Download Family Law - Outline Sumo

Family Law-- Halley, Fall 2000
This course begins with marriage & the starting of relationships & ends with the tragedy of divorce & the breaking
of relationships. We deal with adult & C relationships; but we do not deal with Children in their sole relation to the
state directly but instead with their relation to the state through their Ps.
Important theme: continuity of relationships, surroundings and environmental influence are essential for a C’s
normal development. Goldstein et al., Beyond the BI of the C, 1979, page 31 cited in lots of cases. They also talked
about psych P (one “who on a continuing, day to day basis, thru interaction, companionship, interplay, and
mutuality, fulfills the C’s psych needs”) p. 701. Also custodial P determine if other can visit. p. 654
Creating Family Relationships
I.
Privacy & Public Interests in the Family
A. Marriage
1. The Status & Privacy Effects of Marriage [A95-102]
A. TWO SPHERES/DOMAINS: private (freedom of contract) & public (marriage as status;
state involvement). Status & privacy as mutually supportive, paradoxical, tension; not true
opposites, hard to keep distinction between the two in our cases. For example, status may
help to create privacy or it may flood a relationship with law, as in Graham in B below.
B. STATUS: Legal, personal (says who you are) relationship in which third parties (e.g.,
commoners, also a status) are interested. Halley notes that it is unusual to see status today
(husband-wife); most are gone (slaves, kingship). We see the traditional model of marriage in
Graham v. Graham, 1940: now divorced, a man sues his former wife for breach of K between
them when they were married, stating that she agrees to pay him $300/month & that there
would be no future arguments about his receipt of her money. She wanted him to follow her
on her travels so she paid his expenses & had him quit his job; she induced him into this
agreement to induce him not to return to work as he desired. Held: the K is void &
unenforceable because it is a private K changing the essential obligations of the marriage
contract & so it offends public policy. Under the traditional model of marriage, marriage
is not merely a private K between the parties, but creates a status in which the state is
vitally interested; you cannot enter a K to alter marriage since it is a status (court
reaches public policy Q: public forces itself in to marriage, state control of marriage
essential terms). Otherwise, there would be controversy; Halley notes p.97 public policy
justifications such as don’t make a forum for bickering, avoid incentive to think of bad
marital conflict, put arms length K idea out of here & instead see marriage as altruism, really
just one unit (wife not exist)., do not see spouse as bargaining partner. Also institutional
resources & competence issue; Halley notes that marriages actually merge the state &
religious jurisdictions; church is like a privacy regime, leave alone, avoid tension, public stay
out attitude; Halley notes let them be alone gets passivism, altruism, nonconflict & peace:
really sets their attitudes & controls them! Paternalism! Rights & duties are incident to the
relationship, irrespective of the wishes of the parties. Halley notes the old essential elements
of marriage, must be met for the contractual relation, cannot alter these elements or else
grounds to annul as a void marriage. For example, under common law doctrine: the husband
has the duty to support (note: now we are gender neutral) & live with his wife, & the wife
must contribute her services (Halley says e.g., sex or else she ahs ab&oned him, her fault &
society to the husband & follow him in his choice of domicile (or else Halley says she has
ab&oned him, her fault); the contract here releases him from the support duty (he can call on
her for money) & her from the duty to follow. Halley notes that although the state gives the
terms, you can void the marriage on your own, just alter the terms & the state will not
enforce the K, so just you two agree, voluntary & non-binding, so this case is not making
marriage completely devoid of privacy: it simply RELAGATES family decisions to
UTTER privacy, state is out of it, not intervene even if looks like public domain: really
private: KEY TO THE CASE!. Judge says same thing: voluntarily, she may pay him & he
may follow her but there can be no binding K, killing flexibility needed for adjusting to new
conditions in married life, typing their h&s & inviting litigation. Note: the case is
2.
distinguished from those where the parties do not contemplate a continuance of the
relationship (e.g., after or in contemplation of separation). Halley notes this all changes with
divorce.
C. PRIVACY: The Doctrine of Family Privacy (Not Intervening in Ongoing Marriages) in
McGuire v. McGuire, 1953: Halley calls this a delicious case. Wife sues her same-householdhusband in equity for support; she does not request a divorce but a right to living standards.
She claims she was dutiful & obedient but he only gave her tiny amounts of money; the facts
lists she never sees movies, gets new appliances, etc. even though he is rich. Earlier case
Early said if the wife is ab&oned (& in Cochran if they are separated without her fault) she
can ask for support in equity without divorce; & in Brewer case, wife who lacked control left
the household & then could sue without divorce. Halley notes the duty of support is now
gender neutral; see Cheshire. Held: The marital relation has continued for over thirty years,
never separated or lived apart. Duty of support is only enforceable when parties live apart
through no fault of the wife (fault system), no divorce at will): she cannot, e.g. ab&on him &
go to her mom. Common law rule plus p. 99 she must have no other means of support. Court
only step in to duty of support if dire. Halley says it is a question if other family can support
her. INTACT MARRIAGE, DOCTRINE OF FAMILY PRIVACY til divorce then the
house walls fall down, invasive. Need a house, privacy as domestic, Halley says the door
must close on the domestic space. When the home is maintained/preserved (different if
separated) & they life together as husband & wife, it may be said he is legally supporting
her so UNENFORCEABLE duty of support is stated as a privacy regime (a legal
expectation is covered in privacy!). Private policy requires the living standards of the
family are a matter of concern to the household & not for the courts to determine even if
the husband has a poor attitude according to his wealth. Halley notes the financial
circumstances become public only if she is out of the house; court does not want to
determine the level of expenditure for specific households, idea of triviality too: color of
sheets. Also institutional competence on types of sheets. Halley also notes the date,
consumer family life boom, idea of “having” things: Strong American multicultural reason,
we want families to differ, not homogenize them! She choose him, cannot now get state in
for middle class goodies. Note a gender skewed system; marriage default of support for
women who live apart from husband. There is also a private welfare system idea; if you are
alone, support yourself; if married, he supports you; see 2 below. Dissent disagrees, wife can
sue directly to enforce the support duty; no case requires separation. Halley says dissent is
shocked that opinion says must divorce to get duty of support! Then third party
interested. The support obligation is w/i a relationship. Wife is physically & mentally
incapable of leaving him & he’s rich. Halley says you could give a moving line for support, as
improve move the baseline of abuse over, no absolutes. Halley also notes K argument:
exchange service (she was god wife), match with real support. Court is h&-off while intact
marriage. But wife did her part, should give equitable outcome.
Marriage as a Private Welfare System [A325-32; A336-38]
A. Halley’s idea. Marriage is a complicated institution. Make sure people do not need the public
welfare system: enter relationship where gets support.
B. Property law: at common law, upon marriage, a woman’s property & earnings became the
husband’s & under his control. Any asset flow into marriage is his. Halley says marriage used
to be permeated with property thinking. Femme Couvert, covered woman, couverture, she
went under her lord/husband, even her inheritances went too. She had no legal existence,
merge into him, just cannot kill her, marital murder. No such thing as marital rape. Harshness
was modified in the 19th century with the Married Women’s Property Acts (MWPA).
Early start but then there was a nearly universal acceptance of the right of a married woman to
her own earnings, to K & carry on a business, to be sued & to sue, & to transfer property
without her husband’s consent. But Halley said this was a partial reform. No interest in his
property or in control & management. MWPA really only helped women with income or
bequests, i.e., the middleclass.
C. Halley says an equal protection wave went through property laws: duty of support as well as
ownership of assets. Mutual aid versus individuals. How far do we take the individual
notion of MWPA with the duty of support? Duty may bite hard if spouse needs a lot,
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matters a lot when ruinous. How much do we want to tell (by incentives or directives)
spouses how to arrange their finances (merge money versus separate empires)?
1. COMMON LAW DOCTINE OF NECESSARIES: a husband (one way) is bound to
pay for necessary medical services furnished to his wife; old common law piece of
duty of support. Modified by Cheshire Medical Center v. Holbrook, 1995: Husband
challenged the old law as in conflict with EP. Married couple lived together, wife
received medical services from the center but then, incarcerated, she could not pay.
Center tried to attach husband’s real property so he questioned doctrine of necessities.
Held: a husband or wife is not liable for the necessary medical expenses incurred by
his or her spouse unless the resources of the spouse who received the services
(Primarily Liable for payment) are insufficient to satisfy the debt (Leads to
Secondary Liability of gender neutral spouse). Common law version is
unconstitutional: violates EP, need reciprocal responsibilities on husband & wife,
extend old common law doctrine to all (here women gets a burden through EP: both
sexes are under necessaries doctrine) otherwise there is differential treatment of
similarly situated people; EP is just about a comparison, not about substance, no one may
use a pool is old southern case. Under old law, wife had no legal existence, was
husband’s property, could not K for food, clothing, medical needs, thus law obligated the
husband to provide her with necessaries. Now an anachronistic assumption about female
dependence b/c MWPA dissipated the marital disabilities of women, unrestricted right to
K, so there is no longer a compelling basis for gender bias in the traditional necessaries
doctrine. Consistent with gender neutral support laws.
A. Halley discusses reasons to end necessaries doctrine: fairness issue, individuals
choices are not the choices of the other, couple as strangers; plus gender
discriminative theory even if seems neutral, men have more money, resources, are
the economic providers, in effect are liable more times so in effect the old rule is
around: cultural constructive effect (make up people), reinforce the traditional way
men function, disparate impact on men in real world.
B. Halley matches A with reasons to keep: people chose the status, came with the
doctrine, tied self at earlier point into community, lost individuality, waiver-like, did
not have to get married in first place. Also, EP treats all alike: is fair. Re: gender,
without the doctrine, risk male has leverage over woman since she does not have
money, access to workforce. Further, if communalize & merge assets, this equalizes
gender stuff.
 Marriage is come together better or for worse; it is a community, individuality
goes away. Why is community view so good? Better planning. Outsiders view:
private welfare system, we do not want to be responsible for these people. Also
people who marry do think for better or for worse way, want to bear load of life,
you are the one for that, so respect expectations & make law match them so get
marriage they want. Also paternalistic view: people should be like that, make
them not dog eat dog but economically altruistic.
 If case had held for joint & severalable liability, that would be strong
community view. Pool assets versus this case a little bit individual since have
doctrine of necessaries but also do primary & secondary liability bit so not
strong community case. If did not do this, would wipe woman out first since
she makes less, each dollar worth more to her. Also if she is the primary liable
one. So become a differential power structure issue, takes some states to case by
case nature, neither rule, see how estate disposed of in reality. Some cases say it
is whoever signed the K: legally noticeable thing. Or who managed the
household more, punish them, affects homemakers more if so. Big choices
affect how we look at marriage!
2. Community Property. 9 states. Halley: states with Spanish civil law say all property of
the couple acquired during the marriage is community property, earnings but not gifts &
inheritances. Husband does not own what is (community property) generated during
marriage but there is separate property (gender neutral, come into marriage with stuff).
Equal management can lead to races so some exceptions. Halley says retains some of
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common law: he still manages & controls. Note: Uniform Marital Property Act, 1983:
spouses share in property acquired during marriage. Goes beyond community property
regime: share in rents/profits accrued during marriage from separate individual property
too.
3. LIMITED COMMON LAW DUTY TO PROVIDE MEDICAL ATTENTION FOR
SPOUSE: DUTY OF CARE (not a duty of support case) People v. Robbins, 1981.
Competent wife had epilepsy & diabetes but stopped medication for religious reasons;
husband does not give insulin & she dies. Court looks to sister states & finds breach of
duty of care or protection when other spouse is helpless & unable to request or reject aid
for herself, but there are limits to duty to provide medical treatment; & courts must first
see if spouse acts in accord with other’s wishes. Held: Spouse cannot be held
criminally liable for following a competent spouse’s exercise of free will to refuse
medical aid; liability in this case would be an unwarranted extension of the common
thread in cases that you can impose criminal liability only when decedent spouse is in
helpless condition obviating the ability to make a rational choice to eschew medical
assistance. Halley only covered a bit. She says it is a so-so case since opposite holding
would offend her duty of autonomy, it is a refuse medical treatment case & pretty
obvious; opposite holding ok if she passed out or lost her choice. Text says state
interest in right of adult to make decisions; think of cases where civil liability on MD or
anyone who treats patient without consent. Irrational & unfair to hold husband
responsible for respecting the right!
B. Private Parties’ Power to Alter, Re-Create & Avoid the State’s Model of Marriage. Unit 2 is
about alternatives to marriage. There are issues related to Unit 1 relationship between status (state,
default) & K (private ordering) in marriage regime. Alter marriage (substitute forms) from state
model of trad’l marriage: cohabitation, religious jurisdiction, lots of issues.
1. Halley’s 4 models of marriage. She creates a spectrum to bend the idea that status & K are 2
things; ways of private relationships. What world do we want to live in? Spectrum: choices as
break up A’s status then we get back to status in E. Note none say more than 2 in the unit.
Perhaps we want to end rigidity, get choice but not go all the way since people don’t want that, or
redefine status to get what we want (Graham suggests status rules are out of date already in 1952,
couple wants complete reversal of money arrangements of traditional family rules), see what we
dislike (people vote with feet), or hard to change status (same sex marriages are not spreading
across states) so multiply alternatives to marriage.
A. Old model: just a large S status box. With a non-S outside. Graham. We could return to a
strong state world, cannot alter during marriage. Real status, essentials are there, cannot get
rid of them. Nothing outside of marriage, if no marriage then no alternative, just adultery &
fornication if sex outside of the status; not enforceable unlike the essentials inside. No altering
marriage at the start; no prenuptial off the shelf. [Halley says this was Simeone but I do not
see that as the court enforced alimony caps in a K & was very anti-paternalism! That is a K
case; I think she made a mistake.]
B. Two statuses. Small s & Large S. Choice of 2 marriages. Louisiana has a wishy washy version
with no fault divorces. Also covenant marriages with stricter exit rules, need counsel, time,
divorce restricted. Thinks of little marriages or PACS in France, one type can tear up
certificate while one type has a long divorce process; a few state forms, more status-like than
C & D, terms are really traditional unlike Marvin in D.
C. Erode Status-like qualities so little dots around box of S (we see how next week), cut into it
with K’al concepts, erode the essentials, care less, not enforce. S becomes more like other
relations or we allow antenuptials or allows Graham to change the terms. Halley says C is the
opposite of Graham. [as well as of Simeone; I don’t get that given what Halley said in A ]
Edwardson is to Equity/paternalism (can have K but see facts, more than duress b/c in
marriage not arms length) as Simeone is to K. (keeps caps on alimony b/c woman K’ed.).
Seems like debate permeates C but both cases are in C. Halley notes that the trend is
toward K-like understanding, enforce antenuptial K’s more & more.
D. Marriage alternatives. We see a lot about marriage or one with holes plus meaningful, similar
choices, alternatives to marriage, more K’al, tailor relation, no box, you really shape it as you
live together, enforce your K, like in Marvin cohabitation held ok. Halley says domestic
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partnership may be in here.
E. No difference between S with a box & without a box. Weaker party always gets benefits since
could not get a fair deal so court impose cohabitation K, extreme view, not turn on express K
(this is really an E! back to status! We impose a status on them!). Mutual support, share like
in a divorce process even if never was married. Sleep with them, & bam you get duties!
Antenuptial Contracts [W144-6(UPAA); A181-96; A380-82; PM(Pacelli)]
A. Uniform Premarital Agreement Act, 1983: 25 states use this! So Halley notes that the
trend is towards K-like understandings; increasingly enforceable prenuptials can K away parts
of marriage agenda. Implements state policies of allowing couples to use Ks to establish the
economic & personal elements of their relationship as long as such Ks take into account the
third party status created by the state & the state’s concern for public policy. Halley
says pretty broad idea of what you can K away: except C support & private welfare
system idea. A premarital K is between prospective spouses, made in contemplation of
marriage & to be effective upon marriage, in writing, signed by both. Can K to rights &
obligations of parties in property of either or both, right to manage & control property,
disposition of property, modification or elimination of spousal support, death benefits, choice
of law, other matters not in violation of public policy or criminal statutes. Cannot adversely
effect the right of a C to support: Halley says cannot K that away! Can amend or revoke
after marriage only by written, signed K. Not enforceable if prove not executed voluntarily or
if unconscionable & not fair, reasonable disclosure, no waiver, & not knowledge of property
or financial obligations of other. If leads to need for public assistance, a court may require
support; Halley reminds us we pierce K because of the public assistance function of
marriage. If void marriage, enforce only to extent need avoid inequitable result. Statute of
limitations for relief actions under these Ks are tolled during marriage.
B. Reallocations of Duties Within Marriage by Private K. Halley: cases show a range of
approaches.
1. Edwardson v. Edwardson, 1990 changed the old law under Stratton under which the law
would not permit parties to enter an antenuptial (contemplating marriage) contract
proving for & looking to future separation after marriage. Used to think K destabilized
marriage. Note: theory behind the UMDA having a no-fault dissolution system too is
that ab&oning the need to prove fault would strengthen & preserve the integrity of
marriage. Now realize divorce rose after old law anyway, divorce is not promoted by the
K. Now we think K may even promote continuance & they are widely enforced for
property rights after one spouse dies. Society changes & restriction is inappropriate. Here
there is an antenuptial K stating if they divorce the husband will pay $75/week as
alimony/maintenance & medical insurance; neither party shall have other obligations for
alimony/support. In divorce action, she seeks to enforce this K; she wins. Held: parties
may enter an enforceable K in advance of their marriage for the amount of alimony
to be paid in event of divorce. Dictum: not all Ks are enforceable, there are limits:
Paternalism case, middle approach unlike C & Simeone. Require full disclosure;
cannot be unconscionable at the time enforcement is sought; & may only apply to
disposition of property & maintenance not C support, custody or visitation. Law
moves case by case. Broad discretion to court, beware if not mutuality or rational basis.
Wisdom: closely scrutinize antenuptial K. Halley says this case rejected the old Status
approach; Stratton was model of marriage A since anticipating divorce would be an
incentive divorce & that was disfavored by public policy; this court rejects both the
policy & the empirical stuff on incentives: & not arms length bargainers so require
some stuff like cannot be unconscionable: court puts in own conception, can replace
party in equity so takes a middle approach really. Scrutinizes terms.
Paternalistic/equity unlike Simeone/K.
A. Halley discussed history of equity, tailor to case. Ties into course: There is
a common law of family law, rules of law, statutory standards. Like K
case in 2, no exceptions to K.. Versus rich tradition of equity, let judge
do what is fair like here in 1 make sure not unconscionable when
enforce. Which is better? This debate permeates discussion!!
2. Simeone v. Simeone, 1990: Halley says unlike Edwardson case. Equity versus K.
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Antenuptial K (contemplating marriage) limits & caps support payments of rich husband
in the event of separation or divorce. Later, separated wife wants alimony pendante lite,
relinquished by the K that also states she was informed & underst&s pendante lite could
have given her more. She claims she (no job, no assets, no attorney) was not adequately
informed about the nature of this alimony. Court rejects old Geyer case (K upheld only if
reasonable provisions or full fair disclosure of rights relinquished). Since women are no
longer the weaker party in marriage & society, unequal status & not knowledgeable
enough to underst& Ks they enter. Often very educated, with financial awareness, income
& assets. Also inquiring into reasonableness undermines the functioning & reliability of
Ks; parties viewed K as reasonable at time of inception by signing so cannot evade later
by say not in fact reasonable. Also there are always risks of changed circumstances,
routinely assume or address in Ks; otherwise could get flood of litigation. Held: No
alimony pendante lite; enforce the cap in the K. Reasonableness of prenuptial bargain as
well as knowledge (read/ understood terms) of parties are not proper subjects of judicial
review & K is not void on ground she did not consult with attorney; too paternalistic.
Look for fraud, misrepresentation & duress only, bound by K here. Law has advanced
to recognize the equal status of women; no more paternalism to shelter women from
inferiorities & incapacities. Do not depart from traditional rules of K law. Here valid
K to give up tons of money, enforce despite equity. If you remove K, not fully free
individuals. Pretend facts not disputed: he’s old, she ‘s young & poor, classical facts
toward equity view. Court avoid for a K view but could still inquire if it is duress. Maybe
timing is coercive, eve of wedding, formally free until then. Could argue wedding
psychosis under equity regime: altered mental state, exceptional time & relation, unique
social dynamic, not arms length, degraded decision making ability, paternalistic, other
side knew more facts. Need more facts to see if exploit ongoing relation: maybe the K
was really made well before wedding; ambiguous area of law about pre-Ks & promises to
marry not in course. Do not interfere with power of people contemplating marriage to
agree & rely upon what they regard as an acceptable distribution scheme. Ks are meant to
avoid judicial determination of what is reasonable at time of inception or time of divorce.
Of course, K law also requires full & fair (not need exact) disclosure of financial
positions of parties; at time of K there is a mutual dependence, not arms’ length. Halley
says typical arms length K does not require full disclosure of assets to other side but
court makes a small paternalistic move only here & adds to marriage but court does
try to minimize this exception to K law. Halley says she must show substantial
deviation from normal. Halley says the court has a picture of marriage so that is
why it implies you must tell all. Seeds marriage as ECONOMIC PARTNERSHIP so
require disclosure of gains & jointly liable debts. Versus no disclosure if separate
checkbooks, asymmetric spending & debts. Individual actors/rational self-interested
utility maximizers versus the case: come together as one unit (middle position: this
may max utility). Presume made if K says did so. Wife fails prove collection
understated, no duress, witnesses said she discussed the K well before her wedding, had
time to get attorney, not reluctant to sign. Concurrence says real women are still not
equal, need old law.
Massar v. Massar, 1995: Note: this K was made DURING the marriage when parties
knew possible reasons for divorce! Also Halley says this is an unusual case: most
people do not try to K away alternative grounds for divorce. K limited the grounds for a
divorce complaint to 18 months continuous separation: no-fault grounds since h e was
worried about stigma. Court thinks can assert reasons based on what happened after K of
course. After marital troubles, husband moved out; she asserts extreme cruelty as a
reason for divorce (cruelty was before the K). Held: She cannot do this. K was clear,
unequivocal, no duress, she had attorney, public policy gives time to assess relationship
& determine whether a reconciliation is possible, promote marriage by reflect ion,
cooling period. Freedom of K. She K away what statutes gave her for no fault
regime. .Marital K are essentially voluntary & consensual so approach with
predisposition in favor of their validity & enforceability if they are fair & equitable. Set
aside if fraud or unconscionable (K law). Leniency to K in domestic arena, judge not
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draft a new K. Main point: Case by case fairness no per se rule. See facts since
ongoing dangers. Couple can agree to timetable for dissolution based on unique
circumstances of their case. May good to not assert such emotional topics yet
sometimes don’t want to hide these issues. Not rule. Standard. Here he was worried about
being allowed to remain a church official. Halley says we do not know what is in wife
head: maybe he is cruel/facts so not waive for later suit, want court recognition, some
statutes tilt property division if fault grounds so more pie on divorce, or just an allegation
to go for leverage in divorce, bargaining chip, pay me for it like a strike suit without
merit. Here we gave her bargaining power to extract a settlement & him to avoid
transaction costs of trial so no public policy here. Halley says if not a trick, then to argue
against her freedom of K says policy says we need speed if cruelty. Now it’s harder for
her to prove cruelty too. We should dissent from case & protect her wellbeing. Halley
says that during a marriage, like in 4, stricter scrutiny of Ks (despite this case, see
next case) since lower bargaining power than at either endpoint & than bargains
between strangers (here they are stuck in a status, have to bargain with each other!).
Could be more paternalistic to protect lower power person; say position in marriage is
asymmetrical, true world & moreso in marriage. If you are paternalistic unlike case, you
say extreme cruelty has bite & we want to get at facts of true asymmetry. Note duress is
an equitable argument even in arms length Ks. So could say not need to leave K regime,
duress will take care of real world asymmetries, need a higher showing, astound us with
her facts. Don’t be paternalistic; women can K & make rational decisions. Halley says
there are versions of feminism. Treat women as able to, get more women to K. Here she
was happy with it, everyone has remorse about Ks later. Issues would be if the cruelty
had come after she made the K, not so here. Need K policy in general: court discusses it
wants people to make peaceful K to get it ended if broken, rather than a fractional divorce
war. Prefer peaceful resolution, court want K so quietly off the screen, court not
want full jurisdiction in all.
A. Halley hypo: what if you waive all grounds for divorce in antenuptial, not just fault
grounds/ Forever status: happy slave dilemma. Is this possible in a K regime given that
status is enemy of K world? Student says we let people lots of unconscionable K’s; here
they know they bind themselves, marriage is a promise not to divorce. Are we in a love
divorce regime now?
Pacelli v. Pacelli, 1999: Note: this K was also made DURING the marriage but on
the case by case inquiry it was found not to be fair or just so was not enforceable!
Also made it clear it is different from an antenuptial K! Court fears unequal
bargaining at time so intervenes during marriage. Halley notes courts love
separation Ks & will not intervene, & antenuptial Ks also are often ok even if some
psychosis; but this type of K during the marriage about a continuing marriage is not
OK here: INTERVENTIONIST court, less K-mode.. Mid-marriage K resolved issues
of equitable distribution & alimony in event of divorce. Wife was half husband age when
married, she made no money. Husband said he’s divorce her if she did not agree to
certain terms re: their economic relationship. He moved out to heighten the dem&. Hot
got attorney, admitted to high net worth, attorney told him he needs to be fair & reveal
relevant information. Wife did not want a divorce, went to attorney who said not to sign
low alimony K, a judge would give her more but she did not listen. She wanted to
preserve the marriage & not have her kids raised in a broken family; she would sign
anything to have marriage last. He presented the K as-is, cannot negotiate. Held: Midmarriage K in this case is unfair, inequitable & unenforceable. This case reveals a
distinction between K made in contemplation of marriage & those in contemplation
of divorce at end of marriage (property settlement K); former are enforceable if fair
& just, latter if fair & equitable. Property relations have deteriorated in one;
antenuptial K are reached when not adversaries, when close relationship & people
are less cautious. Mid-marriage K differs from both. The marriage still has vitality &
at least one wants it to survive (he wanted it to, but on his terms). Wife here at harder
choice than before marry; cost is loss of intact family & stigma of failed marriage.
Also not adversarial, marriage has not died. Context was inherently coercive. Resemble
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reconciliation K, where people threaten dissolution of bargain to get positions of
advantage. Not a rule against them yet but a standard where we closely scrutinize
mid-marriage Ks to see if not just & fair . Unfair when signed, creative accounting
misleading, deductions from hypothetical tax consequences are wrong. Higher marital
estate so higher potential distribution. Also she is young & he would need to pay a lot of
alimony a long time so settle this low is wrong too. Also oppressive since waives all
claims even surviving spouse share. Also checks if fair when enforced: Halley says this
is INTERVENTIONIST-mode, less K mode, like divorce law. Family may prosper
so only fair to include her in the sharing, plus assets may decline in worth so may
even be unfair to him to enforce K. Here unfair when enforced as well as when signed,
though.
Cohabitation [A964-72]
A. Since the early 1960’s there have been many more couples living together without
marrying. The law lets these non-marital partners have some attributes of marriage,
some sticks of the bundle. Trend is toward enforcement Big concern when one dies or the
couple separates. The LAW under Marvin: enforce support K between cohabitants; later cases
show also against estate when one dies. Halley notes that many states require more than
Marvin & unlike CA, must have writing (rare). Halley says the world is moving more towards
shacking up; e.g., same sex cannot marry.
B. Halley distinguishes from common law marriage: , a REAL MARRIAGE that takes legal
effect without license or ceremony when a couple live together as husband & wife, intend to
be married, & hold out as such; not an alternative, enforced even without formalities. In the
old days, you agreed to marry but there was a bigamy issue so the states began to show a
trend of requiring not just a K but also cohabitation (live together: sex) plus holding out,
behaving like you are married. Versus take out some sticks; less bundled, do a few things
for co-habitators like property division upon breakup. Note 2/3 states reject CL marriage,
JH said Stanley was not one (See unwed F section), hard as need to hold out, live more
cont; kid would not be legit if had worked.
C. Halley also distinguishes from putative marriage or the putative spouse doctrine: a
marriage in which the husband & wife believe in good faith that they are married, but for
some technical reason they are not formally married; need not formalize to be valid. Common
law said not wives so no remedy but equity (saran wrap that works out a solution) saved those
with full faith belief to be fair; remedy not treat you like a stranger. Get some bits like estate.
D. Access to the Dispute-Resolving Powers of the Judiciary: Can nontraditional families get
access to the courts? Marvin v. Marvin, 1976. : Enforced Express K., may order economic
affairs as choose, no policy precludes, nonmarital partners get rights through judicial
decision, or else unfair here. Unmarried couple lived together 7 years, property in male
name; female sue to enforce oral K for half property & support. Combine efforts, share
equally, hold self out as married, she is homemaker, gave up career so in return he support
her; then he made her leave & would not give further support. Held: Express K upheld. (later
reverse since find no obligations). Court will not rest on broad, uncertain standard to strike
down K on grounds of immoral character of relationship violating public policy. Prevalence
& social acceptance of cohabitation, wholly different practice from prostitution; mores
change. Also good trial period before marriage; does not derogate institution. Got a clear
simple workable rule from past cases: the fact that a man & woman live together
without marriage, engage in a sexual relationship, does not in itself invalidate Ks
between them relating to their earnings, property or expenses. Express K only fail if rest
upon consideration of meretricious illicit sexual services (e.g., live as concubine, keep
house to bear Children, paramour, prostitution really, K call for adultery) not if legitimate
services (can sever). Parties may indeed have expectation of fair apportionment & neither is
the guilty one to punish. Halley thinks this is crazy, of course it’s a written K for sex. Court
was too formalistic (here there was a written express K) & promises to do stuff: may in future
require oral K or implications from conduct or even further, any equitable remedy b/c unfair
to leave parties where they st&; resulting trust or inquantum merit. Could also enforce if was
not express, divide equally if actual family relationship. Court can look to a variety of
remedies to protect lawful expectations! Implied K (arise from conduct of parties) or
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equitable memory fits with putative spouse material: believe in good faith that you are
married, get a fair division of property. Don’t need to pretend they are putative spouses, just
use implied K rules as with any other unmarried person! If you contribute funds or property,
you get a proportionate share & now courts recognize this with contribution of services
(outside of marriage). Halley notes this subissue. No reason to believe services are
contributed as gifts. Better to presume intend to deal fairly with each other. Also don’t be
unfair just to encourage marriage.
1. Halley lists Forms of Cohabitation Regulation from case, & discusses pros & cons.
She reminds us people bargain in light of legal rule, shadow of the law v. intimacy as
distinct. See D. She also note s multiculturalism is a big thing for each plus want
discretion in each.
A. Written K
 Pro’s: form of commitment, value rigidity; consent, marriage-like, not enter
relationship unknowingly, expectations met as not herded into marriage once shack
up; leaves open possibility of shacking up so won’t destroy cohabitation as its own
thing, options as good, libertarian view of exercise autonomy; cautionary function,
formalities so you think it through. grave situation, big deal versus sin of triviality,
live a bit; People don’t attend to details at start so make them all K so they can
deviate. Multiculturalism idea again. Not just a standard form by the court, state
not monopolize form as with schooling, especially b/c intimate.
 Cons: too rigid, reduce to K, too static, would enforce document even if changes
occur in relationship, freeze frame them; classmate said too serious/formal, need
options; as go down scale see this as bad, better to see facts, imply terms; high
transaction costs, need attorney & to read, too hard, when people like to shack up &
find stuff out over time, not arms length, don’t tamper in private now, being beadyeyed turns people off from marriage.
B. Oral K
 Pro: people rely on them, make real changes in lives based on promises like put you
through school: detrimental reliance; culture does not reduce it to writing, match the
practice, get in & protect them; cultural effect, incentive to ignore little bits of
negotiation along the way is better for relationship; protect underprivileged, without
expertise to have a written K; democratic, reflect what people think, no cost barrier,
more accessible.
 Cons: people say a lot, he said she said, can misinterpret; factual problems; trivial
stuff about relationship, stay out of private life; also adversarial model, produces
adversarialness & so more breakups, sue within intact marriage; this whole complex
of ideas in stuck together in family law; also marriage is not static, relationship is a
negotiation not a K; idea with written K is to enforce some terms but with oral K
people do not feel a legal moment.
C. Implied K
 Used if no good evidence of written or implied K; courts prefer those 2. Court will
read a K out of conduct, power, can call it an inferred K.
 Pros: people living together (conduct) to avoid marriage so seems wrong to make the
opposite a marriage., everything would be marriage even if you do not want
marriage, may give up shacking up when it’s a good thing to see if you want to
marry, if you already give property division here, what’s the point of cohabitation?;
written Ks have too many asymmetries, manipulate unfairly, discretion is good; K
ought to be this, not just descriptive; relationships are not legal, people do not think
legally & make a K, match practice so enforce in equity; family diversity, vote with
feet against marriage, respect what people do as historically evolves; good saran
wrap, once relations: not escape, anti-libertarian, want state regulations.
 Cons: maybe we want to prevent shacking up without economic consequences; it
busts up the private welfare system & decreases mutual support; what the judge had
for breakfast, idiosyncratic intuition, too much discretion, need rules;
multiculturalism world, there are different ways to live, 1 judge cannot appreciate it
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4.
all, too much interpretive power, will get it wrong; autonomy/libertarian, state
regulation of what people do in the private sphere is a loss
D. Sheer raw equity – then Halley calls this setting cohabitation as a status: total
regulation, we know what is good for you.
 As far as you can take cohabitation, even 2 weeks of intimacy leads to duty
enforcement
 Pros: if you live together, you likely share costs; on the ground, match the practice of
mutual dependency relationships, seems unfair for one person to benefit & other to
run off without duties; K-like doctrines go well with big commercial paradigms
whereas we prefer equity to go to what intimacy is really about, this case is different
from K thinking. Halley: a theme is distinct versus bargain in shadow of law.
 Cons: rigid, trap without flexibility, libertarian argument; imposes a status which is
what you tried to get out of, prefer S of marriage with a wild unregulated outside.
May prefer C because more discretion, can get a range not say just since you move in
together, may have minimal or high requirements under C; here would love
distinctiveness of alternatives to marriage, we do not want everything to be this
special relationship.
E. Notes: Recognize something so not out in dark; legal effect is you get on the map, on
the spectrum somewhere, even if marriage is special. May matter where you are on map
if some people cannot marry, like no access to marriage if same sex couple. But if give
them effective marriages you affect other people as well: traps people who opt into weird
relationships even though they could have had marriages & just made the choice not to
have a real marriage, gives them duties, extends state dominion; freedom-constraint
paradox is a huge argument by libertarians!
E. Text: Commune members; upheld Harmony & Oneida Ks with gone members (no individual
rewards).
F. Text: Homemaker services not recognized w/ divorce even if are under implied K if no
marriage.
Marriage as a Religious Relation Rather Than a Civil Relation [A399-406; PM(Shahar)]:
Halley says our system has more than one jurisdiction, simultaneous, federalism, leads to
choice of law problems, tension when see marriage as religious, not civil. Halley says has no
tax benefits, little bits in K with private parties, in private zone but is not state-sanctioned
marriage. Halley note there is a status within its own community, functions like marriage in
another jurisdiction.
A. Religious Limits on Civil Divorce: Aflalo v. Aflalo, 1996. Wife wants divorce. A husband
(possess wife, Bible; Jewish religion power rests with him to divorce her) refuses to provide a
“get” (free to marry again or else adultery) & consent to a Jewish divorce. Wife tries to get court
order him to cooperate but loses. He took action with Rabbis Union, get her to appear before Beth
Din to reconcile but he will take any Beth Din recommendations even the “get.” Held: no court
order may be entered which would impact her securing a Jewish divorce, would violate 1 st
amendment free exercise do not lower the, wall between Church & State. Her faith is not
gender neutral but court cannot alter the doctrine of her faith. Entangled in practice of
religion by citizens! Don’t force him to give up religious freedom by court order. Halley:
wrong authority, multiculturalism & separate jurisdictions is main point!. There are pockets
of family law regulation outside the state. Rejects old Minkin case; is a religious act. Also
arbiter of what is religious is itself entanglement. Must accept highest ecclesiastical tribunal
instead. [In speaking about B, Halley notes there is a subalternative forum to enforce even without
a divorce court, temple acts as a state to run the divorce. What if she tries to convert from Judaism
to get a divorce? Halley notes temple lacks coercive power to divorce you in your absence unlike
the state if was state-sanctioned (higher form of enforcement; the community acts like an enforcer
& judges; she gives up her whole way of life or is a pariah if she opted into this softer form of
enforcement. Halley notes the idea of a religious violation, value of bond is important to
someone, do not need a judge for a judge-like person. State cannot override religious judge.]
Cannot decide any disputed matter of religious doctrine as did in Minkin when sift thru
different rabbi testimony. Also coercing a “get” does not have the effect sought, needs to act
w/o constraint. Cannot supercede what Beth Din says, only one would can coerce the “get.” Here
10
she never went to the Beth Din unlike his attempt to reconcile. Halley reminds us what court said
at end: she herself made the choice (free exercise right too) to get married in the Jewish way; her
own beliefs led to the unfairness to her. If we said her husband must go get a “get” it erodes
her initial right to enter marriage in a separate jurisdiction; really law-like jurisdiction,
exclusive. Court has no authority to select what aspects of the religion to keep & discard.
