FAMILY LAW

THE RIGHT TO MARRY

CONSTITUTIONALITY OF MARRIAGE RESTRICTIONS

 Three Questions to Ask:
1) Why is the state interested in marriage?
2) When can the state restrict marriage?
3) What constitutional rights are at stake?
 Loving v. Virginia – VA statute making interracial marriage illegal, an interracial couple
went to DC to get married  convicted of getting married & evading the law
o VA’s purpose for the statute:
 God & religion  separate races/ separate continents
 Protecting children  preventing biracial children
 Less divorces
o State make equal application argument – all races punished equally under the law
 REJECTED  the statute prohibits only interracial marriages involving white
persons
o Statute violates Equal Protection AND Due Process
 Equal Protection – restricts the freedom to marry solely because of racial
classifications (statute only prohibits interracial marriages involving white
persons)
 Due Process – the freedom to marry is a vital personal right essential to the
orderly pursuit of happiness
o Rule: The freedom to marry, or not marry, a person of another race resides with the
individual and cannot be infringed by the State
* Note – at this point only talking about marriage b/w a man and woman *
 Zablocki v. Redhail – WI statute required a court order for a child support payer
w/unfulfilled obligations to get married
o WI rationale:
 Want the father to support the child he already has (marriage would lead to
more children)
 State doesn’t want to pay for child
o Mostly applies to the poor bc people who make child support payments would still
not be able to get married if child received public assistance
o Equal Protection AND Due Process violation:
 Equal Protection – the statute restricting the freedom to marry mostly affects
poor people  No income based classifications allowed
 Due Process – the right to marry is part of the fundamental “right of privacy”
implicit in the Due Process Clause, those in the affected class are being denied
that right
 The purpose of this statute can be achieved through numerous other means
o “Marriage is the foundation of the family and of society, without which there would
be neither civilization nor progress”
o Rule: The right to marry is a fundamental right, and any state statute that limits that
right is unconstitutional unless it is narrowly-tailored to an important governmental
interest
 Turner v. Safley – Restriction requiring inmates to have permission from prison
superintendent upon showing a compelling reason to get married.
o State’s rationale:
 Security concerns  prevent love triangles that might lead to violence b/w
inmates
 Rehabilitation concerns  abuse/dependence by/on male figures interfered
with female prisons rehabilitation
o The regulation is not reasonably related to the State’s interests
o The fundamental right to marry cannot be restricted when the person is in prison
 Can regulate the time/circumstances under which the marriage ceremony itself
takes place
RESTRICTIONS ON WHO MAY MARRY
Procedural & State of Mind Restrictions
 Rappaport v. Katz – City Clerk requires a dress code during the ceremony, requiring the
bride to wear a dress and the groom to wear a jacket and requiring an exchanging of rings
o π makes Due Process argument – “the guidelines make them choose between their
statutory right to be married by the Clerk and their fundamental right to marry free of
unwarranted governmental intrusion on their privacy and free expression”
 Ben-Asher’s Equal Protection argument – it is a sex based classification to
make a woman wear a skirt/dress to get married
 Sex stereotype that woman wear dresses and skirts bc they are the
inferior gender
o Court says frivolous and trivial – does not sufficiently justify provoking a federal-
state conflict
 The guideline is NOT a prohibition on marriage  just the procedural
requirements to get married by the Clerk
 Better for the state court to decide
 Lester v. Lester – A woman and man were married, but man claims not valid bc entered into
as a result of threat, coercion, and duress (had agreements that not a real marriage and it was
only entered into bc of coercion)
o Marriages procured by coercion or fraud may be annulled (as if the marriage had not
been entered into at all)
 Annulment – the conventional relationship of man and wife had not been
established despite and in face of a marriage ceremony
o Court says no coercion in light of their ten-year relationship subsequent to the
“coercion agreements”
 If ppl could contract about coercion and get an annulment than support
obligations would not matter
o An agreement entered into by a married couple is unenforceable as a matter of public
policy if the agreement is contrary to the accepted conventions and laws of the state
and community
o Here, old stereotype – that men can only have sex on their terms
 o Marriage is seen here as a contract and must enter it by choice (not coercion or duress
– must be a meeting of the mind) and state sets the rules for entering the marriage
 Once you enter it, you cannot decide to leave it b/c state is part of the contract
 Jones v. Perry – Jones and Sauer, πs, wanted to get married, but ∆ Clerk refused to issue
them a marriage license b/c KY law prohibited her from doing so unless both πs physically
appeared at Clerk’s office to apply for a license. Sauer was a prisoner so was unable to travel
to clerk’s office.
o When a policy disrupts the free exercise of fundamental rights, courts will apply strict
scrutiny in analyzing the policy
o Marriage is a fundamental right; thus, court applies strict scrutiny. ∆ argued that
policy did not impose a direct and substantial burden b/c they can marry anyone they
want, just not each other
 The policy absolutely prevents πs’ marriage and prevents Jones from marrying
a large portion of the population, and thus, policy fails under strict scrutiny
o Procedural restriction here WAS unconstitutional
 Johnston v. Johnston – wife wants an annulment claiming fraud bc she was unaware that he
had a drinking problem, refused to work, that their sex life was unsatisfactory, and that he
was dirty and unattractive
o A marriage is voidable and can be annulled if the consent of either party was obtained
by fraud
 The concealment of incontinence, temper, idleness, extravagance, coldness or
fortune inadequate to representations cannot be the basis for an annulment
 Fraud must go to the very essence of the marital relation before it is
sufficient for an annulment
o Husband trying to maximize spousal support and property dissolution by asking for
dissolution
 Party who does not benefit  claims annulment
 Party who would benefit  wants divorce/dissolution
 In re the Marriage of Farr – π and ∆ were married for thirty years, which ended in
dissolution. They remarried and then, three years later, π filed for dissolution and ∆ cross-
 petitioned to declare the second marriage invalid, asserting that she agreed to marry him
based on his representation that he had a terminal illness
o A court must enter a decree declaring a marriage invalid if: (1) one party enters into
the marriage in reliance on a fraudulent act or representation of the other party and (2)
the act or representation goes to the essence of the marriage. A party’s false
representation regarding a terminal illness and life expectancy can go to the essence
of the marriage
o Marriage held invalid
 In re Estate of Duval – when the man in a couple who never formally married, but lived
together and held themselves out as husband and wife, died the woman brought suit for
inheritance
o Was the couple common law married and thus entitled to inheritance of the property
upon the death of the other
o Why would a couple not get married?
 They don’t want to take on obligations of marriage
 It is easier to split up
o In Mexico, the couple were purported to be married (they spent significant time there)
 Not the equivalent to common law marriage in the U.S.
o 3 Prong Test (OK) (must be proved by clear and convincing evidence)
 A declaration by the parties of an intent to marry
 Cohabitation
 A holding out of themselves to the community of being husband and wife
o No common law marriage here bc there was no clear intent to be married
Incest
 Back v. Back – W.B. married his ex-wife’s daughter (π) (his former step-daughter). π wants
to be considered W.B.’s widow. ∆ says marriage is void bc incestuous
o Code 4936 declares incest to be marriage between a man and his wife’s daughter
 Court says after W.B.’s divorce from first wife, π was no longer the daughter
of W.B.’s wife  marriage valid (consequences of marriage apply)
o A relationship of affinity ends when the marriage that created the relationship ends
Age
 In re: J.M.N. – Father had primary custody of 14-yr-old Daughter, during visitation, Mother
took Daughter across state lines, and filled out a consent form, so she could marry her 18-yr-
old bf. Father, on behalf of Daughter, filed to get marriage annulled
o Court sets aside order allowing Daughter to get married  not in the best interest of
the child to be married at 14
 If both parents do not consent, the parent consenting must show proof of
custody  no proof that Mother had custody (b/c Father was the custodial
parent)
o Marriage between a minor and an adult is voidable – treated as valid and binding until
annulled
 Daughter still married until annulled or declared void
 If void, annulment not necessary
Polygamy
 Collier v. Fox – N and V were legally married and N was in a committed relationship with
C, and they also wanted to marry with V agreeing w/ this. N and C went to apply for a
marriage license but application denied b/c would violate a statute that criminalized entering
into multiple marriages.
o πs were never threatened w/ prosecution. πs referred to Roberts’ dissent in Obergefell
but court said that his dissent was not binding and could not overrule Reynolds, which
held that it is within scope to determine whether polygamy or monogamy is the law
of social life in its dominion
o Does not violate πs’ fundamental right to plural marriage b/c πs did not present any
evidence that state prevented them from exercising any of the fundamental rights they
listed and in fact, πs were already engaging in those things
o Ben-Asher’s Equal Protection argument – women in this belief system are being
raised to believe they are less than the men (not given the same opportunities)
 BUT First Amendment freedom of religion
 Also, NOT BEING DENIED EQUAL PROTECTION OF THE LAW
o NOT A GOV. LAW THAT IS DISCRIMINATING – it is the
religion
o Illustrates the law puts serious restrictions on polygamy
Opposite Sex Requirement
 Same-sex marriage laws started with regulating sodomy
o Lawrence legitimizes/decriminalizes sex between people of the same sex
 States can no longer criminalize it
 DOMA (1996) – for federal law purposes marriage was only between a man and woman
o States did not have to acknowledge marriages in sister states
o Federal laws affected
 Tax
 Healthcare
 Social security
 Bankruptcy
 Military
 Immigration
 Windsor v. United States – struck down the Defensive Marriage Act, which stated that
marriage was only b/w one man and one woman for all federal law purposes and allowed
states to deny marriage license of other states – held this Act unconstitutional, but other states
still had laws against gay marriage
 Obergefell v. Hodges – challenging state DOMA
o Four Principles:
 The right to personal choice regarding marriage – inherent in the concept of
individual autonomy
 The right to marry is a fundamental right bc it supports a two-person union
 Protects children and families
 Stigmatization of having unmarried parents, experiencing shame, etc.
 Marriage is a keystone of social order
o State DOMA violates Due Process and Equal Protection
 Due Process – right to personal choice in who we marry is part of the
fundamental right to marry
 Equal Protection – DOMA discriminates against same-sex couples by
defining marriage as only between a man and woman
 o Refusing to allow same-sex couples to marry denies them a myriad of legal rights
such as taxation, insurance benefits, intestate succession, etc. – liberty interest
protected by DP intersects w/ the right to equal protection and same-sex marriage ban
violates both
o Violates 14th Amendment if discriminating based on sexual orientation
 What about a throuple? (3 people who are in love)
o Due Process – it is their fundamental right to marry
 Personal autonomy argument – right to decide who you marry
 State’s argument – the fundament right to marry is between two people only
 There is no fundamental right between three people
o Equal Protection – discriminating against polyamorous people

