D-N.Y.) in explaining support for the bill, said “he courts have been
clear. There is no such thing as a right to a live-birth abortion. A baby born alive is a baby, a human
being under the terms of the law in all 50 states and the District of Columbia. This bill merely
restates that, so we have no problem with it.” House Votes to Protect Aborted Fetus “Born Alive,”
N.Y. TIMES, March 13, 2002 (Section A, p. 20).

For an article analyzing congressional efforts to ban partial birth abortions and the lobbying
efforts engaged in by both sides of the question, see Oliveri, Crossing the Line: The Political and
Moral Battle over Late-Term Abortion, 10 YALE J.L. & FEMINISM 397 (1998).

Page 1186, Problem 10-4. Sex-Selection Abortion. A recent article contrasts the debate over
sex-selection abortion in the United States (where abortion is constitutionally-guaranteed right) with
debate in Korea where abortion is illegal, yet widely-practiced for sex-selection purposes. Kim,
Breaking Free from Patriarchy: A Comparative Study of Sex Selection Abortions in Korea and the
United States, 17 UCLA Pac. Basin L.J. 301 (2000)(suggesting strategies for seeking reproductive
rights while support regulation of sex-selection abortions).

Page 1186, Problem 10-7. Artificial Insemination by Prisoner. Another court faced this
issue and resolved it in the same way as Goodwin v. Turner, mentioned in the Teacher’s Manual. In
Gerber v. Hickman, 291 F.3d 617 (9th Cir. 2002), the majority of an en banc court held that the right
to procreate is “fundamentally inconsistent with incarceration” and, thus, did not have to inquire as
to whether the prison regulation banning artificial insemination was related to a valid penological
interest. Two separate dissents, including on by Judge Alex Kozinski, rejected that conclusion and
claimed that the majority did not explain how the right to procreate was inconsistent with
incarceration. Judge Kozinski’s dissent asserted that “[b]y cutting off Gerber’s fundamental right to
procreate, prison authorities have enhanced [his] punishment beyond that authorized by statute, and
consigned Mrs. Gerber to a childless marriage. These are rights far too important to be abrogated
based on nothing more than the personal opinion of prison bureaucrats that we would be better off
as a society if the Gerbers were prevented from parenting an offspring.”

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 Page 1188, Note 4. Indirect Regulation of Sterilization. In two cases decided on the same
day, the Ohio Supreme Court dealt with lawsuits prompted by the birth of children with birth defects.
In Simmerer v. Dabbas, 733 N.E. 2d 1169 (Ohio 2000), mother became pregnant after a sterilization
which was negligently performed by defendant-physician. Her child was born with a congenital heart
defect and died at approximately 15 months of age. Trial court granted summary judgment to
defendant regarding parental claims for emotional distress and medical bills incurred in treating the
child. In analyzing the parents’ appeal, the court began by identifying three different types of birth-
based medical malpractice cases: 1) wrongful pregnancy in which the victim(s) of a negligent
sterilization bring suit for the “costs of having an unplanned child;” 2) a wrongful birth action in
which parent(s) of an unhealthy child sue following “negligent genetic counseling or negligent failure
to diagnose a fetal defect or disease” to the costs of raising a disabled child; and 3) wrongful life
action in which a child born after a negligently-performed sterilization or negligent genetic counseling
asserts damages based on the fact of being born, as opposed to not being born.

The Simmerer appellate court, accepting the characterization of the litigants, treated this case
as a wrongful pregnancy action and focused on the appropriate recoverable damages in such a case.
In a prior such case, Johnson v. University Hospital of Cleveland, 540 N.E. 2d 1370 (Ohio 1989), the
parents of a healthy child were permitted to recover

the medical costs of the pregnancy and delivery, damages for emotional distress due to
pregnancy, lost wages due to pregnancy, damages for the husband’s loss of consortium during
pregnancy, and damages for the mother’s pain and suffering during pregnancy and delivery.

While Johnson rejected any claim for the costs of raising the child, the Simmerer parents sought to
recover the “extraordinary costs and damages associated with [the child’s] heart defect.” Canvassing
other courts’ decisions in such cases, the Ohio Supreme Court held that the child’s heart condition
was not a “reasonably foreseeable result of [defendant’s] negligence” and thus not recoverable. It
refused what it described as the parents’ attempt to convert “but for” causation into “proximate
causation.” A concurring justice asserted that the case would be different if the reason for seeking
a permanent sterilization had been to “prevent the birth of a child who might be especially at risk for
birth defects.” See also Williams v. University of Chicago Hospital, 688 N.E. 2d 130 (Ill. 1997)(tort
law principles and public policy counsel against permitting recovery for alleged extraordinary child-
rearing expenses in wrongful pregnancy action).

In a companion case, Hester v. Dwivedi, 733 N.E. 2d 1161 (Ohio 2000), the court dealt with
a wrongful life case in which a child born with spina bifida sued the physicians who failed to inform
the parents that prenatal testing which “showed positive indicators of birth defects in” the child. The
claims were dismissed in a judgment on the pleadings in the trial court. As stated by the court, the
issue in Hester was:

whether an individual who was not born as a normal, healthy child, but rather as a child with
birth defects, has ... suffered legally compensable injury in that she was born rather than
aborted. In short, we are asked to hold that such a child may recover damages for the “injury”

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 of having been born.

Quoting an analogous Ohio case rejecting an elderly patient’s suit against a physician for negligent
prolonging of his life that “the law does not sanction an award of damages based on the relative merits
of ‘being versus nonbeing,’” the court found that there were no facts which could be proven by
plaintiff to demonstrate the negligence elements of damages and causation. Defendant’s negligence
did not cause the spina bifida according to the court and jurors are not capable of judging the value
of life with disabilities versus nonlife. A dissenting judge asserted that claimant’s assertions deserved
a hearing at trial “so that the parties can develop a factual record for us to examine and extrapolate
from.... If we allow parents to recover for negligent genetic counseling, it may make pragmatic sense
that the child’s claim also be allowed.”

For recent scholarship in this area, see Note, McAllister v. Ha: Wrongful Conception or
Misconception, 34 WAKE FOREST L. REV . 915 (1999); Note, Wrongful Conception: When an
Unplanned Child has a Birth Defect, Who Should Pay the Cost?, 61 MO . L. REV . 135 (1996).

Pages 1202-05. Deprivation of Right to Procreate as Criminal Punishment. Several recent

cases have addressed the constitutionality of the imposition of non-procreation as a condition of
probation in sentencing for various criminal violations. In State v. Oakley, 629 N.W. 2d 200 (Wis.
2000), the court upheld imposition, as a condition of a five-year probationary sentence for felony
nonsupport of his children, a prohibition of the creation of any more children by defendant “unless
he demonstrates that he had the ability to support them and that he is supporting the children he
already had.” Emphasizing the impact of noncompliance with child support obligations, the court
found that the twin goals of probationary sentencing—rehabilitation of defendant and protection of
society and potential victims—were vindicated by the trial court’s imposition of the condition.

Addressing defendant’s claim that his constitutionally protected right to procreate had been
virtually eliminated by the condition because he “probably never will have the ability to support his
[existing nine] children,” the court noted that “convicted individuals do not enjoy the same degree
of liberty as citizens who have not violated the law.” It found that the condition was not overly
broad because defendant can satisfy the condition “by making efforts to support his children as
required by law.” The defendant also, noted the court, would have the ability to procreate without
court approval after the expiration of the probation. The condition was, according to the court, a part
of rehabilitative treatment of defendant in helping or encouraging him to “conform... his conduct to
the law.” See also State v. Kline, 963 P. 2d 697 (Ore. App. 1998)(same result in case where defendant
was convicted of child abuse; probation order expressly reserved court authority to modify non-
procreation condition if defendant completed specified treatment programs).

A dissenting opinion described the court as permitting “for the first time in our state’s history,
the birth of a child to carry criminal sanctions.” The court pointed to other less restrictive means of
protecting defendant’s existing children, such as liens, garnishment and civil contempt and noted what
it described as the similarity of the probation condition to the statute found unconstitutional by the
United States Supreme Court in Zablocki v. Redhail, 434 U.S. 374 (1978). The dissenter argued that

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this condition was unworkable and would tend to coerce abortion.

By contrast, the Indiana Court of Appeals accepted a defendant’s argument in a similar case.
In Trammell v. State, 751 N.E. 2d 283 (Ind. App. 2001), defendant was convicted of neglect of a
defendant. As a condition of probation, the trial court forbade defendant from becoming pregnant.
While accepting the concept that probation may include conditions which may impinge upon an
otherwise constitutionally protected right, the court pointed out that the condition “must have a
reasonable relationship to the treatment of the accused and the protection of the public.” The
appellate court concluded that the condition did not serve any rehabilitative purpose because it “does
nothing to improve her parenting skills or educate her regarding prenatal care or child nutrition and
development should she choose to become pregnant after her probationary period expires or even
happen to become pregnant while on probation.” The court pointed to less intrusive conditions, such
as mandatory pregnancy testing with required prenatal education if pregnant.”

Page 1213, Note 2. U.S. Reaction to China’s Population Policy. In July, 2002, the Bush
Administration announced that it would “not contribute to a United Nations agency that it contends
provides aid to Chinese government agencies that force women to have abortions.” Purdum, U.S.
Blocks Money for Family Clinics Promoted by U.N., N.Y. TIMES, July 23, 2002, p. 1. Despite the fact
that a State Department fact-finding mission found no evidence that the United Nations Population
Fund “knowingly supported or participated in the management of a program of coercive abortion or
involuntary sterilization,” the Administration cut off $34 million of previously-approved funds based
upon a Presidential decision that the organization “supports or participates in the management” of a
program of forced abortions. The statutory authority for this cutoff is the Kemp-Kasten Amendment,
Pub. L. 99-88, first enacted in 1985. While no United States funds were to be used in China, the
agency itself does spend approximately 1.5% of its annual budget in China to “finance programs that
included a book on women’s reproductive health and other materials to explain the nature of informed
consent for patients.” The agency denies having any involvement in coerced abortions in China or
any other country. In a letter to Congress explaining the funds cutoff, however, Secretary of State
Colin Powell “said that ‘regardless of the modest size’ of the program in China ‘or any benefits its
programs provide,’ the agency’s ‘support of, and involvement in, China’s population-planning
activities allows the Chinese government to implement more effectively its program of coercive
abortion.’” Id.

The news account reported that instead of the money being contributed to the United Nations
agency, it would be spent in the State Department’s Agency for International Development.

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 Chapter 11
State Regulation of the Parent-Child Relationship

Page 1235. Parental Challenge of School Curriculum. In a recent Tennessee case, parents
successfully petitioned a federal district court to enjoin a program in which volunteer students from
a local religious college taught Bible education in the public schools of Rhea County (site of Scopes
“monkey” trial). Doe v. Rhea County Board of Education, 188 F. Supp. 2d 904 (E.D. Tenn. 2002).
The program was part of a Bible education ministry of Bryan College, established in Rhea County
in honor of Williams Jennings Bryan to “teach the truth from a Biblical perspective.” The college
students taught the Bible to each grade (kindergarten through fifth grade) for thirty minutes a week,
and although the school system claimed that the program was optional, students were not told this.
The court held that the program violated the Establishment Clause of the First Amendment, finding
an impermissible entanglement of government in the delegation of instruction to a religious
organization. It rejected the school system’s claim that the purpose was character development.

Page 1246. Judicial Interventions to Support Parental Authority. An adolescent recently

challenged the constitutionality of a court order imposing geographic restrictions on her movement,
after she was found to be an “at-risk youth” under Washington’s Family Reconciliation Act, because
she had repeatedly run away, shoplifted, drunk alcohol, violated her parents’ rules, and was suicidal.
In re M.G., 11 P.3d 335 (Wash. Ct. App. 2000). The court upheld the order, which had been
requested by her parents, prohibiting her from going into two districts of the city where she shoplifted
and drank alcohol. The court concluded that her status as an at-risk youth justified applying a rational
basis test to restrictions on her constitutional right to travel. The court then evaluated the curtailment
of the girl’s rights under the three-part test in Bellotti v. Baird. (Principal case in casebook, page
1255.) The court found that her past behavior demonstrated her vulnerability and inability to make
good decisions, and thus the first two factors were satisfied. As to the third factor, the importance
of the parental role, the court emphasized the importance of supporting parents who were struggling
to protect their children’s welfare. The court order supported their efforts and allowed them to carry
out their role.

Page 1268. Adolescent Abortion under State Constitutions. The New Jersey Supreme Court
recently struck down that state’s parental notification of abortion statute under the equal protection
provision in the state constitution. Planned Parenthood of Central N.J. v. Farmer, 762 A.2d 620
(N.J. 2000). Under the notification statute, a minor’s right to obtain an abortion was conditioned on
notification of her parents, unless she obtained a judicial waiver. The court recognized that the statute
was constitutional under the United States Constitution, but concluded that New Jersey’s constitution
afforded greater protection under its equal protection provision. Applying a balancing test developed
earlier, the court concluded that the notification statute imposed substantial and unjustifiable burdens
on one class of young women without an adequate government interest to justify the unequal burden.
The court describes in detail the costs to young women of being required to notify their parents, and
the inadequacy of a waiver hearing as a way of avoiding notification (due to delay, threat to
anonymity, awkward procedures). It rejected the state’s three justifications: that notification protects

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minors from their own immaturity, promotes family structure, and protects parental rights. As to the
first, the court pointed out that state law recognized minors’ maturity in matters relating to sexuality,
substance abuse, etc., and that collective opinion presented to the court from health care professionals
supported the view that minors were mature enough to make a decision about abortion. As to the
second justification, the court indicated that young women who sought abortion without telling their
parents were often in dysfunctional or abusive families. The minor’s pre-existing relationship with
her parents determined whether she told them about abortion, whether the law required notification
or not. Finally, the court dismissed the parental rights argument on the ground that the minor seeking
abortion is exercising her independent constitutionally protected rights.

For an interesting analysis of adolescent abortion, see Martin Guggenheim, Minor Rights: The
Adolescent Abortion Cases, HOFSTRA L. REV . (forthcoming 2002).

Page 1288. Adoption and Safe Families Act. Several scholars have commented on the
Adoption and Safe Families Act (ASFA), and its impact. The statute has been subject to sharp
criticism, particularly for its mandate that a termination petition be brought when the child has been
in state custody for 15 of the preceding 22 months. David Herring argues that judges perceive this
provision as unfair, particularly where participation in substance abuse treatment programs is delayed,
due to limited availability. In these cases, Herring argues, courts invoke exceptions to avoid
termination of parental rights, and permanency planning is derailed because no alternative
mechanisms exist. David J. Herring, The Adoption and Safe Families Act: Hope and its Subversion,
34 FAM . L.Q. 329 (2000). See also Richard Wexler, Take the Child and Run: Tales from the Age of
ASFA, 36 NEW ENG . L. REV . 129 (2001) (arguing for family preservation and against adoption as a
panacea, as ASFA presumes); Libby S. Adler, The Meaning of Permanence: A Critical Analysis of
the Adoption and Safe Families Act of 1997, 38 HARV . J. ON LEGIS . 1 (2001); Morgan B. Ward Doran
& Dorothy E. Roberts, Welfare Reform and Families in the Child Welfare System, 61 MD . L. REV .
386 (2002) (examining the relationship between Federal welfare reform and the ASFA).

At least one court has struck down that ASFA mandatory termination provisions adopted by
the state legislature. In re H.G., 757 N.E.2d 864 (Ill. 2001). See discussion below at p. 1345.

Page 1299. Do Not Resuscitate (DNR) Order for Critically Ill Child. Can a court apply the
best interest standard to issue a DNR order for a critically ill child, over the objection of the child’s
mother? A District of Columbia appellate court upheld an order not to aggressively resuscitate a
neglected two-year-old, who was in a comatose state from conditions that ultimately were caused by
her premature birth (possibly exacerbated by the mother’s failure to provide adequate care for her
medical needs during the short time that she had custody). In re K.I., 735 A.2d 448 (D.C.1999). The
child was able to feel pain, but was not otherwise able to respond to stimuli and had no cognitive
awareness. Although the unmarried (putative) father agreed to the DNR order, the mother objected
and argued that, as the child’s mother, she should be allowed to make the decision under the
substituted judgment standard, which the jurisdiction had adopted. The court rejected her argument,
holding that the best interest standard was appropriately applied in the case of a neglected child in
state custody, whose parents were not in agreement about his care. The substituted judgment standard

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was not appropriately applied to treatment decisions for children, who lack the ability to express a
preference if their parents are not in agreement.

Page 1317. Prenatal Drug Exposure as Basis for Intervention. Substance abuse by pregnant
women has continued to be the focus of state intervention efforts, both before and after birth, and
courts have responded in several recent cases. The United States Supreme Court recently struck down,
on Fourth Amendment grounds, a public hospital policy of testing pregnant patients suspected of
using drugs. Ferguson v. City of Charleston, 532 U.S. 67 (2001). The policy, created by the hospital
in cooperation with the police and public officials, involved testing women without their knowledge
or consent; positive results were reported to the police. Several women who were arrested after testing
positive for cocaine challenged the policy, arguing that the warrantless and nonconsensual drug tests
were unconstitutional searches. The federal appellate court held the searches to be reasonable under
the "special needs" doctrine, which permits searches that would otherwise be unconstitutional when
special needs for law enforcement provide sufficient justification. The Supreme Court in an opinion
by Justice Stevens, reversed, holding that the state's interest in using the threat of criminal sanctions
to deter pregnant women from using cocaine and force them into treatment did not constitute "special
needs." Thus, the Court held that searches pursuant to the policy were unreasonable searches in
violation of the Fourth Amendment.

A recent Oklahoma case dealt with a woman seven months pregnant, who was arrested for
the manufacture and possession of methamphetamine. The trial court took temporary emergency
custody of the fetus as a “deprived child,” and changed the woman’s bail from $25,000 to $200,000.
After the bail order was set aside by a higher court, the trial court ordered her to submit to random
drug tests, submit to inspections of her living quarters and have weekly pre-natal medical visits. The
child was removed from the mother’s custody shortly after birth, based on the arrest evidence. The
Oklahoma Supreme Court reversed the order, concluding that neither the language of the statute nor
legislative intent supported defining a viable fetus as a “child” under the Children’s Code. In re
J.B.C., 18 P.3d 342 (Okla. 2001). The Ohio Supreme Court declined to frame the issue in this way
when responding to a case in which a newborn infant and his mother tested positive for cocaine,
which evidence was later used as the basis of an abuse finding. In re Baby Boy Blackshear, 736
N.E.2d 462 (Ohio 2000). Instead, the court found that the question was simply whether plain
language of the statute applied to the case. Under Ohio’s abuse statute, an abused child was a child
who “because of the acts of his parents ... suffered physical or mental injury.” The court determined
that this provision justified finding the drug-exposed infant to be abused on the basis of the mother’s
conduct before his birth.

In a case involving a six-year-old who had been addicted to heroin at birth due to her mother’s
use during pregnancy, the New Jersey Supreme Court recently found that the child’s condition at birth
as a result of her mother’s drug use during pregnancy could be the basis for termination of parental
rights. In re Guardianship of K.H.O., 736 A.2d 1246 (N.J. 1999). The state sought termination to
allow the child to be adopted by a foster family with whom she had lived almost since birth. The
court concluded that the child’s addiction at birth due to her mother’s chronic drug use during
pregnancy (but not the drug use alone) was evidence that the child’s health and development had been

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harmed by the parent, a required finding under the New Jersey termination statute. Moreover, the
mother’s continued addiction resulting in her inability to take custody of her child indicated that she
had been “unwilling or unable to eliminate the harm,” thus satisfying the requirement of parental
unfitness.

Page 1328. State Liability for Failure to Protect Children. Federal courts continue to
examine the question of whether the state has any liability to protect children from abuse under §
1983 of the Civil Rights Act. Two cases have recently dealt with claims by children harmed after
state placement in their parents’ custody, with different results. In a case reviewed by the Eighth
Circuit Court of Appeals, Family Services returned the child to her father, from whose custody she
had earlier been taken, despite the fact that the agency had notice that the father allowed her to have
contact with a known pedophile. S.S. v. McMullen, 225 F.3d 960 (8th Cir. 2000). The appellate court
upheld the dismissal of a §1983 complaint brought by the child after she was later sexually abused
by the pedophile. The court rejected her claim that the state had placed her in a dangerous
environment, reasoning that the case was similar to DeShaney, in that the state did nothing to make
her more vulnerable to a risk of harm from others than she would have been had the state not
intervened. The court concluded that the two-year interval of state custody did nothing to increase
the risk that she faced, and thus the state did not create a danger to the child. Moreover, since the
state agents were, at most, negligent, any state action that occurred did not rise to the level of
egregiousness that would constitute a due process violation. A federal district court reached a
different result where a child, placed by the state in his father’s custody, was killed when his father
poured boiling water on him. Currier v. Doran, 23 F. Supp. 2d 1277 (D.N.M. 1998), aff’d in part
and rev’d in part, 242 F.3d 905, (10th Cir. 2001). The court concluded that the case presented a
different situation from that in DeShaney, because the state, having removed the child from his
mother’s custody, assumed control over the child. At that point, the court concluded, it had a duty
not to create a dangerous condition for the child by knowingly or recklessly relinquishing control to
an abusive person, even if it was a family member.

