Family Law Outline - Garcia PDF

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Family law outline for SMU---> professor Garcia...

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Shem Vinton

Family Law Outline

Fall 2016

Family Law Overview 1) Why should the government be involved at all in the family? a) Interest in the child developing into a healthy adult b) Enforcing the contract of marriage, especially as it relates to the division of property c) Neutral arbitrator to resolve conflicts 2) Moore v. City of East Cleveland—right of related family members to live together is fundamental and protected by the Due Process Clause and necessarily encompasses a broader definition of “family” than just members of the nuclear family a) City enacted housing ordinances that limited occupancy of a dwelling unit to members of a single family, which defined “family” narrowly; Moored lived in the city in a home with her son and two grandsons, one of whom was the cousin and not the brother of the other; this arrangement was outside the ordinance and she was charged and convicted of violation of the ordinance; appellate court upheld conviction b) Holding—reversed i) When a city attempts such an intrusive regulation of family as that present in the CEC ordinance, it’s examined under strict scrutiny ii) Housing ordinance only marginally served stated legitimate government objectives of preventing overcrowding, minimizing traffic and parking congestion, and avoiding undue financial burden on the CEC’s public school system iii) Right of the family to live together is fundamental and constitutionally protected (1) Right isn’t only extended to the nuclear family iv) CEC’s ordinance improperly limits this right and is therefore unconstitutional c) Concurrence i) Municipalities can pass zoning ordinances to alleviate noise or to eliminate traffic congestion as these are reasonable land use restrictions in furtherance of the city’s stated legitimate objectives ii) CEC’s ordinance cuts into protected private family life iii) CEC’s attempt to pass a housing ordinance that uniformly limits the types of permissible living arrangements for families is unconstitutional 3) Griswold v. Connecticut—an implied right of privacy exists within the BoR that prohibits a state from preventing married couples from using contraception a) Petitioners were arrested for giving info, instruction, and medical advice to married person for preventing contraception; petitioners were arrested as accessories pursuant to CT law that prevented using contraception or assisting someone to use contraception; conviction was affirmed by appellate court and SC of Errors b) Holding—reversed i) Right of privacy protecting the intimate relations of married couples is implied in the BoR ii) Protected activities in the First, Third, Fourth, Fifth, and Ninth Amendments are penumbras that are not specifically enumerated in the constitution (1) Create zones of privacy into which the government can’t go iii) Marital relationship is located within a zone of privacy impliedly created by various fundamental constitutional guarantees in the BoR iv) CT law seeks to prohibit use of contraceptives in the marital relationship and in doing so violates this area of protected freedoms, which makes it unconstitutional c) Concurrences i) Right to use contraception in marriage is supported by the Due Process Clause of the 14TH Amendment

Shem Vinton

Family Law Outline

Fall 2016

ii) Looking beyond established law such as the DPC and inferring a new right to privacy from the Constitution is inappropriate judicial activism iii) CT law applied to married couples deprives them of liberty without due process of law, as used in the 14 th Amendment iv) Law doesn’t reinforce state’s ban on illicit relationships v) Statute is too broad and over-inclusive as to be rendered unconstitutional vi) Right to privacy in marriage is rooted in the traditions and collective conscience of people and is therefore a fundamental right d) Dissent i) No basis in Constitution for the right of privacy concept ii) Law isn’t unconstitutional and it’s not the court’s duty to strike it down 4) Eisenstadt v. Baird—under the EP clause of the 14th Amendment, a state may not allow distribution of contraception to unmarried persons a) Under MA law it was crime to give away contraceptive materials unless you were a physician providing the materials to married couples for the purpose of preventing pregnancies; D was convicted for giving away vaginal foam to a student; TC partially overruled the conviction; App. Court reversed and remanded b) Holding—decision of the Court of Appeals affirmed i) Law allows only married couples seeking it to prevent pregnancy to get contraception (1) Single people can’t get contraception and married couples can’t get it to prevent the spread of disease ii) Griswold established a right of privacy in marriage that permits married couples to use contraception, so MA can’t ban contraception in general iii) MA can’t grant married and unmarried persons unequal access to contraception iv) Denial of contraception to unmarried persons creates suspect class that violates EPC c) Concurrence i) Decided on 1st Amendment ii) MA can’t limit D’s ability to lecture on issues of contraception (1) Distribution of contraception aided in that communication d) Dissent i) No part of 14th Amendment or any other part of the Constitution that suggests medical forms of contraceptives are required to be made available in the open market ii) Different from Griswold because there the use of contraception was flat out prohibited, whereas here it’s only regulated among different groups of people 5) Lawrence v. Texas—the liberty interest protected by the DPC of the 14th Amendment protects the right of consenting adults to engage in intimate contact in the privacy of their homes, which includes homosexual activities a) TX statute criminalized homosexual sexual activities; two gay men were arrested for engaging in anal sex and convicted; TC and app. court confirmed convictions b) Holding—reversed i) Bowers v. Hardwick upheld GA statute which prohibited sodomy among both heterosexual and homosexual individuals, but TX statute only prohibits the conduct among homosexual persons ii) Ruling that homosexual couples can’t engage in homosexual sodomy is the same as making homosexual relationships unlawful (1) Determination impinges on the fundamental right of gays to engage in intimate personal and familial relationships iii) Liberty protected by substantive due process encompasses the right of consenting adults to engage in gay activity