MARRIAGE
THE TRADITIONAL MODEL
 There are two spheres:
o Home sphere – women are traditionally placed here

o Market sphere – men are traditionally placed here

 McGuire v. McGuire – π living with husband maintaining the household, but he was not
giving her money, so she sued for maintenance
o The court ruled she is not entitled to support bc they are still married

 “as long as the home is maintained and the parties are living as husband and
wife it may be said that the husband is legally supporting his wife and the
purpose of the marriage relation is being carried out”
 π would have to get divorce to get support (or separated)

 Family is part of the private sphere where the state will not interfere

o Parties were not separated or lived apart from each other at any time – As long as the
home is maintained and parties are living as husband and wife, the unit is together,
the husband is legally supporting his wife and the purpose of the marriage relation is
being carried out
 o One spouse may not sue the other for support and maintenance while the couple’s
marriage remains intact, they continue to live together, and the parties’ home is
maintained
 Bradwell v. Illinois – π sought admission to the bar after being denied admission b/c she was
a woman. USSC upheld the denial
o Assumption that women should stay w/in the family and not professional field

 Graham v. Graham – a married couple entered into an agreement where he quits his job to
move with her and she gives him $300/mo. They divorce and he sues to enforce the
agreement.
o The court says this contract is unenforceable – against public policy

 No private ordering/contracting inside marriage to attempts to change the

essential obligations of the marriage contract
 The K is void – impliedly releases husband from his duty to support his wife

 the couple here were flipping gender roles, which court said was
against public policy
o Wife should follow husband, not vice versa

o K here was entered into b/w parties who were living together and contemplated a
continuance of that relationship
 Not the same as a K made after separation or in contemplation of an
immediate separation
o The state has an interest in marriage

o Court saw marriage as an institution of gender roles

o A private agreement between persons who are married or about to be married is not
enforceable if the agreement attempts to change the essential obligations of the
marriage contract as defined by law
CHALLENGES TO THE TRADITIONAL MODEL
Constitutional Limits on Sex Discrimination
 Orr v. Orr – Alabama statute provides that husbands, but not wives, may be required to pay
alimony upon divorce
o Two purposes for the statute:
 Provide help for needy spouses, using sex as a proxy for need
 Compensating women for past discrimination during marriage (which
assertedly left them unprepared to fend for themselves in the working world
following divorce)
o Court upholds Equal Protection argument – the statute discriminates based on
gender bc wives do not have the same obligation to pay alimony as husbands
 No gender stereotyping allowed under EPC
o The statute reinforces gender stereotypes about the “proper place” of women and their
need for special protection (opposite of Bradwell)
o After this case, the federal court says that states cannot have sex-based classifications
b/c will not pass scrutiny – family law because divorce matter
 Anti-stereotyping principle in this case – for legislative purposes, cannot use
gender-based classification in family law
 United States v. Virginia – VMI did not allow women to attend; VA proposed a parallel
program for women, but it did not offer the same things
o State argues that women are physically different and would not be able to do the same
training
 Argue women could not handle the adversative method
 Say there is an educational benefit to same-sex education
 Make privacy argument (the men in the program are always together)
o Court says the parallel program does not have the same prestige as VMI
o Equal Protection argument – cannot stereotype against women, if a woman is
qualified to get in, they should admit her
o Overlapping of the spheres
 o “Inherent Differences” between men and women remain cause for celebration, but not
for the denigration of the members of either sex or for artificial constraints on an
individual’s opportunity (p. 203)
 This argument acknowledges the differences in the sexes – sets up to still
protect women in certain rights only they have
 Anti-Gender-Stereotyping Principle
o Equal Protection cases –
 Orr (1979)
 VMI (1996)
o The idea of racial stereotyping is being applied to gender
o Implicates the family – women are no longer placed in the family sphere
o Court says it is okay to have rules w/biological differences
Statutory Limits on Sex Discrimination
 Hopkins v. Price Waterhouse – a woman with an outstanding record was denied
partnership and told to act more ladylike, etc.
o Title VII – equality in the workplace – no discrimination based on sex
 Sex – body/ biology
 Gender – everything else (identity, etc.)
o Court says the classifications (ladylike, etc) in the evaluations of π would not have
happened to a male, therefore it is a classification based on sex
 Expands Title VII to include gender classifications
o Women have to be treated equally in the market sphere
Private Ordering
 Private Ordering – decisions/agreements made within the family
o Types of Agreements:
 Pre-Nuptial Agreement – before marriage, anticipating divorce
 Marital Contract
 Divorce/Separation Contract
 Brian Bix, Private Ordering and Family Law
o States generally respect the decisions made by individuals
 People know what is best for them
 Less stress on the judicial system
o States limit private ordering where:
 It is against public policy
 Harmful to third parties (ex. minor children)
 Mnookin & Kornhauser, Bargaining in the Shadow of the Law (p. 1356/p. 35 in notes)
o Custody – shared or full/ joint-custody
 Legal custody – schooling, medical decisions
 Physical custody
 Visitation (if one party gets full custody)
o Relationship of Money & Custody
 Money = property, spousal support, child support
 Parent may trade custody rights for money
 i.e., see child less to give child better home, food, education
 i.e., you take 60% custody and I will get the lake house
 Court rarely challenges these agreements
o How Legal Rules Create Bargaining Endowments
 The legal rules are the rules that the courts will apply if the parties do not
agree
 Parties are coming in with knowledge of how the court would decide
everything
o Uncertainty
 Parties use the other sides uncertainty in bargaining
 Risk-Neutral – parent treats alternatives as equally desirable
 Risk-Averse – parent who would accept a certain outcome of less than half-
custody to avoid the risk
  Risk-Preferrers – rather take the gamble and have a 50% chance of winning
fully custody than accept the certain outcome of split custody
o Why Adjudication?
 Not a rational decision for anyone
 Not cost effective
 Uncertainty bc the judge makes the decision
 Maynard v. Hill – The marriage contract is unlike other contractual relationships in that it
creates a special relationship that can be altered only by governmental action. Other contracts
may be modified, restricted, enlarged, or terminated by the mutual consent of the parties
themselves.
o Shows how strong the state interest is in marriage
 Simeone v. Simeone – Wife signed a pre-nup on her wedding night without counsel,
agreeing to support payments of $200/week with a maximum of $25,000. Wife challenges
the enforceability
o Contracting parties are bound regardless of whether the terms were read and fully
understood (absent fraud, misrepresentation, or duress)
 Requires full and fair disclosure of the financial positions of the parties
 The wife and husband discussed the pre-nup multiple times
o A prenup agreement is enforceable even if it is not reasonable and even if the weaker
party did not have counsel
o Concurrence – courts must protect the weaker party
 Ansin v. Caven-Ansin – the parties entered into a post-nup agreement, after two years of
marriage, contemplating divorce
o Factors for determining enforceability:
 Absence of fraud or coercion in obtaining the agreement
 All assets were fully disclosed by both parties before execution
 Each spouse knowingly and explicitly agreed in writing to waive the right to a
judicial equitable division of assets and all marital rights
  The terms are fair and reasonable at the time of execution and at the time of
divorce
o Post-nup agreements are not per se contrary to public policy
 Long v. Long – before wife filed for divorce from husband, she had an attorney prepare a
decree establishing property distribution, child support, custody and visitation, and alimony.
The terms clearly favored her. She discussed w/ husband and agreed, but husband claimed he
was drunk at the time.
o Courts favor and enforce stipulated settlement agreements between divorcing parties
if possible, even if the terms unreasonably favor one side, unless so lopsided that they
shock the conscience
o Best interests doctrine is one of the most important things in separation agreements –
the third party, the court, makes the final decision b/c the children’s interests are so
important