The Eleventh Circuit also rejected a claim by siblings in state custody against their foster
parents, that they were molested by other foster children in the home. Rayburn v. Hogue, 241 F.3d
1341(11th Cir. 2001). (The claim against the state is ongoing at the time of publication.) The court
concluded that the foster parents were not subject to § 1983 actions, because they were private
individuals contracting with the state, and not state actors. The appellate court rejected the district
court’s conclusion that the foster parents became state actors, under a test that looked to whether “the
state had so far insinuated itself into a position of interdependence with private parties that it was a
joint participant in the enterprise.” 241 F.3d at 1347. To meet this test, the state must have a role in
the particular conduct that is the basis of the claim. See also Hughes v. Lacey, 242 F.3d 121 (3d Cir.
2001) (social worker and psychologist have judicial immunity for custody evaluation).

Page 1329, Note 2. State Liability for Intervention. State agents can be liable to parents and
children under § 1983 for intervention decisions. In a bizarre California case, city police officers
seized two young children from their home on the basis of a “tip” from the children’s mentally ill and
institutionalized aunt, who claimed that the father and grandparents were involved in Satanic ritual

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abuse and planned to sacrifice the child. Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 1999). The
officers took the children at 1 a.m., at which point they were subject to intrusive genital examinations.
The children were not returned to their parents until two months later. The parents and children
brought a § 1983 claim against the officers and the city on the basis of the unreasonable seizure
without a court order and the medical evaluations without parents’ consent or presence. The appellate
court reversing a summary judgment order, concluded that the city could be liable if the officers acted
pursuant to a city custom or practice in removing children on the basis of a telephone report from
Child Protective Services, and in subjecting children in protective custody to medical exams without
court orders. In another case involving a medical examination, New York parents and their daughter
brought a § 1983 claim against the city and social workers who removed the child from school and
had her examined for sexual abuse in a nearby hospital without a court order. See Tenenbaum v.
Williams, 193 F.3d 581 (2d Cir. 1999). The court concluded that the medical examination without
parental consent or court order violated the parents’ and child’s procedural due process rights and
protection against unreasonable seizure, and that removal from the school stated a claim against the
city for unreasonable seizure. Moreover, the court held that the removal of the child from school on
an emergency basis without a court order was a violation of the parents’ procedural due process
rights, if a jury determined that there was sufficient time to safely secure judicial authorization. Here,
the removal occurred more than a day after the decision by state officials was made. Since the
emergency removal was undertaken pursuant to city policy, the city was liable, although the
individual caseworkers were entitled to qualified immunity if it was reasonable for them to believe
that they did not violate clearly established rights.

A federal district court recently found that New York City’s policy of removing children from
their mothers’ custody solely on the ground that the mothers were victims of domestic abuse violated
the due process and equal protection rights of the mothers, as well as impermissibly infringing on
their fundamental liberty interests. Nicholson v. Williams, Nos. 00-CV-2229, 00-CV-5155, 00-CV-
6885, 2002 WL 448452 (E.D.N.Y. Mar 18, 2002). The case involved a mother who was assaulted
by her boyfriend; she was consequently charged with neglect of her children and lost custody of them
for nearly three months. In a class-action suit against the city and agency employees, mothers
(individually and on behalf of their children) challenged the policy of the city Administration for
Children’s Services (ACS), under which the agency removed children from mothers who were
victims of domestic abuse, on the ground that the children were neglected by the mothers. These
“emergency removals” took place without a prior court order, typically when the police intervened
in a domestic violence incident. The agency argued that the policy was justified because the
victimized parent, in spite of her knowledge of the abuser's violent nature, permitted the child to be
exposed to acts of domestic violence, and thus placed the child at risk. The court, however, noted that
the neglect allegations were often based on ACS’s desire to motivate the mothers to cooperate with
services offered by ACS, in order to regain custody of their children. The court found the policy
unwarranted as a protective measure for the children, and unjustified by any compelling state interest.
Moreover, the court noted that such a policy was likely to aggravate the problem of domestic
violence, as mothers would be less likely to report domestic violence for fear of losing their children
The court found proper the terms of the preliminary injunction prohibiting ACS from separating a
mother, not otherwise unfit, from her children on sole basis of the mother’s status as a victim of

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domestic violence. The court also ordered increased compensation for attorneys appointed to
represent mothers in removal proceedings to allow for adequate representation.

See Lois A. Weithorn, J.D., Ph.D., Protecting Children From Exposure to Domestic Violence:
The Use and Abuse of Child Maltreatment, 53 HASTINGS L.J. 1 (2001) (examining statues which
include a child’s exposure to domestic violence as a form of abuse or neglect).

Page 1332. Rights of Foster Parents in Relation to Children in State Custody. The status
of foster parents desiring to acquire legal protection for their long-term relationship with their foster
child is uncertain in many jurisdictions. Recently, several courts have addressed claims by foster
parents, with mixed results. In a case that pitted foster parents in a custody dispute against the child’s
grandfather, the Supreme Court of Pennsylvania recently decided that foster parents have no standing
to seek custody. The child, in state custody, had lived with the foster parents since he was an infant.
In re G.C., 735 A.2d 1226 (Pa. 1999). After Children and Youth Services opposed their petition to
adopt the child, the grandfather sought and won physical custody (with legal custody to remain in
CYS). Over strong dissent, the supreme court upheld an evenly divided lower court decision that
foster parents lack standing to seek or contest custody. The court rejected the foster parents’ claim
that they were in loco parentis, observing that they were paid to care for the child on behalf of the
state, and that their relationship could be terminated at any time. Thus, their status was always
subordinate to that of the state and the parents. The court cited several lower opinions holding that
foster parents lack standing to seek adoption of their foster child over the objection of the state, or to
petition for termination of parental rights. A dissenting justice argued that the foster parents were de
facto parents, and questioned what their subordinated status had to do with their standing to contest
the grandfather’s custody claim. In contrast, Delaware’s highest court found that foster parents have
standing to petition for guardianship without the consent of the Department of Family Services. Div.
of Family Serv. v. Harrison, 741 A.2d 1016 (Del. 1999). This determination was based on the court’s
view that the foster parents had a legally protected interest because they had cared for the child for
most of his life. The court pointed to earlier decisions giving standing to foster parents to contest
custody.

A district court in New York decided that a foster parent had standing to bring a § 1983 claim
for violation of procedural due process rights against an agency that removed her foster child while
she was in the final stage of the adoption process. Rodriguez v. MsLoughlin, 20 F. Supp. 2d 597
(S.D.N.Y. 1998). The child, age four, had lived with Ms. Rodriguez, the foster mother, since shortly
after he was born, and the caseworker (before the incident on which the claim was based) reported
that the foster mother and child shared a strong bond, and that she provided for his needs. The child
was removed from Rodriguez’s home on an emergency basis, without notice, following an incident
in which he was left for two or three hours in the care of a twelve-year-old grandson who, in the view
of the caseworker, was unable to handle the responsibility. According to Ms. Rodriguez, she had
made an arrangement for a neighbor to care for the child while she made a court appearance, but the
neighbor did not come before Ms. Rodriguez had to leave. Even after an investigation determined
that the neglect petition was unfounded, the agency considered other foster placements and withheld
visitation. The child was returned four months after removal, and after her adoption was completed,

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the now-mother brought a § 1983 claim. The court concluded that a pre-adoptive foster parent who
has cared for a child continuously for several years has a protected liberty interest in the relationship
that cannot be deprived without due process. Smith v. OFFER (see casebook, page 1333), the court
pointed out, did not address the constitutional issue, but suggested that a long-term foster care
relationship might deserve due process protection. Features of foster parent status that might argue
against legal protection of the foster parent’s interest were not relevant here, where the foster parent
was the lifelong caretaker, and the biological parent’s rights had been terminated. Moreover, as a
prospective adoptive parent Ms. Rodriguez expected the relationship to be permanent, an expectation
encouraged under New York law, which promotes adoption by foster parents. The court held that the
state agency’s delay in providing Ms. Rodriguez with notice of the removal and an opportunity to be
heard to contest the removal and denial of visitation violated her right of procedural due process.

Page 1345. Statutory Standards for Termination of Parental Rights. Federal policy in recent
years has moved toward promoting adoption, and restricting the time available to parents whose
children are in foster care to remediate problems that led to the child’s removal. Under the Adoption
and Safe Families Act (see casebook, page 1288), Congress mandated that the state petition for
termination of parental rights when a child has been in foster care for 15 of the most recent 22
months. In response, some states amended their termination statutes to conform to this requirement.
Illinois amended its statute to include a presumption of parental unfitness when a child has been in
foster care for this time period, a provision that the Illinois Supreme Court recently determined
represents an unconstitutional violation of parents’ liberty interest in their relationship with their
children. In re H.G., 757 N.E.2d 864 (Ill. 2001). The court found that although the state has a
compelling state interest in protecting children, the statutory provision failed strict scrutiny. It was
not narrowly tailored to achieve the state’s goal because it defines unfitness solely on the basis of
passage of time, and not on parents’ inability to care for their children. In the court’s view, the length
of a child’s stay in foster care sometimes is due to circumstances beyond the parents’ control and not
to their inability to care for the child. In the case under review, for example, delays of many months
were caused by continuances and other problems in bringing the case to trial. The court also noted
that delays were often caused because treatment programs could not accommodate parents. The use
of time periods was appropriate, in the court’s view, only when it was linked to the parent’s conduct
(i.e. addiction or habitual drunkenness for at least a year.) The fact that under the statute the parent
could rebut the presumption by showing that termination was not in the child’s best interest did not
correct the constitutional defect, because a parent able to care for her child (but who satisfied the
presumption) should not have her rights determined by a best interest inquiry.

Other courts have been less deferential to parents’ interest in interpreting statutory termination
requirements. For example, the Connecticut Supreme Court interpreted that state’s statute to provide
that termination of parental rights could be ordered without proof by the state that reasonable efforts
at reunification had been made. In re Eden F., 741 A.2d 873 (Conn. 1999). The parent in this case
suffered from chronic schizophrenia, which had seriously hampered her ability to care for her child;
the child had been in foster care several times when her mother was hospitalized or otherwise unable
to care for her. The mother’s parental rights were terminated on the statutory ground that, in response
to an earlier neglect finding, she had failed to achieve rehabilitation sufficient to encourage the belief

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that she would, in a reasonable period of time, be able to resume a “responsible position in the child’s
life.” The statute directs that once a ground for termination is found by clear and convincing
evidence, the court consider several factors to determine whether termination is in the child’s best
interest. Among these factors are two that relate to the services provided by the state and its
reasonable reunification efforts. The supreme court determined that the statute did not require an
explicit demonstration by the state that it had made reasonable reunification efforts, and that such a
finding was not constitutionally required. The court also concluded that a recent statutory amendment
requiring proof of reunification was not retroactively applicable.

The Illinois Supreme Court has taken a broad view of the evidence that is relevant to
determining whether a parent has made “reasonable progress” toward the return of their child within
12 months of her adjudication as a neglected child, as the statute regulating termination of parental
rights requires. In re C.N., 752 N.E.2d 1030 (Ill. 2001). Resolving conflicting interpretations by
lower courts, the court rejected the view that the parent be evaluated only on the basis of whether she
has made progress in correcting the conditions that triggered the child’s removal from her parent’s
custody. It also rejected the alternative that progress be measured solely by compliance with the
Department’s service plan. Instead, courts should consider both the conditions that led to removal
and other conditions that become known at a later time that would prevent the court from returning
the child to the parents’ custody.

Page 1347. Termination of Parental Rights and Parental Disability. The termination of
parental rights of individuals who are cognitively limited and mentally ill presents a difficult
challenge, especially where these parents make substantial efforts to remediate parenting deficiencies
in order to regain custody. The issue potentially has become more complicated with the enactment
by Congress of the Americans with Disabilities Act (ADA) in 1990. This statute embodies a policy
of protection of disabled individuals from discrimination, and it has been invoked in support of
mentally disabled individuals whose parental rights have been terminated. Several courts recently
have rejected the applicability of the ADA to termination proceedings. For example, Massachusetts’
highest court considered an appeal by a father who argued that the trial court, in terminating his
parental rights, had failed to reasonably accommodate his cognitive disorder and attention deficit
disorder, as required under the ADA. Adoption of Gregory, 747 N.E.2d 120 (Mass. 2001). The ADA
provides that “no qualified individual with a disability shall, by reason of such disability, be excluded
from participation, or denied the benefits of, the services, programs, or activities of a public entity,
or be subject to discrimination by any such entity.” 42 U.S.C. § 12132. The court cited authority
from other states in its conclusion that proceedings to terminate parental rights do not constitute
“services, programs, or activities” under the ADA. Termination proceedings should not be subject
to the ADA, in the court’s view, because the primary focus is the child’s welfare, and giving the
parents a defense under the ADA would elevate the rights of the parents over those of the child. Even
without the ADA, the court noted, Massachusetts law directed that the parents’ special needs be
accommodated, and that parents with children in state custody be offered services that were
responsive to handicapping conditions. In the case under review, the father had been offered ample
services that were responsive to his cognitive limitations, including parenting classes tailored to
parents with special needs. Most other courts have reached the same conclusion. See In re Antony

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B., 735 A.2d 893 (Conn. App. Ct. 1999) (termination proceedings not subject to ADA, and thus
federal statute neither provides a defense nor creates special obligations). At least one court has held
otherwise. See In re C.M., 996 S.W.2d 269 (Tex. App. 1999) (ADA creates defense in termination
proceeding, but parent waived defense in this case).

The policy of the ADA sometimes seems to influence some courts in termination cases, even
when the statute itself is not directly at issue. In a recent case involving a cognitively limited father
who challenged the termination of his parental rights, Maryland’s highest court alluded to the ADA
(and criticized the ASFA as disserving the interests of poor families) in reversing the lower court’s
termination order. In re Adoption No. J9610436, 796 A.2d 778 (Md. 2002). The father had
participated faithfully in services provided by the state and done virtually everything asked of him in
his effort to regain custody of his children. Although limited by his poor reading abilities (which
made participation in classes difficult), the father secured steady employment caring for disabled
persons, acquired an apartment, and maintained regular contact with the child. The court concluded
that the state had failed to offer him available services that were appropriate to his special needs, and
thus it had failed to demonstrate by clear and convincing evidence that reunification in a reasonable
time was not foreseeable, as required by the reunification statute.

Page 1347. Termination of Parental Rights of Parents in Prison. Several courts recently
have examined questions that arise when the state seeks to terminate the parental rights of parents
who are in prison. At one level, these parents are hardly sympathetic, and yet their absence from their
children is not voluntary. An important procedural question is whether these parents have a right to
be heard. In two recent cases, courts have held that the interests of imprisoned parents can be
protected without their presence at the hearing. A West Virginia court ruled that parents who are
subject to a termination proceeding have no constitutional right to be present at the hearing where
they are represented by counsel, and can submit depositions. State ex rel. Jeanette H. v. Pancake, 529
S.E.2d 865 (W. Va. 2000). Any right to appear would rest on convincing reasons, and would be left
to the sound discretion of the trial judge. Similarly, a Maryland court found no due process violation
where an imprisoned parent was denied the right to participate in a termination proceeding by speaker
phone. In re Adoption No. 6Z980001, 748 A.2d 1020 (Md. Ct. Spec. App. 2000).

Courts have also interpreted statutory provisions dealing with incarceration as a substantive
ground for unfitness. The Supreme Court of Illinois examined a case in which the father, who had
a long prison record for several murders and other offenses, was sentenced to ten years in prison for
aggravated assault shortly after the child’s birth. In re D.D., 752 N.E.2d 1112 (Ill. 2001). Although
occasional visitation took place in prison, the experience was traumatic for the child and no bond was
established. After his parental rights were terminated, the father challenged the application of a
statutory ground for unfitness where repeated incarceration as a result of criminal convictions has
prevented the discharge of parental duties. (This unfitness ground was added to the Code in 1998.)
The court held that the repeated incarceration which prevented the discharge of parental duties could
include imprisonment before the child’s birth, and thus the father’s criminal record was appropriately
considered in the decision about whether he was able to discharge parental duties. Having been
imprisoned almost all of his adult life, the father had no appropriate life skills, and no parenting

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abilities or interest in meeting the child’s needs. The Arizona Supreme Court examined the meaning
of unfitness based on abandonment, as applied to an imprisoned father. Michael J. v. Ariz. Dep’t of
Econ. Sec., 995 P.2d 682 (Ariz. 2000). The court concluded that, although the father’s incarceration
alone did not constitute abandonment, it also did not justify the father’s failure to make more than
minimal efforts to support and communicate with the child. Where the father had failed to take steps
to protect his legal status, despite advice from the agency with custody of the child to consult counsel,
and had not communicated him through calls or letters, the finding of abandonment was justified.

Some courts have been sympathetic toward prisoner parents. A Florida court concluded that
a four-and-a-half year sentence did not support termination of the father’s rights, under a statute that
allowed termination in response to an expected sentence that would constitute a substantial portion
of the child’s minority. W.W. v. Dep’t of Children and Families, 811 So. 2d 791 (Fla. Dist. Ct. App.
2002). As no other ground existed, termination was not warranted. A South Carolina appellate court
reversed a termination decision on the basis of the imprisoned father’s failure to visit or support the
children, where the Department of Social Services would not permit visits despite the father’s
repeated requests, and the father was not permitted to earn money in prison. Dep’t of Soc. Serv. v.
Wilson, 543 S.E.2d 580 (S.C. Ct. App. 2000). The evidence indicated that prior to his imprisonment,
the father had fulfilled his parental responsibilities.

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 Chapter 12
Adoption

Page 1396. Stepparent Adoption: The Traditional Approach and the Modern Trend.
Although stepparent adoption has become common, and some legislatures and courts have moved in
the direction of facilitating this form of adoption (see below), several recent decisions continue to be
supportive of the parental rights of the father who refuses consent. Thus, for example, Arkansas’
highest court set aside an adoption by a stepfather where the father had actual knowledge of the
adoption within a year after the decree, the limitation period for petitioning to set aside adoption.
Mayberry v. Flowers, 65 S.W.3d 418 (Ark. 2002). Although actual notice can satisfy due process,
the court held, it must be gained before entry of the decree. Because the father was not provided with
the required statutory notice, his petition to set aside the adoption was not barred. In a recent Kansas
case, a father who had virtually no contact with his children and had not voluntarily paid child support
was found to have fulfilled his parental duties in the two preceding years, because his children
received Social Security disability payments under a benefit received by the father due to his mental
illness. Adoption of K.J.B., 959 P.2d 853 (Kan. 1998). Thus, “whether by accident or design,” he had
provided child support, and the trial court’s decision to order adoption without his consent was
reversed. A Pennsylvania court vacated the termination of the father’s rights where the mother and
stepfather had separated, even though they had no plans for divorce and the mother consented to the
adoption. In re Adoption of J.D.S., 763 A.2d 863 (Pa. Super. Ct. 2000).

Some states are becoming more supportive of stepparent adoption. New Jersey recently
amended its adoption statute to emphasize that the primary consideration is the best interest of the
child and not the rights of biological parents. Under 1998 amendments, the statute provides that the
best interest standard requires that the parent fulfill parental duties. N.J. STAT . ANN . § 9:3-46 (West
Supp. 2002). In In re Adoption of Children by G.P.B., Jr., the New Jersey Supreme Court reversed
a lower court’s decision that the adoption should not go forward because there was no evidence that
continuation of the father’s parental rights would result in danger of serious harm to the children. 736
A.2d 1277 (N.J. 1999). The supreme court directed the trial court to reconsider in light of the new
statute. A Georgia court recently determined that where the biological father does not qualify as the
legal parent, termination of his parental rights was not necessary as a predicate for stepparent
adoption. In re C.N.W., 560 S.E.2d 1 (Ga. 2002). In a recent Oklahoma case, the father challenged
adoption by his child’s stepfather on the ground that his failure to maintain contact with the child for
the preceding 12 months was due a protective order prohibiting contact, and to his incarceration for
violating the order, for stalking the mother, and for assault and battery against the mother. Adoption
of C.D.M., 39 P.3d 802 (Okla. 2001). The court upheld the adoption order. Although incarceration
is not per se grounds for termination of parental rights, in this case, the father’s conduct demonstrated
that he did not intend to establish a significant relationship with the child, and the adoption was in
the child’s best interest.