Shem Vinton

Family Law Outline

Fall 2016

iv) Striking statute down under EP would suggest that a prohibition of sodomy by anyone would be constitutional, but it wouldn’t v) Petitioner’s conduct is protected by DPC (1) Bowers is overturned c) Concurrence i) State law is bare desire to harm a politically unpopular group, so it should be struck down under EPC and not under DPC

Entering Marriage 1) Basic Elements of Needed to Satisfy Marriage a) Must be unmarried b) Must not be closely related, i.e. some relation beyond first cousins c) Must be consensual d) Must be a specified minimum age, usually 18 or between 16-18 with parental consent 2) Loving v. Virginia—a state may not restrict marriages between persons solely on the basis of race under the EP and DPC of the 14th Amendment a) Black woman and whit man were married in DC pursuant to its laws, but later moved to VA where interracial marriages were legally banned; petitioners were indicted and pled guilty; petitioners returned to DC on a suspended sentence and filed suit in the state TC to vacate the judgment against them on the grounds that it violated the DPC of the 14th Amendment; SC of Appeals affirmed the VA conviction b) Holding—reversed; VA statute violates the EP and DPC of the 14th Amendment i) VA’s argument that the mere equal application of a law is enough to overcome the 14 th Amendment’s prohibition on invidious racial discrimination is rejected ii) VA’s statute is motived solely to restrict marriage based on race and by precedent such laws are a threat to equality (1) Such laws are subject to strict scrutiny and can’t be upheld unless they are shown to accomplish a permissible state objective independent of racial discrimination iii) Here, there’s no legitimate overriding purpose independent of invidious racial discrimination that justifies VA’s classification c) When a state defines who you can and cannot marry, they create a class of people 3) Zablocki v. Redhail—right to marry is a fundamental right and any legislative attempts by a state to limit the right are unconstitutional unless they are narrowly—tailored to the accomplishment of an important governmental purpose a) WI statute required people paying child support to obtain a court order to get married which was conditioned on their having met the support obligation; respondent had been unable to meet requirements of support obligation due to unemployment and indigence, but applied with the county clerk to get married but was denied because he hadn’t gotten the court order to get married, which would’ve been denied; respondent brought suit in federal court charging the WI statute violated EPC of the 14 th Amendment; DC ruled for respondent b) Holding—affirmed; WIL statute is unconstitutional i) Right to marry is a fundamental right and strict scrutiny is appropriate for evaluating the constitutionality of any state statute limiting the right to marry ii) Right to marry has been extended to all persons as part of their fundamental liberty interests protected by DPC iii) Marriage is part of the fundamental right to privacy implicit in the DPC of the 14 th Amendment and is on par with decisions involving procreation, childbirth, child rearing, and family relationships