B. Shahar v. Bowers, 1995. Employment context, lots of con law issues. Lesbian took job offer
before reveal plans to marry another woman. AG found out & terminated job before Jewish
wedding. Would jeopardize office functioning. Shahar sues for being fired for participating in a
private religious marriage ceremony. Held: 1st Amendment right of intimate association was
burdened. Do not apply balancing test; strict scrutiny on rem&. Halley: intimate bond, facts
detail devotion, con law: people have a liberty interest in associating with whom they chose. .She
did not seek marriage license; ok for state to prevent legal status of same-sex marriage. She did
have a marriage recognized by Jewish religion, religious based status independent of civil
marriage. This religious basis & status is relevant to her claim. The intimate relationship is
constitutionally protected. Highly personal, affection, permanence. Here AG acts not narrowly
tailored to compelling interest. Rem&s on the watery issue of expressive association. Halley says
maybe can argue self realizes itself more in intimacy than in commercial realm. Also could try for
more protected privacy area is home zone. Do not view as a homosexual EP RBR case; sexual
orientation is not a suspect class unlike dissent fundamental right to marry, do not deny without
strict scrutiny (Halley says we will see this again). Concur/dissent: balancing test, government
legitimate concerns like public credibility & internal efficiency. Note: AG loses on compelling
purpose: cannot send a message, enforcer of GA sodomy laws, not for her to change the law, up to
legislature, don’t make assumptions on nature of relationship, oral & anal sex with anyone,
legislature is silent on the homosexuality subject. Then Halley says we look to if means are
narrowly tailored. No, underinclusive. State could say public knowledge, flagrant. Halley says
once strict scrutiny, assume state action fails.
C. Privacy & Public Interests: Areas of Conflict. We just finished alternatives to marriage. Now
onto: Unit 3 Privacy is a huge topic. Remember the theme from cohabitation: question about freedom
from marriage, libertarian strain. Soon, is there a freedom to marry? But now Is there freedom IN
marriage OF the family?? Halley discusses the idea of the family as a LITTLE STATE, h&s-off
state. self-government, run self without state regulation, regulated but privately is the
PRIVACY, freedom of individual in the family to evade each other’s control versus enforce,
protect rights WITHIN family, protect you against other member; PRIVACY also functions
here. Halley says we never really buy the family privacy doctrine. Public institution of marriage,
state interest in how it is run., assert interest in how the people come out as you add in new
people (education of Children; see below!)..
1. The Constitutional Right to Privacy
A. Halley sums up the cases
1. Pal liberty, king of family state. Under con law, Ps have primary dominion over
Children, how the law sees their relationship, private individual with rights. See CA
statute, Meyer, Pierce (B1-2) where Ps win.
2. Yes Ps are primary but state is parens patrie, functions as P of people/nation (its
Children). Compulsory education. Tension in reconciling this with family as little state,
running itself, Pal dominion. See Prince (B3A) where state wins; seems to be religion
case but really about powers within family.
3. Privacy of family to run itself. See Parham (B3B). Little state falls apart, member (C,
rights? Nope, that is a misstatement of law to say a C has a right to be protected from
harm, no such legitimate right recognized anywhere) runs to judge for the intrafamily
dispute.
B. Ps & the Parens Patrie [W353-54; A1174-78; A1124-1135 for Weeks 1-2
1. Pal Rights Statute inCalifornia: Mom & dad of unemancipated minor C are equally
entitled to its services & earnings. One dead, other get all. If entitled to custody, right to
change the residence of the C. No control over C property. Employer pay earnings to C
unless notice that P claim. P may relinquish the right of earnings to C; ab&onment is
presumptive evidence. Pal authority ceases if court appoints guardian, marriage of C, age
of majority. Abuse of Pal authority leads to C being freed from dominion of Ps, duty of
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2.
3.
support & education enforced.
Education. Halley mentions that public education took people out of family to train them;
provided education then it became m&atory. Law today requires school for 9 or more
years; very few exceptions for Pal liberty. Halley says this is a problem for the
family as a little state idea, have to be able to makeup their own people! Pal right to
rear own Children was first intruded upon by uniform, well-organized, state-sponsored
public schools. At first, only poor Ps lost this primary responsibility; then the common
school doctrine spread. Force schooling for longer & longer time periods. Rationale:
maintain social order, elevate masses to keep pace with materialistic progress: first step is
for state to get possession of minds (Halley). Power of education makes useful peaceable
citizens. Shift to compulsory: Americanize the flood of immigrants. Choice decrease in
subjects.
A. Pierce v. Society of Sisters, 1925. Act required every P or other person with control
or custody over normal C aged 8-16 to send him to public school through 8th grade or
else misdemeanor. Society wants to educate orphans in a for-profit school. State
could regulate all schools, require all of age attend some school, good teachers, teach
good citizenship & nothing against public welfare. This Act would destroy private
primary schools so enjoin it in equity when they did discharge their obligations:
cannot abridge Constitutional rights when Act has no reasonable relation to
competent state purpose. Improper power here, arbitrary. Right: Meyer supports “the
liberty of Ps to direct the upbringing & education of Children under their control”.
State cannot standardize Children by force public teacher instruction. Halley
says there are boilerplate citations on Children, p. 1176 about direct kids under
their control, dominion, not mere creature of state, Halley says to notice “mere”,
kids ARE the creature of the state, state creates them. Halley add it is a right
coupled with a high duty, rare to get both, complex right. Like in Meyer this is
not Sparta but also not full Pal privacy: BALANCE plus wrap a right with a duty!
Unlike other freestanding rights, paradox to have obligations. Complex picture
emerges.
B. Meyer v. Nebraska, 1923, Note: Killed a statute prohibiting instruction in foreign
languages before the 8th grade; invalid burden on rights of families to raise their
Children. State can go far in improving citizen quality but individual has certain
fundamental rights; the protection of the Constitution extends to those who
speak other tongues. Even if a desirable end to have one M tongue, invalid means.
Halley calls this a Pal liberties case, right of Ps to have someone to teach
German, to have kids learn German, right to determine tongue, fundamental so
usually trump via strict scrutiny but here we get BALANCING. Halley says court
says complex stuff: Ps not undiluted right, unAmerican for state to raise kids like in
Sparta, here no state interference. State/Ps: balance 2 powers over the kids.
Encroachments on the doctrine of family privacy: Constitutional law
A. Prince v. Massachusetts, 1944. PARENS PATRIAE CASE!! Jehovah’s Witness
violated C labor laws. Legal custodian of 9-year old kids who preach & distribute
flyers on streets; officer warned her not to; kid believe religious duty or else she will
be condemned. Two claimed liberties: P to bring up C as wish (religious training), &
of the C to exercise religion (preach); versus state authority to protect C welfare.
Custody, care, & nurture of the C reside first in the Ps, whose primary function &
freedom include preparation for obligations the state can neither supply nor hinder;
state cannot enter this private realm of family life. Fits with Pierce, Meyer in 2. But
the family itself is not beyond regulation in the public interest. Rights of religion
& Phood are not beyond limitation. Seems to be about religion but case is about
powers within family. Acting to guard the general interest in youth’s well-being,
the state as parens patriae has a wide range of power to limit Pal freedom in
things affecting C welfare even if affect matters of religion: may restrict the P’s
control by requiring school attendance, regulating or prohibiting the C’s labor,
vaccinations even against religion (No right to expose all to disease). State C
welfare law with free exercise challenge. Held C labor law enforced against her
12
violation. Can reach beyond authority towards adults when state acts in regard
to Children, cannot martyr Children. Even if cannot limit adult behavior, may be
able to limit C behavior. Halley says Children have a mini version of con law
rights, but do have rights: hot potato, just pair them down, court not carry
through on them here; exclude testimony of kid saying go to hell if does not
distribute flyers. Halley notes guardian participates, right to be there, as custodian.
How about C right to guidance? Takes away her guardianship, not just a legal
right but how about a right to a substantive Pal relationship? Easy important
argument but court is reluctant to accept it since too much of a hot potato. [Also
for the next case: Halley says court does not want to induce adversarialness & fears
C will assert itself against the P. This is the DOWNSIDE of right to relationship, can
hurt Ps!] Crippling effects of C employment especially in public. Dangers that do not
affect adults; they can sell religious literature on street. Halley lists physical health,
street dangers. Especially in secondary uses of street: preaching on street. Statute is
against incidental uses. Since not primary, can regulate w/I reasonable limits. State
police power can reach harms of the street like emotional excitement & injury;
legitimate objectives. Halley discusses not defer to two prior Pal privacy cases.
There is no absolute family privacy! State compelling interest in protect C, p.
1125, family itself can be regulated. Cites two polygamy cases, invade religious
family privacy to shut down Mormon practice. Parens Patriae: state can restrict Ps’
control right: conflict with state power. Dissent finds no menace, only orderly
worship, vague possibility of injury, more likely immune. Freedom of religion;
history of harassment of faith, this too could be an instrument of oppression. Dissent
agrees with what Halley says is the kid attorney, says no evidence of harm, court not
finish balance because not want rem& even if religious interest is on point here &
other interest is off point. Halley says dissent says too willing to presume harm, is
oppressive of religion, whole point of free exercise clause.
B. Parham v. J.R., 1979. State involved in an INTRAFAMILY dispute like next
week’s Stephanie L. case. Commitment scheme comport with minimum
PROCEDURAL due process requirements (how much process is due?); not per
se unconstitutional for both wards & other kids but must rem& to apply individual
claims. Halley says there is not one kind of process required; too many kinds of
cases so BALANCE test of additional procedure (cost to state & other parties,
upside & decrease error of less procedure, calculus from civ pro) Ps/guardian of
minor C seek state administered institutional mental health care for the C. Ps
generally do act in C’s best interests; government power does not supercede in all
cases b/c some Ps abuse, repugnant to US tradition. Simply b/c decision of P is not
agreeable to C or involved risks does not automatically transfer the power to
make that decision from the Ps to the state. Kids simply are bad at sound
decisions. Here, the Ps also do not have an absolute right to commit the kids; the
superintendent of hospitals exercises independent judgment about confinement. Ps
have a substantial nearly dominant role in the voluntary commitment setting
absent a finding of abuse or neglect, & the traditional assumption that P acts in
C best interests should apply. However Ps cannot always have absolute
unreviewable discretion; here kids are subject to independent physician exam.
Need a neutral detached factfinder: process to protect C from error but not
unduly birder state or Pal decisions to seek state help, includes see all sources,
interview C,(thorough psych exam) & review periodically. Due process is not
violated by informal traditional medical investigation; not need formal hearing
or tools of judicial decisionmaking. Why not require adversarial hearing (NO
ADVOCACY!), not need lawyers but medical professionals, tie to institution,
experts neutral to family. Questions are mostly medical, do not significantly
intrude into P-C relationship (put them as adversaries is at odd with best interest
presumption)., long term treatment so do not exacerbate tensions especially for an
already disturbed C, not further reduce errors anyway. Many states already do this
process; due process applies to generality of cases not the rare exceptions. but Halley
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4.
5.
asks maybe medical experts are not good substitute for advocate, no appeal, no rules
of evidence (what is probative), just a review by the same people (Halley prefer if
change who evaluates on appeal), not an outside uninterested arbiter, on appeal here
will try to protect the institution & cover up mistakes, Halley says we never know if
no so neutral, no record, private, not know how done, Halley says you cannot not set
standards! Kids lose a lot here, shocking deprivation of liberty, indefinite
incarceration without a hearing here! Halley asks does this make sense? FAMILY
LAW PART OF CASE: P-C relationship drives the case, it entitles P to make
decisions, REASON DO NOT NEED ADVOCACY is assumes best interests of
C! Two assumptions about P: will act in best interests: default that we see again
& again; need to sight against it, standard is abuse or neglect. Second: P has
what C lacks in maturity, capacity for judgment, experience so defer to P,
procedures here are good enough since initial screen went through someone we
trust: P! Halley: this is weird. One C P died so ward of state; state shake h&s with
state so an expertise case: SUBHOLDING! : save this case, JUDGES ARE NOT
EXPERTS IN MENTAL HEALTH! Trust the experts so no separate
adversarial hearing. Also ok if risk error: hospital. Dissent, other cases, & some
scholars disagree: hearings to wards; at times it is one’s family against which one
needs the most protection, p. 1136.
Halley explained due process doctrine, 2 kinds of law: give procedure that is due; more
with criminal area. Then there are substantive rights, there are some deprivations that the
state simply cannot do no matter how much procedure. History: First there was a
regulatory mode until Lockner freedom of K (substantive DP limit) on economic activity;
then era ended & we have a regulatory state. Our cases show a new area of substantive
DP, in the family law area. There we see an expansion of DP in private realm, see the
same debate with liberals versus conservatives. Liberals want to exp& DP in private
relations such as Roe, state cannot deprive (with regulation) woman of liberty to make
abortion decision; conservatives dislike DP as empty, prefer judicial restraint. SC
produce constitutional family law: hot potato, unsure piece of Constitution, SC gets
worried so squeezes a lot into EP language: EVASIVE behavior: parties may not
appeal EP, EP may not really work, sneaky language re: American values & our system.
Stephanie L. v. Benjamin L. (1993), [1136-39]: SUM: 1) presumption of BI, 2) &
marital status as privacy. Here two Ps (presume BI unless show serious harm) are
separated but still married! Wife sue husband: public conflict but case is not seeing an
end to privacy without divorce!! Wife wants injunction to stop husband from telling 10
year old daughter that wife was dying of terminal renal cancer; she thinks it would be
traumatic. M’s claim of best interest (versus F’s free speech right) & that this is a
compelling state interest necessitating a well-defined narrow tailoring of the husband’s
right to free speech (1st Amendment issue). Held: Denies the motion for an injunction &
allows F to tell daughter. The court cannot conclude the evil to be overcome is substantial
so there is no reason for the court to intervene & infringe on the dad’s rights. Court notes
there are heavy presumptions against prior restraints on speech unless serious evil would
result. Not a substantial evil; M cannot resort to court here to resolve interpaternal
dispute over daily rearing. Court does have power in an appropriate case to enjoin Ps
from making statements that are against BI if the order is narrowly drawn, but here the
court should stay out since not clearly against BI. The law is: the court should do a
balancing test to weigh the C’s right to be protected from harm & the Pal free speech
rights. Issue would be easy if BI were obvious here is a harder case as court must first
see if a serious harm will occur if no injunction. Distinguish easier cases on page 1137
three cases: issue injunction there compelling family members to speak or not speak
(guardian to not disparage, love even if divorced, not derogate wife). You need a serious
evil to bring in the state power to intervene; Halley says this means court will invade
family privacy if P tried to turn C against other Ps, that is considered to be harmful
for kids, against BI (surely defeats presumption!!). Those other three cases are about
manipulating the C against a Ps whereas here not trying to change C opinion. & BI in
this case is not self-evident since having the dad tell a falsehood may be worse for the C
14
(BI) & seriously damage her relation with her dad; evidence cancels out so neither
trumps. Wife does not dispute that the dad loves kid too. Difficult & emotion ladden
issues & it is inappropriate for the court to pre or proscribe an answer in the guise of
deciding BI. Courts will not use their parens patriae power (arm of state serving
important function of protect Children from harm, BI may even be against Ps in some
cases) to interfere with one P’s decisions about how to raise his kids, due to a
concern over privacy. American values say to safeguard privacy & private ordering
of life so goal is minimum state intervention consistent with protecting Children
from harm. Court discourages Ps from coming to it with problems of daily living;
court cannot usurp one P at the behest of the other, stay aloof when unneeded for C
welfare, do not weigh differing opinions so here let the C learn the truth even if other P
thinks falsehood is the greater good. Courts should not micromanage family or be
“superP” to review Ping decisions!!!!!! Halley: While courts sometimes invade privacy
& intervene to enjoin when P is “poisoning the mind of the C” & harming C, speech isn’t
enjoined in this case because either decision could be correct Ping & equally damaging to
the C – both Ps want to protect the C, but have different ideas about how; both
think they act in BI & the PRESUMPTIONS that Ps act in BI are not defeated here.
There is no evidence against either of them so it is a toss up that court cannot get into;
one P can have veto over the other one as if a closed corporation (Halley analogy).
Family privacy!! Furthermore Halley notes that marital structure of this case
distinguishes it from the other three too: there were guardians & actual divorce breaking
down family privacy in those cases, there is more state control of the P-C relationship
then unlike here where still married & two Ps. Uneven l&scape with respect to family
privacy & marriage (see in sex & torts below, there is some piercing now but you need a
reason to get in there if you are married), but generally, presume privacy & need a good
reason to intervene. Marital status tends to being h&s off, door closed to state
attitude versus divorce where voyeurism reigns, open door to state, wavied h&s off
attitude, staggering loss of family privacy. Further, while Meyer, Pierce, Parham treat
family as a little state, this case treats family as setting of enrighted individuals:
Children & Ps with rights. BUT Halley notes that “the right of a C to be protected
from harm” is NOT a legitimate right recognized anywhere!!!
a.
Sex [247-67]. This topic is sexual privacy. The Constitutional Right to Privacy & encroachments on
the doctrine. (Halley says privacy is important in sex. Later we will read about reproduction as a thing
that happens in relationships.) Now we ask what is our constitutional idea of privacy? Is it family,
marriage, sex? What is the zone? Rights of the family or of the individual? (Same problem
returns!!!!). What does the SC imagine as families? These are our current Q’s.
Griswold v. CT (SC, 1965), p. 247: “Zone of marital privacy!” A lot of stuff comes together in
this case to get that quote (old, 9th, 1st, etc.). Griswold (executive director of Planned Phood:
aiders & abetters) passed out contraceptive info, instruction & medical advice to married people as
a means of preventing contraception & was convicted for violating CT statute prohibiting use of
contraceptives for purpose of preventing conception. (There was also an accessories part to the
statute, for people who assist). Court focuses on married people even if statute hits everyone.
Note not say “woman” – that is for next case. Here need to find an association, with user. Does
constitutional right of privacy exist that prohibits states from criminalizing the use of
contraceptives by married couples? Held: statute is unconstitutional because there are
penumbras in Bill of Rights & Third, Fourth, Fifth, Ninth Amendments (lists, seem irrelevant to
family; reached out) that create a right of privacy: Ct latches onto idea of intent of framers,
from before Bill of Rts: family privacy’s really old. Not in text because it’s obvious we have
it. Idea of framer intention, assumed family privacy right was in place—so old, so obvious!!!
Need not spell it out so locate family privacy in penumbra. The Court avoids saying it is using
the 14th Amendment to avoid Lockner accusations & says it does not sit as a supra-legislature to
determine economic problems, social conditions or business affairs. Instead court says this case
touches on the intimate relation of the husband & wife & their MD’s role in one aspect of that
relation. Court discusses how the right of association is not mentioned in the Constitution or Bill
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of Rights but instead emanates from the specific guarantees in the Bill of Rights, these guarantees
create zones of privacy. So the right of association is contained in the penumbras. Court lists all
the NAACP cases for 1st Amendment association; same halo effect of 1st & other parts of
constitution!! The present case contains a relationship lying within the zone of privacy created by
several fund’l const’l guarantees & concerns a too broad law that has a maximum
destructive impact upon that intimate relationship by forbidding the use of contraceptives
(does not answer Q of regulating manufacture or sale). Goldberg concurs: right of privacy in
marriage within the 9th amendment. Halleys says hard to construe this amendment; just because
enumerate do not disparage the rest, leave to the people, controversial amendment. White
concurs: 14th amendment due process; does not deter sexual illicit relationships on top of already
criminal sanctions in CT. Black dissent: no specific const’l provision. Just need to be rational &
not unreasonable or offensive. Leave the crucial words in the amendments: 4 th is about search &
seizure, don’t exp& it. Lockner liberally used the 14 th amendment to kill economic laws, natural
justice is not less dangerous when leave economic sphere. Substantive Due Process. Halley:
Pretend you are Scalia (here: Black dissent): nothing in actual document so judges are just
setting up & projecting own personal politics into case, breakfast: Locknerizing accusation.
Halley says we can also GO BEYOND THE CON LAW PART OF CASE, says we can also
see this case as giving a description of marriage in the dicta!! What the court thinks
marriage is about, sees the marital household as a place with a particular kind of const’l
privacy (the law is repulsive to very idea of privacy surrounding the marriage relationship).
Marriage promotes a way of life, noble purpose/relations: great language page 249 unlike 1 st
amendment cases: “sacred precincts of marital bedrooms. ” Right of MARITAL privacy,
constitution must give it freedom from regulation. Marital bedroom as a real picture of a
geographic zone of privacy: the bedroom. Sacredness & nobility infects the Ct’s language.
Makes it seem deeply non-political & outside reach of state, as a REJOINDER to
Lochnerizing accusation. This is not commercial. Halley says the court does not usually
write this well; here talks about for better or for worse, not religion etc. Incantatory
sentences, unusual style, real moment of SPECIALNESS.
Eisenstadt v. Baird (SC 1972), p. 250: After Griswold, MA made illegal for doctor to
DISTRIBUTE contraceptives to unmarrieds; MA read Griswold as a marriage case. (There was a
5 year prison term who people who gave away anything to prohibit contraception; registered
doctors could still administer or prescribe for married couples & pharmacists can fill for married.
Doctor convicted for giving foam to single woman during a lecture exhibiting contraceptive
articles.) Held: Need new law, Griswold was not complete. MOVE from Griswold (which
respects the use of contraceptives because marriage is an association) to here (there is a right of
the individual not a unit to choose whether to beget a C & this decision is not just for married
people). Statute can’t forbid distribution of contraceptives to unmarrieds when it allows
marrieds because they must be treated the same under EP clause (tiers of scrutiny, here only
RBR: usually deferential as in Hardwick page 263 statute was ok, that was a DP cases which said
no fund’l right to sodomy, but here WITH BITE, skew outcome to get result. Halley says both
courts defer to popular ideas of morality as if they are reasons), since the right to privacy &
freedom from governmental intrusion in decision about whether to beget a C belongs to each
INDIVIDUAL, not the collective couple who makes up a marriage. Cannot justify
discrimination against the unmarried, it’s irrational classification. Overbreadth & underbreadth:
1) won’t deter fornication/premarital sex (marginal relation at best), & 2) health risks to each
group is the same (plus already FDA regulates). Court refuses to decide if can sustain it for a 3rd
reason (prohibit contraception, may think it is immoral & this could be a legit purpose but you
cannot do it discriminatively, marriage cannot be the line you draw) since whatever the rights they
must be same if married or not. So if Griswold (sue) case went to distribution & we said cannot
ban distribution to married, then cannot ban for unmarried too. Marital couple is not an
independent entity but 2 individuals. We look at right of individual, single or married. If
Griswold did indeed allow no bar on distribution, State could not ban for one but not for other;
invidious underinclusion seen here in statute at h& since married let in. Dissimilar treatment for
similar people. Halley counterarguments: court could have argued we distinguish marriage &
nonmarriage all the time, state embrace it, it is a natural line so can be ok to go with above 3 rd
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purpose idea & use this as the line; marriage itself is discrimination. Griswold made a distinction
between married & unmarried. Can say within marriage sex & contraceptives are family planning
unlike if married; marriage is a place for family so moral there to use contraceptives. Private
welfare system, let marriage run itself a certain way!! Halley asks does this case strike at very
heart of marriage, at idea that married people get rights because of status of marriage, not
just as individuals. Language of “Married & unmarried persons who are similarly situated”
takes the distinguishing feature out, & Ct no longer thinks there’s distinction, demateralizes
& ERASES marriage from what Griswold did with sacredness. Can we discriminate on
marriage basis at all after this case? Or just see these facts so everything else about marriage status
is same & not erased? Noonan in note on page 252 is against this case & refuses to see
individuals as unaffected by status & says marriage IS a set of privileges, we believe in it,
right to marry in Loving is right to be immune from legal disabilities of unmarried & acquire legal
benefits of marriage. You deny the vital right if say benefits & immunities do not depend on
marriage, there is a hierarchy of values in our community. But counter: situated with respect to
what? Maybe similarly situated with respect to some things like use of contraceptives (sexual
freedom) but on other issues are not similarly situated. Depends on how you read the case, if
based on these (sex) facts alone or not (beyond sex): two readings! You could read (old
reading) the case as about sexual freedom in USA. Could say this case & Hardwick says
Griswold attaches to individuals to the sex they have; goes away from the marital bedroom
idea to the sex/individual acts idea. This was the idea until Roe, Danforth.
Roe v. Wade (1973), p. 252: TX statute criminalizing abortion (morally saturated issue, splits
nation further, intense politics), broad statute without reference to trimesters only exception is
saving life of mom, & Jane’s pregnant. Claims the statute violates a substantive due process right
to privacy. Held: Statute is overreaching. Not an EP case but entirely substantive DP/privacy
theory based! Right to privacy includes abortion, but it’s subject to restraint by state’s
compelling interests in prenatal life & in M’s health. It’s not about right to get abortion but
about right to decide & court sets up balance against 2 interests of state. PRIVACY
PICTURE OF ROE: Cannot get abortion without help, not an individual decision, social
decision!! Conflicts with our notion of rights as individuals exercising them. “The pregnant
woman cannot be isolated in her privacy.” So woman’s right of privacy (to make decision,
with MD) is not absolute, & the state may jump in when another interest becomes
significant. Comes up with trimesters. Very schematic, two time moments, doctrine of Roe.
State interest in M’s health becomes compelling at end of first trimester (woman decision with
MD before); state interest in potential life becomes compelling at viability (once it can live
outside, can regulate or even outlaw unlike in between the 2 points where just can regulate about
process to protect mom, eg specialists; tailor to her health interest only). A lot of this case has
been overruled. Casey is the existing law (viability is key, UB test, not trimesters). Halley: (1)
again, Locknerizing accusations. (2) While Roe established the right of a woman to make an
abortion decision, this is importantly different from the right to effectuate an abortion. Right
has to be balanced. Has to juggle 3 things. Woman’s privacy right is not about her sole
individual self., not sole rights, she & MD consider factors (258, MD as free to determine,
right of MD to admin medical treatment: shocking language). Woman & her physician, a
camel’s nose under a tent. Physician becomes the carrier of freedom that everyone thinks is
given to woman. Halley connects this to Parham v JR where the EXPERT IS THE AGENT
OF THE CASE in a medical decision!! Woman as porous individual who can be invaginated
by state: nonindividualist reading unlike prior 2 cases even! But counter: physician is aligned
with woman more than the state. She can hire someone to help her make decision & it is still her
decision, free market of services, find the MD, court says no right to an MD, no problem if you
cannot find someone. BUT Halley thinks it’s not a reproductive freedom decision at all, not
the high water mark of that autonomy (debunk the idea of reproductive autonomy that some
people think was in Roe, never was there: woman’s getting crowded around, never was alone
in Roe (from start with MD & after one trimester state involved too). The left, in seeing Roe
as a golden age, is too simplifying. It is really nuanced (4) Court reaches a hot issue: fetus in not a
person; talks about potential life. (5) KEY TO CASE FOR PURPOSES OF THIS UNIT: What
conception of family PRIVACY? so far, we’ve seen 3 different models of privacy: sacred
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bedrooms (G); individuals (E with EP); & now a woman can’t be isolated (R with DP).
Halley says there is pressure on the idea of family privacy, know the contours. Next case shows
what is left of individual rights. A bit!! Treats people as individuals, not a unit.
Planned Phood v. Danforth (SC 1976), p. 260, called DANFORTH: issue of husband veto of
abortion decision. MI required prior written consent of husband during first 12 weeks of
pregnancy unless MD says for her health. Held: Cannot require husband consent to abortion;
no right to veto an abortion. Woman can make the final abortion decision because the state
can’t delegate to the husband a veto power (lacks the right; right of the INDIVIDUAL—the
woman) from which it itself is absolutely & totally prohibited (Roe: first trimester, state is
not involved: only woman & MD). Also, marital harmony will be undermined by veto; foster
mutuality & trust. Woman is more directly affected by the decision, so it’s her decision; she
physically bears the C & is more directly & immediately affected (court really feels is
transformative for birth mom) even if husband of course has deep concerns & interests. Dissent:
something wrong with delegation theory (see below for a different way Halley thinks this theory is
wrong too): state has an interest in interfering with abortion decision (to protect potential life), but
it’s a different interest from husband’s interest in his own C. He has an interests of his own.
Because of the discontinuity, it’s not a delegation. Policy arguments: (1) The real issue here is
whether the husband has interests that the state wants to protect, & that is why the state is
regulating by imposing the consent requirement. (2) Perhaps this case would have been better
under the Eisenstadt framework: rather than giving this right to grant consent to “husbands,” this
is a right that should go to the biological “F.” Make statute less extreme (i.e. notice instead of
consent) but see Casey spousal notification. Reframe it around biological relationships instead of
spousal relationships. (3) does this threaten F’s obligation to provide C support (i.e., F told wife
not to have the baby, she went ahead anyway, & so now he has no duty to support the C)? If the
husband is a stranger to the abortion decision, then he can argue that it carries over to other duties
such as C support when he wanted wife to participate. Since we treat the F as equally responsible
once the C exists, we should do the same before the C exists since duties should have correlative
rights. Halley: (1) How’s the state going to deal with privacy of marriage when there’s a
possibility of conflict within marriage? (This constitutionalize the Q in Stephanie L) This
case combines Eisen, Roe & Stephanie. Married couple is not a decisional unit but pair of
individuals with rights, extending to abortion decision (Roe) & if lockup (Steph) then only
one can win like a 2-person closed corporation. (2) Halley thinks the case has poor reasoning,
courts never start with rights as starting the state but instead there are prepolitical rights, state
need not delegate rights! Halley thinks her idea here is better than the dissent one. Liberal idea
that rights already exist in people. Versus the court: state tried to delegate to the dad what not
got here, ignored liberalism (rights already in people, should we interfere should be the Q
says Halley). Roe’s about woman’s right to decide. How do we get husband with rights at all?
Dad has responsibilities once kid is born so give rights because there are duties; biology link (all
dads have, given legal status to interest, say rights or interest but protect it is point); marriage is
community (could take a second view of case & not say individuals case but most people do)
& includes the essential element of sex -- a natural consequence of the community is procreation –
husband’s just as much in community as wife; marriage is forfeiture by woman of otherwise
autonomous state with regard to pregnancy (this is a marriage case, absolute status, forced ID
change, STATE ACTION WITHIN PRIVACY, irrevocable status, if you have sex you take the
risk of procreation—waiver! Could use contraception!); Equal Protection argument after Roe –
can’t deny men because of gender a right granted to women, once you have a right you need to
distribute it equally (3) Once we have F with rights / legal status, how to decide who breaks the tie
in const’l framework? What laws should we have? Why not let him give consent to abort if both
have rights? Could discriminate on the basis of sex because it’s natural – woman bears C, is
differently affected, so her interest is graver (261). NATURAL, different bodies, effects, graver
implications. Counter: He is willing to imitate her work, build up his right (we see this in
unmarried cases soon like with financial help during pregnancy, facts showing active in raise
kid) so is a wash? How about beyond pregnancy? LIFELONG burden on F of murder of his C
may be greater than burden of pregancy to her. But she has burden of a life she does not want.
She can relinquish to the state (abotion is not private) versus won’t lose duty of support if unload
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kid on him, she cannot ditch anymore than he can! (4) Danforth treats people as individuals
rather than family members, but you could make argument that if you get married, have to deal
with husband’s rights (see waiver section above; different reading of case!). Basically that
interpretation here & into unit 4 we see an extension of Eisen, consolidation of marriage
unit, not treat as individuals unless second interpretation of Danforth (2 ways to read case,
often cite as individuals case).
Bowers v. Hardwick (SC, 1986), p. 263: GA law forbidding sodomy (mouth, anus with sex
organs); This was a facial challenge to (attempted privacy attack on) consensual sodomy but ct
evaluated it as applied (court reach Qs did not have to) to consensual homo sodomy. In fact,
married Does tried to sue but no standing since no sex yet; so no marital sodomy issue in case (FN
p. 263). Court won’t say if laws against consenting or homos are wise legislative decisions; issue
is whether there is a const’l fund’l right for homos to engage in sodomy & thus invalidate tons of
state laws. Held: No fundamental right to engage in homosexual sodomy so no heightened
scrutiny. (So rejected FR analysis & looks to second way: RBR analysis. Meets RBR! There is a
rational basis: law is constantly based on notions of morality, don’t invalidate moral choices on
DP grounds. Morality is a rational basis! Case st&s for the idea that the legisl majority can
announce morality & be deeemed rational & criminalize stuff BUT Halley notes here all are
crimes, not just homos so how rational is it for GA to express disapproval of homo sodomy but
limit all sodomy: Halley see as irrational part & court could have said all do not lead to
procreation but it did not give pro procreational sex as its rational reason!) Privacy rights so far
established in the cases have no relation to the right claimed here because it’s not about
procreation, family, marriage. Refuses to take a more expansive view. History & tradition
against it (Halley once argued not true), 25 states against it now. If had gotten a fund’l right
holding, then independent reason to limit state power via SDP holding; need not name FRs in
constitution, pre-political rights idea, we have things that are universally accepted by the framers
that the state cannot interfere with; but here find a tradition of prohibiting sodomy, always been
there as a criminal offense. Dissent: individual self-definition, control own intimate assocaitions.
Halley: Eisenstadt’s individual rather than family privacy could have made this come out the
other way consensual, domestic sexual non-community right. Door that opened in Griswold
& modified in Eisenstadt slams here, as far as const’l FL, the court engages in constructive
activity (majority reads MPF cases as not being about homo activity, what cases project). Halley
thinks it’s not driven so much by sodomy issue as by due process issue. Under Pierce, Meyer,
Eisenstadt, right of privacy in intimacy of sexual relations. Eisenstadt detached privacy from
family. Ct doesn’t want to exp& DP, experiences itself as if Hardwick were raping them with
his right (“right pressed upon us”) & feels FRs are dangerous, ct near illegitimacy so resists
as virtuous justices, JUDICIAL RESTRAINT. Due process heyday is over. Now in equal
protection, court’s bound by Hardwick NOT to give heightened scrutiny to this class, since the
class can be criminalized class can be discrim against in other ways (ct thinks sodomy defined
class; defining behavior of class is a felony so can lose job etc.) – military gay policy decisions
– not a suspect class. People see this case as a license to discriminate against homos, depressed
place in the law. Gay rights plaintiffs tend to lose in EP. Ignore text note on Romer (not a
sex/family case, different animal), misleading, Hardwick was not overruled for our course. Note
there was a hetero prosecution in Mosley case in future where man went to jail. Is that case
wrong as a matter of fed con law? Since married, family procreation mentioned in
Hardwick, sacred precincts in Griswold, special status gets more privacy & less state
interference. Maybe marriage remains special & Griswold is still good law (seems Halley
said so, that the jail sentence was invalidated, seems conviction was unconstitutional since
married hetero consensual folks). Justifies & drives the institution. Why? GREAT SUM OF
REASONS WE WANT TO PROMOTE MARRIAGE INSTITUTION!!!!!!!!!!!!: Private
welfare system is the state interest in promoting marriage. Protect C stability, continuity of
care, psych stability of 2 Ps so we wish to promote marriage by giving it privacy. Also
production of Children, procreation so we are also against same-sex marriages. Socializing
function too. 1 toaster per house, consumption. Freud: civilization, sex as vile hot
dangerous, need forms for ordered society, trade repression for order, too hot to h&le,
marriage is a good repression mechanism so promote it by give special privacy. Legislature
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can approximate mechanisms to get at goals, not require perfection or go all the way. How say
valid to put the Moselys in jail? Would need to break the privacy barrier by saying divorce so all
fair game. If intact can get in to enforce crime laws / domestic violence.
 NOTE LATER SEE SC MICHAEL H: ties in to deny substance right, see traditions
etc.!!!!!!! in unwed dad section!! Page 75!!!
2. Tort & Criminal Law (need not distinguish the 2)[267-318; 1369-74; 318-25]. Onto Unit 4. Replicated
con law sex issues. H&out outlines the cases with respect to each other. See issues of outsiders
interference in the marriage, conflicts between between spouses, domestic violence, privacy, render
marriage public, little state, individuals with separate relations to the state, etc.
FIRST TOPIC HERE IS PROTECT MARRIAGE FROM OUTSIDERS: Main cases.