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 Page 1401. Adoption Into a New Family. Infant adoption into a new family raises a different
set of issues from stepparent adoption. One important focus of judicial attention is defining the
parental rights of unmarried biological fathers when birth mothers consent to adoption placement.
Some courts continue to be quite deferential to biological parents’ rights, particularly in situations in
which the mother and/or adoptive parents have played a role in the father’s default. For example, in
a recent New Jersey case, the father was unaware of the mother’s pregnancy or the child’s birth until
the adoption proceedings were underway. In re Adoption of a Child by P.F.R., 705 A.2d 1233 (N.J.
Super. Ct. App. Div. 1998). Under these circumstances, the court concluded, the father’s parenting
conduct must be evaluated from the time he learned of the child, because only at that point was he
able perform the parental functions of care and support, which under the consent statute constitute
a basis of requiring the parent’s consent to adoption. In another recent case, the Alabama Supreme
Court reluctantly interpreted the Alabama statutory requirements for termination of parental rights
to require that a court, evaluating whether the father’s consent is necessary for adoption, only look
at his present willingness and ability to discharge his parental responsibilities, and not his prior
conduct. Ex parte C.V., 810 So. 2d 700 (Ala. 2001). The evidence indicated that the father had
physically abused and abandoned the mother during her pregnancy, leaving her without financial
support (or food or furniture). Under Alabama’s limited provisions for allowing adoption without
a parent’s consent, however, this evidence did not support termination of the father’s parental rights
where shortly after the child’s birth, the father made clear his intention to assert his parental rights.
In a Pennsylvania case that is somewhat reminiscent of “Baby Jessica” (see casebook, page 1403),
a father opposed adoption and sought custody almost immediately after the birth of his child, who had
been placed by an adoption agency in the custody of prospective adoptive parents. B.A.& A.A. v E.E.,
741 A2d 1227 (Pa. 1999). The adoptive parents refused to relinquish custody to him and sought to
intervene in the custody dispute. More than three years later, the state supreme court rejected the
claim of the prospective adoptive parents that they had stood in loco parentis, and concluded that they
lacked standing to challenge the father’s custody. A dissenting judge argued that where the natural
mother had voluntarily given custody to the prospective parents and favored adoption by them, they
should have had standing as parties in loco parentis.

Some courts have also been wary of inflexible legal requirements that thwart the father’s
efforts to assert his parental rights in adoption proceedings. Thus, the Alabama Supreme Court held
that language in the Putative Father Registry Act stating that failure to register as a putative father
within thirty days was “irrevocable implied consent” to the child’s adoption could not be interpreted
to imply that a father who failed to register, but petitioned for paternity and legitimation, had
impliedly consented to his child’s adoption. Ex parte S.C.W., No. 1001107, 2001 WL 1218940 (Ala.
Oct. 12, 2001). The court concluded that the registry statute could be harmonized with the Adoption
Code, which gives putative fathers who respond to notice standing in the proceedings. The registry
was not the only legally sufficient means by which a putative father could make himself known to the
court considering the adoption petition.

The recent trend has been toward promoting the security of adoption by imposing limits on
the ability of biological fathers to come forward to claim parental rights. (See Uniform Adoption Act
in casebook, page 1399). The Nebraska Supreme Court recently upheld a statute permitting adoption

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without the putative father’s consent if he did not file notice of his intent to claim paternity within five
days of receiving notice of the child’s birth, and then file a petition for adjudication of his paternity
claim within thirty days. Adoption of Baby Girl H., 635 N.W.2d 256 (Neb. 2001). In this case, the
father, an unemancipated minor, filed the petition in the wrong court and then challenged the
constitutionality of the statute on procedural due process and equal protection grounds. The court
found that the notice provided by the statute was adequate and that the differential treatment of
mothers and fathers under the statute was justified by an important state interest of securing
immediate placement of children in adoptive homes. Some courts have read their statutes rather
narrowly. For example, the North Carolina Supreme Court upheld an order that the consent of the
putative father was not required where he conditioned his acknowledgment of paternity and support
of the child on proof of paternity. Adoption of Byrd, 552 S.E.2d 142 (N.C. 2001). When the mother
raised doubts about his fatherhood, the father requested a paternity test, which was contested by the
prospective adoptive parents and delayed for months. The court concluded that, under the North
Carolina statute, the father’s failure to provide financial support to the child during this period
disqualified him as the child’s father, whose consent to adoption was needed.

Page 1401. Notice by Publication. A few recent cases have dealt with the adequacy and
requirements of notice by publication (often called “John Doe” notice) as a means of notifying birth
fathers of pending adoption proceedings, in which their parental rights will be terminated. Under a
South Carolina statute, consent to adoption by an unmarried father is not required unless he has lived
with the child for six months before the proceeding, held himself out as the father, or provided
financial support to the child. S.C. CODE ANN . § 20-7-1690 (Law. Co-op. Supp. 2001). In other
cases, notice by publication is sufficient to satisfy due process in terminating parental rights. In a
recent case, a father challenged the sufficiency of the “John Doe” notice where notice was published
in a newspaper in a county near his residence. Brown v. Malloy, 546 S.E.2d 195 (S.C. Ct. App
2001). The appellate court reversed the adoption order, and directed the court to consider whether
the father’s consent was required (and an order of publication inadequate) in this case, because he had
tried to demonstrate his commitment to the child and was thwarted from doing so by the mother. The
same court held earlier that a “John Doe” notice need not reveal the mother’s name. S. C. Dep’t of
Soc. Serv. v. Doe, 527 S.E.2d 771 ( S.C. Ct. App. 2000). The court found that requiring publication
of the mother’s name would undermine her privacy and compromise the confidentiality of the
adoption proceedings, something that should happen only under the most extraordinary
circumstances.

Page 1406. Open Adoption. Adoption laws sometimes contemplate post-adoption visitation
between the parent relinquishing parental rights and the child, particularly in kinship adoption.
California, for example, provides that in cases of adoption by family members, the birth parents and
prospective adoptive parents can execute an agreement for post-adoption contact between the child
and her birth family, on which basis the court ordering adoption can grant post-adoption visitation,
if it decides that such contact is in the best interest of the child. An appellate court recently
considered the case of a mother whose parents petitioned to adopt her child, who had been previously
found to be neglected due to the mother’s drug use. In re Zachary D., 83 Cal. Rptr. 2d 407 (Ct. App.
1999). The mother argued that the trial court should have provided her with notice and an opportunity

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to negotiate a kinship adoption agreement with her parents before terminating her parental rights. The
court rejected her argument, concluding that the statute merely authorized such agreements and
provided for judicial enforcement in some cases, but did not impose any obligation on the court to
give notice or to promote kinship adoption.

In 1999 the Massachusetts legislature amended its adoption statute to allow biological parents
and adoptive parents to enter agreements to allow post-adoption contact by the birth mother. MASS .
GEN . LAWS ANN . ch. 210, § 6(c) (West Supp. 2001). The Supreme Judicial Court of Massachusetts
recently decided that this statute did not affect the previously recognized equitable powers of the
probate court to order post-adoption contact, absent agreement. In re Adoption of Vito, 728 N.E.2d
292 (Mass. 2000). The case involved the adoption of an eight-year-old boy who had been in the
custody of foster parents (the prospective adoptive parents) almost since birth, when he tested positive
for cocaine. The court upheld the trial court’s power to order post-adoption contact as a condition
of adoption, but reversed the trial court decision denying the termination petition, because the
appellate court determined that visitation was not in the child’s best interest. An issue that courts are
bound to encounter in this area in the future is whether Troxel (See Supplement, Ch. 6, at casebook
page 728) affects judicial authority to order contact in the absence of party agreement. To date there
have been few cases.

Minnesota recently enacted an open adoption statute, under which a prospective adoptive
parent and the birth parent, other relative with whom the child lived, or foster parent can enter an
agreement for future contact and communication. A court order based on the agreement will be
issued if the court concludes that the contact is in the child’s best interest. MINN. STAT . § 259.58
(2001).

Page 1417, Note 3. Involuntary Relinquishment of Parental Rights. Occasionally, birth

mothers experience intense regret soon after they sign an affidavit relinquishing their parental rights
and consenting to adoption. Where this decision is irreversible under state law, the relinquishment
will be set aside only on proof that it was involuntary due to coercion, fraud, misrepresentation or
overreaching. In an interesting Texas case, the birth mother made a compelling argument that
Marywood, the child placement agency that had counseled her during her pregnancy and then placed
her child, secured the mother’s relinquishment through overreaching and misrepresentation. Vela v.
Marywood, 17 S.W.3d 750 (Tex. App. 2000). Ms. Vela, by all accounts a young woman of
outstanding character, expressed ambivalence during her pregnancy about placing her child for
adoption, but told the Marywood counselor that she was reluctant to create any burden for her parents.
She ultimately agreed to the adoption and executed the relinquishment, after being assured by the
counselor that she could continue to play a role in her child’s life under a “sharing plan,” an
agreement between the adoptive parents and the agency for post-adoption visitation. However, as the
counselor well knew, such an agreement had no legal enforceability – the agency director later
described it as an “empty promise.” Nonetheless, during the pregnancy and in the meeting in which
the relinquishment affidavit was executed, the counselor assured Vela that she would always have a
relationship with her baby, and that the child would always know her as her mother. Ms. Vela was
told that (contrary to language in the affidavit) she was only giving up her guardianship; she was not

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informed that she would have no legal right to see her child. She later challenged the relinquishment,
arguing that the agency induced her to sign the affidavit through misrepresentation and failure to
disclose important information.

The court considered Vela’s claim that her relinquishment was not voluntary, but was secured
by fraud. First, it concluded that the agency owed the birth mother a duty of complete disclosure
when discussing adoption, including the obligation to tell her about the legal ramifications of the
sharing plan. The agency’s duty arose from two sources: first, its partial disclosure about the post-
adoption plan created a duty of full disclosure; second, the position of superiority and influence
occupied by the counselor created a kind of fiduciary duty to look out for the interests of the birth
mother. The court emphasized that the vulnerability of the young unmarried mother considering
adoption justified special protection. Because Vela’s relinquishment of her parental rights was
clearly conditioned on her belief that she could have continued contact with her child, her
relinquishment affidavit was not voluntary. The court concluded that the affidavit was procured by
misrepresentation, fraud and overreaching, and that the mother’s relinquishment was void as a matter
of law.

A Virginia appellate court held that a six-month statute of limitations for challenging
adoptions could not be applied in a case in which the grandmother procured the biological father’s
consent to adoption by fraud. F.E. v. G.F.M., 547 S.E.2d 531 (Va. Ct. App. 2001). The father spoke
no English, and signed a form consenting to adoption, having been told by the grandmother that it
gave her permission to consent to the child’s medical treatment. The father was involved with the
child, and asked for his return two years later when he married, at which point he learned about the
adoption. The court held that enforcement of the limitations period under these facts was a violation
of the father’s due process rights.

Page 1438. Race as a Factor in Adoption. Issues surrounding the role of the child’s (and
adoptive parent’s) race in adoption placement have received academic attention since congressional
enactment of restrictions on race matching. in the Multi-ethnic Placement Act (MEPA) and later
amendments. (See casebook at 1442). See R. Richard Banks, The Color of Desire: Fulfilling
Adoptive Parents’ Racial Preferences Through Discriminatory State Action, 107 YALE L.J. 875
(1998) (challenging the accommodation of preferences by prospective parents for same-race children);
Elizabeth Bartholet, Private Race Preferences in Family Formation, 107 YALE L.J. 2351 (1998)
(response to Banks); Amanda T. Perez, Note, Transracial Adoption and the Federal Adoption
Subsidy, 17 YALE L. & POL’Y REV . 201 (1998) (advocating transracial adoption); Suzanne Brannen
Campbell, Taking Race Out of the Equation: Transracial Adoption in 2000, 53 SMU L. REV . 1599
(2000) (arguing that race continues to be an important factor in adoption after MEPA); Ruth-Arlene
W. Howe, Adoption Laws and Practices in 2000: Serving Whose Interests?, 33 FAM . L.Q. 677 (1999)
(arguing that MEPA provisions against race matching do not serve children’s interests).

Page 1449. Gay and Lesbian Adoption (See also Chapter 9). A federal district court recently
upheld the constitutionality of Florida’s statute prohibiting adoption by homosexuals. (See casebook,
page 1449.) Lofton v. Kearney, 157 F. Supp 1372 (S.D. Fla. 2001). In a case brought by gay foster

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parents whose applications for adoption were rejected, the court rejected due process and equal
protection challenges to the statute. Citing Smith v. OFFER, (see casebook, page 1333), the court
found that the relationship between foster parent and child lacked the justified expectation of
permanence that is the benchmark of the Fourteenth Amendment liberty interest in family
relationships, because it is contractual and created by state law as a short-term placement. Thus, the
foster parents had no protected liberty interest in their relationship with their foster children and no
fundamental right to adopt. Further, the court concluded that homosexuals are not a suspect class for
equal protection analysis, and thus the statute’s classification on that basis was evaluated under a
rational basis test. One of the state’s announced purposes – to express moral disapproval of
homosexuals – was rejected as illegitimate. The court accepted, however, that the purposes of
providing children with a stable home environment, protecting them from stigma, and providing them
with appropriate gender role modeling were legitimate, and were better served by heterosexual
married couples; therefore, excluding homosexuals from adoption survived rational basis analysis.
Although single heterosexual adults could adopt under Florida law, the court distinguished this group
from homosexuals on the ground that heterosexual adoptive parents could marry and provide children
with the optimal family setting.

Page 1465. Independent Adoption - Fee Regulation. In a recent essay, Melinda Lucas
analyzes the increased popularity of independent adoption, and argues for legislative guidance for
prospective adoptive parents about permissible payments, to help adoptive parents avoid inadvertent
black market activity. Melinda Lucas, 2000 Schwab Essay Winners, Adoption: Distinguishing
Between Gray Market and Black Market Activities, 34 FAM . L.Q. 553 (2000).

Page 1482. Surrogacy Agreements. Courts continue to struggle with the regulation of
surrogacy agreements and with the legal status of the child and parents thereafter. Although the trend
continues of rejecting the enforceability of these contracts where the surrogate/biological mother
challenges it, many legal issues arise when parties go forward with these arrangements – such as the
enforceability of a post-birth settlement agreement between the birth mother and the intended parents,
the legality of voluntary termination of parental rights, and the legal status of the child when the
intended parents divorce before termination of the birth mother’s rights

Several courts have found surrogacy agreements to be unenforceable. The Supreme Judicial
Court of Massachusetts examined a “classic” surrogacy agreement much like the one at issue in Baby
M (see casebook, page 1482), in a case in which the mother changed her mind in the sixth month of
pregnancy. R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998). The court found the contract to be
unenforceable on public policy grounds, emphasizing the mother’s pre-birth consent and the payment
of a fee by the intended parents as the basis for its decision. The court suggested that these objections
would be overcome if no compensation was paid beyond pregnancy-related expenses, and if the
mother was not bound by her consent until a suitable period after the child’s birth. See also Weaver
v. Guinn, 31 P.3d 1119 (Or. Ct. App. 2001) (surrogacy contract and custody agreement not
enforceable).

The Maryland Attorney General recently issued an opinion regarding termination of parental

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rights and adoption by the intended parents in surrogacy arrangements. 85 Md. Op. Att’y Gen. No.
00-035 (Dec. 19, 2000), available at 2000 WL 1922187. The opinion noted that several legislative
bills prohibiting surrogacy contracts had failed to be enacted as law in Maryland, in part, it suggested,
because such agreements were already void under existing law. It affirmed that surrogacy agreements
involving the payment of a fee for termination of parental rights are illegal and unenforceable, and
viewed such a transaction to be analogous to “baby selling.” However, violation of this prohibition
need not be enforced in the adoption proceeding. The illegality of the payments might be relevant
to consideration of the voluntariness of the birth mother’s relinquishment of her rights or to the
adoptive parent’s fitness, but it was not dispositive on these matters.

The Connecticut Supreme Court determined that a trial court had jurisdiction to enforce an
agreement between the birth mother and the intended parents, executed when the child was 18 months
old. Doe v. Roe, 717 A.2d 706 (Conn. 1998). After the birth mother sought custody of the child, the
parties executed an agreement under which she agreed to relinquish her parental rights so that the
father’s wife could adopt the child, and the intended parents agreed to post-adoption visitation. The
trial court, after canvassing the parties to ascertain the voluntariness of the agreement, entered an
order based on the agreement. The mother challenged the court’s jurisdiction to enter an order
terminating her parental rights, on the ground that the termination was not ordered under either of the
exclusive statutory grounds. The supreme court rejected this argument, holding that the trial court
was not ordering termination of her rights per se, but was issuing an order based on the parties’
agreement.

Some courts have been ready to facilitate the change in the legal status of the parents and
child born pursuant to a surrogacy agreement, where the parties are in agreement about the transfer.
Thus, a Massachusetts court ordered the hospital at which the child (genetic child of the intended
couple) would be born to designate them as parents on the birth certificate. Culliton v. Beth Israel
Deaconess Medical Center, 756 N.E.2d 1133 (Mass. 2001). The court emphasized the importance
of quickly establishing the identity of the child’s legal parents. The hospital reporter was directed to
supply the Department of Public Health and Registrar of Vital Statistics with necessary confidential
information about the gestational mother. See also A.H.W. v. G.H.B., 772 A.2d 948 (N.J. Super. Ct.
Ch. Div. 2000) (no pre-birth termination of surrogate’s parental rights, as requested by surrogate, but
genetic parents’ names can go on birth certificate after 72-hour waiting period).

Not surprisingly, courts have had to deal with the divorce of “intended” parents in situations
in which the child’s and parents’ legal status has not been ascertained. A recent California case
suggests the complexities that these arrangements can create. Buzzanca v. Buzzanca, 72 Cal. Rptr.
2d 280 (Ct. App. 1998). The intended parents contracted with a woman to be the gestational mother
of an embryo unrelated to any of the parties. During the pregnancy the couple separated and later
divorced, and the husband disclaimed any responsibility for the child. The appellate court rejected the
trial court’s conclusion that the child had no lawful parents, and decided that the intended parents
were the legal parents responsible for the child’s care and support. The court compared the father’s
status to the status of husbands whose responsibility is based on consent to their wives’ artificial
insemination. Here, by consenting to the medical procedure that resulted in the birth of the child, the

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husband incurred the responsibilities of parenthood. The Connecticut Supreme Court reviewed a
claim by the father that his wife was not the parent of their 14-year-old child, because although the
surrogate mother’s rights were terminated, the wife had never adopted the child. Doe v. Doe, 710
A.2d 1297 (Conn. 1998). The supreme court rejected the argument that the statutory presumption
favoring parents in custody cases should be invoked in the father’s favor, holding it to be rebutted as
a matter of law in this situation.

Page 1507. Artificial Insemination by Donor (AID). The legal rights and obligations of
involved adults toward children conceived by AID continues to occupy the attention of courts. A
Massachusetts court recently considered whether a child conceived by AID after the death of his
father constitutes the “issue” of the father, and can share in his estate under state intestate succession
laws. Woodward v. Comm’r of Soc. Sec., 760 N.E.2d 257 (Mass., 2002). The court concluded that
the widow/mother must prove that her husband consented to the insemination and agreed to support
the child. In a recent California case, the cohabiting partner of a woman whose child was conceived
through AID was held to be the legal father. Dunkin v. Boskey, 98 Cal. Rptr. 2d 44 (Ct. App. 2000).
The couple had executed a written contract, in which each promised never to allege that the child was
not legitimate. Later the mother left and denied her partner custody or visitation. The court held the
contract to grant paternity rights was binding between the parties. The partner had achieved parental
status by virtue of his consent to insemination and assumption of parental duties. See also In re
Parentage of M.J., 759 N.E.2d 121 (Ill. App. Ct. 2001) (no support liability by cohabitation partner,
absent written consent to AID). A Washington court declined to impose a child support obligation
on the former domestic partner of a lesbian mother. State ex rel. D.R.M. v. Wood, 34 P.3d 887 (Wash.
Ct. App. 2001). The parties had separated during the pregnancy and the partner had provided
financial support for several months under a separation agreement, until the mother withheld access
to the child. The court held that the partner had no parental status because she had not adopted the
child, and thus no obligation under the child support statute. The court declined to enforce the
separation agreement because of the mother’s breach in not allowing contact.

Page 1510. Enforcement of Contracts on Disposition of Frozen Pre-Embryos. The question

of how to resolve disputes between divorcing parents over frozen embryos has been examined by the
highest courts of New Jersey, New York and Massachusetts. In all three cases, the parent seeking
preservation of the pre-embryos for future implantation was unsuccessful. However, the courts split
on whether prior agreement between the parties regarding future disposition was an enforceable
contract. The New York Court of Appeals held that these agreements are presumptively valid and
enforceable. Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998). The couple had executed an agreement as
part of the in vitro fertilization procedure, providing that any unused frozen pre-zygotes would be
donated to the IVF program for research. The wife after divorce sought and was awarded custody of
the frozen pre-embryos. The court of appeals reversed, holding that the embryos should be disposed
with according to the parties’ prior written agreement. Finding that the wife’s right of reproductive
privacy was not implicated and that the pre-zygotes are not persons for constitutional purposes, the
court concluded that the only relevant inquiry was who had dispositional authority over them, and it
was clear that the couple intended that it be their joint decision. Enforcement of these agreements
would encourage couples to think through contingencies and specify their intentions clearly.

139
 New Jersey and Massachusetts courts have viewed the matter differently, and found these
agreements to be unenforceable. In the New Jersey case, the divorcing husband sought to prove that
the parties had an oral agreement that they would donate any unused pre-embryos to be implanted,
and that he, as a Catholic, had gone forward on that condition. J.B. v. M.B., 783 A.2d 707 (N.J.
2001). The court declined to allow him to offer proof of this agreement, holding that any such
agreement was unenforceable as a matter of public policy. In deciding about the disposition of the
pre-embryos, the court adopted the Davis balancing test, as well as the informal presumption that
ordinarily the parent seeking to avoid procreation should prevail. Here, the decision did little to
burden the father’s procreative rights, since he was free to procreate through some other means. The
Massachusetts court reviewed an agreement between the parents (executed as part of the consent
agreement to the in vitro procedures) giving control of the pre-embryos to the mother in the event of
the parties’ separation. A.Z. v. B.Z. 725 N.E.2d 1051 (Mass. 2000). After raising questions about
whether this agreement truly reflected the parties’ intentions, the court held that any agreement that
would compel one donor to become a parent against his will would be unenforceable. The court cited
a strong policy against enforcement of agreements that bind parties to future family relationships.
Such a policy enhances freedom of personal choice in these matters.