THE CONSTITUTIONAL RIGHT TO PRIVACY AND ITS LIMITS

The Right to Privacy
 Griswold v. Connecticut – CT statute made it illegal to give contraception to married people
as an attempt to prevent immoral sex
o Court says there is a right to privacy
 Due Process – there is a right to privacy included in the DPC of the 14th
amendment
 Penumbras formed by BOR create zones of privacy
 The marital relationship is so private and so intimate
o There are notions of privacy surrounding marriage
 The right to use contraception is protected by marital privacy
 For Justice Ginsburg, the right to abortion, the right to one’s body, is the equality card – if no
right to abortion, women will never be able to be in the workforce b/c they’ll be too busy
raising kids
 Eisenstadt v. Baird – Law prohibiting distribution of contraceptives to unmarried people
 o Equal Protection – it is discriminatory to make contraceptives only available to
married people
o The decision of whether to bear a child is encompassed in the right to privacy
 It is an individual right – expands to individuals and beyond married units –
right to sexual privacy to individuals
o Court rejects the marital framing of the right to use contraceptives
 It is about contraceptives only
o Highlights incrementalism by the Supreme Court
 Planned Parenthood v. Casey – πs brought suit challenging five restrictions on abortion
under PA law, one of which requiring informed consent and a 24-hour waiting period for all
women before doing the procedure.
o A state abortion regulation places an undue burden on a woman’s right to an abortion
and is invalid if its purpose or effect is to place a substantial obstacle in the path of a
woman seeking an abortion before the fetus attains viability
o Abandons the trimester framework from Roe v. Wade and created undue burden.
Spousal requirement was an undue burden, giving too much power to a husband over
his wife, but the other restrictions were not undue burdens
 Spousal notification is the older traditional norm of marriage and is no longer
how we view the marital unit
o Highlights the transfer of power from access from approval of medical profession
(Roe v. Wade – medical professional makes decision) to the decision of a woman
o Another step forward, incrementalism
 Whole Woman’s Health v. Hellerstedt – TX passed two laws governing abortions. The
first required that a doctor performing an abortion have admitting privileges at a hospital no
more than 30 miles from where the abortion was being performed (the admitting-privileges
requirement), which was adopted to ensure that women had easy. Access to a hospital in case
there were complications from the abortion. The second required that the standards for each
abortion facility meet the minimum standards for ambulatory surgical centers (the surgical-
center requirement).
 o Under Casey, states can impose limited restrictions on abortions that ensure the safety
of the patient, but these restrictions cannot unduly burden the patient’s right to have
an abortion
o The first provision does not provide any real health benefit to women b/c abortion is
already a safe procedure in TX and instead places a substantial obstacle in the path of
a woman. The second provision also made it more difficult to obtain an abortion w/o
evidence that such a law is necessary to the health of women.
o Where we are now – states poke at Casey and Roe by passing regulations and seeing
what plays out under the undue burden standard

Violence in the Family

How has violence changed in family law?
Blackstone (17th Century):
 Ancient privilege for husband to correct wife; some people still do this and courts of law
still permit a husband to restrain a wife’s liberty for “gross misbehavior”
 Seeing women and men being treated as unequal entities
 Women treated as property
Prerogative v. privacy – one side supports it while the other looks the other way b/c of the
privacy doctrine (non-interference doctrine) – no significant difference b/c state would not
prevent the violence
 Preservation through transformation – preserving the status but transforming the perception
and law b/c not encouraging this
 Must be a rejection of the non-interference doctrine – must fully reject it – family is a zone of
privacy, but also a zone of concern, where the state must look for signs of violence b/c
violence is so prevalent
Two ways to address violence in the family
 Creating special rules for the family (i.e., battered women’s syndrome)
 Using tort and criminal proceedings
Criminal:
 People v. Humphrey – abused woman killed husband
 o Whether testimony about battered woman’s syndrome should be allowed to go to
reasonableness of self-defense
 Experts re: battered woman syndrome – shift from zone of privacy to data,
evidence and experts introduce this into the law as a self-defense analysis to
show that this wouldn’t happen to someone who wasn’t suffering battered
woman syndrome
o Battered Woman Syndrome – after so much abuse, a woman believes there is no
other way out but to kill abuser
 Feel like they must act that way, even if not in imminent danger
o What is the reasonable person standard in this situation?
 Objective
o Court says this is relevant and should be allowed
 Progressive and favorable to battered women – gives them an opportunity for
a perfect self-defense rather than an imperfect self-defense
 R v. Malott
o Battered women syndrome stereotypes women as weak and unpredictable (but could
be helpful in a defense)
 Could be detrimental b/c the court/jury might only see women in one way
 Leaves out the strong woman who is battered bc she doesn’t fit the
stereotype
Tort:
 Twyman v. Twyman – a woman claimed negligent infliction of emotional distress in her
divorce proceeding (tort claim inside a divorce action) bc her husband kept forcing bondage
on her and prior to marriage she been raped at knifepoint (caused emotional distress)
o Court says there is no cause of action for negligent infliction of emotional distress –
distress is inevitable in divorce proceedings
 The court does recognize a cause of action for intentional infliction of
emotional distress  can be brought in divorce proceeding
 Courts must make sure that they are not double rewarding
 o How would Lawrence apply to this case?
 Lawrence is about criminal law, this is a tort
 Lawrence says it applies to consensual, non-violent acts
 Bondage is considered violent
 But would be a challenge to a consensual sex act
o Intentional infliction can be brought in a divorce action and requires “outrageous
conduct” – so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community
 How do courts determine which sex acts are “so outrageous” when they are
consensual?
 Outrageous is a subjective standard