Oliverson v. West Valley City (Utah, 1995), p. 272: Adultery case, crime (but Halley says we
rarely enforce the statute or make it just a misdemeanor, more in the military, but there is still life
to the statute, old hangover statute sits on the books, would never pass the legislature now—
shows a change in our family law!! Recurrent theme.): court says we care a lot about sexual
loyalty between people in LT relations, outrage against the person who breaks it up, our culture is
against the 3rd person. But this case is about the married buy not the outsider getting penalized for
the affair. Married police officer challenged criminal adultery statute on privacy since his affair
was consensual, private, non-commercial. He contends that the Utah adultery statute is unconst’l
b/c 14th privacy, wants unfettered right to engage in sex outside of his marriage. (That is our focus;
he also said right to free speech & EP: selectively expose men to some crime). He does not
challenge the prosecution but the e’ment action like in Shahar! He wants all references off him
employment file; he had been suspended b/c of adultery statute violation. Held: Adultery statutes
are const’l, he lost SDP argument , no general privacy right (ct reads privacy NARROWLY,
adultery is part of public sphere!!!, privacy has artificial meaning, gotta look to cased to see
specific rights privacy encompasses as in Hardwick no general consensual privacy, protect
familial interests as are laws against affairs, there is no fund’l right to adultery but instead in fact
opposite of historical right; as in Hardwick there is legit interest in morale, public acceptance,
integrity). Court reasons: adultery laws are old (ct gives history of serious crime, frequently
prosecuted, colonial times too, many cultures & judicial systems find it injurious, US very
supportive of its crime status, can even reduce murder cuz can provoke cheated-on spouse to
passion to commit violence) & there’s no indication that the framers of the constitution intended
to repeal state adultery laws (were common at time of bill of rights & 14 th too). Halley: Ct
responds to his asking for decisionmaking autonomy by saying how can this be a privacy right
when it takes two people, the decision to engage in the act takes two people, there is no
individual autonomy, it is in public sphere even if close door. In marriage it’s one unit, so
marital privacy applies. But with another person involved, no privacy. (Casey: even with
abortion, state involved with regs.; Halley adds: Roe: privacy isn’t solitary, doctor is involved so
SC not see as solitariness). Also he tries for freedom of disclosure but court says it is not
involved because the joint nature of the act/crime inherently involved disclosure beyond one
person so no privacy is protected, no right to keep secret in this e’ment action. Halley & text
says analogy to theft, deceit & conspiracy: act in violation of family, inherently antithetical to
family b/c these 2 in the affair have no obligations to each other. Next case seems more theft-like
but here too steal spousal affection! Took from cheated on spouse. Love & sex have finite
quantities. Halley: we think of marriage as sexual zero sum, so affair means less for one who
contracted for it & relied on K. Or perhaps in sexual monogomy nature of LT domestic relations
you can only bear to have one. Empirically with humans in world, true. Adultery destroys, in our
experience but adultery laws give us these people, circle of causation, helps them. Concur says
adultery leads to social costs & tragic divorce, transgression against marriage. EP: not suspect
class & meets RBR, within legislative j’ment to prevent affairs.
Hoye v. Hoye (1992), p. 267: Now we get to a third person case. THIS IS CURRNT LAW.
Wife sued husband’s lover for tortious interference with her marriage. Said “steal” affection, not
depend on sex. Held: This cause of action is abolished (already in most states) because the old
justification for tortious intentional interference with the marriage relation not work any
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more: Spousal love is not property anymore, anachronism to say you own your spouse’s
feelings, chattel. MWPA gave woman legal status. Led to a second attempted reason: a legal
fiction -- preserve marital harmony by deter wrongful interference, yet no structural changes in
actions, eg no consent defense (shows still act like woman is inferior). Compelling reasons:
Harms outweigh any precedential value: kids see & testify; defendant settle to keep reputation so
these suits invite abuse of high priced settlements. Abuse/leverage in divorce: ancillary
litigation like strike suit but Halley says all divorce rules give opportunity for nefarious
bargaining & strategizing so why is this worse, why is abuse a driving element here? Note:
trend in law is with this case!! Courts can abolish since judicially-created/originated tort
(incorporated enticement, criminal conversion, alienation of affections). Halley: Try to
rehabilitate this cause of action. There is something that doesn’t have to be property, call it status.
Could say spouse is entitled to that status, & there’s a wrong done by taking it away; 3 rd
party destroyed the unit, non-tangible relationship. Cause of action puts people on notice of
what’s expected when dealing with married people. No need to posit property right. Could
also say K action: tortious interference with K relationship. Here not like a normal K, spouse
cannot sue spouse but counterargue & say divorce exists so normal K claim. Court rejected tort &
K c/a.
[Record outline: Arguments for abolition of these causes of action for tortious interference & adultery:
(1) Tortious interference does not recognize that spouse may have wished to enter into this
relationship & lays all the blame on the third party. It is unfair to place liability on third party.
(2) Husband is the person who is not upholding his end of the marriage, & so he is more culpable than
the mistress.
(3) The relationship is usually busted anyway, before the mistress gets on the scene.
(4) The damage may be “hurt feelings,” rather than some harm that is actionable under tort law.
(5) This is a property claim of the right to exclude & a trespass, & this may not be the way that we
want to think about marriage. This is old wine in new bottles bc the cause of action & state interest
in the crim statute is based on the idea that marriage is the exchange of the body for financial
support.]
Another case on protecting marriage from outsiders: Romero v. Byers (1994), p. 279: loss of
consortium (companionship) is main claim. Wife sues 3rd party who ran over her husband; harm to
wife when husband dies due to 3rd party negligence. She has lost husband’s services (second claim).
Halley said there are various forms of loss (extra c/a, separate property; make good for loss):
companionship, assistance in raising kids (services), income stream, pain & suffering about death.
Held: Despite stare decisis, court reversing itself 180 degrees only 9 years after saying loss of
consortium inadmissible. Loss of consortium should be recognized as a legitimate cause of action.
Recognized most states, not indefinite, not problematic due to fear of double recovery. Halley:
Common law is Rorshach for the projection of an image onto it. Could just as easily argue that loss of
consortium is an antiquated cause of action. For every of the FIVE REASONS court gives to reverse
Roseberry & avoid harsh unjust results, Halley says we could give countervailing reason. Court says
five justifications no longer work today because: 1) Evolution of law, now NM is only state not
allowing recovery. Halley says this is circular 2) Nature of claim is certain: simply emotional stress
upon loss. Halley says it is quantifiable only if we call it so. 3) Court has set out test saying if duty
owed to plaintiff not only to whom he kills in the car negligently. Foreseeability is integrated concept
to duty! Surviving spouse clearly in zone of danger, modern test. Halley says duty only if we say so.
4) No double recovery, this claim is only for ED not for services or more. 5) Court has responsibility
to act even if legislature never acted, we need to develop the common law. Halley says case has
formal quality that doesn’t tell us much about why compensable. Why care more about loss to
spouse, why extend tort law to status of marriage (when Eisen said not a union but individuals),
why distinctly compensable? Maybe b/c private welfare system – you broke it up tortiously & there is
a detriment to those who remain. We want marriage to support family members, so we want that to
continue after wrongful death so we assign the support duty to the wrongdoer. Also historical link.
Also might want reliance & incentive to enter into mutual dependency. Also extend c/a b/c belief in
status of marriage as distinctive asset that can be lost. Is it more wrong to hurt a spouce? Halley, no,
we are not trying to deter that distinctively; the reasoning is on the compensation side.
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Oliverson, Hoye, Romero: all raise question about CHANGE & family law. Recurrent in law.
O’s adultery statute would never have been passed today; hangover old statute on books really rarely
enforced. Change the old CL in H. R changed the CL of a prior case but that had changed an even
older CL: so now allow the older CL c/a back in. Prefer statutory regime?
NEXT TOPIC HERE: CONFLICTS BETWEEN SPOUCES. Family privacy arrangements.
Evolving areas. Trend is towards more & more state interference to adjust for conflicts in the
marriage. State related to people as individuals rather than as little state: CL version of Eisen.
Cases:
Shook v. Crabb (1979), p. 281: H & W died in crash of plane owned by H. W’s estate sued H’s estate
for wrongful death (H operated plane N’ly). Is doctrine of interspousal immunity still valid? Held:
Not for intentional & N torts, because it’s an antiquated CL fiction of merger of H & W in 1
entity. SPOUSE CAN SUE A SPOUSE, recovery isn’t barred anymore, old doctrine is no longer
legally viable! Old law once because W-H were same entity but when that ended reasons were it
prevented collusive suits & sought to promote marital harmony (fake reason form Hoye), but now
don’t worry about collusion or creating marital conflict. Today, we think injury does the damage to
marital relationship, not the suit (ok if intentional torts, H beat W deny her recovery will not soothe
her, was willful, in bad shape already, deny suit not make it tranquil but Halley says here to logic
does not transfer as this is negligence & since this is the domestic sphere there is more N, there
are accidents at home! Dissent agrees with her illogical leap to N). May given incentive to sue.
Court adds that insurance pays so less resultant discord if need to pay remedy since you don’t pay it
yourself; but note p. 285 says some Ks exclude coverage for family members. Initial injury leads to
problems not the judicial proceeding says court. Court also says fair to let one sue, it’s like no fault
divorce, continuing marriage decision is left up to parties); court also says system is equipped to
discern fraud & collusion (intelligence of jurors, adversary process; the most meritorious cases
survive only; plus any PI could lead to fraud yet don’t bar all PI actions) (Halley said the court gets
us to treat spouses as arms-length beedy-eyed potential adversaries already as they can sue each
other so really H & W may indeed collude to get a suit going, point is that income is shared (any
income to one spouse is an asset to the other) but the court says insurance company can h&le it,
limit coverage (price it right, see note p. 285 can exclude family members from coverage or make
premium adjustments; dissent dislikes, should be adversary process finding truth not people
agreeing on amounts) & easy to detect fraud (will be out) in system. Dissent similar: Dilemma, if
H & W are real adversaries, marital peace is imperiled, but if not real adversaries then the whole
system is subverted! Is there a better reason to allow suit? Halley says here they are both dead so 2
estates fight over marital assets, no collusion. Here treat as adversaries not as marriage is one unit,
forced share is Private Welfare System, give something to kids, intestacy laws, business partnership,
own estates, etc. Let them sue for benefit of beneficiaries, will of one is not will of over, like business
entities operating separately like economic strangers. Dissent: family dinner table as trial rehearsal.
Trammel v. U.S. (1980): Continuing on issue of spousal conflict but now throw in 3 rd player:
criminal law against 1 (or here against too as W is plea bargaining out). Hard case, read carefully.
H tried for drug conspiracy & W got immunity from gov’t & testified against H, over his objection. He
wants to use Hawkins v. U.S. to invoke privilege against spousal testimony to exclude W’s voluntary
testimony. Held: W can testify. At common law, H & W were the same person, & a person couldn’t
testify on his own behalf. Used to be about incapacity/incompetence, like an infant cannot testify, then
the SC removed that idea said you can testify, don’t lose ability with marriage status but at first it
evolved into a privilege (can waive) that either spouse could use to prevent the other’s testimony. Now
the rationale is preserving marital harmony, which is useless here since a spouse willing to testify
against the other indicates little harmony to preserve. Also, W should get the benefits of cooperating.
Not allowing testimony would allow H to turn his home into a den of thieves & make W an
accomplice. The privilege belongs to her. Case is not about confidential communications (alone) in
marriage (privileged, cannot disclose), but rather could she testify about actions she observed even
when alone & communications in presence of 3d parties (not privileged if acts or facts, discovery
in civil system, evidence rules may bar parts further though). What’s the picture of marriage after ct
decides husband cannot prevent wife from testifying? Status or privacy, little state or individuals?
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Letting her act like rational self-interested utility maximizer against the very person whom she
promised not to; status as INDIVIDUALS (fits with Eisen autonomy idea), let W strategize
(prefer relation or to be out of jail) at expense of family unit. Ordinarily, this would be on autonomy
theory (Eisen), but here her autonomy is so eroded by the context of a plea bargain; prosecution puts
her under threat so autonomy problem in context. If we kept interspousal privilege, marriage is a
significant status because you entered a unity/little state (STATUS justification) & cannot bargain out
of jail. Or can stay in the INDIVIDUAL model (see last line here) & say presume W would exercise
autonomy, loyal to H, here just coercion, this idea assumes M trumps in her desires, she would be sad
if she testified against H, otherwise W has impossible choice: be loyal & be prosecuted or testify to get
leniency & help convict her own H. That’s family law but we can see what criminal law would say-Bentham: marriage as specialized crime zone, den of thieves, is bad. Perhaps state has no interest in the
marriage of criminals; she can tesitfy, they were both caught with heroin, who cares if it splits them.
But merely accused & maybe she won’t tell the truth. So Halley says there are two views of the
case: 1) realist, driven by no den of thieves or crime zone, rich source of testimony, people do a
lot in front of their spouse; 2) Sanitize her, give her individual autonomy, do not let the M
dominate. Halley also loves a PARADOX: change STATUS content if end privilege, by opting
into marriage, you’ve got a pair of eyes, an agent in the house (INDIVIDUAL can tesitfy),
looking at you; Foucauldain privacy (close door) as loss of privacy (we own his or her knowledge
of you) argument. Every time there’s individualism justification, it can be turned into a status
justification. Can look like diametric opposites but turn into each other!
Now onto the DOMESTIC VIOLENCE CASES: Rape, BWS, TRO.
Warren v. State (1985), p. 291: marital rape is possible, no marital rape exception in world of
woman autonomy! Common law marital rape exemption was based on OLD IDEAS: marriage
constitutes consent (K/waiver, Lord Hale, cannot retreat once gave self up, now we think implied
consent is illogical, no W would leave irrevocable term in K, no protection, so no more exemption),
wife as property (no longer chattal), theory of unity (H-W one person, cannot rape self then), marital
privacy (already broke down so not defer to it), maybe will reconcile so state not intervene but this is
serious stuff (need protection, ultimate violation), fear of fraud (revenge, but no evidence of flood,
victims often not report crimes, now do not deny protection to all just since some fabricate charges),
etc. Halley: In the past, the terrain of sexual regulation was such that the only person you could have
sex with was spouse, otherwise it is adultery or fornication. In marriage, it was always ok to have sex.
So there never really was an exception to rape. Rape appears in early law not as a separate crime but
as a disfavored (since confess first) defense to charges of adultery & fornication. Man was charged
with sexual crime in order for a woman to avoid social liability, says she was forced. Rape was
outside of marriage structurally: no need for exception at all, marital rape is a contradiction in
terms, unimagined back then. Now repeal of exception, right to say I won’t in over 14 states. But
Halley asks, sure wife is not chattal & W & H are not same person but isn’t it still true that in marriage
you’re giving consent to have sex, since sex is still considered an essential element of marriage (status)
or else null & void? Going from sex can’t exist without marriage (marriage is only lawful place for sex
or else fornication & adultery, both outside); but these laws are not really used! New l&scape so no
longer legally a sexual relationship?) to marriage can’t exist without sex. But can counter: Skip
rape law & use assault law. Essential of rape is lack of consent (statutes say unconsented sex, so
avoid rape terminology; versus could say rape is not sex so can have rape claim if define consent upon
marriage to not include rape). Can say: only part of rape is consented to, you can consent to sex part
only; but you cannot consent to assault & other part of rape is an assault, not sex at all, so why not go
into assault law (Halley) & say there is a right not to be assaulted? Woman as autonomous
individual who consented to sex but retained part of claim against rape even if marry. Too formalist?
(Formal category of assault). But we added to Halley: we don’t see in anglo-american tradition an
obligation to do more than consummation, nothing about continuing sex, not required! Essential of
sex is not as monolithic as Halley represented. Halley’s theory needs more.
Domestic Violence. State v. Kelly (1984), p. 295: W stabs H (murder) with scissors & claims selfdefense with BWS. Expert testimony case. Expert testimony about BWS is admissible to help
establish a claim of self- defense in a homicide case! State of mind, honest belief & credibility,
exonerated action. Here her credibility is key, what she believed, honesty of her statement that
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she felt she was in imminent danger of death, reasonably thought life in danger! Court says
expert is relevant so admit. Not harmless error to exclude. Court says not only relevant but critical.
BWS has sufficient scientific basis for uniform & reasonably reliable results. Periodic & frequent
beatings, choke, even public, she thought he had come back to kill her so he knifed him when really
just trying to scare him away. Psychologists have examined wife beating in past decade, shows effects
from patterns of sustained physical & psychological abuse such as BWS, a series of common
characteristics appearing in women who are abused over extended period of time by dominant male
figure in their lives. Phases: cyclical nature explains why women don’t leave their batterers! Last
phase the guy pleas forgiveness, loving behavior, promises get help, reinforces woman hope for his
reform. Very degraded or avoid see it as real; but beyond psych effects there are social & ec factors
making her stay. No independent resources, stigma if leaves family without Children, fear not
believed, shame or humiliation, deters her leaving. Also trapped by own fear as to what he would do.
Combo of all this is unique pressures on battered woman to stay with batterer. Expert sought to
confirm all this & fix the general public misunderstanding that she is not paralyzed to break free, he
said she was a BWS victim & so expert would say how as a BW she perceived the situation at the
time of the stabbing & why not leave the hubby. High unreported abuse. American home is quite
violent. Popular misconceptions about women being free to leave their abusers at any time. Policy:
This case swings against treating spouses as individuals, women as autonomous in saying that women
have learned helplessness. Halley: Marital rape law is moving us in the direction of formal equality
(autonomous woman, same as if unmarried); BWS is moving in direction to special treatment
(women need special protection, exception to rules of criminal justice system). Not require her to
escape for be insane unlike laws for all to be reasonable defendants. Countertension in feminist law.
Expert comes in as only relevant to credibility, which is unusual, usually has a bigger function. Ct
says are these people in fact experts, this syndrome is a form of knowledge. Text says controversy.
State ex rel. Williams v. Marsh (1982), p.318: Statutes say battered spouse (statues also go beyond
married) can get preliminary injunction against batterer ex parte release against violence within
household – big remedy, big power! – w/o notice to batterer, w/o opportunity to be heard, before
trial – told to stay out of house, away from kids, call it substantial inteference with property.. Can keep
him out of house, away from kids. Wave of cases challenging TRO as violation of accused’s due
process. He doesn’t even know it’s happening – no notice. Held: this doesn’t violate the 14th
Amendment right to procedural due process. Important government interest in preventing
domestic violence. Satisfies due process because only temporary, only issued by a judge using
discretion, & petition must show good cause. Need for expediency & balancing of interests involved:
mechanize Q of how much process we need, how much is due, see privacy interest invaded,
liberty, versus public interests, policy against DV, risks of more procedure (cost to state, danger
to person!. Hard test for procedure.. Halley: Like Parham v JR, same issue, how much does the
constitution m&ate that we provide procedural due process?. People merely alleged to have
committed domestic violence & have a TRO (injunction!) against them in a flash. Text notes the Act
is a result of an increased awareness of DV prevalence & need to protect victims; nationwide trend to
legislate in this area. Abuse affects kids. Due process as a flexible concept, same procedures need not
apply in all cases, depends on weighing private interests & gov functions, police power especially
given magnitude of problem. Here meets test: protect victims & prevent future abuse, need prompt
actions here since immediate dangers, only a judge can give orders so gov kept strict control, not a
clerk, plus she must show good cause, not unreasonable overall.
Note: Case followed by AG Task Force info: arrest is preferred response in cases of family violence,
don’t assume arrest breaks up families, exacerbate violence, prefer mediation since never tests
assumptions. Victim unlikely join mediation, assumed equal culpability, one sided, he has no incentive
to change behavior, mediation may increase violence, challenge out traditional beliefs in mediation.
Less future asseult if overnight incarcerate, enhanced stature of victim since officer listens before
arrest, puts abuser on notice of serious consequences, community gets to appreciate criminal nature of
DV. But AG recent studies say manner of sanction matters, less relapse if just warn versus felt treated
procedurally unfairly. Note: woman not presumed to act under man coercion, use duress doctrine.
TWO CASES MAP OUT L&SCAPE NICELY:
A lot of time on: Raucci v. Town of Rotterdam (2nd circuit, 1990), p.302: rich facts, after numerous
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threats & run-ins with dangerous H, W got order of protection & reported things (tapes, entire history,
broguht kid too) to the police, who didn’t do much, & H shot their C. W sued the town for wrongful
death & deprivation constitutional due process by failing to protect them from H in violation of 42
USC 1983; also state law claim. 1983 is an action for damages if your const rights (DP here: no) are
violated under color of state law (MEANS NOT PRIVATE ACTORS); federal tort created out of
const’l idea (DP, but fail protect) that const restrains but you need a statute for a damages action
(against state) so created 1983: SEE NEXT CASE! Here, state agents acting in enforcement of state
law so it’s not a close call, well within 1983. The potential DP issue: right to a performance of duty
emerging from state-made special rel, liberty endangered by state failure. Held: police may be found
negligent for breaching a special relationship that required them to protect the injured party.
Once there’s a special relationship, police are subject to a reasonableness standard, circs of case.
Special rel/N action p. 305 STATE LAW TORT ELEMENTS: 1) Police had assumed thru
promises/actions an affirmative duty (had said could do more, gave & taught about taping, then said
still working on them (implies not end of role), did nothing with tapes after gave to her, also if she
violation of protection order such as harassing calls must respond & investigate, subject to reas review
in N action, 2) knew of threats & knew harm would ensue from inaction (knew he was violent,
harmful, aware of threats, injuries corroborate what she alleged) 3) there was direct contact between
town & kid (with injured party) (Halley says we always add kid onto mom; his req is used to limit
number of citizens for whom there is a special duty; order of protection extended to kids, officers seen
kid, knew who he was, tapes & talking to mom made them know kid was subject of custody fight so
not just contact with mom) & 4) W justifiably relied on police to affirmatively act, on services
production (Halley says not require her to disobey PO; she did not change her routine before the
shooting, she relied on police to protect her, they said still working on tapes, lulled into false sense of
security). In sum, plaintiff established the FOUR elements. page 305!. There only the RO was
violated with violence, no extra PO conduct. Note: 1983 claim dismissed; all we have here is state
law N claims: special duty via special relationship, breached by fail to act to prevent shooting
confrontation, affirmative duty to act on her behalf. Generally a town is not liable for fail to
protect, only if special rel in a narrow class of cases as owe to public at large, allocation issue. Note:
damages only overturned if shock judicial conscience, due deference to fact finding role of jury. See
similar cases award, see nothing about 100,000 for C death so 250,000 here must get reduced on
rem&: shocks!
 Halley says case cited case Sorichetti page 305 where perm RO, PO fail enforce on thinner facts
(no tapes or strong along unlike here) & is cited as good law but should we extend c/a (to this
older case, was it wrong)? Typical of torts to use efficiency analysis, incentives so state makes
right judgments! Class ideas: positive court order—one state branch says the law (order; so even
more assumption of duty?), 1 branch ignore (PO fail the enforce). Also H unrestrained, can be
violent again. Order—stay within terms, out of house, some let you arrest him. Rules of law
creates reliance—circular. Institutional incentive—attach tort action—make sure PO know serious
top priority order—versus PO discretion gets good things in area, don’t jump the cue.
DeShaney v. Winnebago County Dept of Social Services (SC 1989), p. 1369: C abuse victim is
eventually beaten to brain damage by F after incidents were reported to DSS, which investigated but
did nothing; had given F custody after a divorce. 2 nd wife complained of abuse, DSS thus first learned
might be abused C; interviewed dad but he denied so they stopped. Kid in hospital, notified, temp
custody in hospital, then not enough evidence to keep in court custody so free to F with suggestions of
preschool program & F make vol K with DSS to cooperate with goals, stuff continues, still no DSS
action. Kid & mom sue under 1983 substantive due process claim, says violated SDP: government
entity or agents failed to provide him with adequate protective services. Say state created special
rel, entitled to rely, const’l dimensions. Halley said theory makes sense under these facts even
though failed here. Here there was an established relationship with a family services agency, DSS;
should they monitor life & safety? Page 1370 DSS took kid under court surveillance, created special
rel. Also idea of infancy: kid cannot act for self, welfare depends on those regulated performers,
depends on state, agents to give info to dept., statutory duties. Surveillance. Was in state custody a bit
too, power to remove from dad, if not do, is not that action? As if give to dad knowing of danger, they
have power to change custody but do not. Could argue the decision not to act is the state action.
Also had done a positive act, gave him back to dad after hospital, explicitly involved (so how does
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court say still in private sphere?: presumption since with natural dad!, not place him., private sphere
generated the violence): depends on how you view the facts!!! Held: Due Process clause doesn’t
confer an affirmative right to governmental aid, not reach here, denies state action here!!! (ends
once default to NATURAL FAMILY!!!!!! Even if once offered shelter so as to not discourage the
state), even when life liberty & property are at stake, so state can’t be liable under the clause. Plaintiff
lost unlike in jail cases, social services won here. MERELY KNOWING of the danger does NOT
create a special relationship. & not arise from express intent to help him; state not become perm
guarantor of indiv safety by having once offered him shelter. Only if imposed on his freedom to
act on own behalf (jail cases where state invol incarcerated you so in public not private custody
so if not act like not give MD then DP violation Estelle-Youngberg cases n/a here, notes may be if
state had placed kid in foster home, may be enough action under color of law but never reached Q).
This is the PRIVATE sphere: harms done when in custody of own natural dad not in state
custody. P. 1371 Court sees in the facts that state is not the actor, the injury was in private. Not
categorically obligated to protect him, no affirmative obligation to care & protect indiv here, look for
special rel with certain individuals only, limited circs, here state did not create the danger. Opposite
cases are jail cases where state deprives prisoner of liberty so must then care for prisoners since they
cannot care for themselves when restrained. Ct (Rehnquist) says state would only be obligated to
protect you if they took you put you there. Halley: (1) Rehnquist sees DOUBLE BIND for state/ DSS
such that privacy right is violated if state interferes too soon & due process right is violated if it
doesn’t interfere. Concerned also that if state has liability for failure to take C into custody, state
could protect itself by never acting, or taking everyone into custody; they would take all kids or notice
none. Thinking in terms of incentives rather than rights. Rehnquist is saying there’s no
constitutional answer to question. The dad did the harm not the state; most can be said is they stood by
without being active but if had acted then DP charge improper intrusion to natural dad. (2) We’re
talking CON LAW, & this is about constitutionality of 1983. SC is saying there was no
constitutional deprivation on which to sue; not saying not meet color of law element, just say no
con law obligation, big deal! It’s a higher order decision. What’s at stake is the reach of due process
clause into violent families everywhere, so it’s a big deal. Due process gives off a bad smell to the
justices. Otherwise would give important con law decision to an unclear area of family law—mushy.
THIS IS THE HEART OF CASE!!! (3) Is there idea of Children as legally disabled, & needing
bigger constitutional protection? Our class said he’s just a kid not capable of adult stuff, not capable of
private sphere. (4) Family privacy might be defeated by state law claims but no constitutional
dimensions, not use 1983 unlike (2)!!! Traditionally leave to state, PP, or else family privacy, pull
back from this: this is a FP case!! Part of privacy working here is presume P is fit & will act in
BI!! Court says not all CL duties owed by government actors were constitutionalized by the 14th.
Don’t yield to judge sympathy, notes it is a tragic case. Versus Blackmun dissent, p. 1373: accused ct
of formalism. too rigid line between action & inaction. He’d be sympathetic, doing nothing is the
worst mistake, they did record incidents in files & now kid is very retarded all life. Of course there
was notice of actual abuse, spectrum! 14th as open textured, interpret ver time as more cases, different
picture of jurisprudence says Halley. Could counterargue with court & say facts here not give rise
to double bind & can rebut P BI presumption & privacy already broke as there is social worker
surveillance. See how facts fit the theories.
II. Government Power to Define the Family
A. Access to Marriage: Restrictions on WHO CAN MARRY & HOW
1. Who
Sexually transmitted diseases/healthiness.
Mental competence is under HOW since law of consent to marry.
Nature of powers—capacity to enter status & relationship between parties to enter!
Schematic sheet has basic formal rules. More Qs of procedure show up, get a license etc.
See cases: Q of validity of marriage can come up in many ways: intestate, duty of support, different
jurisdictions, then see S&erson if marriage invalid, factor (but not alone, not decisive!) in terms of P rights, C
custody (See collateral action cases, are not about voidnes). Cases show multiple procedural dimensions
to marriage. We do less on Interstate family law: what if valid where celebrated but not where reside or some
consequences is enforced? Problem between states, nations. Interstate Rule: states will recognize marriage
as valid if valid where entered except if kind of marriage is violative off public policy—judge decide case
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& announce policy so exception can be as big as the rule—comical! See in polygamy case & defense of
marriage act.
a.
Traditional Restrictions [2-28; 42-46]
1.
Incest
Singh v. Singh (1990), p.2: a year after marriage, H & W discover they’re uncle & niece & get annulment.
Later, they want to undo annulment (for immigration reasons—theme of crosscutting jurisdictions,
overlap) because W’s M was only a half sister of H, so W is his half niece (H’s dad is W grandF), which
the statute doesn’t mention as cosanguinous, is silent on half issue so new Q of law for state. Held: no
marriage (thus an annulment) allowed between half niece & half uncle (is still incest, court construe
statute broadly) because incest has always been prohibited. Always disfavored marriage btw certain
relatives. History blank & cases blank & common meaning: try all for stat interp, none necessary.
Purely statutory crime. Too closely related in consanguinity or affinity to marry. Court dislikes claims of
the couple here. No language distinguish btw half & full blood so no plain construction for half to marry;
framers also knew ecclesiastical interps at time treated half like full blood; strong public policy ag incest
continues & cases include half blood; key is there is blood unlike pure affinity cases, there if you leave out
one type you leave it out; cases even if silent statutes, declared policy, not words of art, full meaning uses
common sense; no encompassing bona fida marriage def., do case by case. Halley: we see a ct invalidating
a happy marriage & sending wife out of the country for 2 yrs in order to maintain a broad judicial
interpretation of a statute (“any marriage within these degrees is void”) that doesn’t guide at all. Judicial
brutality, severe. Related to next case, texture of marital voidness.
Back v. Back (1910), p.8: Most courts agree with this case that all affinity rel cease upon terminations
of marriages that produced them unless statute says so. Four years after divorcing first wife, man
married former step-daughter. After his death, she seeks to have property set aside to her as his widow:
intrafamily fight, intestate fight for forced share. Issue is whether a man can marry former wife’s
daughter. Ct says yes because the relationship of affinity between the two ended when he divorced
the M (no longer “wife”), leaving him free to marry the daughter (not “wife”s kid: court constructs
what means). Enumerates specified relationships in code. Halley: Ct gives the word wife an arbitrarily
formal reading. Interpretive fiat. Different stat interp from Singh, pounce on word wife, arbitrary
reading here. Does it make sense that Singh, in which the two don’t know each other & are far apart
genetically, can’t get married whereas here because there’s no genetic issue they can even though
they lived together as stepdaughter & stepF?
Singh: cannot marry
Consang.: blood
Distant: even if far apart genetically,
intervening relative
Unknown: even if, to each other
Back: can marry
Affines: no blood rel.
Domestic: even if live together
Known: even if, lived in nuclear
family
Sensible pattern?
Thoughts on incest (justify prohibitions!) from MARGARET MEAD p. 10: need strong
incest statutes because kids should be able to be physically affectionate in families without
sex looming & danger of object confusion. Would say Back is a bad development. H
daydream about C spoils domestic, bad for marriage. Incest rules helps people segregate
domestic scene into who can have sex with who; other types of rel with whom don’t have sex,
forget daydreaming about then. Can test out the bio stuff: share DNA, express recessives but
can test this out! Genetics conference said we don’t eliminate the right noise anyways.Ban as
reassuring. Brother & sister too. Incest taboos are needed in society, forbidden sex partners,
trust & affection can exist independently of sexual tie; affectional ties with others other than
own mate, limited capacity to form wider alliances if no incest taboo; suspicioins btw dads &
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sons, taboo contributes to rearing of kids, can w&er freely, not tempted or tempting, ready for
nonsexual relations as adults, protect those who live in same house so include step (but now
eroded: just focus on blood instead of common household! Think leads to inferior offspring,
popular belief versus key is family can safely indulge in intimacy & warmth. Sanction is
based on misunderstanding of bio & bad impact since step relatives get left out, leads to
abuses, corrupt trust & affection! We see as divorces increase, confuses kids: stepdad is
not taboo unlike bio dad was. Makes it hard to form perm-mating rel as well as rel with
older adults. Object confusion in our much divorces, much remarried society.
LEVI-STRAUSS, p, 9: require exogamy, send C to other family, gets society, animals
versus humans, structuralism, Halley says this goes too far! As society moves from
nature to culture, intermarriage & interdependence between families becomes key.
Notes that blood incest’s dangers are outcome of the universal prohibition, otherwise bad
hereditary characteristics would get eliminated thru selection. & not all of mankind agrees
it’s a bio problem. Look for true explanation for universal condemnation: just as sexual
division of labor leads of mutual dependency (sexes get together), prohibition of incest
establishes a mutual dependency btw families, compelling them to perpetuate themselves, to
give rise to new families. A family cannot exist without society: need plurality of families
ready to acknowledge that there are other links than blood ones, need social process of
affinity, creates society. Remodel no rules, pass from animal to human life. Don’t be closed &
overridden with fears. Counter: keep property, wealth in family, not intermarry, royalty
Freud disagrees with idea of 1 legit sex rel per household, ban just hides sex rel, not just 1
sacred bed. Regulate latent sexuality. (class).
2.
Polygamy
Ok in Islam. US at one point: Utah. Now uniform disfavor in Utah. Now we feel only 2 adults = marriage
Why do we disapprove of polygamy?
 It’s like adultery, theft, household friction.
 Can just love one person, triangle is jealousy; prefer stability, policy of long term, capacity for 1,
cannot h&le more so stay with the 1 you have
 Associated usually with authoritarian structure that are abusive of women. Facts in cases,
patriarchal societies usually (male, rule of F) as M superior over many W, C brides (but
contingent, could have pol&ry). Feminism was 1 st antipolygamy antipatriarchal. . Doesn’t seem
like each wife is equal partner in marriage. Islamic law – all women have to be treated equally.
Can’t marry new woman unless you can maintain household in same way.
 East- West Orientalizing. West as virtuous, announce superior moral practice to the world.
 Private welfare system theme – marriage will stretch breadwinner’s resources out over more
Children—state would need to come in & support Short Creek—but could bracket & limit number
of kids!
 Don’t confuse kids; expect M, F; not necessarily true?
 Would need to change society structure, huge houses are not model of nuke family
 It’s an anti multicultural idea like fear incest; little cartels, like Mormon behavior
 Lasciviousness, not sexually controlled enough
 Can’t be good F to all Children. F absence problem. (But that argument questions the capacity of
women to be full P w/o man. But, this isn’t a case where there’s no dad, but where he’s away a lot
w other kids.)
 Expectation of intense intimacy in marriage. But more airy relationship in polygamy – may not
want guy around every night.
Pro polygamy:
 My tradition against your tradition; polygamy has just as strong roots!
 Ban is restriction on autonomy, what we can do, let me try to love 2 people
 Collection of responsible adults to raise kids, role models run around, abundance of adults figures
 Maybe not capacity for just 1 intimacy, or many cannot just have that: relief to get out of intense
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intimacy. Get help with family.
Diffuses the patriarchy; empowering to women because more of them & can gang/team up on
husband, assert more control, strategy & numbers.
We don’t limit number of kids with monogomous relations for PWS or for kids without marriage
Save from boredom. As less death, more divorce; people like variety, not be stuck with person,
people have trouble having monogamous relationship across time, cannot have 1 for LT.
Situations where need to populate (Jews), more Cbirth
Let W have legit sex if one M die in war (if poly&ry here), so not Cless all life, Islamic idea of
gender imbalance.
There is an existence of religious jurisdictions (like get case & Shahar) over marriage & they allow
polygamy. See history of struggle state versus fed but also Mormon church versus USA, over
jurisdiction over religious recognition of polygamous marriage. Reynolds v. Utah – prosecution raised
free exercise challenge, ct said you can believe in it, but we can regulate behavior – belief/practice
distinction used to make polygamy (even if a religious practice) a proper object of state regul if
state chooses; action category. Rhetoric about polygamy was this is Un-American. Looked like
underneath it all, Mormon families were functioning like cartels. Too hard for capitalism to get into
Utah. One reason for breaking it up was economics. Now Mormon church doesn’t recognize
polygamous marriages. Existing polygamous marriages of some Mormons are not recognized by
church or state. Growing resistance – legal challenges to polygamous relationships (Reynolds).
Problem of new people.
Two polygamy cases: We don’t see voidness cases. THESE ARE COLLATERAL ACTION
CASES!! Like about term P rights/ neglect, & C custody!! Lots of ways can enforce state limits
on who can marry. Could say not transmit across state lines for immoral purposes
In re State In Interest of Black (Utah, p. 14, 1955): severe case like Singh. man had 3 wives & 26
Children. Children (issue of unlawful polygamous marriage in Short Creek) were taken into state
custody, judged neglected & made wards of the state for foster care. Court says polygamy always
odious. Ct won’t prohibit laws (ok if about practices) about most important feature of social life. Ps
said did care properly, etc. but court says immoral environment & neglect statute on p. 15 include
reason of “morals” not just law (nol C taken from Ps unless…). Public welfare & BI of C not served
by immorality & crime. Even if harsh to take kids from Ps, do it for welfare & stop illegal practice
spreading. Ct says polygamy by itself constitutes neglect such that Children should become wards
of the state under parens patriae power. Terminated Pal rights to kids in invalid marriage.