Page 1512. Inheritance Rights. Children who have been “adopted out” may continue to have
inheritance rights to their biological parents’ estates. A California court held that the decedent’s
biological children who were adopted by their stepfather were entitled to share his estate with his
“adopted in” son, under a California statute that dealt with stepparent adoption. In re Estate of Dye,
112 Cal. Rptr. 2d 362 (Ct. App. 2001). The court acknowledged that the outcome was unlikely to be
consistent with the decedent’s wishes, since he had had no contact with his birth children in the forty
years since the adoption, but pointed out that he could have avoided it through a will provision.

Page 1515. Grandparent Adoption. A preference favoring foster parents for adoption when
they have had custody of a child for more than a year was upheld by an Illinois court against a
challenge by out-of-state grandparents. In re Adoption of C.D., 729 N.E.2d 553 (Ill. App. Ct. 2000).
The grandparents were unable to serve as foster parents for their daughter’s child when she lost
custody because of the state’s reunification goals. When her parental rights were terminated, the
foster parents, with whom the child had lived for 7 years, intervened in the proceeding to consider the
grandparents’ petition. The court rejected the grandparents’ equal protection and due process claims.
It concluded that the grandparents had no “parental” interest, or fundamental rights in the continued
relationship with their grandchildren, and that the foster parent preference reflected rational policy
goals.

Page 1517. Abrogation on Equitable Grounds. Several recent cases involve efforts by
parents and others to abrogate adoption. Although the facts in these cases vary dramatically, the
consistent theme is that abrogation is sometimes permitted when it serves the child’s interest, but not
otherwise. In an unusual New Jersey case, the child whose interest was served was not the adopted
child, but her child by her adoptive father. In re Adoption of M, 722 A.2d 615 (N.J. Super. Ct. Ch.
Div. 1998). The court agreed to vacate the daughter’s adoption (six years after the final judgment)
so that she could marry the child’s father, her (soon to be former) adoptive father. (Not surprisingly,

140
the adoptive parents’ marriage ended in divorce after the father-daughter relationship came to light.)
Only in this way could the infant be legitimated, and vacation was justified to protect his interest. In
a Pennsylvania case, the court rejected a divorced father’s effort to avoid his support obligation to his
adopted Russian daughter. Sell v. Sell, 714 A.2d 1057 (Pa. Super. Ct. 1998). The father argued that
the Russian adoption decree was not valid because the couple had effectively purchased the child, and
that his former wife had coerced him into consenting to the adoption. The court concluded that the
father was a full participant in the adoption process, and that to allow him to deny paternity on the
basis of the invalidity of the adoption would be unconscionable. An Ohio court rejected a stepfather’s
petition to vacate the adoption order, where the mother (his now-former wife) allegedly had coerced
him through misrepresentations to adopt her children, for the sole purpose of providing them with
financial security. Joslyn v. Reynolds, No. 3169-M, 2001 WL 1194869 (Ohio Ct. App. Oct. 10,
2001). The marriage ended shortly after the end of the one-year time period of the statute of
limitations for abrogation applied to stepparent adoptions, The court declined to extend the definition
of fraud to allow the stepfather to qualify for an exception to the limitations period. See also In re
Adoption of Baby T., 734 A.2d 304 (N.J. 1999) (physician being sued for causing death of adopted
infant has no standing to challenge posthumous adoption order).

Page 1518. Wrongful Adoption -Tort Claims by Adoptive Parents. The trend toward
recognition of wrongful adoption claims by adoptive parents against agencies continues. According
to one court, virtually all states now recognize wrongful adoption claims based on intentional and
negligent misrepresentation. See Wolford v. Children’s Home Soc’y of W. Va., 17 F. Supp. 2d 577
(S.D. W. Va. 1998). Moreover, several courts recently have recognized claims based on the agency’s
failure to disclose information to the adoptive parents that it was statutorily mandated to disclose.

Several courts considering adoptive parents’ claims have generally recognized agency liability
for fraudulent and negligent misrepresentation. The Montana Supreme Court recently considered a
claim against a state agency by parents whose adopted son, Aaron, developed severe behavioral and
psychological problems that required psychiatric hospitalization. Jackson v. State, 956 P.2d 35
(Mont. 1998). In their discussions with the adoption agency, the parents had explained that they were
unable to provide care to a child who might develop a mental disorder, and when the possibility of
adopting Aaron was discussed, they asked whether there was any background of mental illness in his
family. Although the agency workers were aware that Aaron’s mother and putative father had both
been evaluated and found to have serious mental disorders, this information was not disclosed to the
prospective adoptive parents. The court found that an adoption agency can be liable for negligent
misrepresentation, in failing to communicate information accurately. The agency’s duty is premised
on its voluntary dissemination of health information about the child and the birth parents to the
prospective adoptive parents. Once the agency volunteers information, it must use due care to
communicate accurately and to avoid misrepresentation. The court recognized that potential liability
imposed a burden on adoption agencies, but found this burden to be offset by the importance of fully
informing adoptive parents of challenges they will face with a particular child, so that they may
determine whether they are capable meeting the child’s needs. See also Wolford, supra. (recognizing
claims for fraudulent and negligent misrepresentation).

141
 Claims asserting agency liability for negligent nondisclosure of information to the adoptive
parents have met with a more mixed response. The Montana court in Jackson (above) imposed a
broad duty on the adoption agency to disclose information, despite some independent statutory
barriers to disclosure. The court found that the agency had a duty based on statute and departmental
policy to make all information in its possession about the birth family available to the adoptive
family. The Montana statute does not specifically identify information to be disclosed to the adoptive
parents, but provides that “medical and social histories” be provided to them. The court interpreted
the statutory duty in the light of statements of department policy in its manual, to conclude that all
relevant information about the birth family must be disclosed to the adoptive family. The court
rejected the agency’s argument that it had an independent statutory duty to maintain the
confidentiality of the birth parents’ medical records, by pointing out that it could have sought a court
order for the release of those records. The Washington Supreme Court also recognized a
nondisclosure claim, in a case involving former foster parents who adopted a child (after three years),
who was later diagnosed with fetal alcohol syndrome. McKinney v. State, 950 P.2d 461 (Wash.
1998). Only after the adoption did the parents gain access to the child’s medical and psychological
records, which revealed her mother’s alcohol history and her history of abuse. The court determined
that the agency could be subject to liability based on its negligent failure to comply with the statutory
mandate to disclose medical and social history information to adoptive parents. The Washington
statute is more detailed and specific than the Montana statute in describing the kind of information
that must be disclosed, and would seem to more clearly limit the scope of the agency’s duty. The
court justified the creation of a private cause of action on the basis of statutory duty in this context
because the agency is in a relationship of trust and confidence with the prospective adoptive parents.
In this case, however, the court concluded that the agency’s failure was not the proximate cause of
the parents’ injury, because they were well aware of the child’s problems from their years as her foster
parents – and the state’s disclosure duty does not extend to foster parents.

Some courts have rejected liability on the basis of non-disclosure. A federal court in
Pennsylvania, for example, rejected such a claim on the ground that the Adoption Act, in imposing
disclosure duties on adoption agencies, created no private right of action for the negligent breach of
those duties. Lord v. Living Bridges, No. Civ. A. 97-6355, 1999 WL 562713 (E.D. Pa. 1999).

A federal circuit court recently declined to recognize fraudulent or negligent misrepresentation

in a case involving a Chinese adoption, where the written adoption contract clearly stated that
information about the child might not be reliable. Regensburger v. China Adoption Consultants, Ltd.,
138 F.3d 1201 (7th Cir. 1998). The couple claimed to have had assurances from the agency that the
child they adopted would be physically and mentally healthy. In fact the child had severe
developmental delays. The court denied liability on the part of the agency, because the contract stated
clearly that information from the Chinese government might not be complete or accurate, that the
adoption process is subject to great risk, and that there could be no assurances about the child’s health
or intelligence. Given the clear language of the contract, the court concluded, the parents could not
have reasonably relied on any oral representations and thus failed to state a claim for fraudulent
inducement.

142
 Page 1521. Access to Adoption Records. The trend continues toward facilitating access by
adult adoptees to information about their birth family and adoption, although some states maintain
the traditional approach of evaluating whether “good cause” exists to make records available. An
interesting and rather radical law was enacted by voter referendum in Oregon recently. Under
Measure 58, any adopted person over the age of 21 can apply to the state registrar for a copy of his
or her unaltered original birth certificate. The measure, which includes no exceptions and no contact
veto (see discussion of Tennessee statute below), was upheld by an appellate court against a
constitutional challenge brought by a group of birth mothers, who had given their children up for
adoption before the law was enacted. Does v. State, 993 P.2d 822 (Or. Ct. App. 1999). The mothers’
claimed that the measure impairs the obligation of contract under Oregon’s constitution, because the
statutory assurance of confidentiality was a material term of their adoption placement contract. The
court found no guarantee of confidentiality in earlier adoption law, or expression of legislative intent
to contract with birth mothers to prevent disclosure of their identities to their children. The court also
rejected the argument that the measure violated the birth mothers’ right of reproductive privacy under
the federal Constitution, because it represented an unwanted government intrusion into their decisions
about whether to bear children. The court responded that the adoption decision, unlike those
involving contraception and abortion, is not made unilaterally by the mother; it involves a willing
adoptive parent and active oversight by the state. The court concluded that there is no fundamental
right to give birth to a child for someone else to raise, and thus no fundamental right to have a child
adopted.

The Tennessee Supreme Court recently upheld that state’s statute allowing access to adoption
records by adult adoptees, against state constitutional challenges brought by a group of birth mothers.
Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999) (See casebook, page 1522). The plaintiffs’ arguments
were similar to those brought in the Oregon case, above. First, they challenged the retrospective
application of the statute as an unconstitutional impairment of vested rights created under existing
law. In rejecting this claim, the court applied a multi-factored test, which weighed the reasonable
expectations of affected persons, whether the statute was procedural and remedial, and the extent to
which the statute advanced the public interest. Like the Oregon court, above, the Sundquist court
concluded that prior law contained no guarantee of confidentiality or assurance that birth records were
permanently sealed, and thus the birth parents had no reasonable expectations that these records
would always remain confidential. Moreover, the court viewed the statute as procedural and remedial
in establishing new procedures for access to records, rather than creating new rights. These new
methods of disclosure were enacted by the legislature to advance the best interests of adopted persons,
an important public interest. The court was also unpersuaded by the plaintiffs argument that the
statute violated their reproductive and family privacy rights under the Tennessee constitution (a right
first recognized in Davis v. Davis, the frozen embryo custody case; see casebook, page 1510). The
court pointed out that access to these private records was limited to the adopted persons, and that the
birth parent’s privacy was further protected by the availability of the “contact veto.” This allows the
birth parent to condition the release of information on the adoptee’s promise not to make contact with
the birth parent, thus reducing the risk of disruption of the birth parent’s life.

Some state legislatures have enacted laws to facilitate adoptees’ access to adoption records.

143
Alabama, for example, which previously only allowed adoptee access upon a “good cause” showing,
recently moved to a process in which access to the original, unaltered birth certificate is available
upon written request by the adult adoptee, along with accompanying adoption records. ALA . CODE
§ 22-9A-12(c) (2001). The statute also permits birth parents to file a “contact preference form” which
would be given to the adoptee along with the birth certificate. Under a new Illinois statute, when
individuals register with the Adoption Registry to waive confidentiality, an Adoption/Surrender
Registry File is opened, which can include general information, medical information for exchange,
the original birth certificate, and photographs provided by the registrant. 750 ILL. COMP. STAT .
50/18.05 (2000).

Page 1521. Disclosure under the Uniform Adoption Act. To date Vermont is the only state
to adopt the Uniform Adoption Act. In a recent case, the Vermont Supreme Court interpreted the
statute’s provisions regulating disclosure of information, in light of the intentions of the drafters of
the Uniform Act. In re Margaret Susan P., 733 A.2d 38 (Vt. 1999). The case involved a petition by
an adult adoptee to get her adoption records from the agency that placed her with her adoptive parents,
after she had learned that numerous irregularities surrounded her placement. Her adoptive parents
were dead, and her birth parents supported her receiving full access to her records. The statute offers
a complex scheme of regulation of disclosure, which is designed to maximize disclosure to the adult
adoptee, while preserving the legitimate privacy interests of the parties involved. The supreme court
held that the trial court had expansive statutory authority to order disclosure of records under the
statute, upon consideration of a list of statutory factors. Moreover, it held that in limiting the
adoptee’s automatic disclosure rights to a “detailed summary,” the statute did not allow the agency
to withhold information that might be detrimental to its interests. Nothing in the legislative history
of the statute indicated that the legislature, in formulating disclosure requirements, had any concern
about protecting the privacy interests of the adoption agency.

