Family Law Flashcards
What happened in Griswold?
The Griswold Court found a right to reproductive privacy. The Court has also developed the very closely related idea that the family unit has a right to privacy against the State. Statute forbidding use of contraceptives = strict scutiny. (Focused heavily on marriage/married couples.)
What right was established in Pierce and Meyer? What is included in liberty under these cases?
Meyer v. Nebraska(German), Pierce v. Society of Sisters(Public Schools) = the 14th Amendment liberty interests of parents/guardians over their children’s upbringing and education
What right did Prince v. Massachusetts establish?
The custody, care, and nurture of the child is the fundamental right that belongs to the parents.
What happened in Eisenstadt? What is the rule?
Statute prohibiting distribution of contraceptives to unmarried couples = rational basis under Equal Protection clause, but still struck down.
Court found that the right to privacy is not dependent on marital status, but there can be distinctions as long as those are rational.
Is there a difference between a spousal consent requirement and a spousal notification requirement?
Casey finds no meaningful difference between spousal consent and spousal notification requirements, because they both create an undue burden on the ability to freely decide whether or not to get an abortion.
What is the pluralism argument for family privacy?
the idea that families cope with things in different ways
Can states standardize families?
No, it is beyond the state’s authority to standardize families.
What was the holding of Roe?
The right of privacy includes the right of a woman to have an abortion under certain circumstances without undue influence from the state.
What is the standard of review for issues of family privacy?
There is a shifting standard of review. The caselaw acts as a continuum: [Privacy] Griswold Eisenstadt Roe Casey Carhartt Upholding all abortion statutes under rational basis test [State interests]
What was the holding of Lawrence v. Texas?
The liberty secured by the constitution allows adults to control their own personal relationships.
Are consent/notification requirements for abortions for minors constitutional? Explain.
Supreme Courts have upheld statutes requiring a minor seeking an abortion to either notify the parents, or to utilize a judicial bypass. Can also require minors to obtain parental consent, so long as a judicial bypass is available in the same jurisdiction. Most states with consent/notification statutes only require one parent to be involved.
What was the holding of Cruzan? What was the outcome?
A competent person does have the right to refuse life-saving nutrition and hydration; the state has important interests that can overcome such a right; Cruzan is an incompetent person whose wishes had not been made clear previously (by will or otherwise).
What is the evidentiary standard that must be met before removal of life-sustaining treatment, under Cruzan?
The state may choose whether to defer only to the wishes made clear previously by the incompetent, or the decisions of close family members. In Cruzan, the requirement was clear and convincing evidence.
What is the minority and majority position for a claim of breach of promise to marry?
Only a few jurisdictions still recognize the claim for breach of promise to marry. Breach of promise to marry started to be abolished because of abuse of it, especially once punitive damages were allowed.
What kind of claim is a breach of promise to marry?
Hybrid contract and tort. Can sue for expectation damages and reliance damages, as well as damages for mental anguish, humiliation, loss of social status, etc.
What were common defenses to breach of promise to marry?
If the plaintiff had physical or mental defects
If the plaintiff was unchaste
If the plaintiff did not love the defendant
If the agreement was mutual
What do states that still have breach of promise to marry require (how do they limit the claims)?
The burden of proof on the plaintiff; AND
Must provide evidence of:
Signed, written evidence of the promise; OR
Testimony from two disinterested witnesses proving promise
Are engagement rings gifts?
Engagement rings are typically a conditional gift that is not absolute until the condition is satisfied.
What are the two approaches to determine returning the engagement ring?
- Fault-based: the donor gets the ring back only if they are not at fault for the breaking up of the engagement. (Not at fault means it was either mutual, or it was the recipient’s fault).
- No-Fault: Once the engagement is broken, the ring goes back to the donor regardless of what happens.
When will courts enforce prenups?
The agreement must be voluntary (free from duress or coercion.)
Both parties’ consent must have been informed (must have adequate knowledge of fiancee’s financial status).