Deterrence of future polygamy was the theory. Halley: theme of making up people, family as place
of moral training, want to get Children out of families because they’ll continue polygamy.
Concur: not talk about morals, just that it’s against law, a crime.
S&erson v. Tryon (Utah, p. 22, 1987): With C custody, not per se rule, see different statute from
Black about morals, Black had neglected kids; standard governing actions for term of Pal rights
do not apply to C custody disputes, here moral references have been deleted from termination
grounds, different law! H & W believe in plural marriage & have 3 kids. After they divorce, H
renounces polygamy & W remarries a polygamist. In custody suit, ct says polygamy alone is
insufficient to justify a denial of custody (to a fit P: unlike Black case) since statute requires that
a court consider the best interest of the C. Custody is different from question of termination of Pal
rights (above neglect case). Polygamy may be considered but not determinative. BI needs more than
plural marriage doctrine. Gotta see relative Ping abilities, make more findings about factors for BI,
needs of each C & abilities of Ps to meet, BIU turns on numerous factors; moral character is 1 of a
myriad of factors; like alone an affair is not enough.
Halley ties deceit into polygamy. Marry 1, set up house, travel, lie, set up other house, both think
legit, marry but 1 is void since multiple marriages are really bad defects. Terrible consequence for
other woman. Which one do we void? English rule: 1 st marriage trumps but US trend of states is valid
2nd marriage, impose a policing function on 1st to make sure 2nd marriage not happen. See page
25 note. There is also a putative spouse doctrine: states equitable protect the other voided spouse if
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good faith, reasonably rely, we break bundle, some sticks, crumbs of estate, work it out on facts, some
consequences. Text notes that polygamy is often serial in US: remarriage in lifetime. Oddity about
US that it is ok to have many no fault divorces if just one marriage at a time; so not really all antipolygamy! W do it too, whereas was less poly&ry than polygamy, p. 21. Sequential polygamy.
(Not covered in class). Maloney, p. 19, on Short Creek Raids. AZ raided fundamentalist Mormon
community but no legal penalty at time for polygamy in AZ so said conspiracy. 1953. Nader said it
was a failure; strong religious commitment lasts, need informal social approaches.
3.
Sexual Preference & Identity
NO SAME SEX MARRIAGES: Jones v. Hallahan (KY, 1973)p. 25: two women cannot marry each
other. The relationship proposed by the women does not authorize the issuance of a marriage license
because it is not a marriage. Marriage is considered the union of a man & a woman, even though
the state statute neither prohibits nor allows same-sex marriage. Halley: NO YOU CANNOT COME
IN. unlike rest of cases about consequences. First direct access to marriage case – seeking license
& being told no since not a marriage. Statute doesn’t say only man & woman (typical statute) so
nature of reasoning to get judicial DEFINITION goes: traditional definition is btw M & W;
steps: go to dictionary, see Webster says opposite sex union; also always been considered so,
common usage. Since here W & W, by definition they’re incapable of marrying, so no license. Halley
says cool language of high STATUS (feature), turned down b/c INCAPACITY not by state, not a
human thing u can do! What they propose is simply not a marriage. Like forming corporations,
just cannot do here. Not a const’l issue: court says no to right to marry, of association, free exercise
of religion, cruel & unusual punishment. They are not kept form marrying by statutes or license clerks
but by own incapacity from entering marriage as term is defined. Note on p. 27 says Eskridge says
state disapproves of many lifestyle choices but only withholds right of marriage to homos versus
felons, delinquent taxpayers, unpaying spouses, commies, etc can get licenses. In one case, one
adopted the other & got tuition breaks.
Skipped MT v JT: sex change, try annul since higher than divorce, ct sees if sincere cross into other
sex, bodies/gender must match, if miss 1 ruins it, thinking under the case says Halley.
b.
Constitutionality of Marriage Restrictions [46-61]. States et up barriers of different kinds, for different
relationships. Now we see const’l FL. Controversial when SC starts to say cn law rights with respect to FL.
Loving v. Virginia (US, 1967, p. 46): there was an anti-MISCEGENATION law (misceo is “mixing” in
Latin), illegal! Following this case lots of restrictions were struck down so Q became are any
restrictions on marriage ok? Interracial VA residents marry in DC then return to VA & indicted for
violate VA ban interracial marriages, punish based on racial classification, white cannot marry non-white.
Statute against racial miscegenation is unconstitutional because it violates DP & EPC.
 First, no racial classification allowed under EPC without a legit state interest. No legit state interest,
statute is just to promote White Supremacy, creating an over-class by saying whites cannot marry
outside of whites. Gets strict scrutiny (need compelling interest, here not even a legit one,
ultimate EP nuke!, no need to go to next stage about narrow tailor to purpose; burden on state
unlike in RBR here presume invalid statute) b/c racial classification, here even prefers 1 race over
other.. Statute lets non-white marry each other of different races as long as not marry a white. Gets
beyond the double bind that there is an equal impact on all races since it affects both black & white
participants to marriage. This is a RACE SUBORDINATION case, not a formal classification of
race case. Statute itself discriminates internally. BUT the text of case does not compel that reading,
could read it as about the racial integrity of everyone, not just W, treat all races the same. We could
have a reading that doesn’t turn on the logic of white supremacy (even if statute seems to hit that, court
not stick to it), ct SAYS impermissible because there’s formal classification based on race, even if
treating all races the same. Loving has the prior substantive reading about idea of racial justice
that’s thick & normative against supremacy & racial hierarchy; & this latter formal one that
says race classifications are what we’re against, path to Bakke, just do not mess in race!!!! 2
ways to read case, text not force the first, many people read as 2 nd, statute is hierarchical but court
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not read as such in opinion. Ct doesn’t exploit all possibilities in statute for making substantive
inequality reading (only alludes on p.47). Halley thinks formal equality reading is a misreading of
the case, but it’s everywhere, holding in world is that we not restrict marriage on racial distinction!!!.
Second, the statute violates the DPC bc marriage is “basic civil right” & “fundamental freedom to
our existence & survival.” Could use traditional DP thinking, fundamental right so scrutinize its denial,
or say no right to marriage. Could mean vital personal right, free to marry, DP usually say cannot take
away at all but court reluctant to go to this SDP method! Halley: worry about slippery slope.
Unclear whether Loving effectively prohibits ALL restrictions on marriage. SC begins to say there are
constitutional rights with respect to family relationships. Page 48 confusion, not say cannot deny at
all, says “on so unsupportable basis as racial classifications” & “freedom to marry or not marry a
person of another race. Kinda add in deny in racial discrim way so not freestanding DP but all EP.
Hard Q, DP part takes work. Ct does not expressly say that marriage is a fundamental right so Q is
this a marriage holding saying access to marriage is fundamental rt & going to strictly scrutinize
infringement on that; or access is fundamental rt & we’re going to scrutinize racial restrictions?
Complex part. Also, idea that race discrimination in statute “ all citizens” liberty without due
process of law: More COMMUNALISTIC CONSTITUTIONAL RIGHTS than individual rts
which usally belong to people in the rel. Suggests people are in the diacritics of marriage – in a
relationship to marriage all the time (we are either in it or will make choice soon!), in race
discrimination all the time. We are all white or non white so all potentially miscegenous;
fundamental right to CHOOSE marital partner. Affects society. Makes all marriage have a racial
content, affects all citizens all of the time. Marriage as STRUCTURAL to soceity, not just a box
we go in, we are all in it. If discrim statute, affects us all since central to society.
See the degree the court will back off its grand implications in Loving (lead case in fundamental right to
marry). We saw a broad version tossed around a lot so expected same sex marriages to get strict scrutiny if
restricted but nope, Loving was not really without the race piece of its holding it seems. No such fundamental
right to marry. Not always SS test.
Zablocki v. Redhail (SC 1978, p. 48): Foresee Baker etc. Ramps down the test from SS, like with
Griswold re-visitation. Statute: if you have a noncustodial kid need to show did DoS if required & not
public charge or likely to become one: predictive showing. Or otherwise void marriage (no right to marry
if miss reqs) & crime too. Redhail denied marriage license (“may not marry” – direct absolute bar on
entry! Unless court order showing noncustodian P’s proof of compliance with support obligations plus
kids covered by support obligation are not & won’t become public charges) because of (against dads who
left kids in arrears so be draconian) deadbeat dad statute (written neutrally). Here he is unemployed,
indigent so not just skipped out, kid is public charge; he wants to get married. Held: Marriage is a
fundamental right for EPC purposes (not SDP analysis since Lockner anxiety) so statute is subject to
strict scrutiny. The means of achieving the state interest are not narrowly tailored. State has other effective
means for exacting compliance with support obligations that don’t restrict right to marry. Also, statute
impairs his financial situation & makes him less likely to meet his obligation. Halley: Sct bypasses the Due
Process analysis (shows a flight from SDP & Stewart objects that there is reluctance to engage in this
analysis, GUISE of EP THEME!!!!!!). Anxiety about lochnerizing. What kind of thinking do we need to
get EPC analysis? Stevens wishes court had seen discrim against poor but SC worried about say unconst to
discrim on poverty basis. Class instead is noncusotdial P who wants to marry. Discrimination based on
fact of custodialness – if custodial P, can have Children on public assistance but not if noncustodial.
Not a suspect class so won’t ratchet up scrutiny level. Tricky: how does fundamental right piece fit into EP
piece? Ct says marriage is FR (loving/skinner). If no significant or direct interference with rt (not a
bar), then just need to pass lowest level of scrutiny (FH Jobst case, presume ok statute). Zablocki
construed as direct interference, a BAR to marriage decision, serious intrusion. But here ct fudges the
standard, doesn’t specify “sufficiently important state interest & closely tailored” – this is fudged
intermediate scrutiny. Page 51. Fudge: can put whatever on the scale, ct fail to specify. Ct does not level
with us about the test. We expected SS given the legal culture, the bad reading of Loving. But in
performance we get something like SS: court gives no slack, grinds statute to dust. Says does not provide
for counseling plus the idea of being an incentive to pay support here too broadly any infringement,
collection device rationale killed by court like counseling one. If cannot meet it, don’t give you money, u
just cannot marry. Plus has alternative means not impinging on FR. UI as not limit other financial stuff, OI
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since new spouce may increase his money. Also here there will be out of wedlock kids! Everything turns
on direct versus indirect. Does the distinction make sense? Where FR is indirectly interfered with as
in Jobst, it’s rational basis. Where FR is directly interfered with, it’s fudged intermediate scrutiny.
Court avoid saying get a better job (could have made it seem indirect bar, could pay DoS since u
have wrong life strategy). Can make Z look like Jobst, court has choice to go direct or indirect way!
Jobst -- in FN of above case. Page 55 . Statute says that if the person gets married, then lose SS benefits.
Ct says then less likely depend on Ps, ec change, relevant diffs btw married & not as classes. Not an issue
of cannot marry anyone, just not marry poor person since need SS then, it’s a life choice. Typical language
about needing to waive con law right if life strategies are wrong. Not an absolute bar unlike above case.
Can still get married unlike Z where cannot get in or get conseq. Rule: Although disincentive to get
married, only subject to RBB to see if the statute violates right to marry bc it did not significantly directly
interfere with the marriage decision (FR). No bar to marry, SS code only indirectly affects the right to
marry (FR), permissive RBR.
In above 2 cases, family law sees a formalism: access rules to marriage, turned down for license,
direct act of state gets SS versus regulate around marriage, can prevent you that way but indirect.
Halley does not buy this but SC loves it. Seems so formalistic if a man is not strategizing but simply
picks poor lover, no job, etc. Court choice to go with Zablocki.
SUM:
Loving: FR, EP, DP, hedged to race, Q if not race
Zablocki: weird intermediate scrutiny, avoid DP, too hot, EP, could avoid, direct interference
PRISONER:
Turner v. Safly (SC, 1987), p.58: FR, Z apply, but ct finesse std to apply: not reasonable rel to pen
interests; Z’s intermediate scrutiny gone! Inmate challenged regulation that prisoners cannot get
married without permission of superintendant. Permission was only to be given when compelling
reasons, pregnancy & illegitimate birth. Ct said this is too much restriction on marriage. Sure could reg
time & cirs of ceremony but facially invalid for complete ban. There is a constitutionally protected marital
right in the prison context; emotional, religion, release/consummate, benefits: all unaffected by
confinement, these remaining elements allow consti protected mar rel in prison context. Although prisoners
do not have the full panopoly of rights because they are in jail, Zablocki & Loving apply to prisons. Applies
rational basis review & finds that the statute FLUNKS this bc statute is not “rationally related” to the
security & rehabilitation interests. Security is about love triangles leading to violence (this is
exaggerated resp., ready alternatives, nothing in record about triangles, no ripple effect, just private) &
rehab is about women who were abused learning self reliance (too broad, usually no probs with marriages
there, allowed before rule, also why not let prisoners marry civilians?!?!? Page 60 duh! Also seems
paternalistic & suspect). So SC gives deference, but statute has to be tailored to meeting these state
interests. Halley: This is RB with bite. Court disliked this ONE statute so said marriage access rule
here only subject to RBR (other statutes will be ok; it’s prisoners so defer to restrictions moreso).
Ostensibly performing RB, but creeping up to intermediate scrutiny. Lots of people cite Zablocki for idea
that there’s heightened scrutiny for access to marriage cases. Turner says if prisoner’s in for life, access
could be denied. Page 59 ok to punish. Idea of some further out place we could go where access is
absolutely barred. Eskridge reads Turner very strong: if state may not even bar felons from marrying
felons, how can it have interest in preventing perverts from marrying perverts? State can’t have
opinion about goodness of your marriage choice. We’ve gone so low, so why not gays? Why if he
wrong? Cite Butler, essential of marriage to procreate, can take from prisoners; thinks if no
expectation of consummation, then no marriage.
Halley said prisoners tend to have fewer rights, less scrutiny, did not really change the law under L
& Z!! Only Prisoners get RBR! Later cases page 60 say no right to sex visits outside if AIDS.
Is Turner statute a direct or indirect regulation of marriage? Is it more like the statute in Jobst or the
statutes Zablocki/Loving?: On one h&, this is more like Zablocki bc the prison has a say on if & when a
person marries -- it is a ban on marrying at all. On other h&, this looks more like Jobst since the inmate
will probably not be there forever & can get married when they get out of prison. & Turner says that if a
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person is incarcerated for life, then does not have these rights since they are never going to get out.
This is a Jobst-like reading of statute as a temporary impediment & suggests a lower reading of the
statute.
A. Access to Marriage; Restrictions on Who May Marry & How
3. Who
Traditional Restrictions (week 4)
Constitutionality of Marriage Restrictions [A46-61; PM (Baker); W315-25; A39-42; A61-71] cont’d
Same-sex marriage:
 Background: We have seen invalidations of regs; Hawaii & Alaska went very far &
denied access to marriage on basis of sex of partner; their state SCs said strict
scrutiny; but sex discrim issue here has since been locked-up on rem&; regarding
domestic partner legislation, there is popular resistance to same sex marriage,
popular majorities thru initiatives, not just courts here. Halley says same-sex
marriage isn’t going to be decided in the courts; is about the capacity of popular
majorities to legislate. Baker case is another example of how may get cool
legislation out of it: basically the court says you gotta give same sex people the same
benefits & protections incident to marriage, not required to give license but statutory
scheme has got to do something, courts don’t do it, just reject current law; then we
see in statute book there are now civil unions.
 state’s reasons for denying same-sex marriages, based on choice of parnter:
 same-sex unions diminishes societal perception of link b/w C bearing/
procreation & marriage (we care about parens patriae power -- why we
privilege marriage); marriage as distinctively procreative whereas same sex
marriage is distinctively unprocreative. Otherwise merely surplages. Baker page
16. Class says marriage is distinctively about C bearing.
 stability: bio link is stable. More likely procreative, give permanence via
privilege. Those who have Children likely be in more stable marriages (we may
be over inclusive about unions that are more procreative—that’s OK; not
required to be technical about that)
 counterargument: link b/w procreation & Phood exists wherever there are
Ps/ C-rearing, notwithstanding marriage . Idea that there is an interest in
Phood, not in marriage & procreation. No interest in Phood if deny same
sex marriage
 counterargument: it’s draconian, discriminatory, totalitarian to require every
marriage to be procreative
 counterargument: TV recent same sex adoption ok, if one is a bio P, let
other adopt, is stable too. Estoppel, state not sincere about procreation since
will stabilize same sex with adoption. Or is it a different Q to go further?.
 Phood is Ms & Fs, family so we want a M & D in the house; if deny marriage to
same-sex, increases likelihood that of the 2 adults, both are procreators, not
strangers.
 law presumes legitimacy of every C born to marriage—that H is bio F
 counter: but reproductively chaotic world—not true even for hetero couples
(maybe only the wealthy though!). Br&eis type of argument: not impose
a monolithic model, new world!! Repeat it’s draconian, discriminatory,
totalitarian to require every marriage to be procreative
 counter: state doesn’t necessarily want to encourage everybody to procreate
(e.g. birth control)
 protect against destabilization of institution of marriage: people will leave
heterosexual relationships (brain drain) more if allow same-sex marriages
(alternatives, so will leave; demographics, think to future behavior!).
 Could change the definition of marriage, take out an element from Webster,
but then what else is socially negotiable?!; we created a status of H & W so
same sex is a mere parody.
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Could see what happened in France with PACS, brain drain, destabilize;
there defect from marriage (not only same sex left).
 Could use a strong gender theory to say Yin Yang, one of each or else will
not work, interdepedance of2 gender, mutually dependant, one knows
house, one money/market, but counter: relation as stable is 2 work, we are
beyond the union idea
 Could so without a gender theory. same-sex relationships are more unstable
(empirically fidelity worse among homosexuals)/ homosexual relationships
are liaisons (non gender reason). But see Bill Eskridge: we (homosexuals)
are like everybody else, into stability & toasters., not less fidelity. Also a
counter: Tom Gray: same-sex marriages should be recognized b/c the erotic
must be contained within the civil-- need to tie same-sex relationships to the
same rules, good advance of civilization, no mass of outlaws, bring them in.
 Does marriage make people stable or is it housing for stable people?
Constructive or reflexive?
 The value of marriage is in the scarcity & allowing people to participate in that;
allowing same-sex marriage will dilute marriage & it will become less valuable.
Counter: there are many marriages that break down, & when you have
homosexuals who really want to get married because they think highly of the
institution, allowing them to enter the institution will elevate the status of
marriage. But what if they are going in for the exit rules? Really want to
recognize that?
 God knows what will happen if we give a status. Sunstein says we should have
something less. Only really recognize marriage (note, see below on dignity &
recognition missing if you only give benefits). In real world there is marriage
status & single status. Now a third status of civil union in VT, access for same
sex to benefits there. Doesn’t recognition have intrinsic value? If you say only
redheads (or here, substantive discrim basis is sex) can use marriage but
everyone can use other status, the discrim procedure gives a social ranking
to the statuses, has to be seen as superior, inherently more. Marriage comes
with an EXPRESSIVE set of things that world recognizes, tc’s of same sex:
takes them more time to signal people!!. Separate but equal is not equal
(legalistic argument), back in con law language of Brown move to say
inherently discrim to have classification; but Sunstein does not want to send
in the federal marshals as in Brown here. So three theories within here: 1)
legalistic 2) ranking 3) signal to audience that underst&s it
Versus SC went with a socially thin idea! Unlike Roe. No class or home ideas. People chose partners. Single
sex people get a goodie, huge range of models out there on what legislature could do after Baker case.
Versus VT itself had a thick social theory on C, Ps, gender. The case:
Baker v. State of VT: (Supreme Court Vermont, 1999) (h&out)
 Very localized case so skim for FL: parts; we skipped Hawaii trial ct & SC case.
 Challenge against state, city, & town to denial of marriage licenses to same-sex
couples. Plaintiffs are 3 same-sex couples who have lived together in committed
relationships for periods ranging from 4-25 years; 2 have raised Children together;
each applied for a marriage license & was refused. Plaintiffs filed suit v. State of VT
seeking declaratory judgment that refusal to issue license violated marriage
statutes & common benefits clause of VT constitution which denies any special
emoluments or privileges (more expansive than EPC: CBC says government
cannot be instituted for the benefit of “any particular emolument or advantage of
any single person, family, or set of persons who are a part only of that
community”); exclusion of same sex couples from secular benefits & protections
incident to marriage under state law violated CBC of VT State Const, VT is
required to extend the benefits, whatever system is chose (can include within
marriage laws themselves or a parallel domestic partnership etc.) Trial court
dismissed the complaint ruling that marriage statutes are constitutional b/c they
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rationally furthered state’s interest in promoting link b/w procreation & C-rearing.
Appeal to Supreme Court here.
Halley covered the history of the CBC clause, not tie to federal EPC (IS 2 classes, says
similar situated, level of scrutiny). Instead this is antiprivilege & special emolument
rule. Different bodes of law. Not need to say deny right to a group! Not need a
surpressed class. Just case says marriage available to some gives a set of privileges.
People choose to marry same sex just like choose buy a type of car, just a choice so
new fewer privileges, not about you or your class! Avoids a social description, we
don’t’ get a picture of what people are like. Not a big home rights case; people
choice instead! Could have used fed theories if was not state clause. Fed con law
looks at you & groups.
H: unconstitutional (under VT constitution) to deny benefits of marriage to samesex couples, although it’s not unconstitutional to deny marriage to them (reverses
trial court). Court had to decide on VT State Const Article 7 Common Benefits Clause,
said it’s different from federal EP law, conservative. Basic point is STATE LAW
CAN GIVE MORE EXPANSIVE RIGHTS: VT more generous, committed to EP,
big on inclusion, resent political preferences of any kind, benefits for community as a
whole, eliminate artificial advantages
 plaintiff’s not entitled to license under the statutory scheme governing marriage
b/c of legislative assumption that marriages consists of union of opposite genders
 court recognizes state’s interest in linking procreation & marriage
 ordinary marriage definition is one man & one woman
 can give license if wants but not required.
 remedy instead is just cannot deny benefits; court not discuss if no license per
se denies rights. Refers to potential remedies like domestic partnership acts
 says destabilization is a concern so current scheme remains for reasonable
time while legislature considers alternatives.
 but under VT constitution, have to give same-sex couples the same benefits as
couples having a civil marriage license
 rationale: none of state’s interests provides a reasonable & just basis for
continued exclusion of same-sex couples from benefits of marriage
 Lots of benefits at stake, page 19 of handout.
 Many opposite sex couple marry for reasons other than procreation, never
intend or incapable of having Children so if purpose is to link with procreation
then this is significantly underinclusive.
 Lots of same sex couples raise kids, assisted reproductive technologies.So
they are no different from a lot of married folks: marital exclusion treats
similarly situated folks differently. Tech also does not undermine procreation
& many married people use it too so does not make them mere surplages
 State then tries to say opposite sex better Crearing but experts differ, & same
sex people are permitted to adopt anyway.
 Interest in uniformity with other states does not work since they are not
uniform about things like first cousin marriages (other states sanction).
 court says not turn on religious or moral debate but on statutory & const.
 REMEDY: see VT statute “An Act Relating to Civil Unions” enacted in 2000
in response to this case (W315)—same-sex couples who register for CIVIL
UNION get same benefits as married couples!!! Destabilizes marriage, get same
laws as if married, noninclusive list of legal benefits page 318, civil union is a
high octane relationship. Vermont law is broader than any before in US,
stemmed from baker case where court direct legislature of VT to provide for
equality of benefits with couples having a civil marriage license, include in statesanctioned human relationships. Cannot be a party to another marriage or civil
union, & must be same sex so cannot marry. Incest type rules on page 317. What
is missing? Marriage itself is a benefit, a STATUS outside of the goodies &
incidents. If goal of same sex effort is to get recognition, dignity they did not
get it. ALSO not out of state enforcement: all incidents are the VT only! Ties
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into next:
DOMA!!!! See text page 39, Defense of Marriage Act, page 39-42. 1996. No
state shall be required to give effect to relationship between same sex persons that
is treated as marriage or any claim from such under other state laws.Tries to
stabilize marriage from onslaught of changes but this is destabilizing since
incidents go on & off across states! Marriages means one wife & one husband,
opposite sex. Tribe dislikes, delegated limited powers of Congress, reserve rest to
states; full faith & credit was to unify but this disintegrates since states can decline
to recognize sister state laws, assult on state sovereignty says Tribe, now less
const’l authority of states accepting same sex marriages. 49 states have decided not
to recognize same sex marriage though so Tribe would force them to suppress their
policy preferences? States retain democratic control & do not need to ab&on
settled policy says the DOMA’s committee. States can come up with different
ideas (Halley says this is destabilizing to those relationships). Congress passes
this act b/c it is worried that Full Faith & Credit Clause will cause other states to
have to recognize same-sex marriage as well. Could have used K law to make
interstate recognition of civil union instead of the destabilizing DOMA? To
firm up protection. States recognize other state K unless against public policy;
could be interstate war (say we recognize your state’s marriages iff you recognize
our civil unions); could make it all more formal with judicial determinations,
court j’ments & orders (make the document a decree); & choice of law / forum
selection clauses: requirement that civil unions be adjudicated according to VT
law, in VT court (but problems w/ personal jurisdiction, res judicata so unsure can
perfect anymore than a business K, some artistry)
Halley:
 court doesn’t say this is a denial of a right to a group (i.e. denial of right to women
to access something men have a right to—i.e., marry women); no same sex civil
rights discourse, instead a multiplayer game with legislatures & initiatives
(easy pass)not announce rights judicially & cannot guarantee out of state (not
go with package), Q if DOMA is legit piece of law
 Court avoided socially controversial themes; court treats marrying (or trying to
marry) the same-sex like buying a car brand—court says you shouldn’t be given
fewer privileges b/c it’s your choice to marry same-sex person--but is
homosexuality really a choice? court avoids any social description of what
people are like—homosexual, heterosexual, etc.—not a great homosexual rights
case—a socially thin opinion. VT is likely to have lawsuit from heterosexual
couples claiming discrimination—they want heterosexual civil union (concern
by the state: destabilization of marriage/ defection from marriage)
 ironically the desire not to destabilize marriage can lead to creation of something
(civil union) that can destabilize marriage. IF YOU MULTIPLY THE
ALTERNATIVE MODELS (beyond simple single, & married, & now civil
union, did not do reciprocal benefit relationship) you get destabilization. So
many forms of recognized relationships, brain drain. Marriage not st& out as
status of statuses.
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Constitutionality of Marriage Restrictions, continued:
Indirect Burdens on Right to Marry (a la Jobst) [61-71]. Think of these 2 cases (A/C) in light of
nepotism laws, that state employer can fire someone who marries another state employee. What is an
indirect interference with the right to marry? Get you scrutiny levels.
A. In Re. Walker (N.Y. Bankruptcy Ct. 1990) (A63)
 Facts: Person in bankruptcy gets married & seeks to modify his Chapter 13 Plan,
reducing the dividend he pays to creditors, on the basis of a change in financial
circumstances, married with C, wife not work, needs support them. Creditors object
to reduction from 100% to 34% after voluntary change in marriage status. Code lets
you modify if present circs would have changed original plan.
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Rule: Those duties of support to the new spouse (& possibly to the new stepC)
trump the rights of creditors, so the debtor can marry & modify the bankruptcy
plan. The Bankruptcy Code does not contemplate a restriction on the right to marry
while in bankruptcy (private welfare idea—duty of support to family takes
precedence over paying strangers). Paying creditors would be at expense of debtor’s
support of family., as if creditors could object to proposed marriage.
Halley: court mistakenly frames this as an interference w/ right to marry b/c he’s
already married so not taking away right to marry.
REALLY GOOD LOOK AT ISSUES BEHIND BOTH SIDES!!!!!!!!!!!!: Is
denying reorganization OK? Does new wife win or do creditors? State
disincentive or condition on marriage, pretend like Jobst case. Here since
already married, will have Jobstlike effect on next person if clear rule of law.
Policy matter: ok to provide for him? (even if code allows change of circs).
Could argue against case and say merely a right to marry not an entitlement
like abortion, just a decision right, not subsidize, choice-type right not
substantive right versus agree with case and say we are not subsidizing
anything, family primacy, DoS take precedent over mere K in market, policy is
importance of family, also private welfare system, let the creditors subsidize
him so we don’t have to, interest of state, buffer of assets around the debtor!!!
Another arg against the case result: no evidence new wife cannot be a market player,
it’s the 90’s, gender ideas here, DoS to wife here looks like a male dowry idea
(direction of duty) plus an antiquated luxury esp. when unrelated creditors support
dependence relationship. She also has a kid, does the H DoS run to the new kid too?
Note: step Ps do not have a DoS to step kids!!!
special protection for dependent family relationships (but creditors are repeat
players—can strategize around this so family first! Want altruism not strategies!).
Creditor likely sold a car on unsecured credit.
Outcome of case is a multiplayer ec system where special protection for formation of
dependent family rel; not mere autonomous new W with C; family relations as
distinctive!!!!!!!!
B. Keeney v. Heath (p. 61) (7th Cir. 1995): (not covered in class)
 Court upheld a ban against guards marrying prisoners. Light/moderate
imposition on right to marry is justified by state security interests.
 The burden was light (need less justification) since it was not an outright ban on
her ability to marry him – just to continue working at that job, just more costly
to marry him, loss margin of job pay. Moreover, there is a compelling state
interest since the jail does not want guards to fraternize with the prisoners & fear of a
security breach. Here even if different prison; unitary system, favored treatment and
problems of morale; like anti nepotism, bear more on women but relieves pressure,
makes better guards and its not a sex challenge claim. People in charge answer, not
judges, correctional authorities only need plausible concerns; so with light burden,
do not interfere. Setting of jail makes a difference.
 Distinguishes Turner where forbid marriage of inmate with someone not even in
correction system.
Age: Moe v. Dinkins (S.D.N.Y. 1981, p.64)
 F: NY allows minor to marry only with Pal consent; NY laws says all men btw 16-18
and all female btw 14-18 must get written consent from both Ps who are living;
women btw 14-16 also need to get judicial approval (so Ps of young need more
supervision!). M refuses to let daughter marry F of out of wedlock C so she can keep
getting welfare payments for daughter (seems against BI presumption, bad mom
scenerio); plus daughter wants get rid of illegitimacy stigma but lacks Pal consent so
cannot marry; clerk required to enforce Pal consent provisions. Tried for DP but this
case is new to court since minors.
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There was a C rights political effort then; there was a class actions but unsucc.
Held: State age limits on marriage are acceptable under rational basis test.
Legitimate restriction on the right to marry under the state’s parens patriae power.
It’s constitutional for states to decide you’re too young to get married.
 presumption that Ps act in best interest helps set the (low) standard of
review; courts typically give less than strict scrutiny when minors’ rights
are involved. Page 66: “power of the state to control the conduct of
Children reaches beyond the scope of authority over adults.” All states
have age attainment reqs for marriage; need to be mature, serious conseq of
judgment, need experience and perspective. Page 67: “the law presumes
that the Ps possess what the C lacks in maturity and the natural bounds
of affection leads Ps to act in BI of Children.”
 Court fudges; Also says marriage has a unique place in the law; subject of
extensive regs. Marriage itself is under state dominion, province of state,
most far from Loving!
 So together the unique position of minors and marriage means not need
strict scrutiny. Here the court sets the review to get an outcome, not
see a right to set the scrutiny.
 Says that SS test would cast doubt on networks of state restrictions, realist,
says we have gone too far, courts need to set access rules, odd reasoning:
ironically court cites Zablocki in a rational basis opinion (that was fudged
IM but came out like SS and killed statute).
 Meets RBR.
 Further deterioration of what looked in Loving like a fundamental right to
marry—marriage subject to state regulation DILUTION!!
Policy: Avoid unstable marriages in youth. (also protect minors from immature
decision making). Incapacity to act in won BI. State ints in these 2 are legit
under its PP power.
Justification for this low level of scrutiny set by presumption of best interest of M
even though could have made an exception here since she is bad mom; regardless
approves statute and lets kid be born out of wedlock because:
 Temporary (we see this in kid cases); she’ll outgrow it and will be able to
get married (but C will be illegitimate—even though you can legitimate C
by getting married later, there will be a cultural judgment). Merely delays
access to marriage. Plus not bar if Ps consent. Illegit is temp too;
subsequent marriage ends the stigma.
 Distinguished from pregancy where more urgent, cannot postone
irretrievable change unlike marriage foreclosure here, not a toal
deprivation.
Also court not entitled to pierce decision of M (irrebutable presumption of best
interest). Her perception of what is good so don’t say bad mom. Perfectly plausible
P choice, decent mom worried about welfare support. Fundamental privacy right
of P to act in C BI without SS. Seems cannot rebut presumption BI
Age is simple reasonable criterion even if arbitrary in some cases as here!!!!!! Ok if
fits main run of cases or even just thinking there is such a main run of cases!!!!!
Did not raise sex discrim issue.
Alternatives: Bad mom case so maybe can get mom on welfare fraud: admin agency
emancipation action, get to be dealt with like adult, or go to other state with less
draconian laws. Also could get guardian ad litum, judicial sub for P consent but
would need abuse (health and mental welfare threshold) so no here.
Notes after case: most states say need to be 16-17, judges can override Pal consent or
refusal. Teens high divorce rate. Some barriers to easy marriage: premarital
counseling in CA and UT.
Mental incapacity remains a widely accepted restriction on who may marry.
Making marriage a defense ag rape or fornication almost forces marriage; at odds
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with over in fact are terminable at law. Page 70.
No more breach of promise to marry.
That’s the end of access to marriage cases, saw FD decrease from Loving. Right of minors to marry case is a
pullback, state can really say you are too young.s
2. How People May Marry [A76-86]:
State Regulation of 1) Procedure for Marrying & 2) State of Mind (consent is a HOW requirement:
knowing/voluntary are essential to procedure).
Intro:
 State can regulate who can marry, can make it monogamous, can make it heterosexual,
can bar Children from marrying. But state can also set requirements for how people get
married: waiting periods & licensing. But one thing missing is a married person’s registry
(as in cars).
 Consent essential to marriage (duress/ fraud cancel good consent to agreement, thus
voiding the agreement & annulling the marriage). We will see challenges here when
people want to annul a marriage (eg, to void property transfer). Note: Duress & fraud are
disfavored equitable actions. There is a small note in text about how now that it is easier
to divorce, people rely on capacity to consent less. The most used consent action is
insanity but it is construed strictly because courts resist dissolution.
 Why do people want annulments? People attack consent because:
 religious reasons: status-like elements to divorce you can’t shed in your religion
unlike in the civil system. Remember the “get” case.
 while divorce creates (assumes there was) a community of property that has to be
divided up according to rules, annulment puts you back at status quo ante
 psychological: people want to say it never happened (virgins)
Restrictions on Procedures for Marrying
1. Rappaport v. Katz (p. 76): (S.D.N.Y. 1974): Halley loves this case, a time capsule of
culture. Couples want bride to wear pants in wedding ceremony for feminist reasons but city clerk
refuses under city dress regulations for weddings. Held: State has powers to determine how people
are going to get married, including dress code. It is ok if the state says the woman must wear a
skirt for the city clerk to officiate. The federal court will not review this suit against the city
clerk dress guidelines (the due process argument); the suit is dismissed without consideration of
the merits. It is just about the federal courts not supervising forms of marriage in city clerk
offices. This is an area of state concern, a locally directed function. Federal judges have too much
to do & decorum does not justify a federal-state conflict. Halley says courts consistently say the
state can have all sorts of weird requirements even if they are really rarely done. State has
the legal power even if unused according to the second part of the below Glendon article.
2. Glendon Article, “Marriage & the State: The Withering Away of Marriage” p. 78:
Two parts. 1) Argues that the pre-marriage requirements/compulsory premarital
procedures/preliminaries required before marriage can take place reveal the degree to
which the state is actively regulating the formation of marriage/the marriage institution &
what the state deems important about marriage. There are real sanctions, the state is not just
revealing ideal behavior. Provides a clue as to the nature of the state relationship to the family.
Marriage is a convenient occasion for society to enforce social policies by making what the
legislature deems important to be a precondition to marriage. For example, state may require a
medical exam targeting STDs & it may try to deter hasty marriages. A crucial point is that nearly
every aspect of a state’s scheme of regulation can be avoided/evaded by the couple going to
another state without that aspect; since it is so easy to evade ways of making marriage hard to
enter, reformers give up in despair & there less reforms but not because of principle (would prefer
longer waiting periods but states don’t lengthen them as they would be avoided anyway very
simply). For example, there is no registration system checking each case to see if impediments are
truly overcome. The law as a whole is not constructed to effectively enforce existing
impediments so why bother with more reforms?! The existing impediments include: all states
have licenses (but not documentary evidence of what you state, does not conduct own
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investigation & just requires substantial compliance) & most have waiting periods. Many states
require a doctor’s certificate. Some give birth control info or ask questions to collect data for
studies so we see privacy versus info needed to make good laws!!!!! SSNs are used to enforce
support duties, keep you identified. 2) Also argues laws establishing formalities for actual
celebration reveals the extent to which the (religious, customary) rituals have been juridified
& made uniform for all population groups: Halley notes from Rappaport that the states
could ramp it up but they don’t use this case & make a symbolic choice of form of marriage
ceremony! Unlike in Europe, performed by a wide variety of religious or civil officials. In
US practically no requirement of formalities for celebration of marriage. No one ceremony form,
it’s ok to personalize in the US.