144
 Appendix
Troxel v. Granville
530 U.S. 57 (2000)
Justice O'CONNOR announced the
judgment of the Court and delivered an opinion,
in which THE CHIEF JUSTICE, Justice
GINSBURG, and Justice BREYER join.
....
Tommie Granville and Brad Troxel
shared a relationship that ended in June 1991.
The two never married, but they had two
daughters, Isabelle and Natalie. Jenifer and Gary
Troxel are Brad’s parents, and thus the paternal
grandparents of Isabelle and Natalie. After
Tommie and Brad separated in 1991, Brad lived
with his parents and regularly brought his
daughters to his parents’ home for weekend
visitation. Brad committed suicide in May 1993.
Although the Troxels at first continued to see
Isabelle and Natalie on a regular basis after their
son's death, Tommie Granville informed the
Troxels in October 1993 that she wished to limit
their visitation with her daughters to one short
visit per month.
In December 1993, the Troxels
commenced the present action by filing, in the
Washington Superior Court for Skagit County, a
petition to obtain visitation rights with Isabelle
and Natalie. The Troxels filed their petition
under . . . Wash. Rev. Code 26.10.160(3) (1994)
. . . Section 26.10.160(3) provides: “Any person
may petition the court for visitation rights at any
time including, but not limited to, custody
proceedings. The court may order visitation
rights for any person when visitation may serve
the best interest of the child whether or not there
has been any change of circumstances.” At trial,
the Troxels requested two weekends of overnight
145
visitation per month and two weeks of visitation
each summer. Granville did not oppose visitation
altogether, but instead asked the court to order
one day of visitation per month with no overnight
stay. In 1995, the Superior Court issued an oral
ruling and entered a visitation decree ordering
visitation one weekend per month, one week
during the summer, and four hours on both of the
petitioning grandparents’ birthdays.
Granville appealed, during which time
she married Kelly Wynn. . . .
Approximately nine months after the
Superior Court entered its order on remand,
Granville’s husband formally adopted Isabelle
and Natalie. . . .
[The Washington Court of Appeals
reversed the visitation order and dismissed the
Troxels’ petition on statutory grounds. 940 P.2d
698 (Wash. Ct. App. 1997). The Washington
Supreme Court affirmed, 969 P.2d 21 (Wash.
1998), rejecting the statutory ground, but
agreeing with the lower court that the Troxels
could not obtain visitation pursuant to §
26.10.160(3).]
The [Washington Supreme] [C]ourt rested
its decision on the Federal Constitution, holding
that § 26.10.160(3) unconstitutionally infringes
on the fundamental right of parents to rear their
children. . . .
We granted certiorari, and now affirm the
judgment.
 Troxel v. Granville
530 U.S. 57 (2000)
II
The demographic changes of the past
century make it difficult to speak of an average
American family. . . . While many children may
have two married parents and grandparents who
visit regularly, many other children are raised in
single-parent households. In 1996, children
living with only one parent accounted for 28
percent of all children under age 18 in the United
States. U.S. Dept. of Commerce, Bureau of
Census, Current Population Reports, 1997
Population Profile of the United States 27 (1998).
Understandably, in these single-parent
households, persons outside the nuclear family
are called upon with increasing frequency to
assist in the everyday tasks of child rearing. In
many cases, grandparents play an important role.
...
The nationwide enactment of nonparental
visitation statutes is assuredly due, in some part,
to the States’ recognition of these changing
realities of the American family. Because
grandparents and other relatives undertake duties
of a parental nature in many households, States
have sought to ensure the welfare of the children
therein by protecting the relationships those
children form with such third parties. The States’
nonparental visitation statutes are further
supported by a recognition . . . that children
should have the opportunity to benefit from
relationships with . . . their grandparents. The
extension of statutory rights in this area to
persons other than a child’s parents, however,
comes with an obvious cost. For example, the
State’s recognition of an independent third-party
interest in a child can place a substantial burden
on the traditional parent-child relationship. . . .
146
The Fourteenth Amendment provides that
no State shall “deprive any person of life, liberty,
or property, without due process of law.” . . . The
Clause . . . includes a substantive component that
“provides heightened protection against
government interference with certain
fundamental rights and liberty interests.”
The liberty interest at issue in this case –
the interest of parents in the care, custody, and
control of their children – is perhaps the oldest of
the fundamental liberty interests recognized by
this Court. . . . Meyer v. Nebraska, 262 U.S. 390
(1923) . . . Pierce v. Society of Sisters, 268 U.S.
510, 534-535 (1925) . . . Stanley v. Illinois, 405
U.S. 645 (1972) . . . Wisconsin v. Yoder, 406 U.S.
205 (1972) . . . Quilloin v. Walcott, 434 U.S 246
(1978) . . . Parham v. J. R., 442 U.S. 584, 602
(1979) . . . Santosky v. Kramer, 455 U.S. 745,
753 (1982) . . . .
Section 26.10.160(3), as applied to
Granville and her family in this case,
unconstitutionally infringes on that fundamental
parental right. The Washington nonparental
visitation statute is breathtakingly broad.
According to the statute’s text, “[a]ny person
may petition the court for visitation rights at any
time,” and the court may grant such visitation
rights whenever “visitation may serve the best
interest of the child.” § 26.10.160(3) (emphases
added). That language effectively permits any
third party seeking visitation to subject any
decision by a parent concerning visitation of the
parent’s children to state-court review . . . [in
which] a parent’s decision that visitation would
not be in the child’s best interest is accorded no
deference. Section 26.10.160(3) contains no
requirement that a court accord the parent’s
decision any presumption of validity or any
 Troxel v. Granville
530 U.S. 57 (2000)
weight whatsoever. . . . Should the judge disagree
with the parent’s estimation of the child’s best
interests, the judge’s view necessarily prevails.
Thus, in practical effect, in the State of
Washington a court can disregard and overturn
any decision by a fit custodial parent concerning
visitation whenever a third party affected by the
decision files a visitation petition, based solely on
the judge’s determination of the child’s best
interests. The Washington Supreme Court had
the opportunity to give § 26.10.160(3) a narrower
reading, but it declined to do so. See, e.g., 969
P.2d, at 23 . . . .
Turning to the facts of this case, the
record reveals that the Superior Court’s order was
based on precisely the type of mere disagreement
we have just described and nothing more. The
Superior Court’s order was not founded on any
special factors that might justify the State’s
interference with Granville’s fundamental right to
make decisions concerning the rearing of her two
daughters. . . .
First, the Troxels did not allege, and no
court has found, that Granville was an unfit
parent. That aspect of the case is important, for
there is a presumption that fit parents act in the
best interests of their children. As this Court
explained in Parham:
“[O]ur constitutional system long ago rejected
any notion that a child is the mere creature of
the State and, on the contrary, asserted that
parents generally have the right, coupled with
the high duty, to recognize and prepare [their
children] for additional obligations. . . . [I]t has
recognized that natural bonds of affection lead
parents to act in the best interests of their
children.” 442 U.S., at 602 (alteration in
147
original) (internal quotation marks and
citations omitted).
Accordingly, so long as a parent
adequately cares for his or her children (i.e., is
fit), there will normally be no reason for the State
to inject itself into the private realm of the family
to further question the ability of that parent to
make the best decisions concerning the rearing of
that parent’s children. . . .
The problem here is not that the
Washington Superior Court intervened, but that
when it did so, it gave no special weight at all to
Granville’s determination of her daughters’ best
interests. More importantly, it appears that the
Superior Court applied exactly the opposite
presumption. . . .
The judge’s comments suggest that he
presumed the grandparents’ request should be
granted unless the children would be “impact[ed]
adversely.” In effect, the judge placed on
Granville, the fit custodial parent, the burden of
disproving that visitation would be in the best
interest of her daughters. . . .
The decisional framework employed by
the Superior Court directly contravened the
traditional presumption that a fit parent will act in
the best interest of his or her child. In that
respect, the court’s presumption failed to provide
any protection for Granville’s fundamental
constitutional right to make decisions concerning
the rearing of her own daughters. . . . In an ideal
world, parents might always seek to cultivate the
bonds between grandparents and their
grandchildren. Needless to say, however, our
world is far from perfect, and in it the decision
whether such an intergenerational relationship
 Troxel v. Granville
530 U.S. 57 (2000)
would be beneficial in any specific case is for the
parent to make in the first instance. And, if a fit
parent's decision of the kind at issue here
becomes subject to judicial review, the court
must accord at least some special weight to the
parent’s own determination.
Finally, we note that there is no allegation
that Granville ever sought to cut off visitation
entirely. . . . Granville did not oppose visitation
but instead asked that the duration of any
visitation order be shorter than that requested by
the Troxels. . . . The Superior Court gave no
weight to Granville’s having assented to
visitation even before the filing of any visitation
petition or subsequent court intervention. . . .
Significantly, many other States expressly
provide by statute that courts may not award
visitation unless a parent has denied (or
unreasonably denied) visitation to the concerned
third party. See, e.g. . . . Ore. Rev. Stat. §
109.121(1)(a)(B) (1997) (court may award
visitation if the “custodian of the child has denied
the grandparent reasonable opportunity to visit
the child”) . . . .
Considered together with the Superior
Court’s reasons for awarding visitation to the
Troxels, the combination of these factors
demonstrates that the visitation order in this case
was an unconstitutional infringement on
Granville’s fundamental right to make decisions
concerning the care, custody, and control of her
two daughters. The Washington Superior Court
failed to accord the determination of Granville, a
fit custodial parent, any material weight. In fact,
the Superior Court made only two formal
findings in support of its visitation order. First,
the Troxels “are part of a large, central, loving
family, all located in this area, and the [Troxels]
148
can provide opportunities for the children in the
areas of cousins and music.” App. 70a. Second,
“[t]he children would be benefitted from
spending quality time with the [Troxels],
provided that that time is balanced with time with
the childrens’ [sic] nuclear family.” Ibid. These
slender findings . . . show that this case involves
nothing more than a simple disagreement
between the Washington Superior Court and
Granville concerning her children’s best interests.
. . . As we have explained, the Due Process
Clause does not permit a State to infringe on the
fundamental right of parents to make childrearing
decisions simply because a state judge believes a
“better” decision could be made. . . .
Accordingly, we hold that § 26.10.160(3), as
applied in this case, is unconstitutional.
Because we rest our decision on the
sweeping breadth of § 26.10.160(3) and the
application of that broad, unlimited power in this
case, we do not consider the primary
constitutional question passed on by the
Washington Supreme Court – whether the Due
Process Clause requires all nonparental visitation
statutes to include a showing of harm or potential
harm to the child as a condition precedent to
granting visitation. We do not, and need not,
define today the precise scope of the parental due
process right in the visitation context. . . .
Because much state-court adjudication in this
context occurs on a case-by-case basis, we would
be hesitant to hold that specific nonparental
visitation statutes violate the Due Process Clause
as a per se matter. . . .
There is . . . no reason to remand the case
for further proceedings in the Washington
Supreme Court. . . . [I]t is apparent that the entry
of the visitation order in this case violated the
 Troxel v. Granville
530 U.S. 57 (2000)
Constitution. We should say so now, without
forcing the parties into additional litigation that
would further burden Granville’s parental right.
We therefore hold that the application of §
26.10.160(3) to Granville and her family violated
her due process right to make decisions
concerning the care, custody, and control of her
daughters.
Accordingly, the judgment of the
Washington Supreme Court is affirmed.
It is so ordered.
Justice SOUTER, concurring in the judgment.
I concur in the judgment affirming the
decision of the Supreme Court of Washington,
whose facial invalidation of its own state statute
is consistent with this Court’s prior cases
addressing the substantive interests at stake. I
would say no more. . . .
....
On the basis of this settled principle, the
Supreme Court of Washington invalidated its
statute because it authorized a contested
visitation order at the intrusive behest of any
person at any time subject only to a best-
interests-of-the-child standard. . . . Although the
statute speaks of granting visitation rights
whenever “visitation may serve the best interest
of the child,” Wash. Rev. Code § 26.10.160(3)
(1994), the state court authoritatively read this
provision as placing hardly any limit on a court’s
discretion to award visitation rights. As the court
understood it, the specific best-interests provision
in the statute would allow a court to award
visitation whenever it thought it could make a
149
better decision than a child’s parent had done. . .
.
....
. . . . I therefore respectfully concur in the
judgment.
Justice THOMAS, concurring in the judgment.
I write separately to note that neither party
has argued that our substantive due process cases
were wrongly decided and that the original
understanding of the Due Process Clause
precludes judicial enforcement of unenumerated
rights under that constitutional provision. As a
result, I express no view on the merits of this
matter . . .
....
Consequently, I agree with the plurality
that this Court’s recognition of a fundamental
right of parents to direct the upbringing of their
children resolves this case. . . . The opinions of
the plurality, Justice KENNEDY, and Justice
SOUTER recognize such a right, but curiously
none of them articulates the appropriate standard
of review. I would apply strict scrutiny to
infringements of fundamental rights. Here, the
State of Washington lacks even a legitimate
governmental interest – to say nothing of a
compelling one – in second-guessing a fit
parent’s decision regarding visitation with third
parties. On this basis, I would affirm the
judgment below.
Justice STEVENS, dissenting.
The Court today wisely declines to
 Troxel v. Granville
530 U.S. 57 (2000)
endorse either the holding or the reasoning of the
Supreme Court of Washington. In my opinion,
the Court would have been even wiser to deny
certiorari. . . .
....
I common to arise – in which the “person” among
. . . As I read the State Supreme Court’s
opinion, its interpretation of the Federal
Constitution made it unnecessary to adopt a
definitive construction of the statutory text, or,
critically, to decide whether the statute had been
correctly applied in this case. In particular, the
state court gave no content to the phrase, “best
interest of the child,” Wash. Rev. Code §
26.10.160(3) (Supp.1996) – content that might
well be gleaned from that State’s own statutes or
decisional law employing the same phrase in
different contexts, and from the myriad other
state statutes and court decisions at least
nominally applying the same standard. . . .
We are thus presented with the
unconstrued terms of a state statute and a State
Supreme Court opinion that, in my view,
significantly misstates the effect of the Federal
Constitution upon any construction of that
statute. Given that posture, I believe the Court
should identify and correct the two flaws in the
reasoning of the state court's majority opinion,
and remand for further review of the trial court’s
disposition of this specific case.
II
In my view, the State Supreme Court
erred in its federal constitutional analysis because
neither the provision granting “any person” the
right to petition the court for visitation, 969 P.2d,
150
at 30, nor the absence of a provision requiring a
“threshold ... finding of harm to the child,” ibid.,
provides a sufficient basis for holding that the
statute is invalid in all its applications. . . . Under
the Washington statute, there are plainly any
number of cases – indeed, one suspects, the most
“any” seeking visitation is a once-custodial
caregiver, an intimate relation, or even a genetic
parent. Even the Court would seem to agree that
in many circumstances, it would be
constitutionally permissible for a court to award
some visitation of a child to a parent or previous
caregiver in cases of parental separation or
divorce, cases of disputed custody, cases
involving temporary foster care or guardianship,
and so forth. As the statute plainly sweeps in a
great deal of the permissible, the State Supreme
Court majority incorrectly concluded that a
statute authorizing “any person” to file a petition
seeking visitation privileges would invariably run
afoul of the Fourteenth Amendment.
The second key aspect of the Washington
Supreme Court’s holding – that the Federal
Constitution requires a showing of actual or
potential “harm” to the child before a court may
order visitation continued over a parent’s
objections – finds no support in this Court’s case
law. While, as the Court recognizes, the Federal
Constitution certainly protects the parent-child
relationship from arbitrary impairment by the
State, we have never held that the parent’s liberty
interest in this relationship is so inflexible as to
establish a rigid constitutional shield, protecting
every arbitrary parental decision from any
challenge absent a threshold finding of harm.
The presumption that parental decisions generally
serve the best interests of their children is sound,
and clearly in the normal case the parent’s
 Troxel v. Granville
530 U.S. 57 (2000)
interest is paramount. But even a fit parent is
capable of treating a child like a mere possession.
Cases like this do not present a bipolar
struggle between the parents and the State over
who has final authority to determine what is in a
child's best interests. There is at a minimum a
third individual, whose interests are implicated in
every case to which the statute applies – the
child.
....
Despite this Court’s repeated recognition
of these significant parental liberty interests,
these interests have never been seen to be without
limits. . . . As this Court ha[s] recognized . . . a
parent’s liberty interests “‘do not spring full-
blown from the biological connection between
parent and child. They require relationships more
enduring.’” [Lehr v. Robertson, 463 U.S. 248,
260 (U.S. 1983)] (quoting Caban v. Mohammed,
441 U.S. 380, 397 (1979)).
Conversely, in Michael H. v. Gerald D.,
491 U.S. 110 (1989), this Court concluded that
despite both biological parenthood and an
established relationship with a young child, a
father’s due process liberty interest in
maintaining some connection with that child was
not sufficiently powerful to overcome a state
statutory presumption that the husband of the
child’s mother was the child’s parent. As a result
of the presumption, the biological father could be
denied even visitation with the child because, as
a matter of state law, he was not a “parent.” A
plurality of this Court there recognized that the
parental liberty interest was a function, not
simply of “isolated factors” such as biology and
intimate connection, but of the broader and
151
apparently independent interest in family. See,
e.g., id., at 123 . . . .
A parent’s rights with respect to her child
have thus never been regarded as absolute, but
rather are limited by the existence of an actual,
developed relationship with a child, and are tied
to the presence or absence of some embodiment
of family. These limitations have arisen, not
simply out of the definition of parenthood itself,
but because of this Court’s assumption that a
parent’s interests in a child must be balanced
against the State’s long-recognized interests as
parens patriae, see, e.g., . . . Prince v.
Massachusetts, 321 U.S. 158, 166 (1944), and,
critically, the child’s own complementary interest
in preserving relationships that serve her welfare
and protection, Santosky, 455 U.S., at 760.
While this Court has not yet had occasion
to elucidate the nature of a child’s liberty
interests in preserving established familial or
family-like bonds, it seems to me extremely
likely that, to the extent parents and families have
fundamental liberty interests in preserving such
intimate relationships, so, too, do children have
these interests, and so, too, must their interests be
balanced in the equation. At a minimum, our
prior cases recognizing that children are,
generally speaking, constitutionally protected
actors require that this Court reject any
suggestion that when it comes to parental rights,
children are so much chattel. The constitutional
protection against arbitrary state interference with
parental rights should not be extended to prevent
the States from protecting children against the
arbitrary exercise of parental authority that is not
in fact motivated by an interest in the welfare of
the child.
 Troxel v. Granville
530 U.S. 57 (2000)
This is not, of course, to suggest that a
child’s liberty interest in maintaining contact with
a particular individual is to be treated invariably
as on a par with that child’s parents’ contrary
interests. Because our substantive due process
case law includes a strong presumption that a
parent will act in the best interest of her child, it
would be necessary, were the state appellate
courts actually to confront a challenge to the
statute as applied, to consider whether the trial
court's assessment of the “best interest of the
child” incorporated that presumption. Neither
would I decide whether the trial court applied
Washington's statute in a constitutional way in
this case . . . . For the purpose of a facial
challenge like this, I think it safe to assume that
trial judges usually give great deference to
parents’ wishes, and I am not persuaded
otherwise here.
But presumptions notwithstanding, we
should recognize that there may be circumstances
in which a child has a stronger interest at stake
than mere protection from serious harm caused
by the termination of visitation by a “person”
other than a parent. The almost infinite variety of
family relationships that pervade our ever-
changing society strongly counsel against the
creation by this Court of a constitutional rule that
treats a biological parent’s liberty interest in the
care and supervision of her child as an isolated
right that may be exercised arbitrarily. It is
indisputably the business of the States, rather
than a federal court employing a national
standard, to assess in the first instance the relative
importance of the conflicting interests that give
rise to disputes such as this. Far from
guaranteeing that parents’ interests will be
trammeled in the sweep of cases arising under the
statute, the Washington law merely gives an
152
individual – with whom a child may have an
established relationship – the procedural right to
ask the State to act as arbiter, through the entirely
well-known best-interests standard, between the
parent’s protected interests and the child’s. It
seems clear to me that the Due Process Clause of
the Fourteenth Amendment leaves room for
States to consider the impact on a child of
possibly arbitrary parental decisions that neither
serve nor are motivated by the best interests of
the child.
Accordingly, I respectfully dissent.
Justice SCALIA, dissenting.
....
. . . Only three holdings of this Court rest
in whole or in part upon a substantive
constitutional right of parents to direct the
upbringing of their children – two of them from
an era rich in substantive due process holdings
that have since been repudiated. See Meyer v.
Nebraska, 262 U.S. 390 (1923); Pierce v. Society
of Sisters, 268 U.S. 510 (1925); Wisconsin v.
Yoder, 406 U.S. 205 (1972) . . . . The sheer
diversity of today’s opinions persuades me that
the theory of unenumerated parental rights
underlying these three cases has small claim to
stare decisis protection. . . . While I would not
now overrule those earlier cases (that has not
been urged), neither would I extend the theory
upon which they rested to this new context.
Judicial vindication of “parental rights”
under a Constitution that does not even mention
them requires not only a judicially crafted
definition of parents, but also – unless, as no one
believes, the parental rights are to be absolute –
 Troxel v. Granville
530 U.S. 57 (2000)
judicially approved assessments of “harm to the
child” and judicially defined gradations of other
persons (grandparents, extended family, adoptive
family in an adoption later found to be invalid,
long-term guardians, etc.) who may have some
claim against the wishes of the parents. . . . I have
no reason to believe that federal judges will be
better at this than state legislatures; and state
legislatures have the great advantages of doing
harm in a more circumscribed area, of being able
to correct their mistakes in a flash, and of being
removable by the people.
For these reasons, I would reverse the
judgment below.
Justice KENNEDY, dissenting.
....
The first flaw the State Supreme Court
found in the statute is that it allows an award of
visitation to a non-parent without a finding that
harm to the child would result if visitation were
withheld; and the second is that the statute allows
any person to seek visitation at any time. In my
view the first theory is too broad to be correct, as
it appears to contemplate that the best interests of
the child standard may not be applied in any
visitation case. . . .
....
. . . The State Supreme Court’s conclusion
that the Constitution forbids the application of
the best interests of the child standard in any
visitation proceeding, however, appears to rest
upon assumptions the Constitution does not
require.
153
My principal concern is that the holding
seems to proceed from the assumption that the
parent or parents who resist visitation have
always been the child’s primary caregivers and
that the third parties who seek visitation have no
legitimate and established relationship with the
child. . . .
Cases are sure to arise – perhaps a
substantial number of cases – in which a third
party, by acting in a caregiving role over a
significant period of time, has developed a
relationship with a child which is not necessarily
subject to absolute parental veto. See . . .
Quilloin v. Walcott, 434 U.S. 246 (1978) (best
interests standard sufficient in adoption
proceeding to protect interests of natural father
who had not legitimated the child) . . . .
....
In light of the inconclusive historical
record and case law, as well as the almost
universal adoption of the best interests standard
for visitation disputes, I would be hard pressed to
conclude the right to be free of [best interest]
review in all cases is itself “‘implicit in the
concept of ordered liberty.’” Glucksberg, 521
U.S., at 721 (quoting Palko v. Connecticut, 302
U.S. 319, 325, (1937)). In my view, it would be
more appropriate to conclude that the
constitutionality of the application of the best
interests standard depends on more specific
factors. . . .
....
In my view the judgment under review
should be vacated and the case remanded for
further proceedings.
 Stan Baker, et al. v.
State of Vermont, et
al.
SUPREME COURT
OF VERMONT
170 Vt. 194; 744
A.2d 864 (1999)
AMESTOY, C.J. May the State of Vermont
exclude same-sex couples from the benefits and
protections that its laws provide to opposite-sex
married couples?... The issue before the Court
...does not turn on the religious or moral debate
over intimate same-sex relationships, but rather
on the statutory and constitutional basis for the
exclusion of same-sex couples from the secular
benefits and protections offered married couples.
We conclude that under the Common
Benefits Clause of the Vermont Constitution,
which, in pertinent part, reads,
That government is, or ought to be, instituted
for the common benefit, protection, and security
of the people, nation, or community, and not for
the particular emolument or advantage of any
single person, family, or set of persons, who are
a part only of that community. . .
Vt. Const., ch. I, art 7., plaintiffs may not be
deprived of the statutory benefits and protections
afforded persons of the opposite sex who choose
to marry. We hold that the State is
constitutionally required to extend to same-sex
couples the common benefits and protections that
flow from marriage under Vermont law. Whether
this ultimately takes the form of inclusion within
the marriage laws themselves or a parallel
"domestic partnership" system or some
equivalent statutory alternative, rests with the
Legislature. Whatever system is chosen,
however, must conform with the constitutional
imperative to afford all Vermonters the common
benefit, protection, and security of the law.
154
Plaintiffs are three same-sex couples who
have lived together in committed relationships
for periods ranging from four to twenty-five
years. Two of the couples have raised children
together. Each couple applied for a marriage
license from their respective town clerk [and after
being refused, filed suit against the state on
statutory and state constitutional grounds. The
trial court rejected both claims and plaintiffs
appealed.]
I. The Statutory Claim
[In rejecting the statutory claim, the court
cited the plain meaning rule and concluded:]
These statutes, read as a whole, reflect the
common understanding that marriage under
Vermont law consists of a union between a man
and a woman. Plaintiffs essentially concede this
fact. They argue, nevertheless, that the underlying
purpose of marriage is to protect and encourage
the union of committed couples and that, absent
an explicit legislative prohibition, the statutes
should be interpreted broadly to include
committed same-sex couples. Plaintiffs rely
principally on our decision in In re B.L.V.B., 628
A.2d 1271, 1272 (1993) [which permitted a
biological parent’s same-sex partner to adopt a
child despite statutory language terminating
biological parental rights after adoption. The
court, though, distinguished the adoption case as
on in which the interpretation was needed in
order to vindicate obvious legislative intent.]
II. The Constitutional Claim
[P]laintiffs contend that the exclusion violates
their right to the common benefit and protection
of the law guaranteed by Chapter I, Article 7 of
the Vermont Constitution. n2 They note that in
denying them access to a civil marriage license,
the law effectively excludes them from a broad
array of legal benefits and protections incident to
the marital relation, including access to a spouse's
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
medical, life, and disability insurance, hospital
visitation and other medical decisionmaking
privileges, spousal support, intestate succession,
homestead protections, and many other statutory
protections. They claim the trial court erred in
upholding the law on the basis that it reasonably
served the State's interest in promoting the "link
between procreation and child rearing." They
argue that the large number of married couples
without children, and the increasing incidence of
same-sex couples with children, undermines the
State's rationale. They note that Vermont law
affirmatively guarantees the right to adopt and
raise children regardless of the sex of the parents,
see 15A V.S.A. § 1-102, and challenge the logic
of a legislative scheme that recognizes the rights
of same-sex partners as parents, yet denies them
-- and their children -- the same security as
spouses.
[I]t is important to emphasize ... that it is
the Common Benefits Clause of the Vermont
Constitution we are construing, rather than its
counterpart, the Equal Protection Clause of the
Fourteenth Amendment to the United States
Constitution..... As we explained in State v.
Badger, 450 A.2d 336, 347 (1982), "our
constitution is not a mere reflection of the federal
charter. Historically and textually, it differs from
the United States Constitution. It predates the
federal counterpart, as it extends back to
Vermont's days as an independent republic. It is
an independent authority, and Vermont's
fundamental law."
... [T]he Common Benefits Clause of the
Vermont Constitution differs markedly from the
federal Equal Protection Clause in its language,
historical origins, purpose, and development.
While the federal amendment may thus
155
supplement the protections afforded by the
Common Benefits Clause, it does not supplant it
as the first and primary safeguard of the rights
and liberties of all Vermonters.
A. Historical Development
In understanding the import of the Common
Benefits Clause, this Court has often referred to
principles developed by the federal courts in
applying the Equal Protection Clause. At the
same time, however, we have recognized that
"although the provisions have some similarity of
purpose, they are not identical." Benning v. State,
641 A.2d 757, 764 n.7 (1994). Indeed, recent
Vermont decisions reflect a very different
approach from current federal jurisprudence. That
approach may be described as broadly deferential
to the legislative prerogative to define and
advance governmental ends, while vigorously
ensuring that the means chosen bear a just and
reasonable relation to the governmental objective.
Although our decisions over the last few
decades have routinely invoked the rhetoric of
suspect class favored by the federal courts, there
are notable exceptions. The principal decision in
this regard is the landmark case of State v.
Ludlow Supermarkets, Inc.,448 A.2d 791 (1982)
[striking down a Sunday closing law which
discriminated among classes of commercial
establishments.] [T]he Court declared that Article
7 "only allows the statutory classifications ... if a
case of necessity can be established overriding
the prohibition of Article 7 by reference to the
"'common benefit, protection, and security of the
people.'" Id. at 268, 448 A.2d at 795. Applying
this test, the Court concluded that the State's
justifications for the disparate treatment of large
and small businesses failed to withstand
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
constitutional scrutiny.
Ludlow, as we later explained, did not alter
the traditional requirement under Article 7 that
legislative classifications must "reasonably relate
to a legitimate public purpose." Nor did it
overturn the principle that the justifications
demanded of the State may depend upon the
nature and importance of the benefits and
protections affected by the legislation; indeed,
this is implicit in the weighing process. It did
establish that Article 7 would require a "more
stringent" reasonableness inquiry than was
generally associated with rational basis review
under the federal constitution. Ludlow did not
override the traditional deference accorded
legislation having any reasonable relation to a
legitimate public purpose. It simply signaled that
Vermont courts -- having "access to specific
legislative history and all other proper resources"
to evaluate the object and effect of state laws --
would engage in a meaningful, case-specific
analysis to ensure that any exclusion from the
general benefit and protection of the law would
bear a just and reasonable relation to the
legislative goals.
Although it is accurate to point out that since
Ludlow our decisions have consistently recited
the federal rational-basis/strict-scrutiny tests, it is
equally fair to observe that we have been less
than consistent in their application. Just as
commentators have noted the United States
Supreme Court's obvious yet unstated deviations
from the rational-basis standard, so have this
Court's holdings often departed from the federal
test....
Thus, "labels aside," Vermont case law has
consistently demanded in practice that statutory
exclusions from publicly-conferred benefits and
156
protections must be "premised on an appropriate
and overriding public interest." Ludlow, 448 A.2d
at 795. The rigid categories utilized by the federal
courts under the Fourteenth Amendment find no
support in our early case law and, while routinely
cited, are often effectively ignored in our more
recent decisions....
B. Text
We typically look to a variety of sources in
construing our Constitution, including the
language of the provision in question, historical
context, case-law development, the construction
of similar provisions in other state constitutions,
and sociological materials....
We first focus on the words of the
Constitution themselves .... One of the
fundamental rights included in Chapter I of the
Vermont Constitution of 1777, entitled "A
Declaration of Rights of the Inhabitants of the
State of Vermont," the Common Benefits Clause
as originally written provided:
That government is, or ought to be, instituted
for the common benefit, protection, and security
of the people, nation or community; and not for
the particular emolument or advantage of any
single man, family or set of men, who are a part
only of that community; and that the community
hath an indubitable, unalienable and indefeasible
right, to reform, alter or abolish government, in
such manner as shall be, by that community,
judged most conducive to the public weal. Vt.
Const. of 1777, ch. I, art. VI.
[Note] the affirmative and unequivocal
mandate of the first section, providing that
government is established for the common
benefit of the people and community as a whole.
Unlike the Fourteenth Amendment, whose origin
and language reflect the solicitude of a dominant
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
white society for an historically-oppressed
African-American minority (no state shall "deny"
the equal protection of the laws), the Common
Benefits Clause mirrors the confidence of a
homogeneous, eighteenth-century group of men
aggressively laying claim to the same rights as
their peers in Great Britain or, for that matter,
New York, New Hampshire, or the Upper
Connecticut River Valley. The same assumption
that all the people should be afforded all the
benefits and protections bestowed by government
is also reflected in the second section, which
prohibits not the denial of rights to the oppressed,
but rather the conferral of advantages or
emoluments upon the privileged.
The words of the Common Benefits Clause
are revealing. While they do not, to be sure, set
forth a fully-formed standard of analysis ... , they
do express broad principles which usefully
inform that analysis. Chief among these is the
principle of inclusion. As explained more fully
[below], the specific proscription against
governmental favoritism toward not only groups
or "sets of men," but also toward any particular
"family" or "single man," underscores the
framers' resentment of political preference of any
kind. The affirmative right to the "common
benefits and protections" of government and the
corollary proscription of favoritism in the
distribution of public "emoluments and
advantages" reflect the framers' overarching
objective "not only that everyone enjoy equality
before the law or have an equal voice in
government but also that everyone have an equal
share in the fruits of the common enterprise." W.
Adams, The First American Constitutions 188
(1980)
C. Historical Context
157
Although historical research yields little
direct evidence of the framers' intentions, an
examination of the ideological origins of the
Common Benefits Clause casts a useful light
upon the inclusionary principle at its textual
core....
The historical origins of the Vermont
Constitution thus reveal that the framers,
although enlightened for their day, were not
principally concerned with civil rights for
African-Americans and other minorities, but with
equal access to public benefits and protections for
the community as a whole. The concept of
equality at the core of the Common Benefits
Clause was not the eradication of racial or class
distinctions, but rather the elimination of
artificial governmental preferments and
advantages. The Vermont Constitution would
ensure that the law uniformly afforded every
Vermonter its benefit, protection, and security so
that social and political preeminence would
reflect differences of capacity, disposition, and
virtue, rather than governmental favor and
privilege.
D. Analysis Under Article 7
The language and history of the Common
Benefits Clause thus reinforce the conclusion that
a relatively uniform standard, reflective of the
inclusionary principle at its core, must govern our
analysis... Accordingly, we conclude that this
approach, rather than the rigid, multi-tiered
analysis evolved by the federal courts ... shall
direct our inquiry .... As noted, Article 7 is
intended to ensure that the benefits and
protections conferred by the state are for the
common benefit of the community and are not for
the advantage of persons "who are a part only of
that community." When a statute is challenged ...
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
we first define that "part of the community"
disadvantaged by the law. We examine the
statutory basis that distinguishes those protected
by the law from those excluded from the state's
protection. Our concern here is with delineating,
not with labelling the excluded class as "suspect,"
"quasi-suspect," or "non-suspect" for purposes of
determining different levels of judicial scrutiny....
We look next to the government's purpose in
drawing a classification ... Consistent with
Article 7's guiding principle of affording the
protection and benefit of the law to all members
of the Vermont community, we examine the
nature of the classification to determine whether
it is reasonably necessary to accomplish the
State's claimed objectives.
We must ultimately ascertain whether the
omission of a part of the community ... bears a
reasonable and just relation to the governmental
purpose. Consistent with the core presumption of
inclusion, factors to be considered in this
determination may include: (1) the significance
of the benefits and protections of the challenged
law; (2) whether the omission of members of the
community from the benefits and protections of
the challenged law promotes the government's
stated goals; and (3) whether the classification is
significantly underinclusive or overinclusive....
....
E. The Standard Applied
With these general precepts in mind, we turn
to the question of whether the exclusion of same-
sex couples from the benefits and protections
incident to marriage under Vermont law
contravenes Article 7. The first step in our
analysis is to identify the nature of the statutory
158
classification. As noted, the marriage statutes
apply expressly to opposite-sex couples. Thus,
the statutes exclude anyone who wishes to marry
someone of the same sex. n13
n13 Relying largely on federal
precedents, our colleague in her
concurring and dissenting opinion
suggests that the statutory exclusion of
same-sex couples from the benefits and
protections of marriage should be
subject to heightened scrutiny as a
" s u s p e ct " or " q u a s i - s u s p e c t"
classification based on sex. All of the
seminal sex-discrimination decisions,
however, have invalidated statutes that
single out men or women as a discrete
class for unequal treatment.
Although this Court has not addressed
the issue, see State v. George, 602 A.2d
953, 957 (1991), we do not doubt that a
statute that discriminated on the basis of
sex would bear a heavy burden under
the Article 7 analysis set forth above.
The difficulty here is that the marriage
laws are facially neutral; they do not
single out men or women as a class for
disparate treatment, but rather prohibit
men and women equally from marrying
a person of the same sex....
Although the concurring and dissenting
opinion invokes the United States
Supreme Court decision in Loving ...,
the reliance is misplaced. There the high
court had little difficulty in looking
behind the superficial neutrality of
Virginia's anti-miscegenation statute to
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
hold that its real purpose was to
maintain the pernicious doctrine of
white supremacy. Our colleague argues,
by analogy, that the effect, if not the
purpose, of the exclusion of same-sex
partners from the marriage laws is to
maintain certain male and female
stereotypes to the detriment of both. To
support the claim, she cites a number of
antiquated statutes that denied married
women a variety of freedoms, including
the right to enter into contracts and hold
property.
The test to evaluate whether a facially
gender-neutral statute discriminates on
the basis of sex is whether the law "can
be traced to a discriminatory purpose."
Feeney, 442 U.S. at 272 The evidence
does not demonstrate such a purpose....
Next, we must identify the governmental
purpose or purposes to be served by the statutory
classification. The principal purpose the State
advances ... is the government's interest in
"furthering the link between procreation and
child rearing." The State has a strong interest, it
argues, in promoting a permanent commitment
between couples who have children to ensure that
their offspring are considered legitimate and
receive ongoing parental support. The State
contends, further, that the Legislature could
reasonably believe that sanctioning same-sex
unions "would diminish society's perception of
the link between procreation and child rearing ...
[and] advance the notion that fathers or mothers
... are mere surplusage to the functions of
procreation and child rearing." The State argues
159
that since same-sex couples cannot conceive a
child on their own, state-sanctioned same-sex
unions "could be seen by the Legislature to
separate further the connection between
procreation and parental responsibilities for
raising children." Hence, the Legislature is
justified, the State concludes, "in using the
marriage statutes to send a public message that
procreation and child rearing are intertwined."
Do these concerns represent valid public
interests that are reasonably furthered by the
[statutes]? It is beyond dispute that the State has
a legitimate and long-standing interest in
promoting a permanent commitment between
couples for the security of their children. It is
equally undeniable that the State's interest has
been advanced by extending formal public
sanction and protection to the union, or marriage,
of those couples considered capable of having
children, i.e., men and women. And there is no
doubt that the overwhelming majority of births
today continue to result from natural conception
between one man and one woman.
It is equally undisputed that many opposite-
sex couples marry for reasons unrelated to
procreation, that some of these couples never
intend to have children, and that others are
incapable of having children. Therefore, if the
purpose of the statutory exclusion of same-sex
couples is to "further[] the link between
procreation and child rearing," it is significantly
under-inclusive. The law extends the benefits and
protections of marriage to many persons with no
logical connection to the stated governmental
goal.
Furthermore, while accurate statistics are
difficult to obtain, there is no dispute that a
significant number of children today are actually
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
being raised by same-sex parents, and that
increasing numbers of children are being
conceived by such parents through a variety of
assisted-reproductive techniques.
Thus, with or without the marriage sanction,
the reality today is that increasing numbers of
same-sex couples are employing increasingly
efficient assisted-reproductive techniques to
conceive and raise children. The Vermont
Legislature has not only recognized this reality,
but has acted affirmatively to remove legal
barriers so that same-sex couples may legally
adopt and rear the children conceived through
such efforts. See 15A V.S.A. § 1-102(b)
(allowing partner of biological parent to adopt if
in child's best interest without reference to sex).
The state has also acted to expand the domestic
relations laws to safeguard the interests of same-
sex parents and their children when such couples
terminate their domestic relationship. See 15A
V.S.A. § 1-112 (vesting family court with
jurisdiction over parental rights and
responsibilities, parent-child contact, and child
support when unmarried persons who have
adopted minor child "terminate their domestic
relationship").
Therefore, to the extent that the state's
purpose in licensing civil marriage was, and is, to
legitimize children and provide for their security,
the statutes plainly exclude many same-sex
couples who are no different from opposite-sex
couples with respect to these objectives. If
anything, the exclusion of same-sex couples from
the legal protections incident to marriage exposes
their children to the precise risks that the State
argues the marriage laws are designed to secure
against. In short, the marital exclusion treats
persons who are similarly situated for purposes of
the law, differently.
160
The State also argues that because same-sex
couples cannot conceive a child on their own,
their exclusion promotes a "perception of the link
between procreation and child rearing," and that
to discard it would "advance the notion that
mothers and fathers ... are mere surplusage to the
functions of procreation and child rearing" Apart
from the bare assertion, the State offers no
persuasive reasoning to support these claims.
Indeed, it is undisputed that most of those who
utilize nontraditional means of conception are
infertile married couples and that many assisted-
reproductive techniques involve only one of the
married partner's genetic material, the other being
supplied by a third party through sperm, egg, or
embryo donation. The State does not suggest that
the use of these technologies undermines a
married couple's sense of parental responsibility,
or fosters the perception that they are "mere
surplusage" to the conception and parenting of
the child so conceived. Nor does it even remotely
suggest that access to such techniques ought to be
restricted as a matter of public policy to "send a
public message that procreation and child rearing
are intertwined." Accordingly, there is no
reasonable basis to conclude that a same-sex
couple's use of the same technologies would
undermine the bonds of parenthood, or society's
perception of parenthood.
The question thus becomes whether the
exclusion of a relatively small but significant
number of otherwise qualified same-sex couples
from the same legal benefits and protections
afforded their opposite-sex counterparts
contravenes the mandates of Article 7.... Courts
have upheld underinclusive statutes out of a
recognition that, for reasons of pragmatism or
administrative convenience, the legislature may
choose to address problems incrementally. The
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***

