Family Law Flashcards
Requirements of marriage:
CARS
CAPACITY TO CONSENT
AGE (usually 18) or with judicial or parental consent
not RELATED to the other person and
be SINGLE (not already married)
How to become married:
Get a LICENSE
SOLEMNIZATION by a judge or member of the clergy
NOT be under duress or under the influence
How do you establish a common law marriage? CACH mnemonic
CAPACITY to enter into a marital contract,
a present AGREEMENT to be married,
COHABITATION, and
HOLDING OUT a marital relationship to the community.
Burden is clear and convincing evidence standard by the party asserting the existence of the marriage.
When is a marriage recognized?
A marriage valid under the law of the place in which it was contracted will be valid
elsewhere unless it violates a strong public policy of the state that has the most
significant relationship to the spouses and the marriage.
(1) Ex.: If a couple enters into a common law marriage in one state, it will be recognized by all other
states. (July 2006)
What is bigamy?
Getting married when you already married to another person.
Bigamy characteristics:
i) A bigamous marriage is void from the beginning. It has no legal effect.
ii) However, there are two marriage-saving doctrines for the new spouse:
(1) There is a presumption that the most recent marriage is valid. (This is designed to
protect the parties’ expectations.)
(2) Further, the removal of the impediment (e.g., by divorce) will render a subsequent
marriage valid.
Family privacy doctrine:
Disputes of intact families are treated by courts as private
matters that should be resolved at home. Courts have refused to resolve issues like
spending decisions, examine premarital agreements (when the couple is still married
and living together), etc. However, this does not extend to parental decision-making that
endangers the child.
(1) Ex.: A father goes to court to challenge the fact that the mother takes their daughter to skating
lessons. A court will not intervene in this decision. However, if the mother will not buy the child’s
asthma medications (on religious grounds), a court may find that the daughter is neglected and
order the mother to give her daughter the medications. Courts do not inquire as to a parent’s
general religious beliefs but may inquire into religious practices if they endanger the child. (July
2013)
Spousal immunity:
At common law, spouses could not sue each other. (Women
were seen as property of, or as having the same identity as, their husband and the
husband could not be sued by the woman as it was viewed as being sued by
themselves or their property.) This has been abolished by most states.
(a) Ex.: If a wife can prove that a husband’s negligence caused her injuries, she may sue him since
spousal immunity does not exist in most jurisdictions. (Feb 2002)
Under the traditional approach under the First Restatement, the validity of marriage is governed by the law of the state where the marriage was celebrated. If the marriage is valid where it was celebrated, it is recognized in all other states. If a marriage violates a particularly strong public policy of the domicile of either party, however, it will be invalid under the traditional approach. But under the Second Restatement approach, such a marriage will be valid everywhere else unless the marriage violates the public policy of the state with the most significant relationship with the parties at the time of marriage.
It is likely that if two individuals who reside in a state permitting common-law marriage meet that state’s requirements for establishing a common-law marriage, recognition of the marriage does not violate public policy. Additionally, at the time of marriage, State A had the most significant relationship to the matter of marriage, as Dave and Meg both worked and resided in State A. Therefore, if Dave and Meg contracted a valid common-law marriage in State A, State B will recognize it.
Under the traditional approach under the First Restatement, the validity of marriage is governed by the law of the state where the marriage was celebrated. If the marriage is valid where it was celebrated, it is recognized in all other states. If a marriage violates a particularly strong public policy of the domicile of either party, however, it will be invalid under the traditional approach. But under the Second Restatement approach, such a marriage will be valid everywhere else unless the marriage violates the public policy of the state with the most significant relationship with the parties at the time of marriage.
It is likely that if two individuals who reside in a state permitting common-law marriage meet that state’s requirements for establishing a common-law marriage, recognition of the marriage does not violate public policy. Additionally, at the time of marriage, State A had the most significant relationship to the matter of marriage, as Dave and Meg both worked and resided in State A. Therefore, if Dave and Meg contracted a valid common-law marriage in State A, State B will recognize it.
The issue is whether State B can constitutionally grant Meg and Dave’s adoption petition over Dave’s objection when he has demonstrated commitment to parenthood, even though he cannot meet State B’s statutory requirements.
The U.S. Supreme Court has held that the right of an unwed father to object to an adoption cannot be denied if the father has demonstrated that he is committed to fulfilling the responsibilities of parenthood. On the other hand, some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father’s failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. However, termination in this fashion typically applies only to cases in which the father and child never developed a relationship.
Here, Dave has demonstrated his commitment to the responsibilities of parenthood. He held himself out as the child’s father, established his paternity by agreeing with Meg to have his name appear as father on Child’s birth certificate, lived with Child and Meg and provided support for them until Meg suddenly left him and relocated in another state. Dave also volunteered to marry Meg and would have been a marital father had she not refused his proposal. State B does not have a putative father registry, so Dave has not waived his right to notice of the adoption proceeding.
