Emphasizes that these extended family arrangements are more prevalent in minority and immigrant communities (i.e., vulnerable communities). The nuclear family is a fixture of white suburbia. Brennan noted that there was no evidence that the ordinance in this case was racially motivated. East Cleveland was a black, middle-class, upwardly striving community. The residents wanted to exclude “ghetto” families. They wanted to preserve their middle-class, “Leave It to Beaver” community. Stewart & Rehnquist, Dissenting State may regulate any household that is not a marital household. Substantive due process only protects the traditional, nuclear family. Right to Privacy Meyer v. Nebraska (U.S. 1923) Substantive Due Process Law restricting foreign-language education violated the Due Process clause of the 14th Amendment. Pierce v. Society of Sisters (U.S. 1925) Substantive Due Process Law providing that parents could satisfy the state’s compulsory education law only by enrolling their children in public schools violated the Due Process clause of the 14th Amendment. “Liberty of parents and guardians to direct the upbringing and education of children under their control.” Prince v. Massachusetts (U.S. 1944) “The custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the State can neither supply nor hinder. There is a private realm of family life which the State cannot enter.” Poe v. Ullman (U.S. 1961) Denied certiorari because there was no realistic prospect of enforcement (arrest and prosecution). Parties were seeking declaratory judgment. Justice Harlan dissented and, reaching the merits, took a broad view of the “liberty” protected by the 14th Amendment Due Process clause to include not merely state violations of one of the first eight amendments which had been held to be “incorporated” in the 14th, but against any law which imposed on “liberty” unjustifiably. Griswold v. Connecticut (U.S. 1965) Facts – CT law criminalized using contraceptives or aiding and abetting the use of contraceptives. Doctors could not give contraceptives to anyone, including married couples. Holding (Douglas) – Violated 14th Am., DPC. Question – Constitutional violation in denying contraception to married couples? Strict Scrutiny
Intention to End Marriage Subjective intent to dissolve marriage is required. “The separation must be ‘coupled with an intention on the part of at least one of the parties to live separate and apart permanently, and [this] intention must be shown to have been present at the beginning’ of the separation period.” Pearson v. Vanlowe (Va. 2005). Separation because of military service or incarceration may not qualify without subjective intent to dissolve marriage. Factors Showing Intent Fact-specific inquiry Attending social gatherings; Acting jointly in financial matters; Having meals together Parties may continue to share food and keep a clean house and still intend to live separate and apart. Reconciliation Attempts May reset the clock on the spouses’ separation period. BRIEF OVERTURES toward reconciliation do NOT terminate the separation period. INTENTIONAL RESUMPTION of the marital relationship terminates the separation period. “Mere casual cohabitation between the parties, after the separation, unaccompanied by resumption of normal married life . . . is not sufficient to show a reconciliation or an agreement to live and cohabit together again on a permanent basis as husband and wife.” Separation Agreements Establish spouses’ intent to live separate and apart. Determine financial and other consequences of dissolution. Shortening Waiting Period – May occur if both parties consent to divorce. E.g., Pennsylvania. Irretrievable Breakdown Definition – “Either or both spouses are unable or unwilling to cohabit and there are no prospects for reconciliation.” Caffyn v. Caffyn (Mass. 2004). Richter v. Richter (Minn. 2001) Irretrievable Breakdown Multifactor Analysis – “If there is a dispute about whether a marriage is irretrievably broken, the court shall consider all relevant factors and find whether the marriage is irretrievably broken. Note that the court must make a finding of irretrievable breakdown. Definition – “‘Irretrievable breakdown’ occurs when there is no reasonable prospect of reconciliation.” Elements – “To find irretrievable breakdown of a marriage in a case where the existence of such a breakdown is contested, the finding of irretrievable breakdown must be supported by evidence
Either Spouse’s Contribution to Separate Property “When either spouse makes a labor, money, or an in-kind contribution that causes an increase in the value of separate property, that increase in value is deemed marital property.” “An increase in the value of separate property due to either spouse’s efforts is marital property.” Separate Property – “All real and personal property and any interest in real or personal property that is found by the court to be any of the following: . . . Passive income and appreciation acquired from separate property by one spouse during the marriage.” Passive Income – “Income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse.” E.g., you own land, and all by itself, it appreciates in value. Executives’ and managers’ work is NOT passive. It is labor. Other States – All income and profit from separate property remains separate. E.g., California. Appreciation of Marital Asset – Some states treat the appreciation as marital, regardless of whether either of the spouses contributed to the appreciation. E.g., Oregon. Dates of Marriage Beginning – Day of legal marriage ceremony. Ending Some states regard as separate all property (and increases in value) acquired after the date of legal separation. E.g., California. Some states continue to count as marital all property acquired until the date on which one party files for divorce, the trial is held, or divorce is granted. E.g., New York. Timing and Methods of Valuation – Pages 496–97 To be upheld, a court must show that evidence was received and that it was considered. Court cannot just throw darts at a board. Expert Evidence – Several different methods, and all are acceptable. Court does NOT have to adopt the value that any expert assigns to an asset, but it must consider that values. Stock Options – Difficult to value. DC allows the transfer of stock options in the event of divorce, but this is not true in most jurisdictions. Contributions of Homemakers Injustice of title system toward homemakers’ contributions Primary Acknowledgement of Homemakers’ Contributions – Equitable distribution of all marital assets in title jurisdictions Valuation – Difficult and may vary widely Based on opportunity cost or economic contributions to the household. Modern Approach – “Courts look not only at cash contributions and assistance in the spouse’s workplace or business, but also to domestic work in the home such as caring for children, cooking meals, cleaning house, and washing and ironing clothes.”