State does not contend, however, that the same-
sex exclusion is necessary as a matter of
pragmatism or administrative convenience. We
turn, accordingly, from the principal justifications
advanced by the State to the interests asserted by
plaintiffs.
As noted, in determining whether a statutory
exclusion reasonably relates to the governmental
purpose it is appropriate to consider the history
and significance of the benefits denied. What do
these considerations reveal about the benefits and
protections at issue here? In Loving ..., the United
States Supreme Court ... observed that "the
freedom to marry has long been recognized as
one of the vital personal rights." The Court's
point was clear; access to a civil marriage license
and the multitude of legal benefits, protections,
and obligations that flow from it significantly
enhance the quality of life in our society.
[The court here cites cases from other states
acknowledging that the marriage contract is a
“source of significant public benefits and
protections.”]
While the laws relating to marriage have
undergone many changes during the last century,
largely toward the goal of equalizing the status of
husbands and wives, the benefits of marriage
have not diminished in value. On the contrary,
the benefits and protections incident to a
marriage license under Vermont law have never
been greater. [The court here lists the statutory
benefits afforded to married couples under
Vermont law.]
While other statutes could be added to this
list, the point is clear. The legal benefits and
protections flowing from a marriage license are
of such significance that any statutory exclusion
must necessarily be grounded on public concerns
of sufficient weight, cogency, and authority that
the justice of the deprivation cannot seriously be
questioned. Considered in light of the extreme
logical disjunction between the classification and
the stated purposes of the law -- protecting
children and "furthering the link between
procreation and child rearing" -- the exclusion
falls substantially short of this standard. The
laudable governmental goal of promoting a
commitment between married couples to promote
the security of their children and the community
as a whole provides no reasonable basis for
denying the legal benefits and protections of
marriage to same-sex couples, who are no
differently situated with respect to this goal than
their opposite-sex counterparts. Promoting a link
between procreation and childrearing similarly
fails to support the exclusion. We turn,
accordingly, to the remaining interests identified
by the State in support of the statutory exclusion.
The State asserts that a number of additional
rationales could support a legislative decision to
exclude same-sex partners from the statutory
benefits and protections of marriage. Among
these are the State's purported interests in
"promoting child rearing in a setting that provides
both male and female role models," minimizing
the legal complications of surrogacy contracts
and sperm donors, "bridging differences"
between the sexes, discouraging marriages of
convenience for tax, housing or other benefits,
maintaining uniformity with marriage laws in
other states, and generally protecting marriage
from "destabilizing changes." The most
substantive of the State's remaining claims relates
to the issue of childrearing. It is conceivable that
the Legislature could conclude that opposite-sex
partners offer advantages in this area, although