PARENTING
THE LIMITS OF PARENTAL AUTHORITY
 Standard – BEST INTEREST OF THE CHILD
o Who decides what is in the child’s best interest?
 State or parent?
 Triangular relationship between state, parent, child
 Parents get to decide what is in the best interest of the child when there
is a conflict
 State comes in in an emergency (“welfare” protection)
o Court must decide whether there is an emergency
 Pierce v. Society of Sisters – Mandate requiring parents to send their children to public
school
o Court talks about Meyer v. Nebraska, where there was a challenge to a statute that
said no German allowed to be taught in schools
  The act unreasonably interfered with the liberty of parents to direct the
upbringing and education of children under their control
o The state has an interest to educate and can regulate education, but cannot require all
children to attend public school
 Children are not the mere creature of the state
o Parents have a constitutional right to direct their children’s education and the
upbringing of their children that the state cannot interfere with
 Prince v. Massachusetts – Aunt, who had custody of niece, was prosecuted for bringing her
out to distribute Jehovah Witness pamphlets
o Two interests:
 State’s interest in the child “working” late hours – child labor – dangerous so
the state is especially empowered to prohibit it
 Parents right to give their children religious trainings (and the child’s right to
observe these)
o The state can prohibit children from public proclamation of religion
 Parents can make martyrs of themselves, but cannot make martyrs of their
children
 In the Matter of RT – CPS took custody of ∆’s children after receiving reports that ∆ lacked
adequate housing for them. CPS provided a case plan, but she failed in every aspect of the
plan. After two years, CPS petitioned to terminate her parental rights.
o Failure to provide adequate care for a child despite financial and physical ability to do
so warrants terminating parental rights, but poverty alone does not

UNMARRIED FATHERS
 Equal protection – sex classifications here against unwed fathers – traditional assumption that
bio mother has stronger bond w/ child (as seen as in the tender years doctrine, now
unacceptable)
 Stanley v. Illinois – father and mother lived together, unmarried, and had three kids. The
mother died and the kids became wards of the state
 o Presumption that unwed fathers are unfit parents (moral judgment)
 Stereotype that fathers cannot care for child
o If the father were married to the mother he would have been given a hearing
o State’s argument:
 The law protects the moral, emotional, mental, and physical welfare of the
child
o Due Process – father was not recognized as a parent and did not receive a hearing re:
termination of his parental rights
o Equal Protection – depriving unwed fathers – marital (unwed) and gender-based
(fathers) classifications
o Court says that removing the children could be in contrast to the states goal and there
MUST be a hearing – violation of both DP and Equal Protection clauses
o Their biology MATTERS – cannot take away their parental rights just because they
are unmarried
 Lehr v. Robertson – child was adopted by the mother’s husband without notice to the
biological father, who was not as involved in child’s life. The father never filed with the
putative father registry (not mothers – discrimination against fathers)
o Court says biology is not enough, must act like the father and create a relationship w/
the child or have signed up on the putative registry
o The Due Process Clause does not require notice of an adoption proceeding to be
given to a biological father who may be an interested party to the proceeding.
o The Equal Protection Clause is not violated when the state treats one parent who has
an established custodial relationship with the child differently from the other parent
who either abandoned or never established a relationship with the child
 Michael H. v. Gerald D. – Gerald and Carole were married. Carole had an affair and had a
child w/ Michael. Gerald and Carole separated. Michael petitioned to establish his paternity
but Carole started seeing Michael again so withdrew it. Then Carole started seeing Gerald
again. Michael brought suit, claiming that the law at issue denied him an opportunity to
establish his paternity.
 o DP Clause traditionally protects only relationships developed w/in the unitary family
 No precedent exists that addresses specifically the power of the natural father
to assert parental rights over a child born into a woman’s existing marriage w/
another man
o Traditionalist notion of family unit – view that it is not good for a child to have
multiple fathers and instability
o Majority views that Gerald, the husband, is the recognized father, even though no
biological connection – both fathers establish relationships, but the marital
relationship trumps b/c of the importance of the family unit and marriage
 Summary
o Stanley – biology matters  bio-dad has a DP right
o Lehr – need both biology + relationship (narrowed Stanley)
o Michael H – biology + relationship + no harm to “unitary family”
HYPO:
 Bio father, who is not married to bio mother, comes to you asking about his rights to his child
o Make sure he goes to putative registry, ensure that he has a relationship with his child
o Highlights how much protection a marriage license provides w/ married fathers for
constitutional rights
 What if mother remarries?
o Putative registry important and establishing a relationship w/ the child. It might be
very difficult b/c no marriage license.
TRANS AND GENDER-NONCOMFORMING PARENTS
 JK v. Registrar – π is transgender woman who has two naturally conceived children from
her marriage. She challenged a requirement that she be recorded as “father” in her children’s
birth certificates.
o State recognizes the transition and the same-sex marriage, but still leaves the birth
certificates as father
 Would infringe on children’s rights re: birth certificate
o Public interest in the administrative process
 Beatie v. Beatie – π was transitioning to a man and married his wife in Hawaii (while as a
man), who could not have children. π did not complete his transition yet, so he gave birth to
their children. Obergefell was decided after this case. After moving to Arizona, they wanted
to divorce, but AZ did not recognize same sex marriages and thus could not divorce (said that
he was a woman b/c he gave birth).
o Court attributed giving birth as a female trait, and transition was challenged.
o This denial creates custody and divorce issues
THE EXTENDED FAMILY
 Troxel v. Granville – WA statute that any person could petition for visitation rights, and
they would be granted if in the best interest of the child. The father’s parents petitioned for
visitation rights after his death. The mother limited visitation to once/mo.
o Liberty interest – the interest of parents in the care, custody, and control of their
children
 The statute disregarded the parental right to direct their child’s upbringing,
which is a fundamental right, and is therefore unconstitutional
o There is a presumption that the fit parent is acting in the best interest of the child
 The state statute took that presumption away and was too broad
 Any third party seeking visitation could subject any visitation decision
by a parent to state court review
 No requirement that a court accord the parent’s decision any
presumption of validity or any weight whatsoever
 Sometimes there is a tension b/w best interest and parental right of how to
upbring their own children
 How broad is parental rights? Parental rights are heavily protected
 If a statute is too broad, such as this one, then it will be
unconstitutional
o Third-parties have significantly less rights compared to parents
ADOPTION
 Types of adoption:
 o Agency Adoption – adoption through a government or licensed agency
o Private Adoption – adoption between mother and family (social services
organization)
 Vela v. Marywood – an unwed mother signed an irrevocable relinquishment affidavit giving
up her baby, even though she wanted a relationship w/ the child.
o There must be clear and convincing evidence that she voluntarily executed the
affidavit
o The termination of parental rights require:
 Best interest of the child
 Parent’s rights acknowledged and protected
o Required complete disclosure about the sharing plan and that the plan was not legally
binding
o If biological parents’ rights are terminated, then the parental rights to that child are
the adoptive parents’
 Bio mother would turn into a third-party
 Petition of R.M.G. – White foster parents and biological grandparents fighting each other to
adopt black child.
o What is best for the child?
 The trial court went with the grandparents bc of race factor (said both families
were suitable)
 The social worker said blood relative is best for the child
 Agency psychiatrist says cross racial adoption is always harmful and should
be discouraged
o Whether the use of race in determining the adoption is necessary to achieve the
child’s best interest
o Compared to Loving (where the goal was white supremacy), this is trying to protect
the best interest of the child and her culture
o Cannot consider the best interest of the child without considering race
 Race is just one of the factors, not determinative
  Must see how the families actually operate on race
o 3 Step Evaluation:
 How each family’s race is likely to affect the child’s development of a sense
of identity, including racial identity
 How the families compare in this regard
 How significant the racial differences b/w the families are when all the factors
relevant to adoption are considered together
 Banks, The Color of Desire
o Facilitative accommodation – adoption agencies classification of children on the basis
of race facilitates and promotes the exercise of racial preferences by prospective
adoptive parents
 Black children are categorically denied – if we allow racial preferences, white
children will be picked more than black children
o In class discussion of dating vs. adoption and discrimination within them
 Adoptive Couple v. Baby Girl – mom gave birth to a baby and father was a Native
American who was not there for the baby. Mom decided to give the baby up for adoption and
had to give notice to the biological father, who protested this. Statute stated that a Native
American father’s parental rights could not be involuntarily terminated b/c wanted to protect
Native American culture.
o Biological father loses here; adoptive parents have parental rights over the child
o Biological father renounced his right before the child was even born
o Only in Stanley the unwed father wins out of the four cases we have reviewed.
 This case highlights that unwed fathers still have little protection (2013 case
here)
 Southern Equality – a MI statute prohibited adoptions by same-sex couples.
o A ban on adoption based on classifications violates Obergefell, the Equal Protection
clause and the Due Process clause
o How does it relate to Obergefell? – looks at Obergefell more broadly and asks what
the scope of Obergefell is – it was about marriage and was not written as an anti-
 discrimination case; however, extended its holding to include marital benefits,
including adoption rights