The terms of the agreement must not be unconscionable (substantive and procedural).
How does the UPAA differ from ALI in premarital contracts?
UPAA analyzes from execution (signing of the docs) while ALI analyzes from execution AND enforcement (time of divorce). Both require procedural and substantive fairness, but UPAA sets a high standard for substantive unfairness, requiring unconscionability.
What is the UPAA premarital rule?
UPAA = Prenup not enforceable if:
The execution of agreement was not voluntary; OR
The agreement was unconscionable when executed, meaning that party:
a. Was not provided fair and reasonable disclosure of finances
b. Did not voluntarily waive right to disclosure
c. Did not have adequate knowledge of the finances of the other party.
What is the ALI premarital rule?
Prenup must meet standards of:
1. Procedural fairness
a. Informed consent
i. It was executed at least 30 days prior to marriage
ii. Both parties had or were advised to obtain legal counsel and had the opportunity to do so
iii. If one of the parties did not have counsel, the information was understandable
b. Disclosure
2. Substantive fairness
Whether enforcement would work a substantial injustice based on the passage of time, the presence of children, or changed circumstances that were unanticipated and would have a significant impact on the parties or their children.
How is marriage like a public institution?
Before you are able to get married you must comply with procedural and substantive requirements imposed by the state.
How do family law matters on the state level interact with the federal level, and vice versa?
Federal courts don’t normally involve themselves in family matters. Some state restrictions on marriage do indeed violate the federal constitution.
What happened in Loving? What was the reasoning?
Statute violated Equal Protection and Due Process clauses. Statute prohibiting interracial marriage = Strict scrutiny.
The fact that the statute might be equally applied, does not remove it from the Due Process protections of the Fourteenth Amendment. The statute relies on racial distinctions, and has no legitimate governmental interest. The Freedom on Marriage has long been recognized as one of the vital rights in the freedom of men.
What conclusion did the Zablocki court come to?
Zablocki concludes that marriage is a fundamental importance, grounded in Loving and Griswold. (If we protect procreation, childrearing, and family relationships, we must also protect the decision to enter into the relationship that paves the way for all of it i.e. marriage!)
What are the two rules to come out of Zablocki?
(1) The state can impose reasonable regulations as long as such rules do not substantially or directly interfere with the right to marry.
(2) The state can impose regulations that do significantly interfere with the right to marry, but, there must be an important state interest and the statute must be closely tailored to effectuate that interest.
What was the holding of Turner? What level of scrutiny did it use?
The Court now firmly recognizes the right to marry as a constitutionally protected liberty interest. Prohibition on inmate marriages = rational basis review.
How has the 9th Circuit ruled on the right to marry?
While the right to marry counts as a fundamental right, the attributes of marriage do not (procreation, cohabitation, etc).
Why aren’t marriages more common as private contracts?
Contract isn’t enough because there are many things you can’t contract around or force other parties to recognize, like the tax on inheritance.
What was the rule out of Windsor?
To determine if a classification qualifies as a quasi-suspect class, the court generally asks:
(1) Has the class been historically subject to discrimination?
(2) Does the class have a defining characteristic that frequently bears a relation to an ability to perform, or contribute to society?
(3) Does the class exhibit obvious immutable or distinguishable characteristics that defines members as a discrete group?
(4) Is the class a minority or politically powerless class?
What happened to DOMA after Windsor?
DOMA did not survive intermediate scrutiny under Windsor. Section 3 was stricken as unconstitutional.
What two questions did Obergefell answer?
Do same sex couples have a Constitutional right to marry?
Must individual states recognize same-sex marriage licensed in other states?
What was the holding of Obergefell?
The Due Process Clause protects the liberty to make
choices central to individual dignity and autonomy and these choices include intimate choices that define personal identity and beliefs.
The right to marry applies to same-sex couples because:
(1) Individual autonomy
(2) The importance of a two-person union to the individuals involved, including benefits of companionship and understanding
(3) The safeguard that marriage provides to children and family is a compelling state interest
(4) The centrality of marriage as the keystone of our social order
What is the universal definition of incest? The US definition? The minority definition?