161
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
we note that child-development experts disagree
and the answer is decidedly uncertain. The
argument, however, contains a more fundamental
flaw, and that is the Legislature's endorsement of
a policy diametrically at odds with the State's
claim. In 1996, the Vermont General Assembly
enacted, and the Governor signed, a law
removing all prior legal barriers to the adoption
of children by same-sex couples. See 15A V.S.A.
§ 1-102. At the same time, the Legislature
provided additional legal protections in the form
of court-ordered child support and parent-child
contact in the event that same-sex parents
dissolved their "domestic relationship." Id. § 1-
112. In light of these express policy choices, the
State's arguments that Vermont public policy
favors opposite-sex over same-sex parents or
disfavors the use of artificial reproductive
technologies are patently without substance.
Similarly, the State's argument that Vermont's
marriage laws serve a substantial governmental
interest in maintaining uniformity with other
jurisdictions cannot be reconciled with Vermont's
recognition of unions, such as first-cousin
marriages, not uniformly sanctioned in other
states. In an analogous context, Vermont has
sanctioned adoptions by same-sex partners, see
15A V.S.A. § 1-102, notwithstanding the fact
that many states have not. Thus, the State's claim
that Vermont's marriage laws were adopted
because the Legislature sought to conform to
those of the other forty-nine states is not only
speculative, but refuted by two relevant
legislative choices which demonstrate that
uniformity with other jurisdictions has not been
a governmental purpose.
The State's remaining claims (e.g.,
recognition of same-sex unions might foster
marriages of convenience or otherwise affect the
162
institution in "unpredictable" ways) may be
plausible forecasts as to what the future may
hold, but cannot reasonably be construed to
provide a reasonable and just basis for the
statutory exclusion. The State's conjectures are
not, in any event, susceptible to empirical proof
before they occur.
Finally, it is suggested that the long history of
official intolerance of intimate same-sex
relationships cannot be reconciled with an
interpretation of Article 7 that would give state-
sanctioned benefits and protection to individuals
of the same sex who commit to a permanent
domestic relationship. We find the argument to
be unpersuasive for several reasons. First, to the
extent that state action historically has been
motivated by an animus against a class, that
history cannot provide a legitimate basis for
continued unequal application of the law. As we
observed recently in Brigham, 692 A.2d at 396,
"equal protection of the laws cannot be limited by
eighteenth-century standards." Second, whatever
claim may be made in light of the undeniable
fact that federal and state statutes -- including
those in Vermont -- have historically disfavored
same-sex relationships, more recent legislation
plainly undermines the contention. [The
legislature had recently repealed the criminal ban
on fellatio, added sexual orientation to the
forbidden bases of employment and housing
discrimination and included sexual orientation in
the hate crimes statute.]
F. Remedy
It is important to state clearly the parameters
of today's ruling. Although plaintiffs sought
injunctive and declaratory relief designed to
secure a marriage license, their claims and
arguments here have focused primarily upon the
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
consequences of official exclusion from the
statutory benefits, protections, and security
incident to marriage under Vermont law. While
some future case may attempt to establish that --
notwithstanding equal benefits and protections
under Vermont law -- the denial of a marriage
license operates per se to deny constitutionally-
protected rights, that is not the claim we address
today.
We hold only that plaintiffs are entitled under
Chapter I, Article 7, of the Vermont Constitution
to obtain the same benefits and protections
afforded by Vermont law to married opposite-sex
couples. We do not purport to infringe upon the
prerogatives of the Legislature to craft an
appropriate means of addressing this
constitutional mandate, other than to note that the
record here refers to a number of potentially
constitutional statutory schemes from other
jurisdictions. These include what are typically
referred to as "domestic partnership" or
"registered partnership" acts, which generally
establish an alternative legal status to marriage
for same-sex couples, impose similar formal
requirements and limitations, create a parallel
licensing or registration scheme, and extend all or
most of the same rights and obligations provided
by the law to married partners. We do not intend
specifically to endorse any one or all of the
referenced acts, particularly in view of the
significant benefits omitted from several of the
laws.
Further, while the State's prediction of
"destabilization" cannot be a ground for denying
relief, it is not altogether irrelevant. A sudden
change in the marriage laws or the statutory
benefits traditionally incidental to marriage may
have disruptive and unforeseen consequences.
Absent legislative guidelines defining the status
163
and rights same-sex couples, consistent with
constitutional requirements, uncertainty and
confusion could result. Therefore, we hold that
the current statutory scheme shall remain in effect
for a reasonable period of time to enable the
Legislature to consider and enact implementing
legislation in an orderly and expeditious fashion.
In the event that the benefits and protections in
question are not statutorily granted, plaintiffs may
petition this Court to order the remedy they
originally sought.
Our colleague asserts that granting the
relief requested by plaintiffs -- an injunction
prohibiting defendants from withholding a
marriage license -- is our "constitutional duty."
744 A.2d at 898 (Johnson, J., concurring in part
and dissenting in part). We believe the argument
is pr e dic a te d upon a fundamental
misinterpretation of our opinion. It appears to
assume that we hold plaintiffs are entitled to a
marriage license. We do not. We hold that the
State is constitutionally required to extend to
same-sex couples the common benefits and
protections that flow from marriage under
Vermont law. That the State could do so through
a marriage license is obvious. But it is not
required to do so ...
....
The concurring and dissenting opinion
further claims that our mandate represents an
"abdication" of the constitutional duty to decide,
and an inexplicable failure to implement "the
most straightforward and effective remedy."
Vt. at , , 744 A.2d at 898, 901, 1999 Vt.
LEXIS 406, *96, *106. Our colleague greatly
underestimates what we decide today and greatly
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
overestimates the simplicity and effectiveness of
her proposed mandate. First, our opinion
provides greater recognition of-- and protection
for -- same sex relationships than has been
recognized by any court of final jurisdiction in
this country with the instructive exception of the
Hawaii Supreme Court in Baehr. Second, the
dissent's suggestion that her mandate would
avoid the "political caldron" ( 744 A.2d at 898) of
public debate is -- even allowing for the welcome
lack of political sophistication of the judiciary --
significantly insulated from reality.
The concurring and dissenting opinion
confuses decisiveness with wisdom and judicial
authority with finality. Our mandate is predicated
upon a fundamental respect for the ultimate
source of constitutional authority, not a fear of
decisiveness. No court was ever more decisive
than the United States Supreme Court in Dred
Scott, 60 U.S. (19 How.) 393 (1857). Nor more
wrong....
III. Conclusion
While many have noted the symbolic or
spiritual significance of the marital relation, it is
plaintiffs' claim to the secular benefits and
protections of a singularly human relationship
that, in our view, characterizes this case. The
State's interest in extending official recognition
and legal protection to the professed commitment
of two individuals to a lasting relationship of
mutual affection is predicated on the belief that
legal support of a couple's commitment provides
stability for the individuals, their family, and the
broader community. Although plaintiffs' interest
in seeking state recognition and protection of
their mutual commitment may -- in view of
divorce statistics -- represent "the triumph of
164
hope over experience," the essential aspect of
their claim is simply and fundamentally for
inclusion in the family of state-sanctioned human
relations.
The judgment of the superior court upholding
the constitutionality of the Vermont marriage
statutes under Chapter I, Article 7 of the Vermont
Constitution is reversed. The effect of the Court's
decision is suspended, and jurisdiction is retained
in this Court, to permit the Legislature to
consider and enact legislation consistent with the
constitutional mandate described herein.
DOOLEY, J., concurring. I concur in Part I of the
majority opinion, the holding of Part II, and the
mandate. I do not, however, concur in the
reasoning of Part II....
This is a concurrence and not a dissent. I
agree with the majority that the consequence of
limiting marriage to a man and woman is the
exclusion of these plaintiffs, and many persons
similarly situated, from numerous rights, benefits,
and duties that government and society provide
to - and impose on - married persons. However
we might have described marriage in relation to
the very limited government that was created by
our Constitution, the complexity of the current
system of government-created benefits and
burdens has made civil marriage a modern-day
emolument, a government recognized and
supported special status for which these plaintiffs
are not eligible.
This is a civil rights case, very different from
a claim of discrimination with respect to, for
example, a peddler's fee, operation of
partnerships, or regulation of river pollution. It is
also very different from a claim that exemptions
to a Sunday closing law unconstitutionally
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
discriminated against large stores .... The United
States Supreme Court has recognized that
discrimination based on race, alienage, national
origin, or sex requires greater justification than
economic discrimination, such as discrimination
in the fees charged certain peddlers based on the
type of goods they are selling. Until this decision,
we also recognized this distinction....
The marriage statutes do not facially
discriminate on the basis of sexual orientation.
There is, however, no doubt that the requirement
that civil marriage be a union of one man and one
woman has the effect of discriminating against
lesbian and gay couples, like the plaintiffs in this
case, who are unable to marry the life partners of
their choice. The majority proclaims that most
decisions have concluded that lesbians and gay
men are not a suspect classification, inferring that
any conclusion to the contrary is wrong. On this
point, however, I believe the central analysis of
Ludlow [cited in majority opinion] is critical:
[A] state court reviewing state legislation
is in a very different posture from the
United States Supreme Court when it
undertakes the parallel task. Rather than
disposing of a case on the premise that its
impact will presumably affect more than
fifty varying jurisdictions, a state court
reaches its result in the legal climate of
the single jurisdiction with which it is
associated, if federal proscriptions are not
transgressed.
448 A.2d at 795. Although our precedents
mandate use of at least a close cousin of the
federal equal protection test, we must, as we said
in Ludlow, apply that test in our own "legal
165
climate."
Vermont's legal climate differs considerably
from that in other jurisdictions where courts have
held that lesbians and gay men are not a suspect
classification. Indeed, the federal analysis of the
rights of lesbians and gay men almost always
starts with Bowers v. Hardwick, [which] reflects
a legal climate quite hostile to those rights.... It
held that, for due process purposes, individuals
do not have "a fundamental right to engage in
homosexual sodomy."
Federal courts considering equal-protection
challenges have relied on Bowers to conclude
that lesbians and gay men are not a suspect
classification. They rationalize that if
homosexual conduct can constitutionally be
criminalized, homosexuals cannot constitute a
suspect class. [cases omitted]
The majority errs in relying on these cases
because the Bowers rationale applied in all of
them is not applicable in Vermont today.
[Reference is made here to the above-mentioned
legislative activity regarding fellatio and anti-gay
discrimination.]
... Thus, I believe our "legal climate" is vastly
different from that in Bowers, where, after
considering that twenty-four states had
criminalized sodomy between consenting adults,
the United States Supreme Court concluded that
there was no fundamental right, deeply rooted in
the Nation's history, to engage in such conduct. ...
[T]he rationale in federal decisions for
withholding a more searching scrutiny does not
apply in Vermont....
Chapter I, Article 7 of the Vermont
Constitution actually contains three clauses, the
most important of which is the second, which
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
contains the prohibition on governmental actions
"for the particular emolument or advantage of any
single person, family, or set of persons, who are
a part only of that community." This anti-
privilege language, and variations on it, is
contained in the vast majority of pre-civil war
state constitutions.. At least in this century, the
jurisprudence in Vermont is similar to that in
most states.
Oregon, like Vermont, has developed an
independent state constitutional jurisprudence.
Article I, Section 20 of the Oregon Constitution,
adopted in 1859, provides that no law shall
"grant[] to any citizen or class of citizens
privileges, or immunities, which, upon the same
terms, shall not equally belong to all citizens."
This provision is similar in purpose and effect to
our Common Benefits Clause. The Oregon
Supreme Court has described that provision
precisely how we today have described Chapter
I, Article 7: "... its language reflects early
egalitarian objections to favoritism and special
privileges for a few rather than the concern of
the Reconstruction C ongress a bout
discrimination against disfavored individuals or
groups." State v. Clark, 630 P.2d 810, 814 (Or.
1981). Just as this Court has acknowledged in
developing its Article 7 jurisprudence, the
Oregon court has ... adopted the federal analysis
only where the court finds it persuasive.
The Oregon Supreme Court, like this Court,
has adopted the federal, tiered framework for
analyzing equal-protection type constitutional
challenges. Moreover, it has held, as we have
held, that its state constitution "prohibits
disparate treatment of groups or individuals by
virtue of 'invidious' social categories" and that
discrimination against a suspect class is subject to
166
strict scrutiny. I point out the similarities between
our Article 7 jurisprudence and Oregon's § 20
jurisprudence because this Court has not
established the criteria for identifying suspect
classifications, while the Oregon courts have.
Because of the historical similarity, I find it
useful to look to Oregon case law, and the United
States Supreme Court decisions upon which it
relies, in considering whether lesbians and gay
men are a suspect classification under Article 7.
In Hewitt, the Oregon Supreme Court
determined that sex-based classifications are
suspect because (1) they focus on an immutable
personal characteristic and thus "can be suspected
of reflecting 'invidious' social or political
premises, that is to say, prejudice or stereotyped
prejudgments," and (2) "the purposeful historical,
legal, economic and political unequal treatment
of women is well known." Accordingly, the court
held that sex-based classifications are inherently
suspect, like the United States Supreme Court
found classifications based on race, alienage, and
nationality.
[The opinion at this point described an
Oregon Court of Appeals decision holding the
state constitution required health and life
insurance benefits available to spouses be offered
to unmarried domestic partners of gay
employees.]
In this concurrence, I do not detail a suspect-
classification analysis, but I can summarize my
opinion by saying that I agree with the general
framework adopted by the Oregon courts ....
These decisions ... are entirely consistent with the
law we have developed under Chapter I, Article
7 of the Vermont Constitution, at least prior to
this decision. [T]he majority's decision ...
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
backtracks from the established legal framework
under Article 7 and fails to provide any
guidelines whatsoever for the Legislature, the
trial courts, or Vermonters in general to predict
the outcome of future cases.
I agree with the majority that the State cannot
justify the denial of legal benefits and
responsibilities of civil marriage to gay and
lesbian couples. And I agree that the appropriate
remedy is either to require the State to extend the
option of receiving these benefits and associated
responsibilities to these couples, or to require that
it offer the opportunity for civil marriage on
equal terms. I will briefly explain my
disagreement with the majority's rationale for
reaching the same result.
The majority's analysis under Chapter I,
Article 7 proceeds in three steps: (1) there is one
equality standard imposed by Article 7, and it
applies to claims of civil rights discrimination
and economic discrimination alike; (2) the
equality standard is higher, that is, more active,
than the standard imposed by the Equal
Protection Clause of the Fourteenth Amendment
for analyzing claims of economic discrimination;
and (3) under the new standard, the denial of the
benefits of marriage to lesbians and gay men
violates Chapter I, Article 7. In the first two
steps, the majority makes statements entirely
contrary to our existing Article 7 jurisprudence.
As to the third step, I find no standard in the
Court's decision - it is entirely a matter of
"judgment."
....
The final irony in this decision for me is
that the balancing and weighing process set forth
in the Court's opinion describes exactly the
167
process we would expect legislators to go
through if they were facing the question before
us. We are judges, not legislators.
For the above reasons, I concur in the
mandate, but respectfully disagree with Part II of
the Court's decision, the majority's rationale for
reaching this mandate.
JOHNSON, J., concurring in part and dissenting
in part. Forty years ago, in reversing a decision
that had denied injunctive relief for the
immediate desegregation of publicly owned parks
and recreational facilities in Memphis,
Tennessee, a unanimous United States Supreme
Court stated:
The basic guarantees of our Constitution
are warrants for the here and now and,
unless there is an overwhelmingly
compelling reason, they are to be
promptly fulfilled.
Watson v. City of Memphis, 373 U.S. 526 (1963).
Plaintiffs come before this Court claiming
that the State has unconstitutionally deprived
them of the benefits of marriage based solely
upon a discriminatory classification that violates
their civil rights. They ask the Court to remedy
the unlawful discrimination by enjoining the
State and its municipalities from denying them
the license that serves to identify the persons
entitled to those benefits. The majority agrees
that the Common Benefits Clause of the Vermont
Constitution entitles plaintiffs to obtain the same
benefits and protections as those bestowed upon
married opposite-sex couples, yet it declines to
give them any relief other than an exhortation to
the Legislature to deal with the problem. I concur
with the majority's holding, but I respectfully
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
dissent from its novel and truncated remedy,
which in my view abdicates this Court's
constitutional duty to redress violations of
constitutional rights. I would grant the requested
relief and enjoin defendants from denying
plaintiffs a marriage license based solely on the
sex of the applicants.
The majority declares that the issue before
this Court does not turn on the heated moral
debate over intimate same-sex relationships, and
further, that this Court has a constitutional
responsibility to consider the legal merits of even
controversial cases. Yet, notwithstanding these
pronouncements, the majority elects to send
plaintiffs to an uncertain fate in the political
caldron of that very same moral debate. n1 And
to what end? Passing this case on to the
Legislature will not alleviate the instability and
uncertainty that the majority seeks to avoid, and
will unnecessarily entangle this Court in the
Legislature's efforts to accommodate the
majority's mandate within a "reasonable period of
time."
In 1948, when the California Supreme
Court struck down a state law prohibiting the
issuance of a license authorizing interracial
marriages, the court did not suspend its judgment
to allow the legislature an opportunity to enact a
separate licensing scheme for interracial
marriages. See Perez v. Sharp, 198 P.2d 17, 29
(Cal. 1948) ... Here, as in Perez, we have held
that the State has unconstitutionally discriminated
against plaintiffs, thereby depriving them of civil
rights to which they are entitled. Like the Hawaii
Circuit Court in Baehr which rejected the State's
reasons for excluding same-sex couples from
marriage, we should simply enjoin the State from
denying marriage licenses to plaintiffs based on
168
sex or sexual orientation. That remedy would
provide prompt and complete relief to plaintiffs
and create reliable expectations that would
stabilize the legal rights and duties of all couples.
....
Apart from establishing restrictions on age
and consanguinity related to public health and
safety, see 18 V.S.A. § 5142 (minors and
incompetent persons); 15 V.S.A. § § 1, 2
(consanguinity), the statutory scheme at issue
here makes no qualitative judgment about which
persons may obtain a marriage license. Hence,
the State's interest concerning the challenged
licensing statute is a narrow one, and plaintiffs
have prevailed on their constitutional claim
because the State has failed to raise any
legitimate reasons related to public health or
safety for denying marital benefits to same-sex
couples. In my view, the State's interest in
licensing marriages would be undisturbed by this
Court enjoining defendants from denying
plaintiffs a license.
While the State's interest in licensing
marriages is narrow, the judiciary's obligation to
remedy constitutional violations is central to our
form of government. Indeed, one of the
fundamental principles of our tripartite system of
government is that the judiciary interprets and
gives effect to the constitution in cases and
controversies concerning individual rights.....
The power of courts to fashion remedies for
constitutional violations is well established in
both this Court's and the United States Supreme
Court's jurisprudence concerning individual
rights and equal protection.
Accordingly, absent "compelling" reasons
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
that dictate otherwise, it is not only the
prerogative but the duty of courts to provide
prompt relief for violations of individual civil
rights. This basic principle is designed to assure
that laws enacted through the will of the majority
do not unconstitutionally infringe upon the rights
of a disfavored minority.
There may be situations, of course, when
legislative action is required before a court-
ordered remedy can be fulfilled. For example, in
Brigham, 692 A.2d 384, 386, 398 (1997), this
Court declared that Vermont's system for funding
public education unconstitutionally deprived
Vermont schoolchildren of a right to an equal
educational opportunity, and then retained
jurisdiction until the Legislature enacted
legislation that satisfied the Court's holding.
Plainly, it was not within the province of this
Court to create a new funding system to replace
the one that we had declared unconstitutional.
The Legislature needed to enact legislation that
addressed issues such as the level of state funding
for public schools, the sources of additional
revenue, and the framework for distributing state
funds. In finding a funding source, the
Legislature had to consider whether to apply a
flat or progressive tax on persons, property,
entities, activities or income. These
considerations, in turn, required the Legislature to
consider what state programs would have to be
curtailed to make up for the projected additional
school funding. All of these complex political
decisions entailed core legislative functions that
were a necessary predicate to fulfillment of our
holding.
A completely different situation exists here.
We have held that the Vermont Constitution
entitles plaintiffs "to obtain the same benefits and
protections afforded by Vermont law to married
169
opposite-sex couples." Given this holding, the
most straightforward and effective remedy is
simply to enjoin the State from denying plaintiffs
a marriage license, which would designate them
as persons entitled to those benefits and
protections. No legislation is required to redress
the constitutional violation that the Court has
found. Nor does our paramount interest in
vindicating plaintiffs' constitutional rights
interfere in any way with the State's interest in
licensing marriages. Far from intruding upon the
State's narrow interest in its licensing statute,
allowing plaintiffs to obtain a license would
further the overall goals of marriage, as defined
by the majority -- to provide stability to
individuals, their families, and the broader
community by clarifying and protecting the rights
of married persons.
The majority declines to provide plaintiffs
with a marriage license, however, because a
sudden change in the marriage laws "may have
disruptive and unforeseen consequences," and
"uncertainty and confusion could result." Thus,
within a few pages of rejecting the State's
doomsday speculations as a basis for upholding
the unconstitutionally discriminatory
classification, the majority relies upon those same
speculations to deny plaintiffs the relief to which
they are entitled as the result of the
discrimination.
During the civil rights movement of the
1960's, state and local governments defended
segregation or gradual desegregation on the
grounds that mixing the races would lead to
interracial disturbances. The Supreme Court's
"compelling answer" to that contention was "that
constitutional rights may not be denied simply
because of hostility to their assertion or exercise."
See Watson, 373 U.S. at 535. Here, too, we
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
should not relinquish our duty to redress the
unconstitutional discrimination that we have
found merely because of "personal speculations"
or "vague disquietudes." While the laudatory
goals of preserving institutional credibility and
public confidence in our government may require
elected bodies to wait for changing attitudes
concerning public morals, those same goals
require courts to act independently and decisively
to protect civil rights guaranteed by our
Constitution.
None of the cases cited by the majority
support its mandate suspending the Court's
judgment to allow the Legislature to provide a
remedy....
....
I recognize that the Legislature is, and has
been, free to pass legislation that would provide
same-sex couples with marital benefits. But the
majority does not explain why it is necessary for
the Legislature to act before we remedy the
constitutional violation that we have found. In
our system of government, civil rights violations
are remedied by courts, not because we issue
"Holy Writ" or because we are "the only
repository of wisdom." It is because the courts
"must ultimately define and defend individual
rights against government in terms independent
of consensus or majority will." L. Tribe,
American Constitutional Law § 15.3, at 896
(1978).
"'Groups that have historically been the target
of discrimination cannot be expected to wait
patiently for the protection of their human dignity
and equal rights while governments move toward
170
reform one step at a time.'" Rosenberg v. Canada,
Docket No. C22807 (Ontario Court of Appeals,
April 23, 1998, at 17-18 (quoting Vriend v.
Alberta, [1998] S.C.J. No. 29 (Q.L.), at para.
122). Once a court has determined that a
discriminatory classification has deprived
plaintiffs of a constitutionally ripe entitlement,
the court must decide if the classification "is
demonstrably justifiable in a free and democratic
society, not whether there might be a more
propitious time to remedy it." Id. at 18.
Today's decision, which is little more than a
declaration of rights, abdicates that responsibility.
The majority declares that plaintiffs have been
unconstitutionally deprived of the benefits of
marriage, but does not hold that the marriage
laws are unconstitutional, does not hold that
plaintiffs are entitled to the license that triggers
those benefits, and does not provide plaintiffs
with any other specific or direct remedy for the
constitutional violation that the Court has found
to exist.... Ironically, today's mandate will only
increase "the uncertainty and confusion" that the
majority states it is designed to avoid.
No decision of this Court will abate the moral
and political debate over same-sex marriage. My
view as to the appropriateness of granting
plaintiffs the license they seek is not based on any
overestimate (or any estimate) of its
effectiveness, nor on a miscalculation (or any
calculation) as to its likely permanence, were it to
have received the support of a majority of this
Court. Rather, it is based on what I believe are
the commands of our Constitution.
II.
Although I concur with the majority's
conclusion that Vermont law unconstitutionally
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***

excludes same-sex couples from the benefits of 88743 (Alaska Super. Feb. 27, 1998) (prohibition
marriage, I write separately to state my belief that on same-sex marriage is sex-based
this is a straightforward case of sex classification); Baehr, 852 P.2d 44, 64 (Haw.
discrimination. 1993) (Levinson, J., plurality opinion) (same). A
woman is denied the right to marry another
As I argue below, the marriage statutes
woman because her would-be partner is a
establish a classification based on sex. Whether
woman, not because one or both are lesbians....
such classification is legally justifiable should be
analyzed under our common-benefits
The State advances two arguments ... The
jurisprudence, which until today, has been closely
State first contends that the marriage statutes
akin to the federal equal-protection analysis
merely acknowledge that marriage, by its very
under the Fourteenth Amendment. Therefore, the
nature, cannot be comprised of two persons of the
State must show that the classification is
same sex. Thus, in the State's view, it is the
narrowly tailored to further important, if not
definition of marriage, not the statutes, that
compelling, interests. Not only do the
restricts marriage to two people of the opposite
rationalizations advanced by the State fail to pass
sex. This argument is circular. It is the State that
constitutional muster under this or any other form
defines civil marriage under its statute. The issue
of heightened scrutiny, n8 they fail to satisfy the
before us today is whether the State may continue
rational-basis test as articulated under the
to deprive same-sex couples of the benefits of
Common Benefits Clause.
marriage. This question is not resolved by
"We have held that the Common Benefits resorting to a historical definition of marriage; it
Clause in the Vermont Constitution, see ch. I, art. is that very definition that is being challenged in
7, is generally coextensive with the equivalent this case.
guarantee in the United States Constitution, and
The State's second argument ... is that the
imports similar methods of analysis." Brigham,
marriage statutes do not discriminate on the basis
692 A.2d at 395. Where the statutory scheme
of sex because they treat similarly situated males
affects a fundamental constitutional right or
the same as similarly situated females. Under this
involves a suspect classification, "the State must
argument, there can be no sex discrimination here
demonstrate that any discrimination occasioned
because "if a man wants to marry a man, he is
by the law serves a compelling governmental
barred; a woman seeking to marry a woman is
interest, and is narrowly tailored to serve that
barred in precisely the same way. For this reason,
objective." Brigham, 692 A.2d at 396. ...
women and men are not treated differently." C.
Sunstein, Homosexuality and the Constitution, 70
As the majority states, the marriage "statutes,
Ind. L.J. 1, 19 (1994). But consider the following
read as a whole, reflect the common
example. Dr. A and Dr. B both want to marry Ms.
understanding that marriage under Vermont law
C, an X-ray technician. Dr. A may do so because
consists of a union between a man and a woman."
Dr. A is a man. Dr. B may not because Dr. B is a
Thus, the statutes impose a sex-based
woman. Dr. A and Dr. B are people of opposite
classification. See, e.g., Brause v. Bureau of Vital
sexes who are similarly situated in the sense that
Statistics, No. 3AN-95-6562 CI, *6, 1998 WL