THE NONTRADITIONAL FAMILY

** legal structures that are not marriage **

COMMON LAW MARRIAGE

** couple intends marriage + acts married = benefits of marriage **

 There is a trend against common law marriage

o Burdensome on the courts
o Moral considerations – fraud, adultery

NONMARRIAGE
** parties agree that they are not married, but one asserts legal claims to the other’s assets **
** acting married + K = only get what was in K **

 Marvin v. Marvin – π and ∆ lived together, K that π would take care of ∆ and house and ∆
would financially support her. They broke up, ∆ paid for 1st year and then refused spousal
support. (π gave up career to take care of ∆)
o This looks like traditional marriage
o Consideration for the K – giving up her career and performing homemaker services
 His consideration was financial support
 Does the sexual relationship constitute consideration?
o ∆ argues that K was immoral and enforcement violates public policy (void due to
public policy)
 Diff. b/w this K and prostitution bc this was a long-term commitment – sex as
consideration for a K
 good sex – marriage  bad sex – prostitution
  Court says as long as you can sever other parts from the sex, K b/w
cohabitants is enforceable
o K between unmarried partners are enforceable, even if sex is involved
o Diff b/w this and common law marriage:
 No intent to marry
 Only get what is in the agreement (common law get all benefits of marriage)
 Blumenthal v. Brewer – a same-sex couple had a long-term, domestic relationship and
shared their assets, but were not married. When relationship ended, ∆ sought for common
law restitution, seeking an equal division of all assets. The state prohibited common law
marriage, so ∆’s counterclaim was dismissed.
o Is K enforceable? Majority says the couple does not have mutual property rights –
legislature must set the policy re: common law marriage, not the court. Majority also
says, using Obergefell, that marriage is the key institution and if they permit this, then
marriage loses its status.
o Dissent: Agreements should be enforced and recognized – (Majority view of states:
most states have Marvin-like cases (while not recognizing common law marriage)
and rights of cohabitants are recognized in one way or another
 Not common law marriage, just recognizing contracts
 Does recognizing rights of cohabitants hurt the marriage institution?
o Could undermine institution of marriage, but what is fair to cohabitants who
participate in what looks like a marriage?
 Even if it does undermine, might be fairer to give some rights to cohabitants
GROUPS
 Village of Belle Terre v. Boraas – 6 students trying to rent a house. Land restricted to one-
family dwelling.
o One-family dwelling – must be related by blood, adoption, or marriage, living and
cooking together OR no more than two people
o City has an interest – decrease noise, crowds, more traffic, parties, drugs, alcohol
o It is okay to limit to family connection in a zoning ordinance
  Does not interfere w/ a fundamental right – legislative discretion, not judicial
discretion
o Contrasts Moore b/c Moore involves family – here, under “family” in the statute, the
6 students do not fit within that definition
o “Family” is often defined strategically in statutes per government’s interests
 Depends on the legal context
EXTENDED FAMILY
 Moore v. City of East Cleveland – ordinance limiting area to housing for “family”
o 4 categories considered family in their definition of family:
 Husband/wife of the nominal head of household
 Unmarried children of the nominal head of household (but cannot have their
own children)
 Father/mother of nominal head of household or their spouse
 Not more than 1 dependent child of head of household and the child of such
dependent child
o Court says these definitions are too narrow and cuts into the core of family and is thus
unconstitutional
 The ordinance prevents related people from living together
 Belle Terre the people were not related
o The ordinance is dividing families
o Comparing Troxel – the grandparents were seeking visitation and there was a parent
 Here, the grandparent was acting as the parent
DIVORCE
 Two types of divorce
o Fault Based
 Specific reason/reasons for the ending of the marriage
 More blaming and accusing
 Harder to prove
  Traditionally, all states had fault-based divorce
o No Fault
 Just not working out, no one is blamed specifically
 Enables privacy
 Most states now have no fault and fault based
 Before no fault, if a couple could not find a reason, then they could not
divorce
 Enough that one party wants a divorce – marriage is perceived as fallen apart
 NY has both fault-based and no-fault divorce – has both options for those who are extremely
wrong
FAULT BASED DIVORCE
 Fault in New York:
o Adultery
o Abandonment
o Cruelty
o Imprisonment
Adultery
 Edwards v. Edwards – couple were married. After an incident that husband characterizes as
“a misunderstanding,” husband filed for divorce and wife counterclaimed for divorce,
alleging inappropriate marital conduct and adultery. Wife walked in on husband and a
woman wearing only a pink thong.
o Adultery is notoriously hard to prove and courts usually rely on circumstantial
evidence which may include admissions of the spouses, alleged lovers, testimony of
private investigators and other witnesses tending to show adultery
 Most successful cases have a combination of such evidence
Abandonment/Desertion
 Jenkins v. Jenkins – wife left alcoholic/abusive husband – husband claims abandonment
o If there is a justification for leaving, it is not abandonment
 o Abandonment:
 Party has w/drawn from the common dwelling
 Party left w/out lawful cause or justification
 Party has constantly refused to return to live with the other
o Note 2 – constructive abandonment – when a spouse refuses to engage in sexual
relations or when spouse refuses to socially interact
Cruelty
 Benscoter v. Benscoter – husband alleges wife was cruel to him (i.e., verbally abused him).
Wife had MS and thought husband was cheating.
o Court says husband had to show clearly and indubitably his status as the injured and
innocent spouse
 He did not meet burden to prove cruelty
 He cannot discard his partner just b/c she is sick
 Immoral to divorce and if he doesn’t support wife, then state will – one of the
points of marriage is to take care of the unit and its children
o Fault based divorce is looking for a guilty spouse and an innocent spouse
Recrimination (accusation)
 Rankin v. Rankin – husband filed for divorce claiming cruelty, wife claims husband was
physically abusive
o Cruelty – actual personal violence or a reasonable apprehension thereof, or such a
course of treatment as endangers life or health and renders cohabitation unsafe
 A single instance is sufficient if severe and constitutes atrocity
o Divorce is not justified by the fact that the parties do not get along well together (in
fault-based only jurisdiction)
o If both are equally at fault and neither can clearly be said to be the innocent and
injured spouse  no divorce
 Has been limited or abolished in most states – in other states, the concept has been limited by
granting a divorce to both spouses, requiring that recrimination must be pleaded by a party
rather than raised by the court, and/or adopting the doctrine of comparative rectitude
Condonation (a defense to divorce where the spouse against whom a divorce is sought defends
on the grounds that the complaining spouse accepted or forgave the spouse for the misconduct)
 Willan v. Willan – husband files for divorce alleging abuse, the parties had sex before the
husband left – court held that husband freely engaged in sex, which amounted to condonation
of any cruel conduct on the part of wife
o Condonation – after the alleged act, the spouse acts in a way that condones the act or
shows that the wife has been reinstated as the wife
NO FAULT DIVORCE
 In re Marriage of Dowd – couple seeking divorce based on irreconcilable differences –
required that they lived separately for two years, but they lived together even though husband
slept on couch
o Can the parties be considered separated when there is no physical separation?
 Court says yes – looking at whether the relationship has broken down
 Grimm v. Grimm – husband says divorce violates his religion
o What if one party wants a divorce but the other does not think there is irreconcilable
differences?
 Only one party must prove that the relationship is no longer functioning
o It is not enough that a defendant maintains hope for reconciliation to support a finding
that the marriage has not irretrievably broken down
o Statute was neutral and reasonable in the light that some marriages simply breakdown
through no fault of either party
 Massar v. Massar – agreement that neither spouse will claim fault in divorce, will separate
for 18 months and then get a no-fault divorce. Wife violated agreement and filed for divorce
based on cruelty
o Husband gave consideration for the agreement by moving out of the home
o Wife argues that the agreement violates public policy bc she was waiving her right to
certain causes of action – wants a per se rule
 Could cause someone to stay in abusive relationship
o Court declines to adopt per se rule
  These agreements are generally enforceable as long as they are fair and
equitable
 Couples can waive their rights to certain divorce actions
 In re Marriage of Cooper – husband has affair, couple agreed that IF husband causes a
divorce, he will be liable for certain expenses. Husband continues affair and moves out 
wife wants enforcement of agreement (more $)
o Court says K is unenforceable bc it regulates the intimacies of marriage
 Do not want the agreement to be built on guilt, infidelity/cheating
o Court wants to move away from fault-based divorces and does not want to inject fault
back into divorce through these agreements
o While adultery is a ground for fault-based divorce, this is too much
 Aflalo v. Aflalo – wife wants the court to compel the husband to give her a Jewish divorce
“get”
o Equal Protection – different classification for men and women, because only men
can grant a “get”
 Vs. First amendment freedom of religion – can the courts force a religious
divorce
o The court will not enforce a Jewish divorce bc it would lower the wall separating
church and state
 Can only grant civil divorce