Mediated Agreement Parties execute it. Enforceable under contract principles. May be submitted to the court as a binding order or for incorporation or merger into the judgment or decree. Unresolved Issues – May be litigated. Child Custody Joint and shared custody arrangements are much more common than with negotiation or litigation. Parties may trade financial claims for custody rights. Lawyers Attending Mediation – Page 920 Children Attending Mediation – Pages 920–21 Confidentiality Uniform Mediation Act Recommendations – Pages 921–22 Rules of Evidence and Procedure – Page 922 State Laws – Page 922 Mandatory Reporting of Child Abuse and Neglect States vary. Mandatory Reporters – Must report if child abuse or neglect is reasonably suspected to have occurred. Permissive Reporters – May report suspected acts, but not required to. Collaborative Divorce [See article on portal, which was the only assigned reading.] Each party has its own lawyer, but if the divorce goes to litigation, each lawyer must withdraw because of waiver of the attorney-client privilege. This places some fire under the clients to resolve their issues together. Neither wants to pay for a new lawyer or new experts. Lawyers are not acting as normal lawyers do. A lawyer is not zealously pursuing his or her client’s best interests to the exclusion of the other party’s best interests. Experts are shared between the parties. Lawyers are barred from testifying if the collaborative endeavor fails. There is a lot of discretion in family law. A lot of the law is unclear. Having a lawyer to help a party sort out the law is helpful, but the uncertainty counsels in favor of working with the other party rather than going to litigation. These attorneys attempt to avoid riling animosity between the parties. Prenuptial Agreements Who should have a prenuptial agreement? One party has a lot more money than another. Family money; family informally insists on a prenuptial agreement. Husband is elderly and wealthy, and the wife is young and without wealth. Both parties are older, have assets, and do not want to merge their assets. They want to ensure that their own children and grandchildren receive their wealth. List of Jurisdictions’ Premarital Agreement Acts Based on the UMDA Model – Supplement Page 47 Minority Approach – No special law governing prenuptial agreements. E.g., Pa.
Commercial college rankings are better indicators. Deeply Personal Choice – “Unquestionably, the selection of a college for a child goes far beyond the statistical and the quantifiable, and is instead a very personal, very subjective decision. It is a decision that should be made not by a court but by the child, ideally with the help and support of both parents.” Cost Is Not Dispositive – “Provided that the funds are available to finance the child’s education, the fact that a college is a private school and costs more than a public school is not a reason to interfere with the child going to the school he chose and he wants to attend. One of the factors to be considered when making a determination under is the parents’ educational background.” Federalization of Child Support Family Support Act of 1988 – Congress required states to adopt guidelines. Based on (1) child’s need and (2) parent’s ability to pay. Apply to (1) initial entry of support and (2) modification. Purpose – Restrain discretion of trial judges. Federal funds were tied to states’ compliance. Three Models of Child Support Income Shares Model Majority Rule – Two-thirds of states The parents’ income is combined to replicate total income of an intact family. The basic child support obligation is prorated according to each parent’s income. Percentage of the Obligor’s Income Model About 13 states Determines the child support order amount by applying a state-determined percentage to obligor income. Melson Formula 3 states Three-Step Process After determining the net income for each parent, a self-support reserve (also called a “primary support allowance”) is subtracted from each parent’s income. Each parent’s income less the self-support reserve is applied to the child support obligation calculation. To the extent that either parent has income available after covering the self-support reserve and his or her share of the child’s primary support needs, an additional percentage (the SOLA) of the remaining income is applied to the child support obligation. Has received critical acclaim. Works best for poor and middle-class families, but it can be used for more affluent families too. Income All guidelines require determination of parental “income.”