171
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
they both want to marry a person of their choice.
The statute disqualifies Dr. B from marriage
solely on the basis of her sex and treats her
differently from Dr. A, a man. This is sex
discrimination.
.... Although the original purpose of the
marriage statutes was not to exclude same-sex
couples ... the preservation of the sex-based
classification deprives lesbians and gay men of
the right to marry the life partner of their choice.
If, as I argue below, the sex-based classification
contained in the marriage laws is unrelated to any
valid purpose, but rather is a vestige of sex-role
stereotyping that applies to both men and women,
the classification is still unlawful sex
discrimination even if it applies equally to men
and women.
Although Vermont has not had occasion to
consider the question, most, if not all, courts have
held that the denial of rights or benefits on the
basis of sex subject the state's action to some
level of heightened scrutiny. n12 This is so
because the sex of an individual "frequently bears
no relation to ability to perform or contribute to
society." Frontiero. Moreover, in some cases,
such as here, sex-based classifications "very
likely reflect outmoded notions of the relative
capabilities of men and women." City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.
432, 441, (1985).
I do not believe that it is necessary to reach
the question in this case, however, because in my
view, the justifications asserted by the State do
not satisfy even our rational-basis standard under
the Common Benefits Clause, which requires that
the classification be "reasonably related to the
172
promotion of a valid public purpose."
MacCallum, 686 A.2d at 938 n.1
....
Before applying the rational-basis standard to
the State's justifications, it is helpful to examine
the history of the marriage laws in Vermont. [The
history of marriage laws in the state is sketched,
beginning with the early statutes’ sex-based
assumptions, progressing through the Married
Women’s Property Act and the current situation
providing for equality before the law for marital
partners.]
....
... In support of the marriage statutes, the
State advances public purposes that fall into three
general categories.
In the first category, the State asserts public
purposes -- uniting men and women to celebrate
the "complementarity" (sic) of the sexes and
providing male and female role models for
children -- based on broad and vague
generalizations about the roles of men and
women that reflect outdated sex-role
stereotyping. The State contends that (1) marriage
unites the rich physical and psychological
differences between the sexes; (2) sex differences
strengthen and stabilize a marriage; (3) each sex
contributes differently to a family unit and to
society; and (4) uniting the different male and
female qualities and contributions in the same
institution instructs the young of the value of
such a union. The State relies on social science
literature ... to support its contention that there
are sex differences that justify ... requiring two
people to be of opposite sex to marry.
The State attempts to analogize this case to
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***
the changes in law brought about by women's
participation in the legal profession starting in the
1970s, arguing that women have brought a
different voice to legal theory and practice. The
State also points to United States v. Virginia, 518
U.S. 515 (1996) (hereinafter VMI), arguing that
an institution or community made up exclusively
of one sex is different from a community
composed of both. The goal of diversity has been
recognized to justify affirmative action programs
in public broadcasting and education. Similarly,
the recognition that women may contribute
differently from men is a valid argument for
women's full participation in all aspects of public
life. The goal of community diversity has no
place, however, as a requirement of marriage.
To begin with, carried to its logical
conclusion, the State's rationale could require all
marriages to be between people, not just of the
opposite sex, but of different races, religions,
national origins, and so forth, to promote
diversity. Moreover, while it may be true that the
female voice or point of view is sometimes
different from the male, such differences are not
necessarily found in comparing any given man
and any given woman. The State's implicit
assertion otherwise is sex stereotyping of the
most retrograde sort. Nor could the State show
that the undoubted differences between any given
man and woman who wish to marry are more
related to their sex than to other characteristics
and life experiences. In short, the "diversity"
argument is based on illogical conclusions from
stereotypical imaginings ....
In the second category, the State asserts,
under several different guises, the public purpose
of maintaining the sex-based classification. First,
the State claims an interest in "preserving the
173
existing marital structure." Second, the State
claims an interest in "instructing the young of the
value of uniting male and female qualities." This
is mere tautology. The State's objective is to
preserve the status quo, but that does not address
the question of whether the classification can be
justified. Perpetuating the classification, in and of
itself, is not a valid purpose for the classification.
Many of the State's remaining justifications,
which I place into a third category, assume highly
questionable public purposes. But because none
of these justifications are even remotely, much
less reasonably, related to the challenged
classification, I accept, for the sake of argument,
the premise that each of them concerns a
legitimate state interest.
The State contends, for example, that
prohibiting individuals from marrying a person of
the same sex promotes the public purpose of
minimizing custody and visitation disputes
arising from surrogacy contracts because the
prohibition may deter use of technologically
assisted reproduction by same-sex couples.
Further, the State argues that increased use of
technologically assisted reproduction "may lead
men who conceive children by sexual union to
perceive themselves as sperm donors, without
any responsibility for their offspring." Both of
these reasons suffer from the same constitutional
deficiency. If the state purpose is to discourage
technologically assisted reproduction, I agree
with the majority that the classification is
significantly underinclusive. The State does
nothing to discourage technologically assisted
reproduction by individuals or opposite-sex
couples. Moreover, opposite-sex couples may
obtain marriage licenses without regard to
whether or not they will use technologically
 170 Vt. 194, *; 744 A .2d 8 64, **;
199 9 V t. LEX IS 40 6, ***

assisted reproduction. The public purpose from obtaining the benefits of marriage.”]
provides no rationale for the different treatment.
The State also asserts that it has an interest in
Finally, the State claims a valid public purpose
furthering the link between procreation and child
in adopting a classification to align itself with the
rearing "to ensure that couples who engage in
other states. The Vermont Constitution is
sexual intercourse accept[] responsibility for the
freestanding authority, however, and may protect
potential children they might create." But the
rights not protected under the federal constitution
State cannot explain how the failure of opposite-
or other state constitutions. This Court does not
sex couples to accept responsibility for the
limit the protections the Vermont Constitution
children they create relates at all to the exclusion
confers on Vermonters solely to make Vermont
of same-sex couples from the benefits of
law consistent with that of other states. Indeed, as
marriage. To the extent that couples, same-sex or
the majority notes, Vermont's marriage laws are
opposite-sex, will fail to take responsibility for
already distinct in several ways from the laws of
the children they create, the risk is greater where
other states.
the couples are not married. Therefore, denying
same-sex couples the benefits of marriage on this In sum, the State treats similarly situated
ground is not only arbitrary but completely at people -- those who wish to marry -- differently,
odds with the stated government purpose. on the basis of the sex of the person they wish to
marry. The State provides no legally valid
The State further contends that prohibiting
rationale for the different treatment. The
individuals from marrying same-sex partners will
justifications asserted by the State for the
deter marriages of convenience entered into
classification are tautological, wholly arbitrary, or
solely to obtain tax benefits or government
based on impermissible [***138] [*262]
assistance. Two persons of the opposite sex are
assumptions about the [**912] roles of men and
completely free to enter into a marriage of
women. None of the State's justifications meets
convenience, however, without the State
the rational-basis test under the Common
examining their motives. Indeed, the pool of
Benefits Clause. Finding no legally valid
opposite-sex couples who may choose to enter
justification for the sex-based classification, I
into such marriages is much greater than the pool
conclude that the classification is a vestige of the
of same-sex couples. Once again, the public
historical unequal marriage relationship that more
purpose provides no rationale for treating
recent legislative enactments and our own
individuals who choose same-sex partners
jurisprudence have unequivocally rejected. The
differently from those who choose opposite-sex
protections conferred on Vermonters by the
partners.
Common Benefits Clause cannot be restricted by
the outmoded conception that marriage requires
[At this point, the opinion rejects the scheme
one man and one woman, creating one person --
as irrational, concluding “the State’s
the husband.
justifications are nothing more than post-hoc
rationalizations completely unrelated to any III.
rational reason for excluding same-sex couples .... This case came before us because citizens

174
of the state invoked their constitutional right to
seek redress through the judicial process of a
perceived deprivation under state law. The
Vermont Constitution does not permit the courts
to decline to adjudicate a matter because its
subject is controversial, or because the outcome
may be deeply offensive to the strongly held
beliefs of many of our citizens. We do not have,
as does the Supreme Court of the United States,
certiorari jurisdiction, which allows that Court, in
its sole discretion, to decline to hear almost any
case. To the contrary, if a case has been brought
before us, and if the established procedures have
been followed, as they were here, we must hear
and decide it.
175
Moreover, we must decide the case on legal
grounds. However much history, sociology,
religious belief, personal experience or other
considerations may inform our individual or
collective deliberations, we must decide this case,
and all cases, on the basis of our understanding of
the law, and the law alone. This must be the true
and constant effort of every member of the
judiciary. That effort, needless to say, is not a
guarantee of infallibility, nor even an assurance
of wisdom. It is, however, the fulfillment of our
pledge of office.
 VERMONT STATUTES DEALING WITH CIVIL UNION

CHAPTER 23. CIVIL UNIONS

15 V.S.A. §1201. Definitions

As used in this chapter:

(1) "Certificate of civil union" means a document that certifies that the persons named on the
certificate have established a civil union in this state in compliance with this chapter and 18 V.S.A.
chapter 106.
(2) "Civil union" means that two eligible persons have established a relationship pursuant to this
chapter, and may receive the benefits and protections and be subject to the responsibilities of spouses.
(3) "Commissioner" means the commissioner of health.
(4) "Marriage" means the legally recognized union of one man and one woman.
(5) "Party to a civil union" means a person who has established a civil union pursuant to this
chapter and 18 V.S.A. chapter 106.

§1202. Requisites of a valid civil union

For a civil union to be established in Vermont, it shall be necessary that the parties to a civil union
satisfy all of the following criteria:
(1) Not be a party to another civil union or a marriage.
(2) Be of the same sex and therefore excluded from the marriage laws of this state.
(3) Meet the criteria and obligations set forth in 18 V.S.A. chapter 106.

§1203. Person shall not enter a civil union with a relative

(a) A woman shall not enter a civil union with her mother, grandmother, daughter, granddaughter,
sister, brother's daughter, sister's daughter, father's sister or mother's sister.
(b) A man shall not enter a civil union with his father, grandfather, son, grandson, brother,
brother's son, sister's son, father's brother or mother's brother.
(c) A civil union between persons prohibited from entering a civil union in subsection (a) or (b)
of this section is void.

§1204. Benefits, protections and responsibilities of parties to a civil union

(a) Parties to a civil union shall have all the same benefits, protections and responsibilities under

176
law, whether they derive from statute, administrative or court rule, policy, common law or any other
source of civil law, as are granted to spouses in a marriage.
(b) A party to a civil union shall be included in any definition or use of the terms "spouse,"
"family," "immediate family," "dependent," "next of kin," and other terms that denote the spousal
relationship, as those terms are used throughout the law.
(c) Parties to a civil union shall be responsible for the support of one another to the same degree
and in the same manner as prescribed under law for married persons.
(d) The law of domestic relations, including annulment, separation and divorce, child custody and
support, and property division and maintenance shall apply to parties to a civil union.
(e) The following is a nonexclusive list of legal benefits, protections and responsibilities of
spouses, which shall apply in like manner to parties to a civil union:
(1) laws relating to title, tenure, descent and distribution, intestate succession, waiver of will,
survivorship, or other incidents of the acquisition, ownership, or transfer, inter vivos or at death, of
real or personal property, including eligibility to hold real and personal property as tenants by the
entirety (parties to a civil union meet the common law unity of person qualification for purposes of
a tenancy by the entirety);
(2) causes of action related to or dependent upon spousal status, including an action for
wrongful death, emotional distress, loss of consortium, dramshop, or other torts or actions under
contracts reciting, related to, or dependent upon spousal status;
(3) probate law and procedure, including nonprobate transfer;
(4) adoption law and procedure;
(5) group insurance for state employees under 3 V.S.A. § 631, and continuing care contracts
under 8 V.S.A. § 8005;
(6) spouse abuse programs under 3 V.S.A. § 18;
(7) prohibitions against discrimination based upon marital status;
(8) victim's compensation rights under 13 V.S.A. § 5351;
(9) workers' compensation benefits;
(10) laws relating to emergency and nonemergency medical care and treatment, hospital
visitation and notification, including the Patient's Bill of Rights under 18 V.S.A. chapter 42 and the
Nursing Home Residents' Bill of Rights under 33 V.S.A. chapter 73;
(11) terminal care documents under 18 V.S.A. chapter 111, and durable power of attorney for
health care execution and revocation under 14 V.S.A. chapter 121;
(12) family leave benefits under 21 V.S.A. chapter 5, subchapter 4A;
(13) public assistance benefits under state law;
(14) laws relating to taxes imposed by the state or a municipality other than estate taxes;

177
 (15) laws relating to immunity from compelled testimony and the marital communication
privilege;
(16) the homestead rights of a surviving spouse under 27 V.S.A. § 105 and homestead property
tax allowance under 32 V.S.A. § 6062;
(17) laws relating to loans to veterans under 8 V.S.A. § 1849;
(18) the definition of family farmer under 10 V.S.A. § 272;
(19) laws relating to the making, revoking and objecting to anatomical gifts by others under 18
V.S.A. § 5240;
(20) state pay for military service under 20 V.S.A. § 1544;
(21) application for early voter absentee ballot under 17 V.S.A. § 2532;
(22) family landowner rights to fish and hunt under 10 V.S.A. § 4253;
(23) legal requirements for assignment of wages under 8 V.S.A. § 2235; and
(24) affirmance of relationship under 15 V.S.A. § 7.
(f) The rights of parties to a civil union, with respect to a child of whom either becomes the
natural parent during the term of the civil union, shall be the same as those of a married couple, with
respect to a child of whom either spouse becomes the natural parent during the marriage.
§ 1205. Modification of civil union terms

Parties to a civil union may modify the terms, conditions, or effects of their civil union in the same
manner and to the same extent as married persons who execute an antenuptial agreement or other
agreement recognized and enforceable under the law, setting forth particular understandings with
respect to their union. §1206. Dissolution of civil unions

The family court shall have jurisdiction over all proceedings relating to the dissolution of civil
unions. The dissolution of civil unions shall follow the same procedures and be subject to the same
substantive rights and obligations that are involved in the dissolution of marriage in accordance with
chapter 11 of this title, including any residency requirements.

§1207. Commissioner of health; duties

(a) The commissioner shall provide civil union license and certificate forms to all town and county
clerks.
(b) The commissioner shall keep a record of all civil unions.

CHAPTER 106. CIVIL UNION; RECORDS AND LICENSES

178
18 V.S.A. §5160. Issuance of civil union license; certification; return of civil union certificate

(a) Upon application in a form prescribed by the department, a town clerk shall issue a civil union
license in the form prescribed by the department, and shall enter thereon the names of the parties to
the proposed civil union, fill out the form as far as practicable and retain a copy in the clerk's office.
At least one party to the proposed civil union shall sign the application attesting to the accuracy of
the facts stated. The license shall be issued by the clerk of the town where either party resides or, if
neither is a resident of the state, by any town clerk in the state.
(b) A civil union license shall be delivered by one of the parties to a proposed civil union, within
60 days from the date of issue, to a person authorized to certify civil unions by section 5164 of this
title. If the proposed civil union is not certified within 60 days from the date of issue, the license shall
become void. After a person has certified the civil union, he or she shall fill out that part of the form
on the license provided for such use, sign and certify the civil union. Thereafter, the document shall
be known as a civil union certificate.
(c) Within ten days of the certification, the person performing the certification shall return the
civil union certificate to the office of the town clerk from which the license was issued. The town
clerk shall retain and file the original according to sections 5007 and 5008 of this title.
(d) A town clerk who knowingly issues a civil union license upon application of a person residing
in another town in the state, or a county clerk who knowingly issues a civil union license upon
application of a person other than as provided in section 5005 of this title, or a clerk who issues such
a license without first requiring the applicant to fill out, sign and make oath to the declaration
contained therein as provided in section 5160 of this title, shall be fined not more than $50.00 nor less
than $20.00.
(e) A person making application to a clerk for a civil union license who makes a material
misrepresentation in the declaration of intention shall be deemed guilty of perjury.
(f) A town clerk shall provide a person who applies for a civil union license with information
prepared by the secretary of state that advises such person of the benefits, protections and
responsibilities of a civil union and that Vermont residency may be required for dissolution of a civil
union in Vermont.

§5161. Issuance of license

(a) A town clerk shall issue a civil union license to all applicants who have complied with the
provisions of section 5160 of this title, and who are otherwise qualified under the laws of the state
to apply for a civil union license.
(b) An assistant town clerk may perform the duties of a town clerk under this chapter.
§5162. Proof of legal qualifications of parties to a civil union; penalty

(a) Before issuing a civil union license to an applicant, the town clerk shall be confident, through
presentation of affidavits or other proof, that each party to the intended civil union meets the criteria

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set forth to enter into a civil union.
(b) Affidavits shall be in a form prescribed by the board, and shall be attached to and filed with
the civil union certificate in the office of the clerk of the town wherein the license was issued.
(c) A clerk who fails to comply with the provisions of this section, or who issues a civil union
license with knowledge that either or both of the parties to a civil union have failed to comply with
the requirements of the laws of this state, or a person who, having authority and having such
knowledge, certifies such a civil union, shall be fined not more than $100.00.

§5163. Restrictions as to minors and incompetent persons

(a) A clerk shall not issue a civil union license when either party to the intended civil union is:
(1) under 18 years of age;
(2) non compos mentis;
(3) under guardianship, without the written consent of such guardian.
(b) A clerk who knowingly violates subsection (a) of this section shall be fined not more than
$20.00. A person who aids in procuring a civil union license by falsely pretending to be the guardian
having authority to give consent to the civil union shall be fined not more than $500.00.

§5164. Persons authorized to certify civil unions

Civil unions may be certified by a supreme court justice, a superior court judge, a district judge, a
judge of probate, an assistant judge, a justice of the peace or by a member of the clergy residing in
this state and ordained or licensed, or otherwise regularly authorized by the published laws or
discipline of the general conference, convention or other authority of his or her faith or denomination
or by such a clergy person residing in an adjoining state or country, whose parish, church, temple,
mosque or other religious organization lies wholly or in part in this state, or by a member of the clergy
residing in some other state of the United States or in the Dominion of Canada, provided he or she
has first secured from the probate court of the district within which the civil union is to be certified,
a special authorization, authorizing him or her to certify the civil union if such probate judge
determines that the circumstances make the special authorization desirable. Civil unions among the
Friends or Quakers, the Christadelphian Ecclesia and the Baha'i Faith may be certified in the manner
used in such societies.

§ 5165. Civil union license required for certification; failure to return

(a) Persons authorized by section 5164 of this title to certify civil unions shall require a civil union
license of the parties before certifying the civil union. The license shall afford full immunity to the
person who certifies the civil union.
(b) A person who certifies a civil union shall be fined not less than $10.00, if such person:
(1) certifies a civil union without first obtaining the license; or

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 (2) fails to properly fill out the license and, within ten days from the date of the certification,
return the license and certificate of civil union to the clerk's office from which it was issued.

§5166. Certification by unauthorized person; penalty; validity of civil unions

(a) An unauthorized person who knowingly undertakes to join others in a civil union shall be
imprisoned not more than six months or fined not more than $300.00 nor less than $100.00, or both.
(b) A civil union certified before a person falsely professing to be a justice or a member of the
clergy shall be valid, provided that the civil union is in other respects lawful, and that either of the
parties to a civil union believed that he or she was lawfully joined in a civil union.

§5167. Evidence of civil union

A copy of the record of the civil union received from the town or county clerk, the commissioner
of health or the director of public records shall be presumptive evidence of the civil union in all
courts.

§5168. Correction of civil union certificate

(a) Within six months after a civil union is certified, the town clerk may correct or complete a civil
union certificate, upon application by a party to a civil union or by the person who certified the civil
union. The town clerk shall certify that such correction or completion was made pursuant to this
section and note the date. The town clerk may refuse an application for correction or completion; in
which case, the applicant may petition the probate court for such correction or completion.
(b) After six months from the date a civil union is certified, a civil union certificate may only be
corrected or amended pursuant to decree of the probate court in the district where the original
certificate is filed.
(c) The probate court shall set a time for a hearing and, if the court deems necessary, give notice
of the time and place by posting such information in the probate court office. After a hearing, the
court shall make findings with respect to the correction of the civil union certificate as are supported
by the evidence. The court shall issue a decree setting forth the facts as found, and transmit a certified
copy of the decree to the supervisor of vital records registration. The supervisor of vital records
registration shall transmit the same to the appropriate town clerk to amend the original or issue a new
certificate. The words "Court Amended" shall be typed, written or stamped at the top of the new or
amended certificate with the date of the decree and the name of the issuing court.

§5169. Delayed certificates of civil union

(a) Persons who were parties to a certified civil union ceremony in this state for whom no certificate
of civil union was filed, as required by law, may petition the probate court of the district in which the

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 civil union license was obtained to determine the facts, and to order the issuance of a delayed
certificate of civil union.
(b) The probate court shall set a time for hearing on the petition and, if the court deems necessary,
give notice of the time and place by posting such information in the probate court office. After
hearing proper and relevant evidence as may be presented, the court shall make findings with respect
to the civil union as are supported by the evidence.
(c) The court shall issue a decree setting forth the facts as found, and transmit a certified copy of
said facts to the supervisor of vital records registration.
(d) Where a delayed certificate is to be issued, the supervisor of vital records registration shall
prepare a delayed certificate of civil union, and transmit it, with the decree, to the clerk of the town
where the civil union license was issued. This delayed certificate shall have the word "Delayed"
printed at the top, and shall certify that the certificate was ordered by a court pursuant to this chapter,
with the date of the decree. The town clerk shall file the delayed certificate and, in accordance with
the provisions of section 5010 of this title, furnish a copy to the department of health.
(e) Town clerks receiving new certificates in accordance with this section shall file and index
them in the most recent book of civil unions, and also index them with civil unions occurring at the
same time.

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