DISMANTLING THE LEGAL FAMILY

CHILD CUSTODY
Applying the Best Interest Standard
** Standard is BEST INTEREST OF THE CHILD **
 Child Custody Act –
 Tender years doctrine discriminates against fathers and is no longer valid
 Arneson v. Arneson – father and mother disagreed on who should have custody over their
child. Father has cerebral palsy and uses a wheelchair but considered himself independent
and able to care for their child.
o Cannot presume that a disability limits parental ability and must weigh other factors,
including:
 Parent’s current and future physical capabilities
 Management of the disability
 Other family members adjustment to it, and
 Any special contributions the parent makes despite the disability
o Trial court in this case properly considered these factors when awarding wife with
custody. Affirmed.
 Hollon v. Hollon – husband and wife had a child. Husband moved out of the home and wife
continued to raise child. Female roommate moved in and the two women lived together with
their children. The father sued for custody alleging that they were in a homosexual
relationship
o When determining child’s best interest, court must weigh:
 The age, health, and sex of the child;
 The parent who had primary care of the child prior to the divorce
 The parenting skills of the parents
 The parents’ employment situations
 The age and physical and mental health of the parents
 The emotional ties of the parents to the child
 The moral fitness of the parents
 The child’s record in the home, school, and community
 The preference of the child, if he or she is old enough to legally state a
preference
 The stability of the parents’ home environments
o A homosexual relationship cannot be a defining consideration in determining custody
  The trial judge placed too much weight upon the “moral fitness” factor and
ignored other factors
 Palmore v. Sidoti – after mother and father divorced, mother began cohabitating with a
black man and father sued for sole custody
o Equal Protection issue
o The lower court did not focus directly on parental qualifications – it was based on
race
 There was not a strong enough state interest to justify this racial classification
o The court cannot make a custody determination solely based on a child or parent’s
race
o Arguments that the kid will be stigmatized and subjected to bias do not work in this
situation
 Jones v. Jones – In custody dispute, wife claims husband was awarded custody based on his
Native American ethnicity
o In determining the best interests of the children in a custody dispute, race as it relates
to a child’s ethnic heritage and which parent is more prepared to expose the child to
can be a factor
o Difference b/w Jones & Palmore – in Palmore race was used to the detriment of the
child, but here, ethnicity is being used to the benefit of the child
DOMESTIC VIOLENCE IN CUSTODY
 Ford v. Ford – wife filed for divorce due to domestic violence.
o In making a custody determination, the primary consideration is the best interest of
the child. It is typically in the child’s best interest to have a meaningful relationship
with both parents, but that may not be the case if one parent is a perpetrator of
domestic violence and in that instance, friendly parent statutory provisions should not
be invoked
Alternative Approaches
 Weisberger v. Weisberger – husband and wife divorced w/ three children w/ wife being
primary caretaker. They agreed to joint custody w/ wife having physical custody and that the
 children would be raised Hasidic. Husband moved for modification of the agreement after
three years on the grounds that wife violated children’s practices of Hasidic.
o Individual parties may negotiate a shared-parenting agreement but the court may
determine that such an agreement is not in the best interests of the child.
o Enforcement of this agreement was not in the best interests of the child. Wife had
always been children’s primary caretaker and had closest relationship w/ children.
 Pusey v. Pusey – tender year presumption that mother should have custody when the
children are young (mothers get custody more often than fathers)
o Court disavowed tender years presumption
 Making decision based on gender is not necessarily in the child’s best interest
o If all else is equal, a gender-based presumption is improper, if not constitutional
o Not about mothers, but primary caregivers
 Garska v. McCoy – father sues for custody, never really had relationship with child. Mother
was going to allow grandparents to “adopt” child so it could have health insurance
o Presumption that the primary caregiver is the more fit parent
 This presumption provides protection to the primary care giver in a custody
dispute
 Young v. Hector – father asserts that he spends so much time w/kids that he should be the
primary caretaker. Mother worked long hours as an attorney.
o Court said no, the nanny took care of the kids & the mother financially provided –
father is a loser
VISITATION
 Non-custodian parents are entitled to reasonable visitation rights
o Unless visitation would seriously endanger child
 Modification when in the best interest of the child (compare to custody – must be significant
change of circumstances)
 Roberts v. Roberts – mother and father divorced and after visiting court several times,
agreed that wife would have primary physical custody over the children. Father moved to
 suspend/modify visitation. Children were apprehensive about visiting father and would fake
being sick.
o Factors courts must consider in determining which custodial arrangement serves
children’s best interests:
 Children’s needs
 Relationship with each parent and preferences,
 Each parent’s involvement, role, parenting abilities, and ability to resolve
disputes and support the child’s relationship with the other parent
o Evidence showed that father’s conduct was causing serious psych and emotional
injury to children
o Court rejected father’s free exercise of religion claim, saying it based its decision not
on his religion, but on his treatment of children and mother.
 Eldridge v. Eldridge – father wants to limit the visitation so that at overnights the mother’s
partner is not there (mother is in relationship w/another woman)
o Father argues he does not want child to be exposed to immoral behavior
o Court says there was no evidence of harm from the partner being there
o Visitation is a legal right – not restricted unless the child is in danger
STEPPARENTS
 In re Marriage of DePalma – while deployed, dad wanted the step-mom to care for the
children during his parenting time
o Mother arguing right of first refusal – when the father is unavailable, she has the right
to have the kids
o Court does not give step-mom parental rights
 It is through the father’s right to parent the children
 Father is a fit parent, presumption he is acting in best interest of the
children for step-mother to watch them
 Edwards v. Edwards – step-father was granted visitation and decision-making power over
step-child
o Mother argues that he has no standing bc he is not bio dad
 o In exceptional cases, where it is in the best interest of the child, step-parents will be
awarded visitation
 To prevent serious harm/detriment to the child
o Step-father was the only dad she knew
o They could have prevented this by having the non-bio parent adopt the child
De Facto Parents
 A current or recent caretaker of a child and who has been found to have assumed, on a day-
to-day basis, the role of a parent to the child
 Conover v. Conover – before getting married, two females, M and B, used artificial
insemination to conceive and B gave birth. The couple married six months after and then
separated a year later. M continued seeing the child until B objected. B filed for divorce,
stating that the couple shared no children.
o A de facto parent has standing to seek custody or visitation as a parent, not as a third
party
o Four-part test:
 Biological parent consented to and fostered third-party’s relationship w/ child
 Living together in same household
 Third-party must have assumed responsibility for child’s care, education and
support and taken on a parental role long enough to establish a bonded,
parental relationship
 Lengthy time where third-party was serving in parental role
 Most jurisdictions now recognize de facto parent status or something similar
Tri-Parenting
 Dawn M. v. Michael M. – marriage b/w husband and wife, and tried to have a child but
couldn’t. A third woman was added to the relationship, and she became pregnant with
husband. All three raised the child. Husband and wife divorced and wife moved out with the
other woman.
o A child’s de facto third parent may establish legal tri-custody rights
 o Wife always acted as child’s de facto parent – child called both women mommy and
would be devastated if child could not see wife.
NY now recognizes three legal parents