The only reason that Dave cannot meet State B’s statutory requirements for an unwed father is that Meg removed Child from State A without Dave’s consent and without any information about where they were going. Had she not left, Dave would presumably have met State B’s requirement that he live with Child for at least nine of the 12 months preceding Meg’s filing of the adoption petition. Instead, Dave had to hire a private investigator to find Meg and his child and then discovered the adoption petition.
Therefore, State B’s adoption veto statute would likely be found to be unconstitutional as applied to Dave, a biological father who has established his paternity, fulfilled his obligations as a father, and only fails to meet the state’s adoption objection law through no fault of his own.
The issue is whether State B has subject matter jurisdiction to terminate Dave’s parental rights or issue an order awarding custody. (20%)
Under the UCCJEA, a court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is: (i) the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old), or (ii) was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state. Here, Meg took Child from State A five months ago. Dave continues to live in State A, the state where Child resided within the preceding six months. Thus, only State A qualifies as Child’s home state and only State A has subject matter jurisdiction. State B does not have jurisdiction to either terminate Dave’s parental rights or issue an order awarding custody of Child to Meg.
Can a parent refuse to have their child vaccinated if the state law requires it?
A parent has a right to raise his child as he sees fit. A fit parent has a fundamental right to the care, custody, and control of his children. However, a parent’s authority over his child is not absolute. Laws are in place to protect children from harm, whether or not that harm is intentional. If a parent’s decisions will jeopardize the health or safety of the child or have the potential for significant social burdens then a parent’s power is limited. States are permitted, under their police powers, to require vaccinations and to refuse admission to public school for students who fail to receive required vaccinations. Such statutes are not subject to constitutional challenge based on a violation of parental rights.
Frank has a constitutional right to raise Danielle as he sees fit, but Both State A and Danielle’s school require that she be vaccinated before attending school. State A does not allow for any vaccine exemptions that are for “personal beliefs” and Frank’s desire to not have Danielle vaccinated is not based in a religious belief. Danielle does not have any type of medical exemption, either. Due to the fact that Danielle does not fall into the recognized exemptions and mandatory vaccinations have been determined to be within a state’s police power to protect public health, Frank’s constitutional challenge will not prevail.
Where must a third party file a child custody petition?
The purpose of the Uniform Custody Jurisdiction and Enforcement Act (UCCJEA), is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation. Almost all states have enacted the UCCJEA. Under the UCCJEA, a court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is the child’s home state. The home state is the one in which the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding, or since birth, if the child is less than six months old or was the child’s home state in the past six months, and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
Here, Danielle’s home state for purposes of child custody and visitation is State A. She has remained in State A since her birth eleven years ago. She only traveled to her aunt’s house two weeks ago, which is not enough to satisfy a change in home state. The aunt must file the custody petition in State A.
Can a third party get custody of a child if the parents are fit?
The standard for determining child custody is the best interests and welfare of the child. Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. Legal parents are presumptively entitled to custody of their children in cases against third parties unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child. If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms “parent by estoppel” and “de facto parent” to get around the presumption. A minority of the jurisdictions apply the best-interests-of-the-child standard in all custody cases, even those between a parent and a third party. However, such a standard may run afoul of a parent’s constitutional rights. Most courts will consider the wishes of the child if the court can determine that the child has sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, then the court evaluates the reasons behind the preference.
In determining child custody in this case, Frank and Wendy are presumptively entitled to custody of Danielle over her aunt, a third party. It is unlikely that the aunt would be able to rebut this presumption. There is nothing to indicate that Frank and Wendy are unfit parents or that their custody of Danielle is detrimental to her. Wendy’s absences from the home are related to her work and nothing indicates that she has abandoned or has little to no contact with Danielle. Since his injury, Frank has been home to take care of Danielle. It is concerning that Danielle stated that Frank has been depressed due to his back injury, but that is not enough to show that he is an unfit parent. The court would likely consider Danielle’s desire to live with her aunt because she is eleven years old and likely has sufficient maturity to express her preference. However, her preference alone, without more factors, is unlikely to be enough to rebut the presumption awarding custody to a child’s legal parents.
Can married couples ask for spousal support from one another?
- The issue is whether Frank may obtain an award of spousal support from his wife, Wendy. (20%)
Spousal support is the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if one spouse cannot provide for his own needs with employment. At common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctrine. A necessary item was something suitable to the parties’ station in life, including medically necessary care. Most jurisdictions have modified the necessaries doctrine to apply equally to both spouses, and often refer to them as “family expense” statutes. This spousal support obligation is limited by the common law doctrine of nonintervention, which disallows judicial intervention in an intact family. Courts have relied on the nonintervention principle to deny a support petition when the couple is living together.
Frank and Wendy have a duty to mutually support one another because they are married. Here, Frank is asking Wendy for spousal support while they are still married and living together and have not separated or divorced. Therefore, a court is unlikely to intervene to award Frank spousal support.