Shem Vinton

Family Law Outline

Fall 2016

iv) Applying strict scrutiny, WI law can only be upheld if it’s supported by sufficiently important state interest and is closely tailored to accomplish those interests exclusively v) Even though government interest is legitimate, i.e. seeing that support obligations are met in order to prevent children from becoming wards of the state, there are less discriminatory means to compel delinquent persons to fulfill their obligations vi) Concurrence (1) Shouldn’t be analyzed under EPC, but under DPC (2) Federal right to marry exists in the Constitution and the regulation of marriage is left up to the states subject to limitations in the DPC (3) WI law burdens the liberty interests of indigent as it eliminates their right to marry for financial reasons (4) Reasonable regulations that don’t interfere with decisions to enter into marriage can be legitimately imposed c) Better ways to enforce support obligations other than denying right to marry: i) Civil contempt ii) Wage garnishment iii) Real estate lien iv) Criminal enforcement 4) Obergefell v. Hodges—under DP and EPC of the 14th Amendment, state must issue marriage licenses and recognize out-of-state marriages for same sex couples a) Class of petitioners sought to have their marriages attained in other states recognized in states where bans against same-sex marriages existed; DCs found for the petitioners, but CoA reversed holding that states were under no constitutional duty to license or recognize same-sex marriages b) Holding—reversed; states must issue marriage licenses to same-sex couples and recognize lawful out-of-sate marriages between same-sex couples i) Gay couples have constitutional right to marry protected by the DPC and EPC of the 14th Amendment ii) Marriage is fundamental right protected by the DPC iii) Four principles underpinning the protection of the right to marry apply equally to opposite and same-sex couples: (1) Right to choose whether and whom to marry is inherent in the concept of individualized autonomy (2) Right serves relationships that are equal in importance to all who enter them (3) Assuring the right to marry protects children and families, which implicates the myriad of rights related to procreation and childrearing (4) Marriage is the very keystone of our social order and foundation of the family unit iv) Under Lawrence, Court held that same-sex couples had an equal right to intimate associations v) Refusing gay couples right to marry denies them a myriad of legal rights, including those related to taxation, insurance benefits, intestate succession, spousal evidentiary privileges, child custody and support, etc. vi) Liberty interest protected by due process intersects with the right to equal protection and same-sex marriage bands violate both c) Dissent i) Democratic process should’ve decided the issue, not the Court ii) 14th Amendment couldn’t possibly have intended for it to eliminate traditional and universal understanding of marriage iii) State should be free to define marriage as they will as it’s not defined in the Constitution iv) Court didn’t do an EPC analysis before declaring the clause to be violated Polygamy

Shem Vinton

Family Law Outline

Fall 2016

5) State v. Holm—entering into more than one marriage—even if marriage is religious in nature and not registered with the state—constitutes bigamy, which isn’t protected under UT law or the United States Constitution a) Respondent, a fundamentalist Mormon, legally married one woman, then married two more; the latter two marriages were solemnized via religious ceremony, but weren’t registered with the state; respondent later convicted of bigamy and appealed arguing that the state laws were unconstitutional under state and federal law b) Holding—affirmed i) UT state law forbids married persons from purporting to marry or cohabitating with a third person, and the fact that respondent’s latter two marriages weren’t recorded with the state doesn’t remove them from the scope of the statute ii) Respondent’s conduct isn’t protected under the UT Constitution, which explicitly prohibits plural marriages, and isn’t protected under the Constitution iii) Respondent’s conduct isn’t protected by the 14th Amendment’s liberty interest articulated in Lawrence because Lawrence protects private acts iv) Marriage is a public institution that the state has an interest in regulating for societal welfare, and here there was an issue of whether one of the wives, a minor, had actually consented to the marriage v) Argument that bigamy law constitutionally infringes on his freedom of religion isn’t persuasive (1) Bigamy statute is facially neutral and there’s no evidence that the statute has been applied unequally vi) Respondent’s freedom allows him to associate with groups that promote bigamy, but doesn’t allow him to engage in criminal activity c) Concurrence/Dissent i) Conviction of statutory rape should be upheld but conviction for bigamy should be reversed ii) State’s regulation of marriage applies only to legal marriage (1) Purely religious ceremonies or cohabitation shouldn’t fall within the scope of regulation iii) Respondent’s conduct is protected by UT’s guarantee of freedom of religion iv) Respondent’s behavior doesn’t involve an abuse of the institution of marriage so as to bring outside the ambit of Lawrence (1) Fundamental liberty interest in Lawrence protects individuals from government intrusion into their intimate relationships as long as no injury, coercion, or other harm is involved Incestuous Marriage 6) Smith v. State a) Niece and uncle in sexual relationship b) Holding—law against incest doesn’t violate the Constitution i) Court must look to the traditions and collective conscience of our people to determine whether a principle is so rooted as to be fundamental (1) Traditional social consensus defines scope of fundamental privacy ii) Incest isn’t a fundamental right, so rational basis review of the law is warranted iii) State has legitimate interest in protecting children, domestic peace, and purity and the law is rationally related to that purpose c) Incestuous marriages are void in TX Consent to Marriage 7) Valid marriage has always required mutual consent a) Each party must have the mental capacity to consent, and any expression of consent must be voluntary and free from duress or fraud 8) Mental Capacity