HYPO: In “Bargaining of the Shadow of the Law,” the authors discuss two elements: money and
custody. Explain this proposition and in the light of this insight, which of the three seems most
fair: legal and physical custody of children, 50/50 custody or no presumption at all? Be specific
and use case law to support your position
 First discuss the presumption is with equitable distribution in custody matters and then based
off of this, discuss bargaining powers of both parties – money and custody may increase or
decrease
 Primary caregiver presumption
o If the parent is not the primary caregiver, but really wants more visitation rights, we
can offer as a bargaining chip more distribution of the property or more money in
order to get more time with the children.
o Vice versa: if your client is the primary caregiver, we can say, you will probably get
custody – do you want to receive more money to give your spouse more?
o Pusey and Garska
 50/50 presumption
o Primary caregiver might be unfair b/c it forces the other parent to give up more
money. 50/50 of custody – if client wants more or less, they can bargain with more
property or money distribution
 Now if the parent wants primary care, he or she will have to give up money or
property

PROPERTY, ALIMONY, AND CHILD SUPPORT

Dividing Property
 Basic rule: Equitable distribution
 o If there is no prenuptial agreement – the courts must divide property equitably (fairly
– does not mean 50/50)
 Individual property – property acquired before marriage, or from an inheritance/gift during
marriage
o Separate from marital property – not part of the bargaining or divorce
o Examples
 Car W owns before marriage
 Car W bought during marriage using money from an account before marriage
 House W inherited before marriage
 Marital property – property acquired during marriage or during relationship immediately
preceding marriage
o Examples
 Car H buys using salary earned during marriage
 Gifts to married couple from third party (in some states)
 House purchased together
 Bank accounts
 Unless there is a pre-nup, the separate property remains separate and marital property will be
distributed equitably
 Innerbichler v. Innerbichler – H owned a business before marriage, the business
substantially grew during the marriage  whether the growth of the business was marital
property
o If the appreciation is active the value increase of the asset is marital property and
subject to equitable division
 Passive appreciation – increase in value w/out any effort (keeps property
separate)
 Active appreciation – increase in value bc of work put in (makes property
marital)
 o Court deems the growth as marital property – an asset can shift from separate to
marital based on active appreciation (value from before is separate, then the growth
resulting from one or both of the parties is marital)
o Rationale: sacrifices and labor of both parties during the marriage
 Holman v. Holman – source of funds rule
o Non-marital property = non-marital contribution x equity
Total contribution
o Marital property = marital contribution x equity
Total contribution
 Marital property would be equitably divided by courts
 Laing v. Laing – Wife does the housework/childcare, even when employed. Husband works
most of the marriage. Wife claims she is entitled to part of husband’s pension (pension is not
guaranteed bc it is not vested – theoretically can go away without ever having owned it)
o *Ben-Asher thoughts – fairness rule in dividing assets – the homemaker gets fair
value of the work they did
o Two approaches:
 Present value approach – court determines a fraction of the present value
representing the marital contribution to the accrued benefits
 Reserved jurisdiction* – trial court retains jurisdiction and order the
employee spouse to pay to the former spouse a fraction of each pension
payment received
o Pension is marital property – reserved jurisdiction is better – once it comes into
fruition, the non-employee spouse may get part of it
o Pension funds that are certain (not vested) will get divided at the time of divorce
 Even pension funds may be partly marital and partly separate – spouse could
be working in the same job with the same pension fund before marriage and
that is separate – anything that comes after marriage would be marital
 Postema v. Postema – agreement that wife would work and take care of household (put her
degree on hold) while husband goes to law school. After law school they divorced. Wife
claims law degree was a marital asset
o Two approaches:
 Restitution* – paying back for past contributions (NY)
 Court will consider sacrifices, efforts, and contributions of the spouse
when awarding them an amount
 it does not matter what the degree is worth – it matters the sacrifice
and effort put in by spouse
 Future earnings – awarding a percentage share of the present value of the
future earnings attributable to the degree
o Applies restitution approach – note 1 p. 1150
 Note 3 – frozen embryos – are they marital property?
o They are marital property and may be destroyed
Alimony (spousal support/maintenance) – needs-based
 Hodge v. Hodge – husband challenges the award of alimony ($100/wk for 14 years) to the
wife. The trial court awarded alimony based on restitution rationale
o Court says alimony is intended to be based on “actual need and ability to pay”
 Purpose is to provide one spouse with sufficient income to obtain necessities
in life
o Can do the property distribution equitably, but not through alimony allocation b/c
needs based – this case also highlights to separate property distribution and spousal
support
 There is normally a formula per each state
 Dykman v. Dykman – Wife was giving husband $12k/mo for marital expenses, which the
husband used to give gifts to his side chicks. Court awarded alimony based on fault
o Trial court discussed fault when determining alimony
 Fault is NOT ALLOWED to be considered in alimony determination in most
cases, except if it meaningfully relates to the spouses needs
  The fault is related to need here bc wife lost that money from the
husband misusing it – wife’s need AND his misconduct was correctly
added into the spousal support
 In some states, remarriage ends spousal support

