Family Law Flashcards
Summary
There is no basis for a court to order the mother to stop making contributions from her paychecks to the religious group. Because the mother and father live in a common-law jurisdiction in an intact household, the father has no management powers with respect to the mother’s earnings. Although, in most states, the mother has a support obligation toward the father that would enable a creditor to recover from the mother the value of “necessaries” furnished to the father, the father may not personally obtain a court order requiring the mother to spend her earnings in a particular way, nor may a state child welfare agency.
Based on the family privacy doctrine, a court may not order one parent to follow the child-rearing preferences of the other parent when the parents live together with their child in an intact family. Thus, a court will not order the mother to take the daughter to skating lessons.
However, based on its neglect jurisdiction, a court could order a parent to take steps to preserve a child’s health or safety, even when the parent’s actions are religiously motivated. The proper party to initiate a child neglect action is the state, not a parent. Thus, a court could order the mother to follow the physician’s medical recommendations and order appropriate services for the daughter if the mother refused to do so and the state’s child welfare agency filed a neglect petition on the daughter’s behalf.
Although a court may not deny a parent custody based on a parent’s religious faith, it may deny custody based on a threat to the child’s health or safety. Because failing to take asthma medications appears to be life-threatening, if the father were to file a divorce action against the mother, a court could award the father custody of his daughter if the mother persists in her refusal to provide the daughter with her asthma medication.
On what, if any, basis could a court enjoin the mother from making contributions from her future paychecks to the religious group?
There is no basis for a court to order the mother to stop making contributions from her paycheck to the religious group. Because the mother and father live in an intact household in a non-community-property state, the father has no management powers with respect to the mother’s earnings. Although the mother has a support obligation toward the father that would enable a creditor to recover from the mother the value of “necessaries” furnished to the father, the father could not personally obtain a court order requiring the mother to spend her earnings in a particular way, nor could a state child welfare agency.
Rule
Under the common law, when a woman married, her identity was swallowed up in her husband’s. As a result of this marital-unity doctrine, a married woman could not own property. Beginning in the mid-19th century, legislatures began to enact so-called “Married Women’s Property Acts “that restored to the married woman the rights she had when unmarried, including the right to acquire, own, or transfer property. By the end of the 19th century, every state had passed such a statute.
Under the Married Women’s Property Acts, title determines asset ownership and management rights; “[t]he wife is given the power to contract and full rights to her own earnings . . . .” HARRY D.KRAUSEAND DAVID D.MEYER,FAMILY LAWIN A NUTSHELL 99 (5th ed. 2007). Because each spouse has full management rights with respect to his or her earnings, a court may not overrule the spending decisions of a spouse based on his or her partner’s conclusion that those decisions are ill-advised.
Marriage does, however, create support obligations and, since the Supreme Court’s decision in Orr v. Orr, 440 U.S. 268 (1979), those obligations have been gender neutral. Based on this mutual support obligation, a creditor who has furnished “necessaries” to a husband or wife may, in most states, sue the spouse of the purchaser and recover on the debt. See KRAUSEAND MEYER, supra, at 94–95.
However, the necessaries doctrine is available only to a creditor who has already provided goods or services. Such a creditor has no power to obtain an order altering a spouse’s future spending. The doctrine does not go so far as to allow one spouse to enjoin expenditures by the other because, as here, he or she is concerned that the bills of the family won’t get paid. Nor, because of the family privacy doctrine (see Point 2), may a spouse who disagrees with his partner’s spending decisions obtain an order requiring a different spending pattern or obtain a support award.
Application
A state child welfare agency may intervene in family decision making only when the decision at issue endangers the well-being of a child or another family member incapable of protecting his own interests. Here, there is no evidence that the mother’s decision to donate a portion of her earnings to the religious group endangers her daughter. Thus, the state agency cannot obtain an order requiring the mother to alter her spending patterns any more than can the father.
On what, if any, basis could a court order one parent to follow the child-rearing preferences of the other parent when both parents and their child are living together in an intact family?
Because the mother and father are living with their daughter in an intact family and failure to take skating lessons does not endanger the daughter, a court may not require the mother to follow the father’s preference with respect to continuing the daughter’s skating lessons.
Rule
American courts have consistently treated the disputes of intact families as private matters that should be resolved at home. Thus, they have refused to decide such disputes when a spouse has brought one to court:
The inherent jurisdiction of courts of equity over infants is a matter of necessity, . . . assumed by the courts only when it is forfeited by a natural custodian incident to a broken home. . . . The judicial mind and conscience is repelled by the thought of disruption of the sacred marital relationship, and usually voices the hope that the breach may somehow be healed by mutual understanding between the parents themselves.