Shem Vinton

Family Law Outline

Fall 2016

a) To give valid consent, a party must be capable of understanding the rights, duties, and responsibilities of marriage at the time of the consent i) Statutes and case law recognize the possibility that a party might lose mental capacity temporarily due to intoxicating or incapacitating substances ii) Party who enters marriage without capacity to consent but later regains mental competence can then validate the marriage by ratifying the decision to marry 9) Mutual Assent a) To enter a valid marriage, competent parties must demonstrate their mutual assent to be married b) Parties sometimes may seek to avoid an attempted marriage by claiming that it was undertaken in jest or without serious thought, e.g. Brittney Spears 10) Fraudulent Inducement a) A party’s consent to marriage is legally ineffective if induced by fraud i) Fraud must relate to the essence of the marriage b) Many courts agree that false representations as to fortune, character, and social standing aren’t essential elements of marriage, and it’s contrary to public policy to annul a marriage for fraud or misrepresentations as to personal qualities 11) Void or Voidable Marriages a) Void marriages have no legal effect i) They offend very strong public policies because of the state’s overriding policy objections, such marriages are considered to be absolutely void even without a request for annulment, e.g. same-sex marriages, bigamy, incest b) Voidable marriages are considered legally valid unless and until one party seeks to have it annulled, e.g. underage marriage, lack of capacity, fraud, misreprentation 12) In re Estate of Santolino—if a party lacks capacity to consent to marriage, the incapacitated party isn’t capable of entering a contract for marriage, and the marriage is void ab initio a) Husband was admitted to hospital and diagnosed with lung cancer; when released, he was prescribed heavy medication and required an in-home nurse; husband married younger woman and when he died younger wife sought control of estate; husband’s sister claimed marriage was null and void because husband lacked capacity to consent to marriage; younger wife filed motion to dismiss the sister’s claim b) Holding—motion to dismiss denied; sister permitted to present evidence that husband lacked capacity to consent i) Nothing in NJ annulment statute that precludes a cause of action for annulment on lack-of-consent grounds after one party to the marriage has died ii) If the marriage is void ab initio, then whether the party is living is immaterial; marriage must be annulled iii) If Santolino lacked capacity to consent to the marriage, then it’s void regardless of whether he’s dead Minimum Age of Marriage 13) Initial premise of age restrictions is that most minors lack capacity to engage in informed consent a) Requirement that judge approve the marriage license after the minor’s parents’ consent reflects social consensus that as the minor’s age diminishes, the state is less trusting of the parents’ judgment in the matter b) Equal Protection Clause of the 14th Amendment permits the state to discriminate based on age, so long as the state has rational reasons for the lines it draws 14) Moe v. Dickens—2nd Circuit held that the right of minors to marry hasn’t been viewed as a fundamental right deserving of strict scrutiny

Shem Vinton

Family Law Outline

Fall 2016

a) Applying the rational basis test, the court held that the state’s restrictions on marriage plainly served in promoting the welfare of children by preventing unstable marriages among those lacking the capacity to act in their own best interests Summary 15) Marriage formalities a) The officiant doesn’t really have to have authority so long as one member of the party believe he officiant to have authority b) Having witnesses is optional, not required 16) Common Law Marriage a) If you meet all three elements of informal marriage, then you’re married b) Two ways to establish an informal marriage in the state of ...