3. AIDS Testing: p.80 (not covered in class): IL for a while had a statute requiring
couples to get tested for AIDS before getting a marriage certificate. Number of marriage
applications dropped radically. Concern that the cost of AIDS testing was prohibitive for poor
couples & thus, burdening the right to marry. There were also a lot of false test results. Moreover,
the best way to prevent the spread of AIDS was through monogamous relationships, which the
statute was discouraging. Moreover, Leavitt struck down a Utah statute banning marriage to a
person with AIDS on the ground that it violated the ADA.
State of Mind Restrictions
1. Lester v. Lester (p. 80) (N.Y. Dom. Rel. Ct. 1949) (only discussed briefly in class):
 Facts: H claims that he was psychologically intimidated by wife (court doubts this).
Says he was coerced into marriage. Parties make an antenuptial K that this was not
intended to be a “real marriage” (they said they had faked marriage for social reasons
so made a K later saying it was null). Also says he was under duress during the
marriage & that was why he stayed in the marriage for so many years.
 Held: Halley says the court did not think he was under duress if he had sex with her
10 years after the K. No coercion or fraud (he was not threatened into marriage,
etc.) so this marriage is not annulled but is valid & she gets support. Rule:
marriages procured as a consequence of coercion, fraud, or duress will be
annulled as if the marriage never occurred at all.
 Note: State requires marriage to be made with knowing consent. Consent may be
challenged & annulment granted (no property distribution!) for e.g. age, coercion,
duress (e.g. shot-gun wedding). People must enter marriage voluntarily: concerned
since marriage is the foundation of society, etc. so state has right to regulate
marriage. Case goes further & says state has a right to regulate divorce, just as
important!!!
 Hard to tell who has the power in a relationship & against what model will you
measure to determine whether marriage was made under duress. On one h&, the
cultural feminist model says that it would fit into marital subordination argument that
women enter marriage with less power & thus, that they could be coerced into
marriage. On other h&, if women have less bargaining power & monetary strength,
then she will gain more from being married b/c she will get those rights.
 Sham Marriage: Note that Lester also held that individuals cannot enter into a
marriage by following the law (valid before the law), but then dissolve it
themselves through private contract (K is against morals & law). The court will
not enforce such a contract b/c it is necessary to go through the state to get a
divorce. Sum: cannot annul a marriage via a private K, cannot set aside the
law, only a court can annul a marriage (right to regulate not just marriage
but divorce, just as important!!).
2. Johnston v. Johnston (p. 83)
 Facts: Halley says this case has more important facts than the above case. Prince to
a frog case. Wife tried to say she did not consent to marry this lazy person. Fraud
claim. Wife wants to annul her marriage on the grounds that she was unaware of
husband drinking problem, unemployment, & unsatisfactory sex life.
 Issue: Is this evidence enough to support a finding of fraud?
 Held: No fraud. Annulment is denied. Rule: Marriage may be annulled if
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3.
consent was obtained by fraud. The concealment of incontinence, temper, idleness,
extravagance, coldness, or fortune inadequate to representations cannot be basis for
an annulment. Fraud must got to the very essence of the marital relation before it
is sufficient for an annulment. Here are little grounds to annul. So the deed is ok.
Note: she cannot say she is turned off from sex! Need a strong showing to annul
unlike to void other types of Ks. Case also says if she had shown fraud, still may
ratify: freely cohabitate as husband-wife with full knowledge of the facts!!!
Fraud in Marriage: Courts will recognize fraud more readily when it runs against the
sexual expectations of the parties. Demonstrates that there is something left of the
essential of sex for marriage (see Rheinstein page85, FN2). Examples of this include
misleading partner with respect to HIV status, pregnancy, willingness to have Children,
etc. Courts are not willing to recognize misrepresentation about social standing,
economic worth, property, or character in entertaining claims of fraud. Why is this the
rule? Perhaps b/c property can be dealt with through ante-nuptial Ks, so it is OK if you
are deceived of property because it is not the core of the marital relationship. Sex,
however, is deemed essential to the marriage. Also Halley said maybe you do not run the
risk of impotence when you make a marriage K but the risk lies with you with property.
Text also discussed aliens & immigration on page 86.
B. Legal Enforcement of Family Relationships Outside Formal Marriage: ALTERNATIVES to
formal marriage. Halley could view CL & registration as HOW requirements in above topic. Question in this area
is HOW the government gets into the business of deciding who is a family member. There are a proliferation of
other relationships, accept non-nuclear family (multiple, gay, extended, group homes, communes, stepfamilies,
grandPs who want rights like visitation). Government deals with this area in TWO WAYS: 1) Rights & duties & 2)
Zoning is another way to shape relationships: local level constructive powers!!
1. COMMON LAW MARRIAGE [W118-119, A86-94]

Intro:
 Common law marriage is non-formal marriage (one such alternative!). Long history of
power of individuals to marry without an institutionally recognized relationship. Unlike
the putative spouse doctrine, this is not equitable. It is a real marriage so you get the
full bundle! Requirements have gone up over the LONG history of CL marriage; for
example, in Schenck below we see that CL marriage is closely scrutinized, there is a
stringent burden of proof since the claim is suspicious!!. The social performance of
marriage is reflected in these cases. There is a wavering of acceptance of CL marriage:
only 13 states recognize it plus DC. Wave of repeal & then Halley is unsure about its
comeback. Text notes there have been demographic changes, no need it if no longer
scarce, scattered population & now there are more justices of the peace; also think of as
immoral secret unions perhaps. Even if states waver, they may resort to the same end but
through other devices for example presumptions (that a second marriage is valid is the
person was married before: a functional definition) as well as putative spouse doctrine in
CA where they protect the good faith of 1 or 2.
 See Marvin as ex. of CL marriage. But text says you need CL marriage less if we
increase the property rights of unmarried people & cites Marvin as an example; also if
abolish illegitimacy.
 Requirements for Common law marriage: Schenck uses these 3 prongs from the
Gebhardt test on page 89. Says need CCE. Old cases only wanted a K (1st prong, all
private) but now there are 2 public dimensions in second 2 prongs says Halley.
o Agreement/ consent: present intent & K to be married: most important,
not future intent, fundamental Q is if there is mutual consent!
o Cohabitation: live together continuously, likely with sex says Halley, but
not alone enough to show present intent to marry
o Holding yourselves out as married (need contact w/ 3rd parties/ publicity):
general & substantial public declaration. Cases talk about consistent,
blatant performance without falling back to simply shacking up.
 What’s missing?
o Licensure: not need country clerk for license or to wait.
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o
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other procedures: ex. HIV test
not registered anywhere; only judicial attention when conflict about
existence of marriage. Halley says there is no registry so only when one
tries to impose on escape do we see judicial conflict.
 In re Garges p.86 (Pa. Sup. Ct. 1977) Relation began when the man was married to
another woman. He cohabited with second woman until he died. When he divorced the
first woman, he showed the second woman the divorce decree & said we are married &
she said it is about time (words! conversation!); she wore ring, life insurance names each
other as spouse beneficiary (corroborating evidence!); community representation as
married (circumstances!) leads to presumption of K marriage but need CCE if during
another marriage. Need CCE to show change in status after divorce of other. K not
require specific words, just prove married at present. Trial court properly inferred from
words/statements, surrounding circumstances, corroborating evidence an
agreement to become married presently, to change status! She is the CL wife & gets
his estate (point of suit).
 Estate of Schenck p.88 (Neb. App. Ct. 1997) Unlike prior case, here no CL marriage so
not get estate. Petitioner failed to prove by clear, consistent, & convincing evidence
that a common-law marriage existed—evidence indicated lack of intent on behalf of
“husband” to be married as well as inconsistent & unconvincing evidence of public
declarations (told some people not intend to marry, sometimes not deny or state friend).
Required Consistency!! Here lack consistent evidence of intent/beliefs & declaration.
Ring now & then. Mr & Mrs only inb mail received: key is what they mail (declare!).
Insurance not say wife; no import alone just to say she is beneficiary. Weight of
evidence against present intent & had needed CCE. Separate checkbooks, PO
elsewhere, in logical places to call selves married say friend (hospital) or single (deed),
circumstantial evidence negates intent here. Page 91 lists FACTORS!!!!! Here we have
some but the overall point is community may think you are married but you need
show what the parties themselves thought!! Community perceptions are not focus:
personal present intentions!!
 These cases demonstrate how proving requirements work; types of evidence involved;
symbolics of marriage & social performance—all about the nature of consent.
Policy Arguments: Maintain or Abolish Common Law Marriage?:
(1) On one h&, it is a good idea to maintain CL marriage even if it is messy or doubtful
 we want marriage; may want to make it easy. Old days there was less travel, get to
central place. Avoid roadkill!
 it’s really cheap; populism about CL marriage; everyday person can do it. Expensive
rings & fees lead to roadkill too.
 libertarian argument: why should I have to talk to a judge? Protects freedom of
association & autonomy.
 captures people’s settled expectations of duty & support from the other partner.
Detrimental reliance: hard to get rid of unfairness to someone. Avoid roadkill.
(2) On other h&, CL marriage should be abolished. Decreases autonomy b/c extends the
domain of recognized marriage & allows people to invoke the state in a relationship in
which one of the parties did not involve the state. It is unpredictable & will run into
problems of parties who say that they never intended to get married. Halley notes the Q
of intent: if formal, we know! Time 1 & Time 2 problem, challenge after die, judgment
calls & uncertainty are noted by Halley.
Putative Spouse Doctrine: Equitable doctrine unlike CL actual marriage; Idea is that if
all these requirements of marriage were messed up (i.e., spouse had prior marriage, underage,
incest, person performing marriage ceremony was fake), & yet relied (you legit thought) on
marriage, can still get some benefits of marriage, sticks in the bundle. This is a
detrimental reliance theory (& is an equitable doctrine), but it is now statutory. Enacted in
UMDA §§ 209-11 (W118); gives some pieces of marriage like property division but not
actual marriage. Halley: it saves the roadkill without going all the way to CL marriage.
CA: either one has good faith belief then divide the quasi marital property, get support. Note
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there is not need to annul or divorce since there was no actual marriage to terminate.
3.
Duties & Powers of Genetically Related Persons: beyond the H-W unit! (A1259-73): We will read 3 cases.
Two are about a cross-generational leap of rights & duties (NOT, GP down to C via H/W) & one is about
sending duties back up from C up to H/W: YES!). Text presents a threshold of blood/genes but see DM cases
for new trend in duty of support lesbian coP & other unmarried cases as well as stepPs duties & rights & even
further in Oregon: statute in Troxill (recent SC not in materials) tried to get anyone standing to get a visitation
order (no, but court ignored the standing issue).
Background:
Until Miller v. Miller, courts did not impose a marital duty outside of marriage or a genetic relationship. To what
extent is the court going to hold out only the marriage as the status relationship determining these rights, & to what
extent is the state willing to stretch these definitions to include other family relationships? Halley says that in Anglo
American law the Ps have the right to determine custody (amount, terminate rights etc.) unless there is neglect or
abuse showing. GrandPs pressure against this idea. Question is who can bring attention (standing) to change
custody? This is an evolving area. Who has the procedural right? Two doctrinal questions: 1) Who can start
the procedure? 2) What standard once in the door?
Standing for people in relationships with Children for visitation, adoption, etc.
 Options for standing:
 best interests of C OR
 rights analysis: maintain presumption P is the proper person to have custody/ control
over C
 Arguments for a lot of standing:
 good to have more adult role models.
 nuclear family too constraining. Build law for webbed families instead. Diversity.
Less roadkill.
 best interest of C trump adult rights, let them talk about BI not rights (rights are bad
if kids are involved!!), hear it all then it is truly BI!
 idea of psychological P (natural P of no interest to psychologist)
 see Beyond the Best Interest of the C (Goldstein, et al.). Trauma if remove, need
continuity even if a kidnapper!!
 expertise: surveillance idea; we have a lot of people early on watching C in extended
family; if we don’t let them come talk to us, we may miss knowledge they have that
P kept secret (BI too); good substitute for police force. Courts lack surveillance. Ps
would hid stuff but for the grandPs who are better than DYS! Halley discussed
standards versus rules here. Standard: balance BI, visits invade privacy; Rules: been
with kid a number of hours you get a percent of time, less facts & proceeding so proprivacy!! We resee the theme of not pierce til divorce. Could keep DYS way out;
grandPs as private enforcement (tied in forever, not waive Peter L status).
 no longer presumption Ps always act in best interest of C
 it’s just standing; we’re willing to have P come in & explain why they’re not letting
C have relationship w/ someone else. Hear everyone. PP: we are Ps too.
 C’s right to reach out, continue relationships/ continuity of care (but see Michael M:
courts don’t usually pay attention to C—court sees minors as infants (unspeaking) so
did not listen to relation with 3 Ps!). Could multiply players in a new way but that
would be UnAmerican to use such a strong position.
 Private welfare system.
 Arguments to minimize standing:

Peter L
noted that). Don’t wanna get a summons from anyone & get pulled to court.
 increas
for intra-family conflict = bad for Children; psych like Goldstein -- traumatic for C if
Ps in conflict
 privacy; keep DSS out
 see concurrence in Brooks: p. 1266: by giving Ps exclusive dominion, we bribe them
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to be really involved w/ Children & do not create a wedge. Halleys loves this idea of
not having a superficial relationship, not diluting to mere concern or indifferences-,
less responsibility taken if there is over one agent, think others will do it – that is the
collective action problem (versus bribe). Avoid collective action prob!
 people may decide not to have Children b/c burdensome to have interference. Worry
you will steal my dog, we are all one commune, law will leave me behind if we
legalize as in Marvin versus informal, unenforcebale!!!
 Early on say if you are in or out, trend in the law with non-marital dad!!! Private
negotiation says Halley.
 People who could be possible movants looking for standing:
 Non blood lesbian co-Ps & gay men co-Ps
 C care providers (later Nancy S) of long standing (ex. nanny could say I’m a
psychological P)
 kid itself (see above)
 relatives beyond grandPs: blood but not just GP now!!
 close friends of family: not only kinship!!
 Kidnapper: Goldstein continuity.
 Successive stepPs: divorce, different kids.
 Teachers especially of the young
 Troxillu tried for everyone!
 religious leaders/ cult leaders & school druggies
Matter of Peter L. (p. 1259)
 Facts: The F was killed. M terminates her Pal rights (‘kill’ self) & transferred Peter to
state agency (no disagreement as dad dead), so Peter can first be placed in foster home &
then get adopted. GrandM first waives presumption of blood right (cannot use this
analysis if did get standing: would be left with BI analysis & start on even playing
field): does not want Peter & cites her health. State goes forward to place Peter in a
permanent relationship. But then GrandM wants standing to enter BI analysis in
adoption decision, to try to have custody before he is placed with a non-biologically
linked family. She wants a preemptive right over the agency’s chosen suitable adoptive
Ps. This is an extended family case.
 Issue: Should grandM be allowed to make an argument for custody, or should the M be
able to cut out the grandM from the custody decision? Are M & C the fundamental unit,
or is the whole family system the unit?
 Rule: DYS can decide; sent to adoptive home. Follow the agency plan, continue with
foster Ps, high BoP (high proof requirement, gotta show better than who was with kid last
18 months) on grandma to change since she has not been living with the kid at least for
18 months. Kid is subject to bureaucratic decision because the legislature prefers
adoption over custody alone; wants a legal P. (See social services law: statute wants to
give kid security (1261 says “right”) so either continue foster or place for adoption (SC
reverses lower court that vested custody alone in grandma). Grandma had no right to
intervene in the adoption: no standing so not able to make self legally necessary to
the proceeding, cannot tangle with the adoption agency in court! GrandP is the
same as any other stranger in terms of custody (“legal stranger” 1262), & genetic
links do not matter. No constitutional (no precedent of extended family) or statutory
right to custody of a blood relation. She does not preempt other strangers & the desire
of the P to let the agency place kid. Thinning of stick of bundle: Halley says we break
up the bundle, incidents of family relationship: standing in this case, visitation in next
case, custody, right to adopt, right to assert BI, etc. Here the grandma was not trying to
adopt, she just wanted to assert BI & get custody but could not trump the statute that
rushed kids into adoption if there was no second P around. She would just have been a
placement, not a legal P but the statute wants a legal P: policy!!!
 Surrender of Pal rights (commit guardianship & cusotdy to agency & empower it to
place kid) is a decision that should be made by Ps, who have the best interest of C in
mind (family privacy). M terminates C’s relationship with the family by surrendering
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Pal rights, so grandP has a right only through the P. Grandma has rights but not to
override..
o Mom (surviving P) has amazing power to (unilaterally control dead P’s
relatives) cut C off from any generational relationships—should we give Ps this
power? Concern that once you go up & down genetic ladder, too many
questions. Case here is procedurally clear.
o Dominion of P (right to custody, care, upbringing, during intact family) plus can
give to the state (respect relinquish custody is another aspect of dominion here;
defer to mom, presume BI, she knew about the grandma; Pal power as family
privacy, do not pierce.
 What if she had gotten standing? What would she get to say? Try to trump nonblood? Nope, she already waived presumption that blood right to win at hearing so
no rights analysis. She had been asked when the mom terminated her rights & said
no then changed her mind after 18 months when the agency planned to place kid
with foster to adopt; do not frustrate their plan now! Note we will see in adoption
cases that if you waver about the amount of responsibility you will take on you will
LOSE!!! Here she is trying to get standing to get into the BI analysis (note there
are two options for standing!). BI analysis means the parties start at the same
line. Court says even so it is not in Peter’s best interest to get grandM delaying the
adoption process; better not to bounce, settle kid better. Even if she got in she would
lose even if she loves him, court did not say she did not love him – we will see this
again (SVF thinks something with dads). Besides, it is not in the best interest of
Peter to be placed with grandM anyway b/c of her health & alienation from society.
Plus not been with kid at least 18 months.
 Why we’re worried about this outcome:
 promotes a model of the nuclear family (with dominion) that US is too diverse to
match. No diversity! ROADKILL!
 once you have relationships, makes sense to keep them/ continuity of care
 is a fiction; grandM isn’t a stranger
Brooks v. Parkerson p.1262 (Ga. Sup. Ct. 1995):
 F: Facts: GrandP Visitation Statute in GA as in all states. The evolution of this statute is
to allow visits by grandPs, notwithstanding Ps’ wishes (there are 3 ways to show BI if
show “special circumstances” are met; court not say what need to show once you are in).
Statute allows some grandPs to initiate proceedings (right to seek visits) to get visits
(want a legal right even if P objects). Some states let you bring any action whoever you
are if you show ongoing relationship. Note: Visit rights are part of P bundle in a non-P.
Maybe it is good to have extended links just like a good outcome to permanent
placement; see second critic of above case: keep the link if have it.
 Held: No visitation right for grandPs. Statute unconstitutionally interferes with Ps’
rights to control C. State may only interfere when the state acts within its police
power to protect the C’s health & welfare & (2 reqs) when Pal decisions would
result in harm to the C. This statute is unconstitutional b/c it does not clearly promote
the health & welfare (visits do not always promote; do not presume plus suit itself has a
bad effect) of the C & it fails to require a showing of harm (irrelevant if visit is better) to
the C before authorizing state interference (visits) in the P-C relationship.
 Policy: Fosters strong nuclear families by preserving Ps’ privacy interest (fiercely
guarded, raise kids without interference) in P-C relationship.
 Concurrence p.1265: letting GPs visit (even if important) against Ps’ will may dilute
intensity/ primacy (paramount relationship, security) of P-C relationship & create new
excuse for Ps to shirk Pal duties, responsibilities. Devoted, committed, versus mere
concern, indifference, less binding.
 Dissent: RBR since not direct interference. GrandPs as a layer of special people, contact
can be in BI (policy), statute is procedural only, no absolute right, grandma still has to
establish special circumstances. Limited infringement on P, here not terminate P, just
asking for temporary visits, rational relaiton to legit legislative goal of contact with
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grandPs, don’t second guess the legislature.
 Versus court says direct interference: force a 3rd party on an unwilling P.
Troxel v. Granville (Supreme Court 2000) (discussed in class)
 Oregon statute that any person can initiate proceedings & draw family into court to prove
something about visitation. Halley says crap case, unhelpful to law.
 H (plurality): statue unconstitutional, but Court didn’t touch on standing; just said
statute sweeps too broadly. O’Connor: special weight given to Pal right but didn’t
say how strong it should be. If did have standing, not go with BI alternative.
Default presumption of P idea.
 Versus Scalia who wanted the law empty on what states do with the family.
 Ct didn’t say how one could overcome Pal status; options (unsure what need show):
 show actual not just potential harm to C (abuse/ neglect)—hard to show
 potential harm
 require showing of detriment to C: lesser
 how many sticks of bundle can we remove to non-P? standing, right to adopt, assert best
interest, visitation, removing custody all together What do once discussed the merits?
Americana Healthcare Center v. R&all (p. 1268)
 Flip Duty of Support, P to C, C duty to old P, care for them. Facts: Adult son’s M in
nursing home. Indigent aged P, son is financially able. Liable for debt? Mom has a large
trust (son spent to fight suit), but cannot access the money. Son is the trustee & will
inherit that money. Nursing home wants son to pay the bills. Statute provides that adult
Children must pay for the necessaries. Son makes following claims: not liable under the
statute, EPC problem (not discriminate against kids of poor P), due process problem.
 Held: Statute is valid & son has duty of support to pay M’s medical bills. Rejects all 3 of
his claims. He is liable for her debt.
 Rule: Duty of care can run from adult C to P; court upholds filial responsibility
statute. OK EP & DP!! Statute is 1) not arbitrary (moral duty like P to kid & lineal
relationship, C got P support when a minor, got benefit so reciprocate, best suited) & 2)
there is a rational relationship (to legit end of hell the elderly, so no EPC violation). For
DP, got notice of bills & is sophisticated. Normally we think of duty as running down
from P to a C, but it can run back up & there are good social welfare reasons for rule. Its
in 29 states, most just for necessaries.
 Lingering Issue: This case is easy b/c the trust makes it seem as though the parties are
trying to be tricky, hide away money & avoid paying these bills. Strategy makes it an
unsympathetic case (Halley). Court said but for the trust there would have been
sufficient assets for her plus he tried to expend them. What if there was a son of a
moderate income & M had a high medical bill that she cannot pay. Would this statute be
a good thing?
 POSITIVES: why it’s good for Children to have duty of support:
 PRIVATE WELFARE SYSTEM: Good because Children will take care of Ps better
than the state social welfare system. There is no health insurance (& SSI does not
always cover as extensively as you want it to).
 With rights of inheritance come duties of care. This is a way to compensate for
dissolving familial relationships.
 EQUITY: DoS go back & forth. Court used this to reply to C having no choice in
creating relationships unlike P with DoS to kid. P supported C as minor. Reciprocal
idea: Morally, a C has a duty to support a P, so there should be no problem to make
this a legal duty. Halley said there is also a rotten kid idea, P is stuck with altruism,
selfish kid expects a lot so now we flip it.
 Now we’re too nuclearized; this statue is more communitarian/ webbed families.
Webbing was an old idea so new times lost something good said Halley.
 NEGATIVES: problems with filial responsibility statutes:
 We have public welfare system to deal with this. SS & other public subsidy
programs, we votedto be able to ditch Ps.
 Duty of support should be willingly assumed; Ps chose to have Children, not v.v. so
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equity here. But see above.
May depress Ps’ savings—may free ride on kids who have responsibilities to new
families. Focus assets on new kids, already a PWS, eventual needs.
Time (age 18) eventually relieves the duty of support from P to C, but it is unfair to
impose on C an unlimited duty of support for the C’s entire life as an adult. No cap!
Altruism, personal decision but we do it with P to C but here not want to legislate
this level of relationship.
Micro-legislating families: what happens with Children’s duty of support to abusive
Ps? Hold families with several siblings jointly & severally liable for care?
Ps not want to be a burden.
Ps cannot be told to not get old where Ps can indeed control what their kids spend,
expenses with limits.
Halley mentioned Oneida community, P interest in all & the kids do well but in Israel the kids on
the kibbutz suffer so the issue is hard.
Above discussed PWS nuclear family versus DoS multigenerational.
3. Rights & Duties of “Families We Choose”
A.StepPs’ Rights: The SP is not legally related to the C (unless adopts the C). How many rights
should the SP have? Can they have rights to visitation after break-up of marriage? Are there
duties that SP must adhere to after relationship is dissolved?
B.Nancy S (BIO). & Michele G. (CA Court Appeals, 1991) (PM 39)
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Facts: Lesbian couple wants to be Ps. Nancy gets pregnant by artificial insemination, &
is the bio P. Michele serves as a P in the marriage; never adopted & not bio P. Spilt up.
Custody agreement & then dispute over visitation; bio mom wants to change the K &
keep the other lesbian from the kid. According to statute, the other lesbian Michele can
only get visitation if she is deemed a P! Michele wants the Uniform Page Act to be
construed to include her as a P under the (1) de facto, (2) in loco Pis, (3) equitable
estoppel doctrines. She tries to say she got Pal rights, she wants to get on equal footing
as if fight between 2 Ps, right to seek custody & visit.
Issue: After a separation, is the same-sex P – who is not the natural M – entitled to
visitation rights to the Children, over the objections of the natural M?
Held: No. Lesbian co-Ps are not “Ps” under the UPA; exclusive definition. Natural M
gets full custody & former partner can contact kids only with mom’s consent. Court
refuses to exp& the definition of P under the Uniform Page Act to include Michele as a
de facto, in loco Pis, or equitable estoppel.
Halley discussed Reproductive Technologies; here statute & court basically say cannot
have 3 Ps, P is biological. (or adopt). CL & law treat her as a stranger so the lesbian
lover tried equity. Court said the statute was in the way, cannot look to equity.
Versus see below EO case where no statute in the way. Here court rejects all equity
efforts & says leave change to legislature. Until then, bio mom can change the K about
lesbian visit; the court says the other lesbian is not a P here & the bio mom has full
control.
Rule: P is defined as one who is the natural or adoptive P of the C. De facto P (day to day
resp., facts of Ping) does not have same rights as a P to seek custody & visitation of a C;
only if detrimental. In loco Pis statute is limited to stepPs – not to lesbian co-Ps; CL
theory is n/a. Estoppel doctrine in custody context only applies to Ps. Court also says not
an equitable P, need an express or imlied K to adopt to settle dispute as if between 2 Ps.
Policy: Not a functional definition, not expansive. Court says it is not its job to
construe the Act to have a broad meaning of “P”: slippery slope argument (e.g. extending
to babysitters), judicial role since defining lesbian co-Ps as deserving of rights of stepPs
is better left to legislature.
EO v. LM: (Mass. Sup. Court., 1999) (mentioned in class): marriage is basis to give nonbiological mom a hearing on visitation; unlike Nancy S; b/c no statutory law to apply in
EO, court could go right to equity. Easier in MA than in CA to take on new family
forms – idea of fragment duties to fit new forms.
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C. W versus G: Australia Lesbian-Co-P C Support Case (PM p. 43): Lesbian co-Ps made an
agreement for the poor  to get artificially inseminated & wealthy  would provide support. (Here
is where there is equitable estoppel, liable: encouraged, promise act with her as Ps). But the
couple split up &  refused to provide C support for the kids. Poor  sues for C support,
grounding her claim on detrimental reliance & equitable estoppel theory (means you said X &
cannot contradict yourself, thinner idea than K DR & promissory estoppel). Court finds 
entitled to relief (lump sum maintenance) on basis of equitable estoppel.
D.Lesbian Co-P Cases: Is the strongest argument (1) the best interests of the C in having a
continuing Pal relationship with the P or (2) the equitable estoppel agreement between the adults?
Which is legally more compelling? Which more captures the ethical dilemma of the case?
(1) On one h&, could say that best interest framing is better: Children have their own rights
& interests in this relationship, which takes away the public policy disfavoring same-sex
relationships. How do you reach best interests? Need a controversy & someone with
standing, b/c the court does not even have to listen to this.
(2) On other h&, could say that the estoppel framing is better: Need to crack through the
fundamental right of Ps to control their own kids, & so the EE argument might be better.
EE argument does not get us all the way there either: just stops someone from saying
“no” to something.
C.
GOVERNMENT POWER UNIT: Local Control Over The Household. Localities set up laws to
say who the family is, often zone who you can live with under the POLICE POWER, enforce health,
safety, morals, never federal police power, all local/state, state can delegate to locality or police
power may originate in the locality.
1. CONSTITUTIONAL Limis on Local Control (A960-964; A1245-52)
 Halley sum: rights yet (kind of) COMMUNITY versus (kind of) COMMUNITY
cases!!!! People say they have a right to live with whom they please, right to a kind of
domesticity so challenge zoning. As for not just an individual right but
SOCIALIBILITY!!, association, community in house. Locality also asserts an
ASSOCIATIONAL RIGHT, right to a different kind of community than you want!!
 There are alternative types of living arrangements. Examples include group homes for
mentally ill, untraditional family arrangements in communes. Often these cases involve
local zoning laws that dictate only certain kinds of families can live in the area. These
cases force use to ask: what is a “family”? Stereotypes fit in, we rarely see frats as such.
 Issues to Look For in Group Home Cases
(1) Is there a legitimate state interest in creating the restriction? Is the state using its
police power in a permissible way? Is the interference rationally related? Need to
consider: privacy concerns & substantive due process argument, equal protection, &
right to association. See Belle Terre & Moore.
(2) Is there a “head” to the household? See Penobscot.
(3) Are the members of the household related or unrelated by blood, marriage or
adoption? See Hann & Vallorosi.
(4) Is the household transient & high turnover? May be a problem under Penobscot, but
not a problem under Vallorosi.
 Against Permitting State to Regulate these homes: it is the right of the individual to
choose the living arrangement that they want & to define their family accordingly. Cite
(1) privacy & substantive due process, (2) equal protection by looking at other similarly
situated families, & (3) First Amendment right to freedom of association.
A.Village of Belle Terre (p. 960) (S.Ct. 1974): First Con Law case here!
 Facts: Village on Long Isl& with a l& use statute (local zoning) that defines “family” in
such a way such that no more than two people not related by blood, adoption or
marriage (typical statute, cap if not BAM) can live together (under inclusive) as single
housekeeping unit (“live & cook together” as if essential, related to domesticity). House
with six unrelated students challenge statute. Students make a number of claims:
substantive DP / privacy, right to travel, social homogeneity is not a legitimate state
interest, EP claim on marital status (we cook too), right of association. Assert
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individual rights (home privacy, association, select own residence, travel, property
etc., but the key is the community rights.
 Issue: Is this an EP violation? RBR! Court says nothing up there applies; nothing fund’l,
not arbitrary, not against unmarried since allows density of 2, legal discretion ok on
number, plus you are allowed to entertain people & associate just not live there.
 Held: No. Ordinance is upheld. No right to be there. Halley sees this as a crazy flip in
privacy law. Do whatever you like in public (speech) but in private you are more
subject to regs!!!
 Rule: Nothing fundamental here, no rights here, so court gives statute rational basis
review. Not an unconstitutional use of the police power. There is a legitimate state
interest (so ok if so! Just economic & social legislation so defer to legislature, just
require legit purpose, point is IT IS LEGIT FOR LOCALITY TO SEEK QUIET,
min traffic, vision of suburb life “sanctuary for people” – great writing like in
Griswold marriage bed, police power is not just against dirt & unhealth, zones of
family values) in creating these zones of family neighborhoods: protect family values,
eliminate filth & noise, & healthy neighborhoods. Frats & boarding houses present urban
problems. Space, cars passing & parking, noise. Statute is rationally related to this
interest. Rejects the students’ argument that this is an improper preference for marriage:
statute specifically says that two unmarried people can live together, so the zoning
ordinance is not expressing a real preference for marriage.
 Surprisingly, state here invades private sphere: State is defining what it means to be a
family/ invasion of privacy. Use of police power.
 Dissent: Marshall says burdens the right to privacy & association. Deeply personal who
you live with, lifestyle choice, could simply say no use as frat, overinclusive (3 unrelated
people without a car) & under inclusive (number of cars, married, no limits), alternatives
exist. Wanted strict EP scrutiny. Fundamental privacy issues. Right to be diverse died
here, we got positive law here!!!! Function of zoning ordinance is to deplete cultural
diversity. Fence out who is different. Suggests that the state could have accomplished its
goals & used other alternative mechanisms for limiting the number of people in a house.
It’s ok to follow quiet goal but could limit number of everyone, full equality in density
question.
 We discussed counters to majority in class. EP: law not about numbers (bad at this, no
relation, very UI since not cap married but RBR would allow that, can draw any line says
Halley), really about relations, insides of houses, less family values, not just about
outside cars. Also privacy: invades home, family, see cases, even if unmarried, Roe &
Eisen, protect forming a household. But how get from those cases to 6 college kids w/o
sex? Could argue NAACP cases, right of association, not need to be family/intimate, 1 st
politcal speech, IT IS POLITICAL!!!, it’s in court to define family so that made it
political when city made it law!
B.Moore v. City of East Clevel& (p. 1245) (S.Ct. 1977):
 Facts: Housing ordinance limiting occupancy of a dwelling to a single nuclear family
(Black area is trying to become a white suburb here, court says arbitrary cut off but
ordinance thought the more people you pile into a boat the more likely it will take
everyone down) & thus, no webbed families (court says tradition is pro-webbed families,
grandPs). GrandM lived with her son, her son’s son, & a different grandson. Statute said
that three generations could live together, as long as they were of the same line. No mix
& match of different sides of the family. GrandM’s family does not fit into the categories
of families defined by the statute.
 Issue: Did this violate due process?
 Held: Yes—SDP violation.
 Rule (plurality): Statute governing family living arrangements is unconstitutional use
of police power b/c it does not rationally relate to government interest (serves them
marginally, tenuous relation to legit goals) in preventing overcrowding, traffic problems,
& congestion in the public schools. Violates the privacy rights of the family. Court
grabbed onto law cutting into BMA, there is a right to order living as wish inside
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family, cannot cut into size of related people, degrees of kinship within family is off
turf. Intrusive reg slices deep within family, not incidental so view carefully.
o Plurality so we just have a holding; divided court: White (dissent) says that there is a
liberty interest, but only subject to a RB test. Stevens (concurs in the judgment)
wants a takings theory, 5th, different theory says uses property as you like. Brennan
& Marshall (concurrence) sound loud ideological notes about the cultural
implications of extended families (emotional & ec support in hard times, especially
central to black population) & wants the Constitution to include all families. Stewart
& Rehnquist (dissent) say that there is no substantive due process right here & this is
the resistance to SDP mentioned in Zablocki. Says not impeding how you raise your
kids & if you have kids & those were the parts to look for.
 Distinguishes Belle Terre because that ordinance regulated “unrelated” persons
living under one roof.
 Policy: Privacy is big concern. Plurality wants to encourage familial relations & have
relations bringing each other in to care for another. Especially if death, here we see
people want to rebuild a secure home. Community’s values vs. the individual’s right to
associate. Also can be seen as greater community vs. community of the household. Issue
of a middle-class black community wanting to stay that way, & avoiding classification as
a white suburb or an inner city.
C.The General Hornbook Rule of Belle Terre & Morgan: If household fits SC’s definition of
“family,” then state cannot regulate & ordinance will be struck down. But if not fitting that
definition, then OK to regulate. No limits on size of family.
D.Problem in Reconciling Belle Terre & Morgan: But looks like these cases go in two different
directions: the white town council in Belle Terre gets to define the community in a certain way by
the types of families that live there, but the majority black city council in East Clevel& does not
get to define itself in a certain way for black middle class. Belle Terre can become a suburb, but
City of East Clevel& is told that it cannot do that. Is this a racist/ cultural unacceptance of certain
types of families? FN on page 1251: possible purpose was to be white. That is, black suburb try
to make itself like white Belle Terre in terms that matter to the community & it is told unlike in
Belle Terre that it cannot.
2. LOCAL LAW [931-59]. Now we go past the federal con law limits; states con law can diverge,
more grounds to challenge zoning!!
A. Glassboro v. Vallorosi (p. 936) (N.J. Sup. Ct. 1990):
 Ordinance defines “family” to limit households to blood/ marriage/ adoption. 10 students
who want to live together challenge it, unrelated yet genuine character of family. Group
kid home.
 Held: Ordinance violates NJ constitution DP. Standard for whether the use qualifies as
a single housekeeping unit must be functional. This means it can be met by related
persons or unrelated persons. State may allow only single housekeeping units, but must
define them functionally. Don’t use zoning laws to regulate anti-social behavior. 10
students here are single housekeeping unit so can live together.
 Court said you can’t limit households to blood, marriage, adoption—have to allow
functional equivalents. Local ordinance cannot turn on relation alone, see if look
like family. Only turns on householdness. Credible evidence. WHAT IS A
FUNCTIONAL EQUIVALENT OF A TRADITIONAL FAMILY UNIT?? Cook?