Pets Pages 730–31 Traditional View – Treated as personal property. Modern Trend – Treat as members of the family. Court may look at best interests of a pet and order custody or visitation. Rationales Autonomy and best interests of the pet Property rationale Emotional comfort to a spouse that is alone Whoever undertook more care for the pet during the marriage Child’s Preferences Generally Majority Rule – Court must consider a sufficiently mature child’s custody preference but may weigh that opinion as it sees fit. Discretion in determining maturity and weight. Minority Rule – Deference to the wishes of children over a specified age, e.g., 12 or 14. (Vast) Minority Rule – Court has discretion to consider a child’s custody preference and how much weight to accord it. All States – The younger the child, the less likely that his or her opinion will be solicited or taken seriously. Two Primary Methods for Ascertaining Child’s Preferences Speaking Directly to Judge – Either (1) in open court or (2) through an in camera interview in which the child typically is promised confidentiality. By Delegation Through an Appointed Representative Testifying in Open Court FRE allow children to testify in open court. Child must understand the difference between truth and falsehood. (Preliminary questions) Two-Thirds of States – Require a preliminary inquiry into a child’s competence when the child is below a specified age. Less Preferred Alternative Stressful, traumatic May be less reliable. Child may be intimidated by parents’ presence. In Camera Interviews Best protects a child’s emotional interests. Less traumatic. More candid Kentucky, Oregon, Wyoming, DC – Pages 732–34 Due Process Challenges Creating a record of the in camera interview facilitates appellate review and protects parents’ procedural due process rights.
Denial of Visitation Visitation generally will be terminated only when a parent is determined to be unfit. Courts use a NEXUS TEST. Modification of Visitation – Until a child reaches the age of majority, visitation can be modified at any time but only when the parent seriously endangers the child’s well-being. Usack v. Usack (N.Y. 2005) Rule – “A parent, of course, has a statutory duty to support a child until the age of 21. However, where it can be established by the noncustodial parent that the custodial parent has unjustifiably frustrated the noncustodial parent’s right of reasonable access, child support payments may be suspended.” Minority Rule Majority Rule – Denial of visitation is NOT a defense to an action for failure to pay child support. Sampson (D.C. 2004). Periodic Accounting of Child Support Expenditures – Required by some jurisdictions to reduce friction between parents. E.g., Missouri. Online/Video Chat Visitation – Some courts may order it in addition to in-person visitation. E.g., Utah. Remedies for Injured Noncustodial Parent Modification of visitation order or parenting agreement to provide a more detailed schedule and conditions for visitation Additional “make-up” visitation Contempt proceedings Civil damages for IIED Parental Discretion During Visits Page 780 Some courts impose stringent conditions. Some courts allow a parent to decide how to spend his or her parenting time. Miller v. Smith (Vt. 2009). Supervised Visitation For parents that are not unfit, but where there are sufficient concerns about a child’s safety or well-being that the parent cannot be alone with the child. Court finds that a child might be harmed during an unsupervised visit with a noncustodial parent. May order supervised visitation. Dufresne v. Dufresne (La. 2008). Locations – Page 781 Supervisors – Page 781 Sometimes, family members. Usually not the oldest sibling. Typically, one of the grandparents on the noncustodial parent’s side. This can be dangerous if the relative does not take the responsibility seriously, and in fact, relatives should not be supervisors. Domestic Violence Appropriate situation for supervised visitation. Might warrant no visitation at all, which is an exception to the usual UMDA policy.
E.g., female genital mutilation; honor crimes; etc. Covered Children NOT minors over 16. Minors over 16 may consent to removal or seek return to their home country. Younger children have no right to testify or have a court credit their views. Kufner v. Kufner (1st Cir. 2008). Domestic Violence – No domestic violence exception Violation of Visitation Rights – Denying access to parents who have a right to visitation, but no custodial rights, is not considered a violation under the Hague Convention. Croll v. Croll (2d Cir. 2000).