Incest universal definition = no sibling to sibling marriage, no parent to child marriage.
US defines incest as sibling/sibling, parent/child, grandparent/grandchild, aunt/nephew/uncle/niece
Only half the states prohibit marriage between first cousins.
What happens to incest marriages?
Incestuous marriages are typically void.
What’s the difference between void and voidable marriages?
A void marriage is one that is invalid from inception. A voidable marriage is valid until subsequently declared invalid. If a marriage is void, then either party or a third party may challenge the validity of the marriage at any time and in any proceeding. The invalidity of a voidable marriage can be asserted only by one of the parties and only during the marriage.
How are half-siblings treated with incest?
People who are half-blood are treated the same as whole-blood. Cannot marry half-sister or half-brother.
What’s the difference between affinity and consanguinity
“Affinity” = related by law, “Consanguinity” = related by blood
How are affinity relationships treated with incest?
Many states say the incest ban applies to the family you are adopted into.
Affinity relationships terminate upon the marriage that produced them.
How does bigamy impact the ability to get married?
To be validly married, a person must not already have a prior undissolved marriage to another living spouse.
What is the majority position on age restrictions for marriage?
Most states require a minimum age before they can legally consent to be married. Some states will allow marriage of parties below the specified age if there is parental or judicial approval.
Why don’t age restrictions fail the Zablocki test?
Age minimums on marriage do not violate Zablocki because it doesn’t prohibit the right to marry, it just postpones it. They are also closely tailored to the state’s interest.
What state of mind is required to form a valid marriage? How can it be shown the state of mind is lacking?
Each party must have the mental capacity to consent. Any expression of consent must be voluntary and free from duress and fraud.
Fraud must go to the essentials of marriage (impotency,
determination not to have children, barrenness, lies regarding religion). Some courts use the material representation test and ask was the fraud material to the decision to marry?
What is an annulment? How is it different from divorce?
Annulment = a legal determination that a marriage was a legal nullity from its inception. The legal marriage never existed in the first place.
Annulment is different from divorce in that divorce is a dissolution of a legally valid marriage.
What are the 6 formal grounds for finding an annulment?
Fraud Duress Insanity or mental incapacity Impotence Age Bigamy
What is the majority position for rights after an annulment?
property rights, custody, spousal support, etc. still valid after annulment. (Tends to be case specific)
What are the main grounds for declaring a marriage void? What are the main grounds for declaring a marriage voidable?
void: bigamy and incest.
voidable marriages: age, fraud, and duress.
What was the holding of Blair?
Blair - There is an implication that when proving fraud, it must be material to the decision to get married.
There is a public policy for preserving marriages when possible, so there is a strict requirement that the fraud go to the essentials of the marriage.
What makes an annulment claim easier?
The sooner you file the easier your annulment claim is.
What two formalities are generally required to establish a valid marriage?
A marriage license
Solemnization
What additional formalities are required by some states to establish a valid marriage?
Proof of age
A blood test
A waiting period
A fee
What is the rule on validating marriages that fail to comply with a formality?
Most jurisdictions will not invalidate the marriage just because of a failure to comply with the formalities. The exception to this is if the state has a statute that explicitly says the marriage is invalid for failure of the requirements.
When is common law marriage is recognized?
Minority position recognizes common law marriage.
States that do not allow common law marriages will recognize common law marriages that were successfully created in a state that acknowledges common law marriages.
What are the requirements to establish a common law marriage?
Must live together
Must hold themselves out to others as married
Must do both 1 and 2 with the mutual intention to be married.
Must also have the capacity to get married.
Can common law marriage allow marriages otherwise restricted by the state?
No. Common law marriage does not allow circumvention of other state restrictions, like incest, age, etc.
How can you end a common law marriage?
Once a common law marriage is formed, it is valid for all legal purposes and can only be dissolved through a divorce.