Own? Services? Manifest a domestic bond!. Versus a boarding house.
 Plaintiffs in this case were helped b/c owned instead of rented (even though we don’t
require married couples to own, ownership is compensation for other elements missing,
i.e. no blood marriage or adoption); court cites approvingly that they cook & eat together,
do their own services. Still not BAM so less preferred. Set of affiliates so need to see
facts to see if ok. Multifactorial analysis!!! Balance the facts is the key.
o Class discussion: do own services, mix labor & l&, you are part of your work,
ties you, permanence. Permanence weights more, often covers up whatever
is missing. Like since temporary students, in transience, also no resident
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authority, K substitutes for an affectional , collective action problem: who take
out the trash, especially since NO PYRAMID, families often have HoH so know
how run, one makes decisions, especially crazy here when they do each others
services (recall they just must not pay! Negative if fire someone does your
serves, this is important in shelters; rent: less perm unlike Penobscot, yet not hit
married with this, as we are a nation of renters!!
 NJ more protective of household divergences than US Supreme Court--internal diversity
of families is much broader, under NJ constitution. The NJSC preserves a “style” of
family living. EXAMPLE: Says don’t use zoning laws to regulate anti-social behavior
(unlike federal con law, here cannot say routy in NJ as a reason, under fed con law this
can cure it, police power to state for health, safety, & MORALS: ok for local zoning! But
NJ says there is a state con law right to be free zoning interference based on MORALS:
gets tougher than fed con law.
B.PRO LOCAL Penobscot (p. 931) (Me. Sup. Ct. 1981):
 Facts: Want to build a group disabled home for the mentally retarded in an area that is
zoned (ordinance) for low-density single family residential use. Board says that group
home does not meet the definition of “family.” Plaintiffs argue that the whole purpose of
the group home is to create an artificial family.
 Issue: Does group home fall under the ordinance’s definition of family?
 Held: No.
 Rule: Look to legislature not to court. Statute says “domestic bond” ( defines the family)
& that implies need household authority figure, traditional family structure, stabilize,
coordinate, PYRAMID STRUCTURE, no collective action problem. Since no head of
household or central authority figure (key figure in traditional form) who is in charge
of maintaining a separate housekeeping unit, the home does not fall under the exception;
group home would not have “domestic bond” & members change. Each there a year, not
perm. Residents cannot chose who enters & leaves, more like boarders. Also do not cook
or do services, extensive outside management detracts from the family nature. Need
continuity in supervisors too, here they rotate & not live there; better if 24hrs needed. Not
good enough here.
 Policy: Enforce old-fashioned nuclear family requirement.
 why group home is like a family: group homes more like traditional family units b/c
disabled are more dependent/ willing to form dependencies, emotional ties, quicker like a
kid; also better if more disables cause then helper may stay 24 hoursthis is closest we can
get to traditional family unit b/c of disability; we don’t require perm as people get older
 argument that group home is not traditional family: non development/ subjects of
medical attention (disguised hospital; also slippery slope as cannot distinguish between
other types of group homes like sell sex, HIV are disabled too); it’s commercial, someone
pays for it, people are paid for services/ not altruistic; this is product of bureaucrats
whereas families are pre-political/ not created by law (here emotional bond once brought
together, does not bring them together, was not there before; idea of family as primordial,
not as artifact); never grow up unlike kids; it’s loud w/ vans driving in/ out, traffic, Belle
Terre entitles us to quiet place/ sanctuary
C.Hann (p. 934) (E.D. Pa. 1989):
 Facts: Unmarried couple with kids denied use of housing vouchers. Under §8 housing,
there are local housing authority regulations that people must be married, related by
blood, or related by adoption if they use the vouchers.
 Issue: Can a couple be denied housing, simply b/c they are unmarried? Is this definition
of a family permissible?
 Held: No.
 Rule: Conflicts with HUD laws (purpose is to shelter the poor), don’t limit family,
flexible, not a categorical exclusion. Cannot arbitrarily exclude all applicants who are
not related by blood, marriage or adoption. Must make an individualized assessment
about whether it constitutes a family. (Here, court concerned about protecting the
Children—if they didn’t have kids, couple probably wouldn’t be considered a traditional
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family unit for purposes of §8 says Halley).
Policy: Issue about regulating the marital/non-marital relationship. Issue about how to
define a family. Do not want to visit the sins of the Ps upon the Children (innocent, no
control) by forcing kids to be homeless, simply b/c mom & dad are not married.
 Halley says this is a gay case, kids save it. Had wanted gays out so excluded all
unmarrieds. HUD had said some unmarried can be stable & positive if kids, avoided the
homo issue. Low income housing cannot exclude unmarrieds. Court ignores a clear law
b/c such inequity, unfair to make kids homeless, key is manifest unfairness!!!!, also
there are so many such couples to be affected.
D.Kephart Article on the Oneida Community & Mahoney: (A942): Intentional, US is
inventive! Successful Utopian community. Experiment in living. American thing to set up own world,
change the law within it, communal life, ec self-sufficient, ideological-other, cannot st& this world like set
up Mormom church. These are big communes with different internal styles. Oneida had common property
(share wealth, nothing privately owned), no regulation of marriage (complex marriages), regulation of sex
by a central committee (sex with everyone), eugenics, all one roof, cultural end as never leave home; later
hired help & rotate jobs, self-improvement, , love all kids. William Kephart says that this form of
communal life was delightful to those who enjoyed it. Oneida eventually fell apart: moralistic campaign
against the community. Zoning rules are one way of stopping this type of behavior. Like polygamny
upsetting neighbors in Short Creek, often a l& use struggle, fight over weirdness of families.
E.Mahoney: (N.Y. Sup. Ct. 1987) (A953):
 We see people deviate from nuclear family & law
 Facts: M moved her Children to a commune without telling F. He was allowed to visit
three times & then told he was not allowed to come anymore. Like a divorce (so court
has ongoing jurisd. & can break into family privacy) but it is custody case. Note if it was
not a custody case need a Q of unfitness or neglect or abuse to get in the door, high
requirement!
 Issue: Whether best interest analysis can be used to say that M could not keep her C if she
renounced her Pal rights to the commune. Use simple BI., argue BI language to keep
kid.
 Held: Best interests analysis gives C custody to F when M would give up Pal rights to
commune. Transfer the kid custody, remove with PP power, exceptional in US!! Both
had standing cause both natural Ps.
 Rule: Such conduct & interference with the joint custody agreement is inconsistent with
the BI analysis. It suggests that M is unfit. Besides, she has delegated her Pal authority
& responsibility to the commune elders. BI is not abdication.
 Note: Shows how controversial communes are; court thinks in nuclear ways (P to make
decisions by itself, libertarian decision idea, here she gives up her choice, cannot delegate
& merge into commune, that is a factor here so the mom is against BI, harmful merging!)
)about Pal authority; case becomes not law but policy about families—best interests
is a porous standard . Halley says the issues are VALUE JUDGMENTS: commune
deprives kid of choice, cultural incommensurability like the Indains, cannot fit
outside VERSUS that is the whole point, they are fit for the right kind of life, all
outside is against BI. This BI is open, pourous. Not about law but about POLICY
about good family. We see again.
 Most controlling factor was widely disparate environment, isolated from world, cannot
lead lives outside of it if have to leave at any future point, ties kids there.
 Halley says watch out, BI is frequently infused with rights thinking, even if come
from different places.
F.Braschi v. Stahl (p. 954) (N.Y. App. Ct. 1989):
Halley says we see lots of legal systems come into play: low income housing & now rent
control. State has various ways to show who is family!!!
Facts: There is a noneviction provision in the NYC regs. – protect a class (what is “family”?)
of occupants from sudden loss of homes. Rent control (addresses abnormal increases in rent)
statute says that upon the death of a tenant of a rent-controlled apartment, the l&lord may not
dispossess the surviving spouse of the dead tenant or some other family member (define: just

52
a statutory interpretation case, just about rent control, Halley says other gay cases lost out)
who has been living with the tenant. Man living with his lifelong gay lover of ten years wants
to argue that he is the “family” of the deceased tenant, & hence, cannot be evicted. But the
state is worried about people fabricating family relationships in order to live in rent controlled
apartments.
 Issue: What is the meaning of the word family?
 Held: Statute’s definition of family includes gay life partners acting as married
couple. Do not be rigid but see the reality of family life (LT, emotional & financial
commitment, care essence, dedication, self sacrificing, genuine versus mere roommates,
see the totality of the relationship, doorman views them as a couple.. Intervwoven lives.
Meets the (we see again) MULTIFACTORIAL TEST. Not one factor is dispositive.
Functional definition of family requires meeting a variety of factors, including proof
of financial interdependence, longevity of relationship, emotional commitment, etc.
Halley notes that blood can be less important. A nonstatus partner counts more than a
distant relative under functional definition!
 Policy: Shows how the families we choose are recognized by law. New York Court of
Appeals gives a definition of family that it should not be restricted to formal relationships
& there should be a functional definition of family. Worried about protecting individuals
from sudden dislocation & reliance on continued support from family member.
 Although case sold as victory for gay partners (got recognition of their relationship as
well as got rent control), Halley finds this regime to be very regulatory &
micromanaging—the factor test is invasive. Look at details, huge record, dark side
is it invades privacy!!! Page 957 shows see if exclusive, longevity. Court knows
checkbook, life insurance info, plus you must be “out” to relatives & sexual fidelity not
required if married. Also very subjective, can always abuse the test says the dissent.
III. Procreation: so far we have studied the way adults form fam rel, now we see rel btw adult-child.
A. State Intervention in Decisions Not to Procreate
1. Abortion (A998-1016; A980-89): the decision not to procreate, legal biggie in unit III
A.Main Idea: Many of these abortion cases are about state regulation of the information available
to people making the abortion decision. Most of the info is dissuasive & will discourage the
women to go through with the procedure.
B.Roe v. Wade (SC, 1973 p. 252): highlights:
 Players: MD, M, F, fetus/child. TX statute makes it a crime to have abortion unless life of M
is issue, ct says this is too broad a restriction.
 Holding: woman has privacy right in abortion decision (W right to decide to have abortion,
part of privacy), but not absolute; state has interest in protecting potential life of fetus & in
protecting health of M
 Suggests the trimester framework
 Until 1st trimester is over, dec in hands of M and MD, state has interest in protecting the
health of M, but woman’s right to make a decision about her own body trumps. Not
anymore dangerous than any other med procedure.
 Between end of 1st trimester & viability, state can regulate abortion to promote M health,
the danger to women is greater & state can regulate to the extent necessary to protect the
woman’s health (like MD license). As more dangerous, state regs can make it harder to
use right to decide.
 After viability (potentially able to live outside), state’s interest in potential life becomes
compelling; may regulate & even prevent abortion except where necessary for health of
M (At point of viability, state’s interest in the life of the fetus can trump the woman’s
interest, but state can‘t prohibit therapeutic abortion which will save M).
 Rejected extreme positions: idea of fetus as a person with con law rights (note: did not say
when life starts) & abortion as absolute right, completely private decision by woman (abortion
is private decision of woman but woman not isolated in her privacy) (not whenever,
however, whyever she wants, some state reg is appropriate)
 JH notes 3 phases of the Roe machine: 3 types of conflicts.
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C.
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There are 3 INTERRELATED interests/rights at stake here: M right to dec, state int in
M health protection, state int in potential life of fetus, that come into conflict. Note both
state int grow substantially as W approaches term, at points they become compelling.
First there is a conflict btw W right to decide and state wanting to protect M health:
TRIMESTERS DECIDE THAT CONFLICT along these lines: 1 st trimester, not any
more danger than other med stuff so she can decide with MD, and then 2 nd: as more
dangerous, state can make it harder to use right to decide.
Then there is a conflict btw W right to decide and state interest in potential life:
VIABILITY SOLVES that conflict: before viable, state stay out, W trump, but
after: state int can become compelling, so strong that trump W right to decide even
could prohibit abortion. CASEY CHANGES THIS so state can assert in in pot life
at any point, can stop abortion more room.
Last, there could be a conflict btw two state interests: state cannot save the baby
over the M, suits over definition of therapeutic abotyion (preserve M health).
Hodgson (p. 998) (S.Ct. 1990):
F: State statute requires notice to both Ps before minor abortion but provides judicial
bypass option. Minnesota Statute: no abortion shall be performed on woman under 18 yrs
of age until at least 48 hours after both of her Ps have been notifies; notice is mandatory
unless (1) attending physician certifies that immediate abortion is necessary to prevent
woman’s death & no time for notice; (2) both Ps consented in writing; (3) woman
declares that she is victim of abuse or neglect- notice of declaration must be given to
proper authorities (O’Connor concurrence said this is really notifying and unconst:
ineffectual exception, report is notice to authority!!); Subdivision 6: if court enjoins
enforcement of rest of statute, then possible get out of notice requirement upon court
order permitting abortion to proceed (Maj acts like 6 is independent of 2, as if no bypass).
Issue: Does this restriction on the fundamental right to abortion pass rational basis review
(i.e., restriction that is related to a legitimate state interest)? RBR bc children! Parham v
JR!!!!!!!!!!!!!!!!!!
Analysis: Minors have Roe right but subject only to rational basis scrutiny. Rational
basis review with bite says state has no reason to require notice to both Ps but
statute okay b/c has judicial bypass option.
Rights of adults versus kids: ct split badly-hard to figure out the useless opinion
Requirement of 48-hour wait after notice to single P would reasonably further legitimate
state interest in ensuring that minor’s decision is knowing & intelligent. Requirement
that BOTH Ps be notified is NOT reasonably related to legitimate state interests & is
unconstitutional; state has no legitimate interest in questioning one P; requiring notice to
both Ps also disserves state interest in protecting & assisting minor with respect to
dysfunctional families- violation of privacy & trauma (page 1000 positive harm as there
may be div without cust, stress, counterproductive and distracting from actual
decision if one P is gone or abusive!!!!!!!!!! And in healthy intact fam both will
discuss, notice to 1P means notice to both normally so 2 P req not further int here and if
P not tell each other then no legit int in Q one P that the other would not help out
anyways, None of legit purposes (knowing & intelligent) met for those coerced by statute
to go to P instead of vol go to P.). Subdivision 6, which enables a judicial bypass of
notice requirements, removes constitutional objection, ultimately cures section 2’s
defects so overall const statute.
JH: Holding is ironic since minor still has to give 2 “Ps” notice (i.e. 2 Ps or one P &
the state/judge)
State can substitute state (acceptable) for P in an intrafam dispute: legal basis is PP
(direct state int in upbringing of C)
JH notes that state has more power than even the Ps as only need to notify Ps
(power to counsel) but the judge has VETO power & can actually BLOCK the
abortion. What if some judges always refuse bypass? Tautology to say would not ask if
should not deny: judges may say no just since minor is asking!!!!!!!! Can be seen as
irrational way to pursue state int because can cancel out right to chose bc cannot
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handle the add’l procedures, baffle the C – state has irrational idea of population &
what people will do --- minors have no resources, time is of the essence (would req
C to go to ct and get atty), money is scarce (secrecy: not use P money), also statute
affects most strongly group of people who manifested management deficit so too
much to ask pursue judicial exception, it is tautological to say if minor was mature
enuff, would have notifed both P. Why mature enuff to be in ct as a party? State has
an irrational idea of W here: she would not be preg if she was a good manager, how can
she competent enuff for standing if she could not make subsidiary decision.
But P are still the preferred decision makers/consultants; state only provides way around
P in unusual circs, presume P has C BI so that justifies assymetries. So still where would
be without bypass.
Note: RBR talk bc 10 years til Casey’s Undue Burden test!!!! In the
future we ask: 1) how substantial, acute or weighty? And 2) is it due?
That is different language about weightiness of interference. If did
use the UB test (REALLY GOOD EXAMPLE OF HOW USE THE
UB TEST RIGHT HERE (is this right????), could say not substantial
D.
since there is an escape of jud bypass, an out option, an alternative so not big burden.
Also could say not undue since the state is making sure you are fully informed via P, can
promote state int in pot life (always there) as long as not hindering dec overly much (sure
it is a burden on her but not too much, not undue since here just a burden in order to
inform her!!!!!!!!!!). But what if the judge denies abortion? Only a barrier to a subset
ROADKILL HERE (but see Casey hubby notification as that said UB for all if a subset
is hit) but undue bc minor involved (law of minors from Parham!!!!!!! Ok if stats errors
since only a kid), under dominion, state int in keep them there.
CASEY CASE Planned Parenthood versus Casey (p. 1001) (Supreme Court 1992)
 Explicitly, no abortion on demand.
 Remember this is only an issue before viability. Only pre viab can state not do
UB, after it can even prohibit as in Roe.
 State can reg more
 NEW ELEMENT OF ABORTION LAW (plus see below new law on informed
consent too): UNDUE BURDEN TEST – 1) IS THERE A BURDEN? 2) HOW
SUBSTANTIAL, IS IT UNDUE? (is this the tes? See prior case..seems off)
 PA Abortion Control Act: restricts access to abortion (W seeking abortion must give
informed consent prior to procedure) -- must go to MD, must be provided with certain
information at least 24 hours (must wait before give informed consent) before
abortion (from MD: nature of procedure, materials about fetus, adoption, medical
assistance for childbirth, basically the MD must give positive advice to W to avoid
abortion; informed consent of one P for minor to obtain abortion with judicial bypass
option if minor does not wish obtain P’s consent; unless certain exceptions apply,
married woman must sign statement indicating notified husband of intended abortion
 Issue: Are any of these restrictions unconstitutional?
 Held: It is an “undue burden” to require married women to notify & get written
affidavit from husband about intent to get an abortion. Upholds the other regulations
such as the waiting period, Pal notification, distribution of materials. Reaffirms Roe.
Recognizes the right of a W to chose to have abortion BEFORE VIABILITY
(SUBST DP!)& to obtain without undue interference from state; state can restrict
abortion after viab if law contains exceptions for preg which endanger M life/health,
state has legit int from outset of preg in protect M health and fetus life.
 Ditches the trimester system established by Roe (3 justices here plus 3 in Webster
case reject it) since misconceives W interest (not every law making right more
diff to exercise is an infringement of right, only if serves no valid purpose and
places UB on her ability to exercise right) & underval state int in pot life. So now
there is a bipartite line between pre-viability & post-viability, we are left
with only this line. More room than Roe for state to stop abortion, does not say
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
right but says balance conflict with UB matrix unlike the Roe mode of reasoning
about RBR. Here anytime pre-viab state can assert ints; now pot life and
rights of W conflict anytime!!!!
 UB: regulation has purpose or effect of placing subst obstacle in path of
women seeking abortion of a NONVIABLE fetus (BEFORE viable is where
test is used!!!!!). Statute must be calculated to inform W FREE CHOICE!!!!!,
not to hinder it (burden ok if to inform her, for example). State can enact
persuasive measures that favor childbirth over abortion, even if measures
not further health int,
 After Casey, state can assert its interest in potential life of fetus at any time
during the pregnancy, & after viability, state can prohibit abortion all
together
 shift from rights based idea (right to abortion) to undue burden—woman no
longer has a right; rather, this is a conflict that has to be balanced
 Casey rejects abortion on demand; Casey leaves room for anti-abortion policy
Rule: State can do things to protect potential life of fetus as long as it does not
“substantially interfere with woman’s right to choose” or cause an “undue
burden.” Plurality first says that decision was based on stare decisis. Focuses on the
woman’s “liberty to define her own concept of the meaning of the universe & the
mystery of human life.” This is less technical language than Roe. Most justices did go
for Roe (5)—stare decisis stick with law plus these 5 invoke new rights talk for
women—zoomy language on dec liberty—new unclear std—less technical than
Roe. Really is a shift from rights based idea of Roe to UB. Not a right here, just
see if state place you in UB. US has unclear meaning like BI, DP
(1) Spousal Notification: Danforth (p 260) had already said that spousal consent
was too much (no veto right of H), so PA statute only requires notice to
husband. Facial challenge: can focus on segment where there is an UB (fear
injury) or see all W to whom applies (wives in general). SC says in Casey that
this notification is unconst bc it is an undue burden on the married woman b/c
of potential violence, psychological harm/ abuse of spousal notification have
good reason not to notify H & notif req would pose subst obstacle to these
victims of abuse, does not matter if no burden on general maj or W, proper focus
of const inquiry is on group for whom law is restriction not group for whom law
is irrelevant, state may not give man kind of dominion over W that Ps exercise
over C, W bodily integrity is implicated in preg, H can not have an effective veto
over her dec. (so it sees the subset only unlike with kids: Halley says Ps have
dominion over kids but there is equality with H/W!!!). In well functioning
marriages, spouses would discuss anyway. Cites Eisenstadt: marriage made up
of individuals, individual W reproductive right, p.1011. An affidavit is still
not ok, majority all agree so this is not just a holding. O’Connor says the judicial
bypass option is still a form of notification so the alternative does not sure the
problem for the majority.
 Halley’s counterargument: spousal notification not undue burden b/c only
affects small 1 % (fits with Hodgeson)& those who fear violence have a
bypass option/ notification by other means (can file an alternative signed
statement that husband isn’t man who impregnated her)—while there will be
women barred from abortion by this (so only people who fear psych trauma
are unprotected), not undue burden as to an entire class of women. Fear is
also very much a judicial value judgment, it is not physical but merely
psych & even if not we make tradeoffs (it hits a small subset). Not subst
obstacle: only emotional distress. Facial challenge so do not speculate. Also
contradiction with notify P. said here if hubby then have subset that would be
roadkill so say undue and unconst, whereas with P we have subset that is
roadkill but not undue even if some cases absoltely bar the C.
 Danforth talked about women’s preemptive rights with respect to the
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abortion decision, the husband as less involved. Rights discussion like
Roe unlike here in Casey we see UB: LESS RIGHTSY!!!!!—Halley.
 NO ROADKILL HERE
 Unlike with waiting period and with parental/Hodgeson, barrier to
subset trumps here. HALLEY’S PROBLEM WITH THE CASE IS IT
IS TOO FLEXIBLE THIS UB TEST!!!! INCONSISTENT WITHIN
CASE. SOMETIMES ROADKILL (SAYS BURDEN IS NOT UNDUE-Means chosen to further right must be calc to inform free choice.) BUT
SOMETIMES NOT (HERE). UB test—see if reg had purpose/effect of
place substantial obstacle in path of W seeking to abort a NONVIABLE fetus
is too flexible. This fits with Scali dissent: std without BL rule, even
within 1 opinion, not homologous. SUBSET FOR WHOM IT IS
ACUTE IS UNPREDICTABLE!!!!!!! Could forum shop but no $, time.
 The glaring inconsistency within: Husband notification would have subset
roadkill so undue (wives with psych and phys abuse – notice brings more so
they would not abort – too acute UB so invalidate for ALL. Versus P
notification—kids are the roadkill if anticipate bad outcome if tell P/judge
may still say no (so there would be an ABSOLUTE bar 4 some) yet no UB
(2) Parental Consent: Hodgson previously said that two P consent requirement was
too burdensome. Casey upholds the 1 P consent requirement (with judicial
bypass option available)—not undue burden b/c of state’s interest in protecting
potential life. Halley connects it to dominion over kids unlike (1) where we see
equality.
o What if some judges will never allow abortion? could argue this undue
burden to a subset is an undue burden for them all (like husband
notification)
 counter: can’t be undue b/c minors are under state & Pal
dominion (Parham v. JR)
 unlike spousal notification, for Pal notification, O’Connor is willing to
tolerate a subset of casualties ROADKILL. Like Hodgson case (ok if
one parent plus judge consent: only barrier to a subset, tolerate
casualties. ROADKILL. UB test says it is not undue!!
 this different use of subsets demonstrates that the undue
burden. test doesn’t provide bright line rules/ can generate
outcomes not homogenous—Casey is legally volatile, porous
(3) Informed consent requirement/ 24 hour waiting period:--not undue burden,
can require written informed consent with MD give info & wait 24 hours if
truthful, not misleading, lets her reflect. See DM for this part. 24 hour wait
does not pose subst obstacle on decision, even if burdensome for W who have to
travel long distances, fewer fin resources or difficulty explaining whereabouts,
particular burden is not obstacle and plus it leads to informed consent! Like
Hodgson case (ok if one parent plus judge consent: only barrier to a subset,
tolerate casualties. ROADKILL. UB test says it is not undue!!
 OK for state to pursue goal/ interest in potential life w/ truthful, nonmisleading but discouraging information; can talk W out of dec as long as
she makes the final ultimate dec, she can still make decision
 Overturned two Rose type cases: DM p 48 Akron and Thornberg (statutes
designated to influence (dissuade abortion) & rigid req particular type of info
were unconst there like Rose). Similar facts here, brochures about
alternatives, ok if live far away/hotel/come again for some etc. NEW
ELEMENT OF ABORTION LAW HERE: UPGRADED LEGIT
STATE INT IN PROTECT POP LIFE, CAN PERSUADE IF TRUE,
PERSUADING INFO IN ANY TRIMESTER, JUST TRY TO
DESUADE, W ULTIMATELY DECIDED PLUS 24 HOUR COOL
LETS INFO SEEP IN, PERSUADES HER, PRO-INTERESTS, NO UB
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(THE SECOND NEW ELEMENT OFLAW IS UB TEST)
why isn’t 24 hour waiting period undue, esp. for battered women/ sub group,
women too poor to travel?
o Halley says this is a glaring inconsistency: while court says
there’s no factual finding that there is such a subgroup (Unlike
battery-- was in record), it doesn’t remand so there’s no
opportunity for court to find facts (that subgroup had UB,
although new law, new standard, changed words. DRIVEN
PART OF DECISION. All 7 justicess went for this piece. Final
judgement: no abt on demand. What is leading the court?
o but you could justify no remand b/c court only considers questions
of law (O’Connor said just tinker with Roe—restated and
clarified so no remand as no new law, not fact on appeal so
await for a new case!!!! Realist arg!!!!; plurality suggests this is
just Roe clarified, not new law. Tried to say 24 hours wait is a wise,
good iidea, not UB on Roe right (Roe framework here). Akron was
wrong and court has come to senses, we are applying Roe law as we
should have, there is no new ground to break.
o HALLEY DISAGRRES AND SAYS UB TEST IS NEW LAW –
NEW RESULTS ARE GOTTEN!!!!!! For example, connect
Rust and DeShaney, when state has strong policy with regard
to procedure like abortion, it can regulate it and do stuff with
med-available info—changes Roe pics of W in rel with MD—
now over the sacrosanct stuff.
Dissent: Scalia would have overruled Roe. And would have upheld the PA law
entirely under RBR (the hodgeson test). Rejects the “undue burden” test as
“inherently manipulable & will prove hopelessly unworkable” and has no “principled
or coherent legal basis): JH AGREES!!!!!!!!!!. Too much flexibility in the undue
burden test & there is now less certainty/predictability than there was under Roe.


E. Rust v. Sullivan (S. Ct. 1991) [A980]. This was before Casey and leads to Casey. Legal backdrop
for Casey in 1992. Then Casey goes beyond defunding into zone of gov’t can do ST with stuff. DM 10078 info given to W and waiting period (informed consent) yet delay/cost are not UB. Can req info on health
risks, gestational status, alternative pamphlets.
[Title X provides federal funding for family-planning services, provided none of funds
shall be used in programs where abortion is method of family planning; Title X project
may not provide counseling concerning use of abortion or referral even upon request (JH:
middle ground would have been to give info if asked, MD discretion); Title X project
may not engage in activities that encourage, promote, advocate abortion; Title X projects
must be organized so that are physically & fin separate from prohibited abortion activities
Holding:
- Selective funding is ok!!! Ok to regulate title 10 program funds, sep phys and fin from any
abortion programs, CHINESE WALL btw entity parts. Majority gives a const’l holding: OK
SDP and 1st AMENDMENT!!!!
- State need not fund abortion decision, like next 2 cases on medicaid and public employees.
Rebound of the privacy right, send to privacy sphere, state is not a part, federalism no state
duty to effectuate right same thought in DeShaney page 1371 protect people from harm of
state but not have state protect them from others harm (dad had cust and abused the kid but
he was not a state actor, action versus (OK) INACTION of the state. There is no fed const
right to positive protection from your dad, state law may do more. Opposite case was City of
Rottendamn where NY more damages against state eee if his N led to child death.
- no first amendment violation- government as speaker can selectively fund program to encourage
certain activities; doctor can still express views, but most do on own funds not gag advising
despite what the activists say. Context.
- not unconstitutional condition- government not denying benefit, but insisting that public funds be
spent for purposes for which authorized; condition not placed on recipient but on activity; Title
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-
-
1)
2)
3)
4)
5)
6)
X grantee does not have to give up abortion-related speech; only needs separate speech from Title
X activities. Project is the entity. Full panopoly of rights if not title X.
not substantive due process violation of abortion right- woman is left with same range of
choices in deciding whether obtain abortion as if government had chosen not to fund familyplanning services at all; having held that state’s refusal to fund abortions does not violate Roe,
strains logic to reach contrary result for use of public facilities & employees
not violation of woman’s substantive due process right to medical self-determination & to
make informed medical decision free of government-imposed harm; doctor’s ability to provide, &
woman’s ability to receive info. concerning abortion outside context of Title X project remains
unfettered
Blackmun Dissent: by refusing fund family-planning projects that advocate abortion
because advocate abortion, government has targeted particular viewpoint; ideological
viewpoint is repugnant ground upon which to base funding; dangerous proposition that
government can restrict employee’s speech so long as restriction is limited funded
workplace; violation of free speech interests of Title X physicians]
Also O’Connor page 989:dissents on statutory grounds, not a constl holding, reinterprets
statute instead of tell Congress not to pass it, invalidates since too expansive.
counter argument on 1st Amendment right: MD right!
a) government co-opting private speakers; not merely using propaganda machine to convey
message. Actually fudning private entities, W thinks they are private, gov’t speak and it’s
from the gov’t, W will get confused by the forum so will not discount that it is from gov’t,
skew debate without say so.
b) distinction between requiring doctors to convey certain information & prohibiting speechprior restraint on speech. In Casey, all MD are req to give info versus here it is more
serious—stop speech, we are mostly against PRs!!!
response to 1st Amendment counter argument:
a) only Title 10 project that can’t speak- not 1st Amendment entity
b) all people retain full panoply of 1st Amendment rights as long as not use government funding
c) the govt can advocate its own views, can subsidize one viewpoint
Title X regulation is significant burden for women on public assistance?
a) Women on public assistance do significantly chg minds when abortion facilities not funded
b) but still have right make abortion decision
cascade of cases recognizes that abortion right is right make decision, not right have abortion
a) Woman still free make dec; state just refuses fund private choice still empowered to make
b) Rebound of privacy right; woman remitted to private sphere; has right make decision- state
does not have to be part of it
c) Women not worse off than if state did not provide any funding or medicaid
d) No constitutional right to positive protection from state (Deshaney and Maher). Privacy is
still ok!!! This is how it works. 985 obstacles ok, see Webster, privacy right only to dec not
to effectutate actual abt, can still dec if you are poor, can make up mind.
counter arguments on substantive due process right: (privacy)
a) where is woman supposed to get info. if can’t ask her doctor? Right to chose—informed
dec—goes to MD—Roe: MD-P rel, W not isolated in privacy. Use Roe interest in her health.
b) woman is getting skewed information & can’t even find out that it is skewed even if she asks
so not informed.
c) part of right to choose is right make informed decision so took away right to decide
d) especially in technical, medical area, denial of information is outright violation of ability
make decision
e) greater power prohibit abortion does not include lesser; because state has poser take away all
funding, does not mean has power take away funding for abortion services; by providing
some funding, alters status quo & skews debate
f) impetus to go to back market- constitutionally bad because biggest part of abortion rights
decision is protect health of M
responses to due process counter arguments:
a) woman understands go to different specialists for different things; thus not relying on general
practitioner to get abortion advice
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b) if pile too much on right when government can opt out, might provide disincentive for
government to provide service altogether; want government to continue funding family
planning
c) just because have constitutional right, does not means government needs provide everything
need to exercise right. Right to decide, just bad luck, same place as if not fund anyone, if no
extra benefit to anyone. Not generate a duty, remit to private sphere, govt just not interfere,
libertarian—no govt control. Note a town can shut a pool down. But here we skew debate
without say so. Only poor go for funds but poverty is not a suspect class so no EP claim.
(1) Rights are not entitlements (rts theory: we left that of Roe, and went to unclear UB)
(2) want maintain private sphere
F. Harris v. McCray [OK for Congress to deny medicaid reimbursement for abortion]
G. Webster v. Reproductive Services (S. Ct. 1989) Not in text but background to Rust (cited cases on 985; Rust
had held abortion not available if you are on public assistance; try argue isgnif burden to them but cascade of
cases say abt right not extend to effectuating the decision, still free decision, abortion funding cases are
not about the decision!!! Merely not funding the decision!!)
[Holding: State could bar public employees from assisting in abortions not for health of M; state need
not provide abortion: can decline, state can keep out]
1) OK discriminate against abortion in array of medical facilities
2) Combine with Casey – 3 justices in each say sick of trimesters, dead, NT can turn on them
3) Could state prohibit abortion in hospital that uses public sewer (or say no infrastructure if give
abortion)?
a) No unlike Harris and Webster.
b) Old RBR test: Lack of nexus/ fit between regulation & purpose; not about sewer policy but
something else
c) New UB test: Fact that every hospital uses the sewer system- undue burden to ask hospital to
build own sewage system. State sheer pursuit in discourages abortion is ok after Casey unless
UB and there is a UB here b/c:
d) Would probably end all abortions in state; prohibitive not just for subclass of women, but for
all women
2. Access to Contraceptive & Reproductive Information. Text says Skinner v OK (1942) held there is a constl
right to procreate but attention keeps focusing on whether there is a right not to procreate. Controversial Q of if
there is a right to control one’s own reproductive capacity. Just did big abortion cases, we are still in procreation
unit, different outcomes. All start with contraceptives (Griswold 1965 then Eisen 1972) then jump to abortion
then the abortion cases drive the contraceptive cases; but are they the same? Roe right in 1973 gives imp to
Carey in 1977, until Casey then we see a dynamic btw 2 pieces of the puzzle.
a. Carey v. Population Services (S. Ct. old case 1977) [A974]
[NY Education Law: 1) crime to sell or distribute contraceptive to a minor, 2) for anyone other than
licensed pharmacist to distribute contraceptives to majors, 3) for anyone to advertise or display
contraceptives including pharmacists.
Holding:
- Unconst-very unfriendly scrutiny
- EXTENDS the right of USE of contraception (Griswold) to effectuation.
- SDP- fund. rt of personal privacy includes freedom to decision whether OR NOT to BEGET
OR BEAR C, “heart” of privacy cases. Whether or not to accomplish conception. But does not
auto invalidate every state reg. Can reg business of amanuf and sell contraceptiesv if not infirnge
personal protected choices, and even a burdensome one may be ok bc compelling state int.
- limiting DISTRIBUTION of contraceptives to licensed pharmacists imposes signif burden on
individual rt, burdens freedom and need a compelling state int—Court scour the statute, how
pharm know? Irrational way to restrict results. Wide restriction on access. Griswold was not just
about use (this ct says its more than that—it’s about indiv decisions in matters of
chilbearing: whther to BEAR OR BEGET) and Eisen said married and unmarried get same
access whatever it is. Distrib reqs here does burden those decisions of childbearing plus no
compelling state int.: had tried to say concern young not sell (hardly justifies burden rights plus
unrelated to goal), buyers can inquire qualities and not be tampered (nope, not a quality control
device, who says they can give merits or if need more than nonprescrp items, why single out
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pharm for tamper prevention), can enforce rest of statute better (such ease: admin inconv not
invade const right)
- prohibiting ACCESS of MINORS to contraception is unconstitutional; minors as well as adults
are protected by constitution, but power of state to control conduct of C reaches beyond scope of
authority over adults (Powell concur focus); doubt limiting access to contraceptives would
discourage early sex behavior. Cannot use this deterrance arg, would allow stop abotion too if so
or for unmarried. Just a bare assertion, no evid. Notes state cannot blanket prohibit or req P
consent (Danforth) of abortion so cannot prevent this distrib, less implicated by mental phy health
& protect pot life. Nonhazardous.
- also FIRST amendment, yes can ad/display, commercial speech. truthful, lawful activity.
Rehnquist Dissent: stake = rt control reprod, can do thru ways other than contrac, eg thru abstinence,
distinguished fait accomplis from this. Can restrict this unlike abortion. Concerned with extramar sex
 JH says we should CHALLENGE the MERGE of the abortion and contraception cases, do
not apply abortion cases but instead detach them. Halley says they are different.
Contraception cases: fewer rights, see with kids (court here said cannot ban minor access to
contraception though). Reinquist dissent: person decide abortion if already in an NO-EXIT
situation (context of right to decide) VERSUS contraception: other routes available such as
no sex!!! Not preganant yet. State and 2 justices hates extramarrital sex, can criminalize and
disocurage this sex. Different right from right to decide abortion, more options open other
than CONTRACEPTION, not req contraception so CAN MORE HEAVILY
REGULATE!!!!!!!!!! Halley agrees with dissent! She said something about how O’Connor
(majority) in Casey had an effect of calm all down, eg legisl, so hypos on what possible not actual,
legisl test less and less.
 from contraception, have jump to abortion; but now abortion is driving contraceptive cases
a) Roe was buoying up contraception cases (rights)
b) But now abortion law is weakened & may weaken contraception (if apply Casey UB!)