Kilgrow v. Kilgrow, 107 So. 2d 885, 888–89 (Ala. 1958); see also McGuire v. McGuire, 59 N.W.2d 336 (Neb. 1958). Even when the spouse who comes to court wishes to enforce a premarital agreement, courts have refused to intervene in the disputes of couples who are living together. See Kilgrow, supra (refusing to enforce provision of premarital agreement requiring child’s education at religious school).
Application
Here, the mother and father are still living together with their daughter. Until and unless they separate, a court will not intervene in their dispute regarding the daughter’s skating lessonsand issue an order supporting the views of either parent.
Again, the state child welfare agency may intervene in family decision making only when the decision at issue endangers the well-being of a child or another family member incapable of protecting his own interests. Here, because there is no evidence that the mother’s failure to continue skating lessons would endanger the daughter, the state agency cannot obtain an order requiring the mother to continue the lessons any more than can the father.
On what, if any, basis could a court order a parent to cooperate in ensuring that a child obtains medical treatments necessary to protect the child’s health and life?
Because failing to take asthma medications poses a serious risk to the daughter’s health and safety, if the mother’s actions prevent the daughter from receiving her prescribed medications, a court may find that the daughter is neglected and order the mother to give the daughter her medications.
Rule
Although courts will not intervene in disputes between parents in an intact household, the state, pursuant to its jurisdiction over child abuse and neglect, may obtain an order overruling a parental decision and ordering appropriate services, including medical care, whenever the parental child-rearing decisions endanger the child.
The fact that parental rights are constitutionally protected does not alter this result, even when the parental choice is religiously motivated: “the power of the parent, even when linked to a free exercise claim, may be subject to limitation . . . if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” Wisconsin v. Yoder, 406 U.S. 205, 234–35 (1972). See also Petersen v. Rogers, 433 S.E.2d 770, 775 (N.C. Ct. App. 1993) (although court may not inquire into parent’s general religious beliefs, it may inquire into “religious practices . . . if such practices may adversely affect the physical or mental health or safety of the child.”); Jay M. Zitter, Annot., Power of Court or Other Public Agency to Order Medical Treatment Over Parental Religious Objections for Child Whose Life Is Not Immediately Endangered, 21 A.L.R. 5th 248 (1994)
Application
Here, a child-neglect action would most likely be triggered by the daughter’s physician, who is almost certainly a mandated neglect reporter under state law. However, the father could also file a neglect report. A neglect action is typically commenced after someone with knowledge of a situation that endangers the child files a report with the appropriate state agency. State laws typically require health care workers, among others, to report suspected abuse and neglect. After receiving a report, the agency investigates and files a neglect petition on the child’s behalf if its investigation confirms the allegations of neglect. If the court finds that a child is neglected, it may order parents to undertake appropriate actions, order a state agency to provide the child with services in the home, or even remove the child from parental custody and place her in foster care.
In a divorce action, could a court grant custody to one parent based on the other parent’s religious practices when those practices pose risks to the child?
Although a court may not deny a parent custody based on the parent’s religious faith, it may deny custody based on a threat to the child’s health or safety. Because failing to take asthma medications is life-threatening, a court could, in a divorce action filed by the father, award custody to the father if the court finds that the mother will persist in her refusal to provide the daughter with her medications.
Rule
A child custody contest between parents is decided on the basis of the child’s best interests. Under the best interests test, the court is free to consider a wide range of factors.
With respect to parental religion, the Establishment Clause forbids a court to favor one religion over another. However, although “[t]he court cannot evaluate the religion, [it can]. . . instead evaluate[] the parent’s ability to provide for the physical and mental health needs of the child.” WALTER WADLINGTON &RAYMOND C.O’BRIEN, FAMILY LAWIN PERSPECTIVE 162 (2001). Because of the sensitivity of the constitutional issues at stake, courts have typically refused to consider religion unless the evidence shows that the parent’s religious practice would imperil the child’s well-being. See id. Some courts have additionally required that a custody order “make the least possible infringement upon the parent’s liberty interests consistent with the child’s well-being.” Osier v. Osier, 410 A.2d 1027, 1030 (Me. 1980). See also Carl E. Schneider, Religion and Child Custody, 25 U.MICH.J.L.REFORM 879 (Spring/Summer 1992).
Application
Here, the daughter’s physician has said that failure to take asthma medications is life-threatening. Given that the daughter is only seven and needs parental supervision in order to ensure medication compliance, should the father file a divorce action, a court may thus deny the mother custody based on her refusal to administer the medications, and may award custody to the father.