What is the doctrine of necessaries?
The doctrine of necessaries imposed liability on a husband to a merchant who supplied necessary goods to a wife. Necessaries generally include food, clothing, shelter, and medical care. (A wife or the children can purchase essential goods and services on the husband’s credit.)
What is the modern view of the doctrine of necessaries?
Some states have repealed it all together, and other states have made it gender neutral (wives can be liable for husbands).
What is the doctrine of nonintervention?
The doctrine of nonintervention specifies that the state rarely will adjudicate spousal responsibilities in an ongoing marriage. Marital support obligations are enforceable only after separation or divorce.
What is the majority and minority approach to property rights under marriage?
The majority position: The common law/separate property/title theory approach. The spouse who holds the title to each asset retains ownership of those assets.
Minority position: community property approach. Based on the idea that marriage is a partnership. Property acquired prior to marriage remains separate, property acquired during the marriage is owned equally by both parties. Exception for property acquired by means of gift or inheritance. Cannot dispose of community property without the consent of your spouse.
What was the holding in Neal? What was the holding in Henne?
Neal = A court has discretion to deny a request for a name change on the grounds that it will be detrimental, but its discretion to do so is narrow. Proper notice is required for a child’s name change.
Henne v. Wright = There is no fundamental right to give a surname that does not have a legal connection to the parent.
What are the three standards in name disputes? Which is the majority?
Three standards in name disputes: custodial parent presumption, presumption favoring status quo, or a test to determine the best interests of the child. The best interests approach is followed by a majority of jurisdictions.
What was the holding of Vaughn? How does that compare to today?
Anti-nepotism work policy = Restriction is neither a direct burden (because it doesn’t preclude the marriage) nor is it substantial (because it doesn’t prevent them from marrying wide number of nonemployees, only makes marriage to other employees more costly). No violation for firing the employees, because they were at-will.
Today, anti-nepotism has been found generally acceptable.
How did Congress amend Title VII?
It now includes pregnancy for women. Pregnant women shall be treated the same as other persons similar in their ability or inability to work.
How do fetal protection policies fare?
Fetal protection policies for the most part are invalid as violating the PDA and due process.
What was the holding of LaFleur?
LaFleur: Relies on the due process right to be free from government intrusion into such matters as whether to bear a child to hold that mandatory unpaid leave can be considered a penalty for the exercised right to bear a child. Mandatory pregnancy leave must be reasonable.
Administrative convenience cannot save what is otherwise a violation of due process.
What was the holding of Guerra?
Guerra: The Pregnancy Discrimination Act establishes the floor below which you cannot go. So states cannot provide less than the PDA requires, but can require more.
How is the Family and Medical Leave Act applied?
i. To find a serious health condition, entitling leave,
FMLA requires either inpatient care or continuing treatment:
1. To qualify for continuing treatment according to Caldwell there must be a period of incapacity for more than 3 days; AND
2. Subsequent continued, supervised treatment
relating to the same condition.
ii. Applies to employers with 50 or more employees
iii. Applies to employees with at least 12 months and 1250 hours of service
iv. Up to 12 weeks unpaid leave
v. Can also be used to care for spouse, son, daughter,
parent- if they have serious health condition.
vi. Supposed to get the same position back, or be placed within an equivalent position with equivalent benefits and pay UNLESS to do so would cause substantial economic and procedural harm to the employer (like general council)
What was the holding of Dike?
Court concludes that breastfeeding (or pumping) is a constitutional right based on the right of privacy. The Constitution protects from excessive state interference a woman’s decision respecting breastfeeding her child. Have to have compelling state interests narrowly drawn.
How can battered woman’s syndrome support a claim of self defense according to Hawthorne?
Evidence of expert testimony regarding battered woman syndrome to support claim of self-defense:
a. Expert is qualified;
b. State of the art or scientific knowledge permits reasonable opinion; and
c. Subject matter is related to some science, profession,
business, or occupation beyond layman knowledge.