 Applying Casey to Carey: if we use abortion law, use Casey talk, can we reverse this earlier case
Carey? In a Casey world: UB test, more state regulation.
a) if state purpose in discouraging procreation is legitimate, maybe can argue not undue burden,
could say it’s just a burden. Could say here is a new legit state int (not potential life—used in
abortion cases, this is contraception) so interest could be encouraging, favoring
procreation, so state could regulate more in that world maybe, no longer in Roe rights world.
----But we could say everything making abortion a problem is missing in contraception (no
longer worry about pot life) so maybe let these cases go on own? Detach abortion and
contraceptive cases, see above dissent, and JH agrees: challenge the merge.
b) What is this interest? Morality or postive population problem? state is entitled pursue certain
sexual mores, moral projects thru regulation in this area (Bowers v. Hardwick)
c) But people wan to be anonymous, not go to pharm to get contraceptives, but Casey said not
UB and can be talked out of it.
d) Thus the POINT IS could REVERSE Carey using Casey’s new const tests
e) if state point to positive population program against procreation, then suspect
f) Casey argument does not help with advertising
g) Do not argue too boldly: discourage contraception is the purpose, do not for full
prohibitions. If outright ban on sale of contraceptives, no sale to even adults, Casey wouldn’t
carry far enough with this bigger statute than in Carey. Under Casey, ban = UB. Note if you
banned contraception that means you overrule Griswold and Eisen. Court says it would be
like cannot USE (Grisw.)—also worse cuz easier to enforce, less offensively enforce.
Notes afte case 980: upheld sex educ classes, no showing harm Can remove kids if want.
JH: state law is a complexifier, intervention in pregnancy to protect the fetus & promote procreation. Roe SC
declined to say fetus is a person for rights purpose (states often thought was person inside person, unusual gotta
address one within other, fetus deisolates her, not isolated in her privacy, goes way beyond abortion. Roe not
forbid abortion unless against right of W (decision, bodily integrity). Casey said may adopt/regard as compelling int
in pot life. B/c W has adoption right, by continuing pregn she confirms her duty to fetus, waives way to get out
(Roe right, so now adversary rel w/fetus ends, hold duty). See spectrum of cases, some gaps. Spectrum: Eg,
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harms to fetus by 3rd party: MD, drivers, F leave W, W herself. Can treat as torts/civil or more serious/crimes OR
adults sufficient standing to bring into legal system—proxy—our wish to attach int in protect fetus OR fetal
standing-represent on own. What harms do we recognize? Another array—History start with car driver injure W
and thus fetus, got twists on conventional tort—life/birth of fetus = harm, wrongful life suit, no actual harm /
potential likely harm, try prevent—injunction. Wrongful life suit (C sues):
3. Genetic Screening & Counseling
a. Procanik v. Cillo (NJ S. Ct. 1984) [A990]
[N MD failed diagnose German measles in pregnant M; M went ahead w/ pregnancy; infant born w/
multiple defects; infant brings a wrongful life claim seeking damages & alleging MD N deprived Ps of
choice of ending pregnancy. Negligently interpreted tests wrong so P had C. Ct surveys changing
landscape of family torts. Mentioned Roe. And Berman mentions W right to term but said P got all
benefits inhering in raise C. Even a life of serious defects is worth ST they had said. MD agree they
owed duty to C and ct assumes N ended choice. Even if duty breached, c/a assumes its very life is
wrongful but Berman said life even if burdened is prefered over nonexistence. Infant no right to be
born fully functioning. Med exps are predictable/certain/recoverable though. Foresee interconnected
fam, fin impact not just felt by P so yes C has c/a for med exp.MD N affects whole fam.P claim was
barred by SoL. We just respond to call of the living for help and not say prefer non life by limit to med
exp. No rational way measure nonexistence or compare with hurt life, unpredictable. We need
rationality! Too speculative to know if better not born. Fairness and justice need something we can
measure and not stir passions, pain would lead to wide swings in dmgs. Enuf to deter malpractice. P
could assert their own ED. 2 objectives of tort system: comp injured, and deter future wrong.
Holding: infant plaintiff may recover as special damages extraordinary medical expenses attributable
to affliction, but may not recover general damages for emotional distress or for impaired Childhood
(pain and suffereing, P cannot cope with him)
Reasoning: decision to allow C to get recovery of extraordinary medical expenses is not
premised on concept that non-life is preferable to impaired life (wrongful life claim),
but is predicated on needs of living; infant never had chance of healthy life- choice =
non-existence or handicapped life; too speculative to permit recovery for emotional
distress
Schreiber Dissent: would take away recovery for med exp, unfair for MD, they did not CAUSE the
defects!! Not think wrongful life is actionable since impaired life may still be better than nonexistence
for all we can tell and we cannot compare life and nonexistence, how can u be harmed if alive?]
Halley:
1) C is alive and has weird injuries, claim against MD, there was a simpler prior tort of P vs MD: ED
but SoL ran. MD cause expenses even if measles cause—since fail diag—would have aborted,
no C, no expenses. No power to make abortion dec, P were wronged, conventional P versus MD
2) So we are left with a C claim. For own wrongful life (theory). C should not have been born,
would not have been without MD wrongdoing (already exposed to measles so its about life).
3) Impaired Chood claim- by failing give Ps choice, doctors traumatized Ps & they, in turn,
traumatized C cuz less good P. Counter: even so, stat unlikely less good P—speculative damages,
we req reasonable ascertain, harder figure than med exp so court does with med exp
4) Proximate cause issue in torts, link to injury.
a) argument for medical expenses: if doctor was not negligent, C would not have been born & no
medical expenses. Reasonable forseee, ct says
b) but intervening cause of Ps. Contrib N—W expose self, but she got tested. But C sues and
there’s no CN for child. Gap in chain of PC: MD N test, P rely on it and not abort but
breaking the chain is MD powerless to cause abort, they merely ran the test, the P decide, P
cause the birth in all ways (said dissent!).
5) legally illogical case: JH says poor as a legal decision. No claim of P vs MD, time barred, so
redistributive justice case!!!!!!!!!!!!! Who pays med expwhen hard for someone to carry
load!!! Crying need of C case, not tort language (duty, breach etc), thinks no one to pay.
a) court says no general claim for damages (cut chain), but special damages- medical expenses
but how can have consequential damages(measles cause these special dmgs) if don’t have
actual? Tort law says need actual primary tort really!!! Need gen dmgs 1 st really!!!
b) JH also says court missed the private welfare system idea,
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6) Now, opening for wrongful life claim of C over M once we have this case v MD via prox
cause; M did not prevent suffering life.
Page 996 Kentucky Sickle Cell Disease Detection Act of 1972: eahc MD examining applicants for marriage license
may obtain blood specimen and ascertain if sicket cell trait or disease and may give genetic counseling. Dr. Erbe:
incomplete screening programs lead to problems like alarm, etc.
4. Voluntary Sterilization
a. Hathaway v. Worcester City Hospital (1st Cir. 1973) [A1016]
[life of appellant (has 8 kids already, hurt health if more, below povery level, psych
deterioration, MD rec, this was a therapeutic sterilz) would be jeopardized by future
pregnancies; challenges as unconstitutional policy of city hospital barring use of facilities
in connection with consensual sterilization. Complete ban. Ct says hosp does not ban
things more risky.
Holding: unconstitutional; fundamental DP interest in decision to terminate possibility of any
future pregnancy; once state has undertaken provide general short-term hospital care, may not
constitutionally draw line at medically indistinguishable surgical procedures that impinge on fund. rts]
Halley said this is an outlier case to ignore. Unlike Rust series of privacy cases here the right to
sterilize trumps the privacy of the hospital, cannot refuse the services. Note case says can
regulkate unneeded operations. . Steirlz is number one way prevent conception by married.
B. State Intervention to Protect Fetus
1. harms against fetus that can be recognized
a. harms from 3rd parties
b. harms from own M (Roe held to impose adversarial relationship with fetus)
c. harms during pregnancy, such as birth of fetus in wrongful life action
d. potential or likely harm
2. theories of protection
a. some states hold fetus is person; OK until run up against right of woman
b. state interest in potential life
c. woman is not isolated in privacy; fetus & doctors de-isolate her
d. because woman has abortion right, by continuing with pregnancy has affirmative duty to fetus
3. means of protection
a. adult can serve as proxy bringing rights & interests of fetus into court
b. or can have fetal standing
4. In re Baby Doe (Ill. App. 1994) [A1019]: even worse than JH above idea about C against M here we have
an attempt at fetal standing against a pregnant mom. Placenta problem: less oxygen but she religiously
objects to C-section. Court gives custodian speak for fetus, ward, custodial rel, legal form to express
int adverse to mom. Guardian ad litem (at litigation). Once we have an adversary what do we do with itwhat int overrise other? Confusing court.
[Issue: whether court can balance whatever rights fetus may have against rights of competent woman to
refuse medical advice to obtain Cesarean section for benefit of fetus
Holding: no such balancing should be employed; woman’s competent choice to refuse medical
treatment as invasive as cesarean section during pregnancy must be honored
Reasoning: state right of privacy, bodily integrity, religious liberty; during pregnancy, woman retains same
right refuse invasive treatment, even of lifesaving & beneficial nature; woman’s rights cannot be
subordinated to fetal rights; using physical force to give woman unwanted cesarean would be repugnant]
a. court says no balancing but gets confusing
1) says W right so no balance against anything—last word! W choice. Note: fudge, says not
certain harm to fetus (save word certain for later case; here “may”)
2) but engages in balancing in opinion (harm to W if override last work versus harm to fetus if
not override W)
3) shows balancing will reach same outcome, if anxiety about reversal so apply other rule
4) but if balancing, then judicial discretion, uncertainty, variability. Standards, a really
different rule, outcome of cases would vary a lot.
 have smoothly entered a world where fetus gets guardian to assert int, lots really balance too
 serious end ofspectrum is near—up it to murder, manslaughter, criminal prosec, kill W, injure
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5.
fetus, is not just tort but crime against life or ag potential life. Starts with driver, 3rd party idea
back into W-fetus rel. and now preganant M cause injury:
Whitner v. South Carolina (S.C. S. Ct. 1997) [A1025]
[M guilty of causing baby born with cocaine in system; does court have subject matter jurisdiction to
punish M? she tried to claim court lacks SMJ. Lacks power over crim prosec. Look to neglect statute
(YOU NEED A NEGLECT STATUTE) Only have subject matter jurisdiction over harms committed
to persons under statute, ask whether “child” includes fetus. Otherwise no law to apply/ Ct is stranger.
Holding: Yes; viable fetuses are persons holding certain legal rights & privileges]
a. can easily & smoothly move into world where fetuses get guardians appointed for them & can assert
interests adverse to M
1) Decision based on earlier cases where Ms sued third parties for injuries inflicted on them
when pregnant; ratchet up to crimes; within spectrum; now, law turns against women
formerly employing it, here extends, construes judicially court found cases earlier in SC page
1027
2) Other states refuse go down this road. Cases come out all different ways.
b. here have pro-procreation attitude of state, want healthy C, VERSUS policies could go twd not want C
exist if C likely to be injured by mom. See C below!
c. also could terminate P rights, based on prenatal conduct since we do with postnatal.
C. State Intervention to Prevent Procreation
1. Buck v. Bell (S. Ct. 1927) [A1029]
[constitutionality of force sterilization of feeble minded?
Holding: Constitutional; if public welfare can call upon best citizens for lives, can call upon those who
already sap strength of state for lesser sacrifices; better for world if instead of waiting to execute degenerate
offspring for crime or letting starve for imbecility, society can prevent can prevent those who are
manifestly unfit from continuing their kind!]
a. problem of doing permanent things to people when diagnosis may not be right, as in parham
versus JR, procedural DP famous case cuz neither imbeciles later on, makes us want more protection
b. challenges to statute
1) procedural due process claim
a) fails because statute sets out detailed procedures with notice & opportunity to be heard, ward,
P present at hearing, appeal, even to SC of state, review de novo, not assume correct below,
note hospital is stuck, she had one way appeal. Procedually perfect statute protects rights
2) substantive due process claim- no amt of pressure can justify intrusion on right- substantive limit
a) fails with vaccine analogy- can protect public by requiring have vaccine, we allow a lot of
bodily invasions via this.
b) fails since government can conscript & call upon best citizens to die, so sure sick for
something less. So no right to bodily integrity here.
3) EP claim- only applies to feeble-minded who happen to be institutionalized, not all feeble-minded
a) court laughs at argument: Holmes is mean, mocks attys as desparate in court, free up inst, let
them out or inst everyone, sterilize all, funny since EP means can not just be nice to all but
can be mean / give harm to all.
b) usual last resort arg
c) we are all feeble minded, not suspect if institution so RBR, classic RBR rejection, law does all
it needs ok is over/under incl, piecemal is ok.
c. never see again, regarded as complete outlier, but cited approvingly by Roeto show limits of rt to
bodily integrity, reprod freedom not take us that far that indiv can bar all invasiveness.
d. cited in defense of Germans at Nuremburg Trials
2. Skinner v. Oklahoma (S. Ct. 1942) [A1031]
[S. Ct. held unconstitutional involuntary sterilization of certain, rather arbitrary, categories of criminals]
JH pairs together NETX TWO CASES: Moe with state of DW, same case ultimately?
There is a procreative right but what if incapable of deciding, has a mom (Moe: appointed guardian who
moves to sterilize), P-like status, decide for her; and DW has a mom, justa mom, petition to appt temp
guardian for pregn decision, will abort). People are incomp in complex ways. Both W are adults: why the
problem! Moe: legal age ward, non minor in state facility; DW is 18, at home.
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3. Matter of Moe (1982) [A1034]
[guardian petitioning court for order permitting sterilization of ward; in view of professionals in health care
field would be in best interest of ward have sterilization, but refuse perform without court order
Holding: since sterilization is intrusive form of medical treatment that irreversibly extinguishes ward’s
fundamental right of procreative choice, guardian must obtain proper judicial order for procedure before
can validly consent to it
Reasoning:
- right of person to be sterilized is fundamental; decision whether or beget C is at very heart
of constitutionally protected right to privacy; right of human dignity; government deprives
mentally retarded individual of right to privacy if denies opportunity exercise right
- doctrine of substituted judgment; court dons mantle of incompetent & substitutes itself as nearly
as possible for individual in decision making process; question: what decision would be made by
incompetent person if were competent; not solely in terms of best interests of ward
- court must appoint guardian ad litem, medical & psychological experts
- expert should report (1) whether ward, despite being mentally retarded, is able make informed
choice as to need & desirability of sterilization, (2) physical ability of ward to procreate, (3)
possibility & effectiveness of less drastic contraceptive methods, (4) medical necessity of
procedure, (5) nature & extent of disability, (6) likelihood of sexual activity, (7) possibility of
health risks or trauma from procedure
- court should consider desires, religious beliefs of ward]
a. court uses idea of substituted judgment standard (test)
1) lots of procedure
2) appts guardian ad litem for Moe, make every arg so all pros and cons, command to air it fully
3) regards her as having right to dec to be sterilzied, respect. Yet if order steril, involve state in
invade privacy, impose procedure like Buck. So 2 faces of privacy—give effect to 1st by invade;
DOUBLE BIND parodox!!!
4) looking for standard with no presumptions or defaults, not predispose one way, no default, start
from 0, test that allows court feel/ pretend has hands off completely—respects the two rights of
privacy equally, not biased towards one of privacy rights- right to procreate or right not to
procreate , seems to be good reason.
5) but how can we pretend to know what mental incompetent would decide? looks like
formality that will hide fact court will really be giving effect to own opinion
6) does merely setting up procedure set presumption that make sterilization more likely?
4. In re Estate of D.W. (1985) [A1041]
[M requests court order appointing her temporary guardian to authorize & approve any appropriate medical
procedures concerning her C’s pregnancy, including abortion
Holding: guardian vested with broad authority act in best interest of ward; M can consent to ward
having abortion
Dissent: criticizes as only way of favoring abortion & sterilization over Childbirth]
a. Paradox:
1) privacy right
2) but not state action for incompetent person to be able to exercise
b. Moe v. D.W.
1) Formally are opposites; Moe- hands clean procedure
2) But able give reading of both that mere entry of law into decision predispose outcome of
non-procreation?
5.People v. Pointer (1984) [A1042] Remember Bell was sympathetic case
[appellant = devoted adherent of rigorously disciplined macrobiotic diet; diet harming Children; she put
them on diet, breast feeds despite warning they are malnourished, hostpial / snuck in food to them, abduct
to puerto rico; convicted of felony of C endangerment & found in violation of custody; suffers altered state
of reality that cannot easily be reformed; possible as condition of probation, prohibit from conceiving C
for one year? Like Buck, prevent birth.
Holding:
- She has a very different idea of what is good for her C, remove her retarded, underdeveloped C
- 2 ideas affect the court: any C will suffer such harms so prevent procreate/pot life AND
public welfare system idea, we have enoiugh damaged C
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-
HELD: Government may impose conditions of probation which qualify or impinge upon
constitutional rights as long as reasonable & not impermissibly overbroad BUT HERE:
counterproductive, excessive, she may get pregnant anyway and avoid med care.
- Reasonableness test: condition not invalid unless (1) has no relationship to crime of which
offender was convicted, (2) relates to conduct which is not in itself criminal, (3) requires or forbids
conduct which is not reasonably related to future criminality
- condition infringes on exercise of fundamental right to privacy, but is reasonable; however,
salutary purpose can be adequately served by alternative restrictions less subversive of
fundamental right to procreate]
a. ties back to wrongful life case—state interfer to prevent defective people, dunno wish prevent C life,
problmeatic, shocking can judge nonexistence.
b. Halley looks at a hypo: make her wear contraceptive Norplant under skin, works for 5 years,
minimalist strategy
c. arguments for Pointer (against Norplant)
1) criminal law does not want to look at people as having characters or propensities (likely
wrongdoers), but rather wants focus on actually proven deeds
2) don’t want punish for future crimes/acts not yet committed
3) don’t want use physical force to undertake procedure- don’t want state to have to undertake
violent act. Issue of methods, physical invasion if resist like Baby Boy Doe was against C-section,
strap down, violent act, we have less violent means.
4) If she changes for better we need to physically remove it
5) See her status as a mom not as a criminal
6) slippery slope: are we going to set up criminal code to regulate woman’s pregnancy & nutrition?
Huge in literature., state surveillance.
7) Free exercise claim, religion even in prison.
8) Unconstitutional condition argument: govt cannot unconst condition choice (dec about
procreation, start with Griswold). Give up reprod capacity if privacy viol but ct says cuz felon we
do not discuss privacy
a) liberty only if give up reproductive capacity- incarceration v. privacy violation
b) but wouldn’t have privacy rights in jail; could be watched all time- but still prisoners have
some privacy rights!
d. Arguments against Pointer
1) We do punish some past acts like if you shoplift you cannot go to the store again, past is part of
this it is not about character
2) Anyways probation law does go beyond deeds
3) doesn’t have to be on probational conditions- can serve sentence
4) she is convicted felon; so we can say “so what” to physical coments convicted felons don’t
have lot of rights (one of few remaining statuses in the US!!!!!!!!! Less freedom.)
5) We alter people a lot, we castrate sex criminals instead of jail etc. page 1045 here not enuff to
take away C later since there is prenatal harm. So status as a mom sides over here too.
6) As far as slippery slope can say that diet was not the issue, lots of people diet without problems.
The problem is she is crazy so incentive to stay with system, aren’t meds good but maybe she go
nuts with Norplant and leave the system in full. Also mental help (take out of legal system) is
incarceration too, unrevieable policies there so args reappear!!!!
7) Not talk about privacy if have felon.
e. all language of case about punishment & deterrence- nothing about rehabilitation
1) would remove question of reproductive ability to new place in legal system if we got her
counseling and guidance it would be instil form like mental help
2) would translate rights talk to policy talk
JH notes not population genetics is back, marketize, do for self, not govt policy.
UNIT 8: IV Adoption
A. Background
1. Adoption historically
a. adoption of adult male
b. fulfilled kin, religious, communal requirement
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2.
3.
4.
5.
6.
no adoption in English common law tradition
a. adoption = entirely creature of state, term of legal art
b. removed from all claims of natural; gives unimpeded view of state construction of family, makes up
families, adoption as all artificial like museum pictures, artifacts, artform; families are hybrids, mix of
art and nature like garden and dogs
first modern adoption statute, p. 1422-3
a. Mass. 1851 statute, strangely little public attention and few use right away, casual reception for a
radical statute! Suddenly protect C and endow standing in family with status while give new Ps rights
and duties. Efficient.
b. New law may have been part of larger legislative trend of substitute private enactments with general
statutes; privately were adopted like through change of name
c. overruled centuries of English precedent that had prohibited absolute, permanent, voluntary transfer of
Pal power to third persons
d. traditional status of adoption allocated benefits between giver & taker, while Mass. Statute
distinguished adoptee as prime beneficiary
e. transfer of rights with due regard for welfare of C & Pal qualification of adopters
f. scores of states follow over 25 years, MA model
Where do babies come from? Presume 1 locatable P, born, mom can be found? How get rid of natural Ps?
a. Lots involuntary without will of birth/bio/natural Ps: Ps can die or kill them artificially- declare unfit &
terminate Pal rights
b. Some: Ps can make voluntary relinquishment. Motives matter for us.
1) Surrender for financial reasons. Cannot meet DoS. But we not always make say that.
2) Some for consideration- surrogacy contracts, babies can be bought and sold like commodities
c. Law against selling & buying babies so see black market, problem of unregulated TS.
d. Much more complex if in other country and bring kid here to adopt.
How do we do it? Through public agencies—authority to make adoption placements, often DYS. Also
through private agencies but intense regulation. Also independent adoptions, outside agencies, private
arrangements like when neighbors find each other or Penneysaver ads with strangers plus nonagency
brokers make matches (should we let attorneys be brokers?). Then there is a state monopoly: requires a
final certificate from a court: hearing, nonadversarial, bureaucratic, meet statute and can have
adversarialness flood in as in grandPs case and when dads were not told etc. Note that for the Indian C
Welfare Act the state courts do not have jurisdiction: tribal jurisdiction applies. There is no CL adoption
unlike CL marriage. Here there is always state action, no K option!! There is equitable adoption for
some sticks in the bundle if there were good faith mistakes.
Consequences of adoption: what is an adoption? Imitate nature was the old idea; sets up natural family as
if born there Bio Ps are gone, erase all traces, as if never was adopted. Could have unbundled it so not all
pieces, possible spin off some pieces:
a. can deny C some rights natural Children have, GB used to say if not born in then not let inherit, less
favored status, degraded rights package
b. can require/ permit visitation of surrendering Ps, they are no longer strangers, can force onto new Ps,
sure we now allow by K but not yet require
c. can keep alive some of surrendering Ps rights & duties, not let it die, registry so can find, not avoid
support, for BI and PWS reasons!
d. can webify result of adoption versus we nuclearize now!
e. Open adoption is when you bargain for continuing relation with C, our world especially with
independent adoptions but also with agencies, used to be easy to kill jerky surrendering Ps since out of
wedlock and shame but now more want to adopt, less shame of surrender, now have a bargaining
position and surrendering Ps can now exert themselves as market players. Puts pressure on the
old model of imitating nature!
 Think about if you wanna see thru BI or market understanding where you talk about people with
incentives, market power, TS around baby even selling. Posner yes descrptively (but there are
critics), in independent adoption section p. 1449 prefers a market driven approach with some
money incentives to prospective moms of adoptable C. Regulations increase TCs, fewer give up
adoption, highest value users may be who likes kid most so should talk about market behavior
even if BI is in mind?! Altruistic BI model gets pressure historically and normativelly!
 Also used to assume birth Ps were jerks; no longer assume old Ps are bad so now not so obvious
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that we are sure improvement with new Ps? Looks like adoptive Ps are less good now, more
players in such as nonmarital dad
 Public policy gap in the field, challenge BI with lots of players doing new things, cts scramble,
what do we do with adoption? Do we need idea of what is a good P? Artifact since state there at
the start? Any jerk can drive or have a baby but not with adoption, raise floor when state forms a
relationship, pick a good P --unlike nature again!!!! How high does the floor go, what policy
choices do we make?
B. Who Can Adopt & Be Adopted
1. Adopting an Adult
a. In re Robert Paul P. (NY App. 1984) [A1473]
[Can one adult male age 57 adopt homosexual partner age 50? desire adoption for social,
financial, & emotional reasons
Holding: No
- relationship lacks any semblance of P-C relationship; in eyes of law, adopted C becomes
natural C of adoptive P with all attendant rights & responsibilities (adoption imitates nature!!);
adoption is not quasi-matrimonial vehicle; sexual intimacy is utterly repugnant to relationship
between P & C; not give them a legal status for their sexual relationship. since they feared
eviction here and wanted dispose estates on death; not use the guise of P C rel
- adoption is creature of state; unknown in common law; so deference to legislative purpose (let
legislature change this rule here if it wants) is especially warranted; do not dilute purpose or
criteria for adult adoption, strictly observe the legislature; here no incidents of p-c rel, no fair
interpretation of adoption laws permits granting an adoption; feigned union
- notes adult adoption can be ok if fits basic nature of adoption such as to perpetuate a family
name when Cless, two individuals develop strong filial not sexual relationship, stepP want to
adopt spouse’s adult Children, or adoption was foregone for some reason at earlier date]
2. Characteristics of Prospective Adoptive Ps
a. Anybody can have baby, but not anybody can adopt
1) raised floor
2) when relationship formed artificially by state, want guarantee that is good thing
b. In re Adoption of Michelle T. (Cal App. 1975) [A1423]: agency made an initial placement (kid
formed rel with 2 people) then agency tries to say they are too old, matter of rule, to adopt. Adopting
Ps were 54 and 70 but otherwise loving and capable, finances, no negatives. Overriding concern is BI.
Dept of Health staff testifies that age goes with problems with physical effort to control young C, more
likely get chronic extended illness, C may encounter peer group difficulties but court says these are
legit concerns; age is relevant but need more. Dept never checked their physical stamina and general
health, see if those problems exist in this case. Cannot assume problems merely from the factor of age
alone, consider case-specific evidence.
[Holding:
- adoption cannot be denied on sole ground of age of petitioners, no age rule, age is a factor
but apply flexible standard to see what is BI!!
- BRB with teeth
- Remanded on std, age is mere factor
- Agency may still keep policy silent, age still prohibitive yet unreviewable!!! Tension in
system btw kind of law courts run and what agencies implement! Especially with
independent adoptions. How know age was used merely as a factor? Likewise if rule to not
consider age at all: how know age was not really considered despite the rule? May say likely die,
fraile health, age really in mind despite what said.
- Refines the BI test to GOOD ENUFF test -- the least detrimental available alternative test
(LDAA); rather than testing against ideal of P-C relationship, porous and subjective BI test
(hard to stick to doctrinal lockup, FL ideas of judge, factors go on forever in BI), but look at what
other option is actually available, more rigid, rule-like yet then LDAA institutionalizes one
person’s ideas and you can manipulate it into BI standard, legal system default from Goldstein,
may say infinite trauma to separate Pal bond formed but maybe more trauma if natural P? LDAA
is about likelihoods whereas BI is about now, the present. With custody you are often comparing
two people & deciding which is better but here- not comparing; just deciding whether good
enough: rule in Michelle T is unusual, usually see BI of C in custody etc.!!! Typical BI is
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cabined by 1 placement, not see if not in this rel., just asks is this 1 rel is close enough to the
ideal; BI is like s snapshot, see right now, max utility. But here with LDAA we see how C
fares over time, BUREAUCRATICALLY ALERT and TEMPORALLY ALERT!! Take this
P or back into pool; try to do the least harm for this unlucky kid, see the actual alternative
outcome for C (Here would end otherwise end up leaving kid with Dept to make plans for
adoption or something else; weigh age against the unknown. Keep continuing rel., wise to favor a
situation certain even if not totally satisfactory then to try to predict future events that may or may
not be in BI. Here trial ct was not asked to weigh alternatives but to remove kid from a warm
stable family home just bc of age and set her adrift in bureaucratic uncertainty. Dept presented no
specific alternative plan to the court.) and see continuity of care preference (versus here
bounce around, what likely to occur if not go with these old Ps, but soon death/trauma
versus loss of temp placement), go with Goldstein established bond, continuity, whats best
we presume is what u already have. Plus text says stable, loving, financially secure. But if die
isn’t that trauma, can’t continuity of care cut both ways?, INDETERMINANCY is what we
got says Halley!!!! (court notes kid had lived with these folks: continuity (Goldstein) idea, do not
remove from only home ever knew, death is inevitable, dunno know younger people will live to
ripe old age, moreso concern lose guiding hand at young age, gotta give weight to separation
trauma: older case) Also more open to assess likelihoods of this C in this environment, like if
disabled, hard to place so stay with P here, think about saleability of C; and finally,
minimize harm, focus attention on detriment, look for bad elements in the review. BI is a
relative standard! All factors must be weighed.
- Halley hypo: what if high variance, lots good and bad, detriment there so goes to other if LDAA,
less upside too but less negatives so take that with LDAA
- BI of C: rule v. standards. Either not placement with PAP over age or rule that age cannot be
considered at all; in the middle is a standard, flexible consideration of multiple factors
a. age can be considered as factor: standard
1) rule would lead to over and under inclusion
2) age does describe problems/people to exclude so factor in
3) outlier cases: some old Ps are just too old to adopt, avoid full process
4) cases where age really matters, not just proxy; don’t treat all outliers the same
5) rule would be too rigid; want decision-makers to have utmost flexibility; trust decisionmakers & want discretion; unfair unjust outcomes if just cut off age, certainty can be
detriment to BI, power to decisionmakers to use all factors, they are the experts
6) efficiency- if place with young Ps with good life span, don’t have to revisit case, manage
the system so age should be a prohibitive factor; policy for LT placements is we want
continuity, pretty certain the older the more likely to die, not need go back to case, keep
people from tying up the case.
b. rule that age may not be considered at all: a rule
1) consistency
2) less discretion, judge do all the same way
3) good for agency
4) reliance on law, legal consumers know they can be AP, predictability
5) ages as proxy for other things that themselves really run closer to BI; as policy matter
don’t want decision-makers to focus on age but on core issues, focus on issues that matter
6) don’t trust decision-makers, bureaucrats. Kind of person and trust says if we want rule
or standard.
7) certainty: efficiency effects, people know not to apply unlike with std
8) would massively increase transaction costs if go with std: standards increase TCs since
decisionmaker must know all factors, write down so can review but hard to review since
so many factors unlike rule where just need to see if applied the rule: easier to review on
appeal
Onto the homo cases: two opposites, MMD (below) and Robert (seen above: court turned down attempt to get a
legal filial rel, fight hard for formality, they key ideas was this is like INCEST, sex yet a P-C relationship so we
won’t form it, gay man cannot adopt his gay partner, courts versus legislatures for policy control: there defer
to legisl!!!!! Opposite picture in next case MMD).
Remember adoption is a creature of statute, so narrow, strictly construe.
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c.
In re M.M.D. (DC App. 1995) [A1434]
[Holding:
- Two unmarried people living in a committed personal relationship (had shared kid with families,
baptism, bonded well to both, beneficiary in wills etc.), here same sex couple can adopt C; C’s
best interests is decisive consideration: give effect to that general purpose (broad interpret legal
effects provision)
- No antigay language.
- 1 of the couple has already adopted the kid, will still have rights when 2 nd adopts the kid. COURT
BEATS LEGSISLATURE FOR POLICY CONTROL unlike in Robert case above! Court
interprets SPOUCE broadly in legal effects provision of code (typical adoption statute says both
of married couple must adopt and cuts off all other existing Pal rights; stepPs though can adopt
kids of SPOUCE without cut off that SPOUCE; not strictly construe here, exception is used even
if not married and not stepP. Fact that one member of couple adopted C does not create
impediment to both members joining in adoption; stepP exception applies even if new
adopter is not spouse of who adopted kid before; they are in a committed rel and jointly care for
kid so cut off leads to absurd results . Usual law is when a natural P remarried and plans to live
with kids with new spouse, there is a statutory cut off terminating bio P rights so adopting P and C
can start a new family without interference: n/a here. It was about cutting off rights to inherit from
old family. Goal of adoption was the strengthen new family as a social unit; frustrated if stepP
adopts and cuts off bio P with whom kid will live too!! Analogies: F of illegit kids adopts kid,
mom was not giving up the kid, they just had not been married; also case where woman had baby
with sperm donor and now wants her lesbian partner to adopt so of course we don’t cut the birth
mom off as they are lesbian couple. It is against common sense to terminate bio P rights when
that P will continue to raise the kid albeit in a family unit where partner is not bio related to kid;
BI of kid. Gotta cover unmarried although committed couples even if same sex thus not married.
- Dissent would lave this to legislature to expand regime to other jt adoption forms, statutory matter.
That would be like in Robert: power not to court.
- Code authorizes adoptions by “any person” (not unreasonable to say applies to unmarried couples,
so case by case BI) and natural P must consent (here the natural mom had already terminated all
rights to kid), nothing said about being unmarried, other states give it liberal construction and let
unmarried couples adopt so trial court being narrow is not justified; gotta see general purpose of
Congress in passing adoption statute: BI of C, we conclude this policy is best served by liberal
inclusionary reading especially when here the alternative is only one of the two of the couple
getting a formal P-C relationship, he’s lived with them both, should formalize both to show both
men are equally committed and guarantees ongoing financial responsibility, also MD and docs
won’t challenge one man, C can inherit, all sorts of next of kin privileges, focus is how C shall
thrive not how particular family format should look
- Court enters adoption decree.]
1) court gives broad construction in allowing unmarried couple to adopt; reaches for standard of
statutory implementation that allows for new kind of family to come into the picture with the cut
off rule exception. No antigay language. Note case was about unmarried couples not about gay.
The statutes were about H-W but new statutes no longer assumed married so say P or Ps may
adopt. DC did an explicit revision.
2) Can single people adopt? Or just couples? Halley’s gut about preferences: first married then single
then unmarried couple then homo unmarried couples. She sees single just below married, wow!
3) who’s in charge:
a) legislature when writes statute (and court passes it through) or court when interprets it
(uses interp powers to stretch to new family form)? THIS IS WHY HOMO CASES ARE
SO COOL!!!!!!!
b) Adoption involves statutory regime, judicial oversight, agency preference.
PREFERENCES OF AGENCY ARE UNREGULATED so just as it is hard to remedy
agency pref against the old especially in independent adoptions we see this with
unmarried, cont of care and requiring marriage.
C. The Institutions & Relationships (& Procedures) of Adoption
1. Who does adoptions?
a. bureaucratic public agencies
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1.
2.
3.
b. private agencies under intense regulation
c. between private individuals: independent adoptions, non-agency brokers that make matches
d. still have state monopoly- need final certification from court
Agency adoption
a. See contrast under 2(5).
Independent Adoptions, p. 1148
a. adoption in which licensed agency does not participate in placing the C into the AP home Can be
performed thru many people such as MD, private individual or lawyer.
b. black market adoption: first of 2 categories
1) intermediary or 3rd party participates solely for own profit; beats out BI
2) baby is commodity in market that serves highest bidder; rare see atty or even finalize.
c. gray market
1) simply a private placement--primary objective to find adoptive home for C
2) reasonable attorney’s fee plus M’s expenses paid by adoptive Ps
d. Attorney violates conflict of interest rules by representing multiple clients in adoptive proceeding
(Matter of Petrie (Ariz. Sup. Ct. 1987) [A1443]): one of the challenges of independent NON-agency
adoptions: DO NOT BE A BROKER!
1) interests of potential adoptive Ps are ALWAYS adverse to each other since only one gets kid;
Atty should not have represented both PAPS, one at detriment of other without disclose and
waiver. Here the atty was not loyal for PAP1, advocted more for PAP2.
2) interests of adoptive Ps may be adverse to those of natural Ps; Atty should not have also
represented the bio mom, he represented all 3 parties but you cannot represent any PAP and
the bio P, possible adversity of interest, PAP want her to give consent but natural mom can still
withhold consent 72 hours after birth, we will see cases on her legal right to rescind. Atty felt he
was bio mom atty only and felt just a list of prospective placements like an adoption agency,
thought locate PAP and make own decision of BI like a BROKER!!!! Ct says no, be an atty,
follows rules for atty!! Atty has a distinctive legal function in adoption; barred from create
smooth broker process: adversary relationships instead of agency-like!! Can represent
multiple parties only upon full disclosure & consent: limited exception. Note he should have know
PAP1 were interested as wrote hopeful etc.
3) Ethics case details: PAP contact atty to express interest in adopt, PAP find C on own, atty letter to
them saying found a bio mom, mentioned them to bio mom, PAP2 contact atty, atty prefers PAP2
(cooperate, local) and attacks like broker then gets hammered with violation of disciplinary rule
against dual representation TWICE (two PAPS; bio mom)!!! He is censured not given a
suspension (ABA standards); he may have been only N and otherwise flawless record.