Child Support
 Generally longer than spousal support
o Different b/c supporting child as if never divorced – accommodation to children’s
needs
 In New York – income of parent 1 + income of parent 2 (combined)
o Number parents pay together (NY):
 1 child = 17%
 2 children = 25%
 3 children = 29%
 4 children = 31%
 5 or more = no less than 35%
o Non-custodial parent pays custodial parent
 Pro-rated based on individual income
o Income capped at $145k, but after court has discretion and does not have to follow %
 HYPO: Spouse A and B have two children in NY. A – $75k yearly. B – $25k yearly. How
much child support will each of them be responsible for? Who will pay whom if there is
primary custody? What if there is joint custody?
o Combined = $100k. 25% of $100k = $25,000
o Spouse A – 75% of $25,000 = $18,750 (per year)
o Spouse B – 25% of $25,000 = $6,250 (per year)
o Spouse A gets primary custody and Spouse B only gets visitation:
 Spouse B would pay $6,250.
o Joint custody:
  Higher income spouse would pay the lower income payer, as if lower income
spouse had received primary custody (Spouse A would pay Spouse B).
 The percentages are discretionary – do not want to punish the higher income spouse
 Parties may also contract for less if reasonable
o Must submit to the court for approval
 Solomon v. Findley – mother wants father to contribute to child’s college education
(agreement that father would pay beyond minority for college education)
o Court says K is enforceable bc it was independent of dissolution decree
 If not for K, father could not be ordered to pay post-minority support
 Curtis v. Kline – state law that separated, divorced, or unmarried parents subject to a support
obligation must provide support for post-minority education
o Equal Protection – classification based on marital status
o Court says unconstitutional – divorce cannot limit freedom w/regards to kids
 Stanton v. Stanton – statute said minority lasts until 21 for males but 18 for females
o Equal Protection – sex classification
 Even if stereotype based on maturity and higher education
 Little v. Little – father wants to pay less child support bc income will go down when he goes
to law school
o Modification of child support is not allowed when the parent is voluntarily leaving
their job
 Places child in financial peril
 Increase in earnings after law school are not guaranteed
 Could pay child support and pay for law school with student loans
o Modification of child support is intermediate balancing test
 What is the financial impact of the parents decision on the child/children the
support order protects?
 If it places child in financial peril = NO modification
 Smith v. Smith – original award was $460/mo. Later modified to $4,300/mo. bc father’s
salary increased significantly – “significant change of circumstances” can lead to
modification
o Father asks courts to deviate from guidelines bc the kid does not need that much
money
 Father already voluntarily paid double of original award and child lived a
good lifestyle
o The expenses of the child were only $3,500, father must pay 88% of that b/c that is
his share of monthly income
 Court does not want a transfer of wealth between parents
 Rose v. Moody – mother has custody of 2 of 3 children, subsists entirely on social security.
Other child lives w/ her mother. State argued that mother has to pay her mother minimum
child support payment per state statute.
o Federal statute = no income no child support payment
o NY State statute = min. child support of $25/mo.
o Court says federal statute trumps state
o Cannot force people to pay symbolic payments when they cannot afford them
ASSISTED REPRODUCTIVE TECHNOLOGIES
SURROGACY
 Two types
o Full surrogacy – when the biological mother (egg donor) and the gestational carrier
are the same person
 K not enforceable
o Gestational Surrogacy – when gestation and genetics are not the same person, the
child goes to whoever was intended to raise the child
 Movement towards enforceability
 Three questions for surrogacy cases:
o Is surrogacy illegal?
 o Is the K enforceable?
o Who is the legal parent?
 In re Baby M – Mr. S and Mrs. W entered into an agreement where she would be
inseminated w/ Mr. S’s sperm and give the baby to Mr. & Mrs. S. Mrs. W flees w/baby
o Transaction is b/w surrogate (providing egg and gestation) and Mr. S (providing
sperm)
 Mrs. S is not in the K bc baby selling is illegal
o The court portrays Mrs. S as anxious to have her own pregnancy bc of mild form of
MS (p. 580)
o Two legal questions:
 Whether the K is valid
 If the K is invalid, who should get custody
o Court says the K is invalid as against public policy – inherent evil in baby bartering
 Consideration was $10k in exchange for the child (Mrs. W gives up all rights)
 K was breached bc Mrs. W would not give up parental rights
o Arguments for Mr. S
 Cannot buy own baby
 He was paying for services
o Reasons to be a surrogate:
 Altruism
 Financial need
o The court calls Mrs. W the mother, not Mrs. S
 Court chooses biological mother over intended mother
o On birth certificate, Mr. & Mrs. W were named as the parents (bc of presumption of
paternity)
o Court worried about class dynamic
 Poor women could be exploited by such agreements bc more likely to be
surrogates
 o Equal Protection claim – man that is a sperm donor would be treated differently than
a surrogate
 Surrogate given more rights than a sperm donor
o Due Process claim – by not recognizing that Mr. S is the bio dad, he is deprived of
his right to procreate
 Mrs. W claims she has the right to be w/ her child
o 2 legal parents – custody is determined by the best interest of the child
 Factors:
 Financial situation
 Psychological background
 Experience/willingness to parent
 Ability to appropriately explain to child about circumstances
 In re X & Another – English couple entered into surrogacy K w/Ukranian women
o Surrogacy Laws (conflicting):
 United Kingdom:
 No surrogacy for profit
 Surrogate is legal parent regardless of bio relationship
 No surrogacy agreement is enforceable
 Children have no right of entry & intended parents cannot confer
nationality
 Ukraine:
 Commercial surrogacy legal
 Surrogate is not the legal parent
 K is enforceable
o Are the children born in Ukraine via surrogacy UK nationals?
 Under UK laws surrogate is legal parent
o Consequences of the decision
  Leaving children stateless (if they do not allow them in)
 Bc there is no surrogacy for UK citizens
 If they do allow children in
 Encourage forum shopping
 Creating a gap (law only applies in the UK)
o Looks at the child’s welfare
 Rule of no surrogacy in UK stays the same, but making an exception to allow
the children into the country
 In re C.K.G. – an unmarried couple decided to have a child via in-vitro fertilization w/donor
eggs but the man’s sperm
o Couple ends up w/triplets  break up
o Is the gestational mother who is also the intended mother the legal mother?
 Father argues no bc she has no genetic relationship to the children
 If not the legal mother then she is the surrogate
o TN courts look at totality of circumstances
 Rejects other tests
 Intent test – looks at K and who the intended parents are
 Genetic test (OH) – says genetic connection is most important
o Court wants to recognize woman as the legal parent
PARENTAGE AND OTHER ISSUES
Married Partners
 Strnad v. Strnad – π artificially inseminated w/∆ consent. What is ∆’s parental rights?
o ∆ has right to visitation – has the right to be a parent
o Shift from sperm donations being seen as adultery and immoral to a desirable cure for
male infertility (same for gestational surrogacy)
 Okoli v. Okoli – after divorcing, wife asked husband for child support. Children were born
from sperm and egg donors after couple separated, but wife got consent from husband.
 Husband was legal father but claimed he was not biological father and did not have to pay
child support.
o Court said he had to pay child support b/c consent requirement is not about
consenting to be a parent but consenting to the procedure
 Pavan v. Smith – same sex couple used anonymous sperm donor and non-carrying spouse
was not put on child’s birth certificate even though they were married and non-carrying
spouse consented. Couple claimed this violates Obergefell.
o Equal treatment for same sex couples through Obergefell means that the non-carrying
mother has the same presumption that fathers have
o Obergefell applies to parentage and the presumption of parentage will apply to same
sex couples
o Dissent – Under state law, biological father should be listed on the birth certificate
and marriage/Obergefell has nothing do with this
 Uniform Parenting Act (1973)(UPA)
o Donor’s rights – donor of sperm to a married woman cannot claim parental rights
 Semen provided to licensed physician
 Some states dropped the requirement of marriage and physician
 New York – known donor agreements are not enforceable

Unmarried Partners
 Charisma R. v. Kristina S. – Same sex couple were not married and non-carrying mother
consented for mother to be inseminated for a child. The couple broke up and the carrying
partner took their child with her. The non-carrying mother filed a petition saying she is the
legal parent of the child
o Non-carrying mother is presumed a legal parent. She raised the child, and openly held
that the child was her own
 Conover (revisited) – Same sex couple. One was inseminated w/ sperm donor with partner’s
consent before marriage. Then they married. Custody dispute, then non-bio mom was found
to be de facto parent
o De facto parent v. Uniform Parenting Act:
 De facto parenting focuses on best interests of child – e.g., a parent could not
be around when insemination occurred but grew a relationship and became
parent that way)
 UPA focuses on intent (has a contract view re: insemination)