What are the two heart balm actions? What position allows heart balm actions?
Two types of Heart Balm torts: alienation of affection, and criminal conversation.
Heart Balm torts are the minority today.
What is alienation of affection? What are the elements?
When third person diverts or wins the affection of one
spouse so that the other spouse is deprived of a martial
relationship.
1. A valid marriage (the party must know of the marriage)
2. Wrongful conduct of the defendant with the plaintiff’s spouse
3. Loss of affection or consortium (consortium is a right growing out of the marital relationship, and includes the right to society, companionship, conjugal affection, and assistance of the other.)
4. A causal connection between the wrongful conduct and the loss of affection or consortium.
What is criminal conversation? How is it more difficult than alienation of affection?
Criminal conversation: requires that the defendant have had sex with the plaintiff’s spouse
Only defenses:
Plaintiff consented to the sex
Statute of limitations
What is the common law warrant rule? What are mandatory arrest laws?
Common law warrant rule: prohibited arrests of misdemeanants without a warrant.
Mandatory arrest laws require police to arrest an offender whenever police have probable cause to believe the offender has committed the crime.
What was the outcome of Castle Rock v. Gonzales?
The statute as written did not make enforcement of a restraining order mandatory because police officers always need to have discretion.
How have statutes changed domestic violence laws?
Authorize a warrantless arrest for some non-felonies. (Usually assault)
Authorize nighttime arrests in homes for misdemeanors.
Authorize magistrates to approve warrantless arrests over the phone.
Mandates warrantless arrests for some crimes.
Supplement the arrest with help for the survivors, like notice to the plan, assistance in getting noncriminal enforcement help, encouraging pressing charges, etc.
What was the marital rape exemption? How does it persist today?
Marital rape exemption: the husband is exempt from prosecution for raping his wife.
A majority of states still retain some form of the common law regime. Examples: criminalize a narrower range of offenses within the marriage, states subject the marital rape to less serious sanctions, require special procedural hurtles for marital rape prosecutions.
What was the outcome of Elonis?
Elonis - The determination of the correct mental state for stalking requires more than negligence for a communication to be viewed as a threat.
What are the two evidentiary privileges of family law? What do they do?
Spousal immunity privilege
- Protects spouses from testifying against their spouse during a valid marriage.
- Some states allow spouses to testify if they want to, but cannot be forced to. Some completely bar testifying. Some require defendant’s consent to spouse testifying.
Marital communication privilege
- Survives the dissolution of a marriage
- Prevents a spouse or former spouse from divulging any confidential communication made during the course of the marriage
- Only the communicator can waive the privilege, the testifying spouse cannot.
What is the leading case on the exposure of kids to domestic violence? What was the outcome?
Leading case → Nicholson v. Scoppetta = The definition of child neglect requires proof of the parent’s failure to exercise a minimum degree of care. The sole allegation of witnessing abuse, without more, is insufficient to prove neglect. However, a child can be removed if the emotional toll of witnessing the abuse rises to that level, so it is not that it never happens just not sufficient on these facts. Removal of children cannot be based on the presumption of neglect stemming from the parent’s status as a victim or survivor of intimate partner violence.
What are the elements of neglect?
To establish neglect, by preponderance of the evidence:
- A child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired
- The actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship.
How is the application of a formal definition of family different from a functional definition of family?
Formal definition would result in a single definition of family which would apply to everyone. Those who don’t fall into the definition would get different legal treatment.
Functional definition would look to the various behaviors and functions of different groups, rather than a single definition. If a particular group is sufficiently similar to a traditional arrangement (support, affection, caregiving, etc.), it could receive the same legal protections.
What was the outcome of Moreno?
US Department of Agriculture v. Moreno:
Rational basis review. No legitimate interest in seeking to harm a politically unpopular group (hippie communes). Fraud would’ve been legitimate interest but this restriction is not a rational way to further it, and there are already other sections that deal with fraud.