4) It is about less TCs, not need agency is atty is broker, faster Ks btw PAPs. Law says attys can be
brokers if represent one party only in most states and must stay ready for adversarial stuff,
market making function is barred!
5) LAFEMINA (1148) problem is unlike agencies, atty represent the PAP who is the client with
money and not the bio mom without money, bio mom is classically not represented. Also
problem with broker is no one is there to represent the C BI: the classic function so a
CONTRADICTORY FUNCTION FOR ATTYS! Article sum: Agencies are not sole solution to
any problems, not able to devote time to healthy; often specialize in finding homes for hard to
place Children (older and handicapped; reason for specialized care is receive subsidies for foster
care & are able absorb cost). Independent adoptions are much needed alternative but often critics
say attys not represent BI whereas agencies employ professional social workers who counsel
women & evaluate & investigate prospective adoptive Ps. Private investigations are cursory. But
not enough agencies to fill the need and private adoption guidelines are less stringent so become
atty moral obligation to place loving home, not just a facilitator of process, adoption consultant,
responsibility to C kinda like a guardian ad litum. Big part is make sure bio mom relinquish all
rights to C, future effects if screw up consent; could disrupt later if not.
6) Discussion: how max interests of C? kant end in self, categorical imperative versus smooth cheap
market, quick efficeint, attys with training. Could do 1 of 3 choices: Ban attys. Or do what Petrie
did: regulation ex post after attys do stuff, state PR rules, punish if mistake. Or UAA: require
represent all parties, saw the birth mom gap!
Equitable Adoption
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a.
b.
Only piece in relations where trying to make up for good fair mistakes
Kisamore v. Coakley (W. Va. S. Ct. 1993) [A1450]
[Kisamores given custody of appellant; husband died before adoption was complete; only spent 57
days with appellant
Holding: appellant not equitably adopted by Mr. Kisamore; cannot inherit from him
Reasoning:
- strict standard for equitable adoption for purpose of inheritance: must prove by clear, cogent,
convincing evidence that stood from age of tender years in position exactly equivalent to that of
formally adopted or natural C; only lacking formality; indicia of equitable adoption:
a) benefits of love & affection accruing to adopting party
b) performance of services to C
c) surrender of ties by natural P
d) society, companionship, filial obedience of adopted person
e) representation to world that is C
f) rearing of C from age of tender years
- same strict standard does not apply to determination of dependence under State remedial statute
conferring State government benefits]
4. Subsidized Adoption
a. Ferdin& v. Department for Children & their Families (R.I. Dist. Ct. 1991) [A1455]
[Holding:
- should continue to qualify for adoption assistance payments & related available benefits in light of
changing circumstances pursuant to periodic readjustment provisions
if proper benefits were not explained, case may be re-opened based on extenuating circumstances
rationale
- state has affirmative duty to fully explain all available assistance programs so that potential
adoptive Ps can make informed decision
- no P’s needs, but C’s needs that determine eligibility; Ps therefore may not be allowed to waive
without full information & knowledge]
5. Open Adoption
a. Used to be really easy kill off surrendering Ps through shame, but now more & more people want to
adopt & less shame in having illegitimate C
1) now seeing surrendering Ps exert selves as market players
a) angle for open adoption- keep relation to Children
b) more surrendering Ps act like market players, more must talk about them that way
c) Posner endorses
2) puts pressure on model- whether want see through market or best interest understanding
3) Now no longer assume birth Ps are terrible & adopted Ps are wonderful
a) no longer so obvious that cutting off contact with birthPs would be in best interest of C
b) more & more players coming in & challenging presumption that adoptions that happen are
always in best interest of C
b. 1994 Uniform Adoption Act- bright line rule that when decree of adoption becomes final, “any
previous order for visitation or communication with adoptee terminates”
1) but everyone with existing order for visitation, must be given notice about adoption proceedings
2) & act contains no prohibitory language with respect to visitation or communication orders that
might be issued in some circumstance in future
c. Recent trend among courts toward greater recognition of open adoption arrangements
d. Groves v. Clark (Montana S. Ct. 1996) [A1509]
[Holding: visitation agreement executed between birth M & adoptive Ps prior to adoption is not void
as matter of law; agreement should only be given effect if continued contact between natural Ps & C is
in C’s best interest]
D. The Procedure of Adoption
1. Consent
a. Scarpetta v. Spence-Chapin Adoption Service (N.Y. App. 1971) [A1460]
[Holding: surrender of C to agency does not constitute ab&onment as matter of law; P can still get
back C before adoption is complete if in would promote interests of C; prospective adoptive Ps cannot
intervene in proceeding]
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2.
3.
Reasoning:
- until there has been actual adoption or agency has met requirements of Social Services Law,
surrender remains under & subject to judicial supervision
inherent to judicial supervision of surrenders is recognition that documents of surrender are
unilateral & almost always executed under circumstances which may cast doubt on voluntariness
or understanding of consequences of execution
- issue for court is whether interest of C would be promoted by returning C to natural M
- insofar as best interest of C are concerned, M or F has right to care & custody of C superior to
that of all others unless ab&oned right or been proven unfit (mixes 2 different legal theories: rights
& best interests
- not equal best interest test; presumption for best for natural P to get C
- prospective adoptive Ps cannot intervene in proceeding to avoid disclosure of names of natural Ps
& prospective adoptive Ps to each other]
Abrogation
a. McKinney v. State (Wash. S. Ct. 1998) [A1476]
[Holding: adoptive Ps may state cause of action against adoption placement agency for negligent
failure meet disclosure requirements; status of prospective P attaches when C is eligible for adoption &
persons interested in adopting C manifested formal intent to adopt & agency formally acknowledged
eligibility
Reasoning: disclosure is important to secure timely & appropriate medical care & to make intelligent
& informed adoption decision; Ps need be financially & emotionally equipped to provide optimal
atmosphere for C]
b. Most states do not authorize abrogation of adoption
c. But some state statutes do- allow recision based on:
1) procedural defects in adoption
2) or substantive grounds such as fraud/ misrepresentation
d. modern emphasis in adoption law on benefit to C is inconsistent with abrogation
Confidentiality
a. In re Roger B. (Ill. S. Ct. 1981) [A1486]
[Holding:
- no constitutional right for adult adoptee to have access to adoption records & determine
geneological origin- does not fall within substantive due process zone of privacy
- statute denying access to records is not arbitrary & bears rational relationship to legitimate State
objective- considered judgment that confidentiality promotes integrity of adoption process
a) needed to protect right of privacy of natural Ps
b) protects right of adoptive Ps who need & deserve C’s loyalty
c) public interest- prevent stigma of illegitimacy
- Adoption Act improves status of adopted C & creates no suspect classification; records are
inaccessible to all parties
- First amendment does not guarantee constitutional right of special access not available to public
generally]
b. Legislatures have been more responsive than court to requests by adopted persons seeking learn
identity of Ps- registry systems that enable persons involved in adoption to register willingness to meet
c. Halley sums it up: there could be a controversy if the C discovers the birth Ps ID or vice versa; there
also could be trauma if not: the idea has eroded that adoption is an imitation of nature. States say not
con law right (Roger B: JH says crazy text) but mutual disclosure system with matching.
We will return to adoption later.
V.
Legal Recognition of the P/C Relationship Outside Marriage (Unit 9)
We will discuss nonmarital kids and especially nonmarital dads. Used to be that C born out of wedlock was
an illegitimate bastard, now there is a loosening of stigma. The old rule in England was that the C could not
inherit, could not be adopted by the natural P but was a citizen, a free civil person not a lower status unlike
the continental regime. WHO was a bastard?: only C born to an unmarried woman, if you were born to a
married woman there is a strong presumption that you are the C of the marriage, not care if C of the H,
nearly irrebuttable presumption, so strong even if H was far far away, W is entitled to legit C, this
presumption has not been weakned much in the US no babies in space if born to married mom! If there
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is an unmarried mom (we usually know the mom!), illegit kid and there is a Q of paternity! We ask two
questions: 1) Is he the dad? (fact: easy to determine medically so unimportant Q now) 2) What is his legal
status? Legal status of Fhood, do we give rights and duties? The legal consequences of nonmarital
paternity are key! Two main contexts of PATERNITY SUITS: 1) C support (Clark case; JH says
courts hate to sut this even if M fraud, F cannot get out), 2) inheritance and intestate succession (Lalli
case; JH says get some if C follows procedures), can the C get in? Different players want to fix status
on unwilling men: eg, C wants DoS from dad.
The Nonmarital C: C born out of wedlock, the interests of the C in support & inheritance [A1227-38]
Cases: Halley says we are not into detail and little Qs. Main points from paternity suits:
 Improper purpose (illegit motive)- the state cannot deter non-marital sex by punishing the C (would be
unfair as C cannot prevent illegit sex). Lalli.
 If other state purpose then intermediate scrutiny, cases vary, inconsistent, sometimes protected with
status so need substantial relation to important governmental objective. Lalli (orderly estate
distribution), Clark (avoid litigation of state claims, not want F stuck with late arriving C).
 State cannot absolutely bar C from establishing paternity, need procedure within IM. (That was the
unconst Trimble case mentioned within Lalli). So what get? Complex.
 Cannot require marry mom (make legit C) but yes can say F must be alive and not wait til estate
distribution. Lalli.
 No short SoL. Clark 6 years was too short (not good as a means to avoid stale or fraudulent claims,
other c/a are tolled during C minority, there are blood tests etc.). M sue for C behalf.
 Mere proponderance burden for kid; ok to screw F (notes case)
The next Q: is there an enforcement of bio difference btw M and W, treat them differently versus equality,
make similar? What is a P? If F wants in, what is a F? Genetic rel? Sperm donor gave genes so you are F?
Only those that conceive by sexual intercourse? Help w/ birth? Or only those that support M throughout
birth? Affectionate P-like rel.? What if F wants out? (eg C support cases, see S.P.B.).
PATERNITY SUITS CASES details
Lalli v Lalli, p. 1227, SC 1978. OK (EPC) statute said illegit C must provide particular form of paternity to inherit;
legit kids not subject to req. during lifetime of F, court must make order of filiation declaring paternity in a
proceeding when F is alive (see FN5). C here did not get order. Says F called him son, open acknowledgment. Ok to
exclude him from estate distribution. Classifications based on illegitimacy are not subject to SS; only invalid if
not substantially related to permissible / important state interests, IM test. Cannot defend statute as incentive
to enter legit relations; ct rejects idea that people shun illicit relations bc C won’t reap benefits, don’t mold conduct
or set social norms. More relevant is interest in orderly disposition of property at death (ct says substantial
interest); often difficult problem of prove paternity of illegit C (unlike showing maternity, 1229), spurious claims,
need more demanding std for illegit C than required for illegit C claiming under M estates or for legit C generally.
Here just an evidentiary req: declare paternity in court before F die (means: ensure accurate resolution of
paternity claims, minimize admin disruption, reliable fact finding if F alive, he can defend his own reputation,
fraudulent claims less likely to succeed since he can respond, not wait to actual asset distribution time). The C need
not be legitimated to inherit; M need not marry the F, marital status irrelavant so this indicated not about
deterring illegitimacy really. Sure some illegit C will find this unfair since could avoid disruption anyways but EPC
does not focus on abstract fairness but on rationality. Cannot do what case Trimble did: total statutory disinheritance
if not legitimated by subsequent remarriage of Ps; here not share the defect and here no unnecessarily large number
left out plus technical failures are let in. Not court job to see altenatives, just see meets IM.
Clark v. Jeter, SC 1988, p. 1231. NOT OK (EPC), too short SoL!! Statute says illegit C must prove paternity
before seek support from alive F and suit to establish paternity must be brought within 6 years of C birth; by contrast
legit C may seek support form P at any time. Here blood test proves the fact of paternity. So the Q was the legal
consequence of C support. Says IM level of scrutiny generally applied to discrim classifications based on sex or
illegitimacy!! Court realize might be appropriate to treat illegit C differently in the support context bc of lurking
problems of proof of paternity. Here not substantially related to important government objective. The period of
obtaining support must be sufficiently long in duration to present a reasonable opportunity for those with an interest
in such C to assert claims on C behalf. And any time limitation must be substantially related to the state interest in
avoiding the litigation of stale or fraudulent claims. Mills: 1 year failed. M usually brings suits and she will be in
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the middle of emotional and financial complications of C first year. Concur in Mills says over one year too many be
wrong: state has interest in genuine claims for CS being satisfied, TX tolled most other c/a during C minority means
proof problems are not overwhelming during that period, practical obstacles likely keep up after first year of C life,
blood tests alleviate some proof problems. Pickett: so 2 year SoL, not reasonable opportunity to sue, focus still on
M sue for C. Now even 6 years is not enough time to assert claim on C behalf, problems may continue after birth for
years, especially if M is a minor too, fin problems like clothing , school, med care. But court says not rest decision
on that b/c not evidence 6 years is unreasonable limit. KEY IS MEANS. Confident 6 year SoL is not
substantially related to state interest in avoid litigation of stale or fraudulent claims; there are instances when it
allows suit after 6 years (like 2 years after F support payment) and other suits do not limit time to prove paternity,
intestacy statute as long as CCE and no SoL for F himself to show paternity. And lots of tolling statutes during
minority casts doubt on means. Even 18 years in some actions so state not consider proof problems insurmountable
also there are blood tests, scientific evidence thru C minority.
Notes on page 1234. SC in 1987 upheld preponderance of evidence standard in paternity suits. Not CCE. Creating
Pal rights and responsibilities. Usually suits arise when P try negate Pal rel.also is action btw 2 parties with
relatively equal interest in outcome. So each share rough equal the risk of inaccurate factual determination. Also
they cannot be relitigated unlike termination actions. Notes that science advancements transform paternity suits,
DNA override other evidence. Next note says if C born out of US to unmarried US M can get citizen thru no action
as mom bears and raises it, versus of unmarried US F who does not have M burdens; F and C must take steps for C
to become US citizen.
People in Interest of S.P.B. (Supreme Court of Colorado) 1982, p. 1235, covered in class, case where the F wants
out (opposite of next cases: Stanley and Lehr). Bio F wanted to avoid pregnancy (wanted/offered to pay for an
abortion, now wants to treat offer as cutting off support duty, F CANNOT HAVE ESCAPE HATCH SEE
DANFORTH), now M wants him to pay C support. Bio F appeals C support order and says he should be given EP,
that the law that gives women the right to have an abortion (& terminate the pregnancy & support for C over its
lifetime) treats him differently because he can not make that decision & is still held responsible. Instead, he argues
he should have his duty of support forgiven. EPC claim denied- both natural mom & dad have same duty
support (statute does not discrim), there is a superior abortion right of the woman. It is ok to impose DoS on
both Ps without give F a right either to decide to abort or later avoid DoS to C by show offered to pay for
abortion. Illegit C has same right to support as a legit C. Court talks about how gender discrim needs IM test:
here important C welfare state interest plus state has little choice in means since W has fundl right to decide, see
Danforth cannot delegate veto power which state not have, here equal treatment means to give F a right to compel
abort yet as Danforth says she is directly immediately affected so decision prevails if both Ps disagree. So stae has 2
interests: prior to birth, W right to decide, then after birth, ensure C get support; here F right to be free of gender
discrim never outweighs those state interest so ok EP. Rejects DP claim too: it’s just a DoS not create irrebut
presumption that F should share in DoS to C (can say financially unable, plus meets test allowing presumptions,
since test requires two prong to invalidate presumption and the second prong is already missed: state not have any
reasonable alternative to determine nexus btw Cbirth and conception b/c int in C support, not become wards, family
privacy). Better to leave them alone than see if broke nexus by offer pay to abort. Bad if all F can offer abort and
avoid duty, logical extreme. Better if joint responsibility.
Halley says what if the M lies? Note case page 1238. Active fraud, induce unprotected sex, say pill, deceit, text
suggests court not even forgive F here! SUM!!!: Courts refuse to cut out the DoS especially if C on welfare if
not. Plus some rights to succession if C follow legislative procedure.
The Nonmarital F [A226-47; A 1238-45; A1465-73]: Unit 9
Stanley and Lehr are the opposite of SPB: now the F wants a relationship with C.
Q’s: Fact of being P (if nonmarital; if married, presume he is F) and Legal claims: some states avoid the rel of the F
altogether. some keep legal P-C rel? some cases, get part of custodial package of rights. Some adoption cases,
standing Q, do we let him in, block him, or standard?. Comes up when stepP (M) marries new H, or C placed out
(terminated M too). There are different kinds of M: Stanley has none, she is dead. Some M are unmarried at birth,
sole caretaker, F try pierce in; new stepfamily; adopt out (Mike H): presumptive dad (bio wants in) but mom has H,
harder case for him. What rights do we give him? Notice, be heard, enrighted, BI, absolute package etc.
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Cases on the recognition of the unmarried F:
1. Stanley v. Illinois, (SC of US), 1972, p. 226. SIRE AND RAISE! IMPORTANT CASE -This
case illustrates that non-marital Fs are not legal Fs. FACTS: Natural mom & dad lived together 18
years (LIVE IN NONMARITAL DAD, ONGOING REL) but were unmarried, had 3 kids.
Mom died (NO MOM) & the kids became wards of the state, given court appointed guardians. He
appealed saying never shown to be unfit P; moms (even if unwed) and married dads (divorced,
widowed or separated) are presumed fit. State irrationally cut him off when M die by refuse
procedure to challenge default to ward of state, presume unwed F unfit to raise kids so no
individualized hearing, procedure by presumption, more simplistic dependency proceeding (just
show unwed, not prove unfit in fact because presume at law), circumvent neglect procedures on
theory unwed dad not a “P” -- C get taken from “Ps” only thru neglect proceedings (notice,
hearing, proof of unfitness).
A. Dad brought an EP claim- said the law treated him differently than M (even unwed)
and wed F.: they got procedure.
-The SC didn’t like the EP claim, instead wanted Procedural DP analysis (227) but
holding is still EP. This is a problem with the case (other problem is see way below about
how facts were different and case was really about policy of DoS!). See it as a DP case.
Stanley: DP right to notice, be heard, to argue something abt legal status re: C.
B. Holding: nonmarital bio F has a ((((DP)))) RIGHT TO BE AT HEARING &
MUST ALLOW HIM TO RESIST UNFITNESS presumptive finding, and
INTEREST of a man in a P-C rel with a C he has SIRED AND RAISED, not a right;
but nothing more. Court focuses on interest of P in keeping his C even if real facts not
match. GETS STANDING!!!!!!!!! We do not say what Qs there.
-There is a private interest of a man in the Children he has “SIRED AND RAISED”
(question as to that was Stanley). JH disagrees with it being a FR case, FR to P-C rel
(227 court cites FR cases but all following is about “private interests” – not say
rights, “defer “– not say enforce, fudge words like respect momentum Gotta defer,
protect it, unless powerful countervailing interest. Companionship, care, custody,
management: momentum of respect lacking in mere ec shift claims. Family importance,
even if never legitimated by marriage (eg illegit C get DoS), bonds just as warm,
enduring and important. Stanley’s interest in retain custody of is C is cognizable &
substantial. State ends: protect C welfare, keep family ties, not remove unless ag. welfare.
(of course can separate neglectful Ps). Here look at means to achieve those ends: need
hearing to see if dad is unfit in particular case. State gets no gain if separate C from fit P.
If Stanley is fit, state screwed itself by needlessly separating C from family.
-EP- court avoids hard Q and says ALL Fs have a right to be at an unfitness hearing
before C removed from their custody, no subcategory of Fs can be denied hearing
and not M versus F (EP violation here since give hearing to other types of Ps just
not to unwed dads). Not all unwed dads are unsuited to custody, give opportunity to
make case, may be seen as deserving of custody and further state goals if leave with him
after that. Const recognizes higher values than admin convenience, speed, efficiency (if
unwed dads so seldom fit), esp DP concern, procedure by presumption is always cheaper
but here forecloses issues of care and competence, don’t run over C and P interests.
C. REAL FACTS: the facts are actually different than the case is remembered in the
legal history. The dad actually didn’t want to be the F, he left C with a babysitter when
the mom died, no support & then just didn’t want the babysitter declared the
guardian. COMPLETE VERSION IN DM. Seems court policy: attach legal custody
to get DoS; case here was not about P wanting the C. versus majority sees him as
living with kids then cruelly cut off.
*****JH says it’s a BABY in SPACE case: if the nonmarital F was presumed unfit
and cut fof when M die, then is a ward: ct feels state attempt was a BAD PRIVATE
WELFARE SYSTEM objective, crazy and irrational to foreclosre the dad
out!!!!!!!!!!
2.
Lehr v. Robertson, (SC of US), 1983, p. 229. LEHR GRASPING!. FACTS: unmarried F living
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with the M until the C was born. Mom takes off with the C & the Dad wants a relationship with
the C. Mom applied for adoption with her new husband at the same time (age 2) that the Dad
applies to get visitation without knowing adoption process started month before, says adoption
order is invalid. It appears that the Dad never lived with the C, i.e. CRUCIAL HE IS NOT
STANLEY: didn’t “raise” just “sired.” Visit hospital when born, name not on BC, not live, not
support, not intend marry, no real attempts to keep up rel but see dissent facts. MAJORITY
FACTS SEE HIM AS A DEADBEAT DAD, slept on rights, no Lehr grasping of opportunity
done to enjoy P-C rel What is grasping? Gotta desprately *TRY* to have rel; YOU NEED
NOT *HAVE* A RELATIONSHIP (if you follow the weird procedures, otherwise you DO
need to have est rel and assumed resp). Clear distinction from Caban dissent on the clear
distinction btw a mere bio rel and an actual rel of Pal responsibility (232); Pal rights do not
spring from bio connection, require rel more enduring. This case would be different if dad
showed a full commitment to the responsibilites of Phood by coming fwd to participate in the
rearing of his C, says CABAN, DP protects his personal contact interest, he acts like a F twd
his C, intimacy of daily association, instruct kids, not just blood. LEHR LANGUAGE: the
significance of the bio connection is that it offers the natural F an opportunity that no other
M possesses to develop a rel with his offspring. If he GRASPS the OPPORTUNITY (looks to
EFFORTS to est rel.) and accepts some measure of resp for C future he may enjoy the
blessing of the P-C rel. or else the const won’t force a state to listen to his opinion about C BI
(note hearing is only a BI hearing!!). Never had a rel, issue is if NY properly protected his
opportunity to form such a rel.
A. EP and DP claims. HOLDING: emphasis on DP. Ct. says that his DP rights aren’t
violated, that he could have gotten rights by sire and raise or (statute cured
procedural defects if M prevent Stanley-like case) complying with a number of
procedural ways the statute provides to establish paternity (there were some
ways that he could get rights without the consent of the mom). Court disagrees that
he had an absolute right to notice and opportunity to be heard before C is adopted.
Too late to intervene in adoption process; he is not a party with standing. Adoption
made final, term his rights.
1. Basically, if the state provides any sort of weird or unknown procedure to
acquire rights that is enough: putative F registry in NY to demo intent to
claim paternity and thus get notice of proceeding to adopt C if you are listed
here; he was not (also not from other ways like court adjudication). Right to get
notice was within F control: mail postcard to registry, ignorance of law is not
excuse. More open ended notice would complicate adoption process,
unnecessary controversy, impair finality of adoption decrees. State was not
arbitrary. He did not know law, was too slow, slept on rights.
2. The F’s rights are extremely minimal: DP rt reduced to mere formality
with big substantive consequences! MINIMALIST HOLDING TWDS F!!!
3. Skirts the EP claim on 234 process promotes BI, rights of 3 rd parties, promptness
and finality. M of illegit C is always given veto right but only some putative F
are: F said invidious gender distinction. Ct says that the success of it depends
on the substantial RELATIONSHIP with the C and here he never had a
custodial, personal or financial rel with C unlike the M so accord Ps
different rights (used to eval par rights and BI of C), and here he never est one
so not denied EP, but JH: the statute is directed at F, only M are F & thus there
is a facial discrimination on the basis of sex. Signals SC let state treat M & W
differently. JH SAYS THE EP AND DP IDEAS SHOW THAT THE
RELATIONSHIP is the CRUCIAL thing, it spreads everywhere all over
this piece!!!!!
B. Looks to Stanley’s “sired & raised” treats this as a standard Part of Lehr that travels
is the domestic connection.. Here, sired and sought rel but M prevent it, procedural
DP here too as in Lehr, not ripen into const int b/c must actually establish rel and
assume responsibility or NY can give alternative that can be ridiculous, formalistic
and unknown.
C. JH: would it have been better to take middle ground and say sire,
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ready/willing/able/efforts but M resist so give PDP rights? Or like disset just get
procedure if bio rel.? too extreme to say sire and raise/rel or otherwise just a weird
state registry? What is right way to go to PDP rights?
D. Equality theme: M no disconnect btw rights and resp., gets them all, would not see
this Q with M. For F, support duty not matched with rights. Literature also has
stuff on give proc right since substantive responsibility. JH: What about the
argument that because the F bears the duty of support he should have rights?
-Feminists say (and we kill it): statistically dads avoid that responsibility (deadbeat
dads), women are bearing the responsibility of C rearing & should get the rights. Can
be perverse and cut off, punish the wrong set of dads- the ones that want the
responsibility? (Overinclusive since get no procedure, no safety valve unlike racial
profiling, here cuts off rights of indivi with stats of distribution. Bad policy, want
hearing, some are deadbeat and the ones here are unlikely in deadbeat group.) And if
give F rights can impose responsibility on them, bring in dads, sitting ducks for
responsibility, assumes we WANT them involved! Struggle in the lit.
E. Is sire and raise too factual, mean financial, too hard to know what mean, standard?
Versus we want a rule like bio, come to court and have a say, sire is simple? Why is
sperm magical? Like Godiva, no connection, no care, critique elevate bio over rel.
Also if bio rule, then we multiply the number of dads to 2 and we are not ready for a
3 person family by give nonmarital F standing! JH: Why does the court not want to
let the F in? Because we like the two P family!!! Strong recoil seen against
multiplying the number, in cases with bio tech. Perhaps policy idea of whoever is
with the C, let person be free to move into new rel fast, esp here with M, nuclear
stablization of family!!!!
F. Was M making good decision in keep him out (domestic battery policy) or vindictive
bitch (standard lets her win a lot unlike bio rule where F gets standing?
G. Dissent: state knew where he was and his interests, M concealed C from F and F kept
on looking. Even threaten she will arrest F if he not stay away. F had a different view of
facts and he has not had opp to present case, need full record to say if relationship; but
for M actions would be rel needed for full DP protections. Also mere bio is not so
unimportant, bio alone triggers procedural DP right when M makes an irrevocable
decision like adoption, would give him standing and a hearing. Made himself known
so mere formalism to say not so. Violated DP.
H. Notes say that even after Lehr, if the M was not adopting but giving C to stranger then
F has more protection. Sex stereotyping of male irresponsibility, perpetuates it when
says mom has perpetual resp and F has opportunity only? Men also always look good for
do more than nothing, overate small contrib. Exclusive W nurturing influences who we
are. Too bad F lose out on day to day experiences. P 236-7.
I. An argument against the satellite idea (no rights to nonmarried F) is if give rights
then he will be responsible – incentive!
These two cases are about STANDING and rights to non marital F to DP. There are different proceedings with
the standing issue. Stanley: state want hearing declare C ward, try prevent give F standing; then after court says not
good, we get state direct attack, neglect so of course H is party with standing there. In Lehr, we see adoption
proceeding, M want new H to adopt, F try intervene to prevent term F’hood, but did not sire and rasie, merely sire,
no rel and loses on standing issue so cannot intervene.
3.
Michael H. v. Gerald D. (SUPREME COURT ONE 1989, p. 237. FACTS: marital relationship
at the time of conception, but the C was conceived by someone else (presume legit kid if existing
marriage unlike next Michael H here there is a marital C). (Model mom – M -- has an affair
with Michael; court talks about lover on sojourn in Caribean and LA). For a brief period M lives
with the C & the natural F, then goes back to her H & has two more C with him. Bio dad suing for
visitation. JH- in many ways both the bio dad & the husband are equal: both lived with,
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supported & want to support the C & hold her out as his own.
-Bio dad argues SDP: returns to Stanley and says sired and raised, so accum const status, tries to
jump out of proc into substance. Says he has established a full fledged relationship with the C
(Const respect 227) & that the state’s interest in protecting the marital union (M with Gerald) is
not sufficient to cut him off. Court says this is predicated on him having a const protected liberty
interest in rel wth C. DP is about interests traditionally protected in our society, basic values,
rooted. Michael is trying to distort Stanley and Lehr; it is not about the isolated idea that bio plus
established rel (both he has) gets a liberty interest. Here there is historic respect for rel that
develop within a unitary family. Sanctity and tradition. Court says issue is whether the rel
between Micheal and C situation has been treated as a protected family unit under the
historic practices of our society; no basis here for special protection, in fact traditions
protect the marital family (M with Gerald) against this type of claim. Ct talks abt presumption
of legitimacy, peace, not suits. Burden on him to show has FR within traditions and can cut into
marriage with other man, here not only lack of evidence to do that but also his claim is not
generally acknowledged. He is trying to get Pal rights, perogatives not just paternity
declaration and society traditionally denied them to bio dad in his circs. Irrelevant if can
defeat marital presumption; issue is if bio dad gets substantive Pal rights when C born within
existing marital union wishing to embrace C. Court uses historical traditions relating to rights
of adulterous bio dads: VERY SPECIFIC LEVEL OF TRADITION! Only go general if there
is no specific tradition on point. You can only expand liberty on one side by squash it on other
(Gerald, preserve integrity of traditional family unit he and C have established).
A.
Unclear HOLDING: Michael (bio dad) loses. He was not just looking for
standing (that was Stanley and Lehr) but also for SUBSTANTIVE right:
visitation. NEW TO US IN COURSE. He goes for it all.
1.
Plurality of 4, no majority: WEIRD LOSS, he has no right at all, the
court does not recognize him! An exclusively historical analysis of
adulterous Phood as untraditional. Classic Scalia says process due is
what has been done; mode of SDP analysis looks at tradition,
substance: what tradition protected. JH says lang ag. him is laced
with social delight: always been a loser, other always presumed legit.
Ct thinks F and H differences are a wash (each thought own, held out ,
support, will support, live with C) so clash clearly btw marital dad
(presume legit) and bio dad.
 Is Scalia right that SDP law is law of marriage? Traditional family
unit paradigm, that not subst right here since no marriage and other
side is a marriage. Think about Esien: not marriage yet SDP right
attach to indiv in reproductive cases!!! But then there is Bowers v
Hardwick where no FR to homo sodomy b/c nothing to do with
family cases and procreation. BOWERS AND MICHEAL
INSTILL INTO SDP A DENIAL of Micheal’s subst rights.
2.
Stevens concurs: bio dad should have standing & he had it, it was ok
for the trial court to turn him down. (discretion). This was the outcome
vote. Gave proc entitlement to nonmarital dad, keep him there as
state can decide substance.
3.
Dissent: 3 people on 243. Ramp up the nonmarital dad to substance
right to rel with C he sired and raised. Fundl rel here, tradition of Page
not of nuke family!!!!!! Limits liberty with tradition, both are elusive
malleable concepts. Search for tradition is ideosyncratic and complex,
arguable, reas people disagree, subjective, some too obsolete, empty
promise about more generalized interests: Phood is an int that is
traditionally protected, do not look at specific variety of Phood. Past
cases would have come out differently like like Eisen and Grisw., blood
tests show who sire, we are not homogeneous society, be tolerant.
Liberty must include freedom to not conform; ct squashed it by require
specific approval from tradition before proceed with liberty. Stanley
showed marriage is not decisive. Cases involve rights of unwed dads.
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B.
C.
D.
E.
4.
Never before look at rel disrupted instead of rel trying to preserve.
C also files for a right to a relationship with her natural dad- ct. says no to
her request to have Michael visit. Her DP challenge is weaker than Michael, not
symmetrical claim; she wants rel with 2 men; multiple Fhood has no support
in tradition. so need not see if C has liberty int symmetrical to that of P in keep
filial rel with P.
After he loses in SC, Micheal lobbies and changes CA lw so unwed dad can
petition cts for visit rights and jt/sole custody when M is married to other man.
Big q for nonmarital dad here about if just proc rt or also subst right. Class
discussion: Could say just proc so states are lads, social experiments, but then
she can forum shop. That is why con law likes a uniform rule. But good since
find out more if experiment? But if it is a right (mode of analysis) it is shocking
to experiment.
 Const’l minimalists: anxious about SDP, ct discretion, legisl policy
 Versus con law – rights – not use old policy presumption
Also presumption about legit is old, now we have bio tests so presumptions are
superceded.
Adoption of Michael H. (CA ONE), 1995, p.1239. unwed F has no fed const right to w/h
consent to 3rd party adoption unless he shows he PROMPTLY CAME FWD and demo as
full commitment to P resp as bio M allowed and circs permit a SHORT TIME after he
learned or reas should have learned that bio M was PREGNANT with his C; lots of
POLICY reasons. FACTS: it cannot be said he met that so PAP get adopt and term his rights.
Non-marital F & non-marital mom are dating (ages 20 & 15, respectively), produce non-marital
C (unlike SC case). Dad goes from wanting the mom to get an abortion (they agreed) to wanting
to be a F, but doesn’t tell anyone until the birth. Mom finds PAPs & moves in with them. When
the C is born the F files for custody & sends out birth announcements. Baby went directly to PAP
where been ever since (4 years). PAP term his par rights and he appeals Unwed bio F wants to
w/h consent to bio M decision to give C up for 3 rd party adoption once C is BORN. HE IS
TOO LATE.
-Different from Lehr: that was about bio link plus grasping. In Lehr, the F did everything he could
during the pregnancy (unlike here) (M left when C born) & Lehr was a step-P adoption (M had H;
here adopt out to PAP). We’d think F would have ST more if otherwise baby in space).
A.
Statutory part: 1st Q if presumptive F? Statutes looks to UPA scheme to
determine paternity: if he was a presumed F then 3rd party could not adopt unless
he and M consent. If not a presumed F (trial court), then his consent is not
required unless he successfully petitions to block the adoption and establish his
legal status as C’s F (court looks at BI and may be with PAP and he has no
statutory right to w/h consent to adoption, see all relevant evidence such as
efforts) and can lose if M or PAP successfully term his rights. To become a
presumed F he must marry, attempt to marry (suggests something like had a
ceremony & didn’t know the minister was a fake or she was underage &
couldn’t marry, etc.), or must publicly admit paternity & must physically bring
the C into his home (physically not constructively). If he doesn’t show these
things (note all 3 need M cooperation! CA LAW IS HARSH TO HIM SAYS
JH) then he is still entitled to a hearing, but the presumption is against him
(he shoulders full burden of show he is BI).
B.
Constitutional part: F made both DP & EP claim (concedes not met statute
above). Ct. gives state law on what the const requires. Court says Lehr
grasping is possible. BIG POINT; CA PUCH LEHR FURTHER,
GRASPING INTO PREBIRTH ACTIVITIES OF DAD, IN CA THE
LEHR GRASPING MUST START BEFORE BIRTH, DEEPER INTO
PAST THAN LEHR, ELABORATED THE TEST. Can get standing (BUT
ONLY GETS BI TEST THERE) to try to block /intervene adoption, but he
must “promptly come forward.” F did not come forward until the birth &
that was too late!! HE FAILS THE FACTUAL TEST. Could counter , say
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C.
got off drugs etc.
 Kelsey case said even if no statutory right to block 3 rd party adoption by w/h
consent, may still have con law right to do so under DP and EPC, and
preserve his opportunity to develop P-C rel; merely inchoate const
interest, not ripen into const right that he can assert to prevent
adoption unless he PROVES HE HAS PROMPTLY COME
FORWARD AND DEMONSTRATED A FULL COMMITMENT TO
HIS PAL RESPONSIBILITIES (quote from Kelsey), mere bio link is not
enough. Const protects only P-C rel that the unwed F has actively
developed by coming fwd to participate in C rearing and act like a F.
HERE he did NOT take sufficient steps to transform his inchoate const
interest in a potential P-C rel into a const right that entitled him to
block PAP adoption and establish his F status.
 Court says harder since PAP care/custody for 4 years; F little contact and
little opp to develop rel; C sees PAP as P.
 When he first learned M was prgnant he was not fully committed, planned
with her to give up C, frightened, even after change mind at suicide attempt
he did not tell M and PAP. Sure after C was born he was impressive, urge
visit, express desire, truly extraordinary.
 Court says must look to conduct before and after birth; ONCE F KNOWS
PREGNANT, he must then promptly attempt to assume P resp.
(emotional, financial, and otherwise) NEED TO SHOW WANT
CUSTODY, not just wanna BLOCK adoption -- to get DP right. See if
public ackn, pay preg & birth expenses, legal action for custody ASAP.
 Does not mean cannot take a minute off but just cannot try to make up for
lack early on, months later. Importance of timely action. Policy: tell M fast
if want adopt or not, M makes many imp dec while pregnant, she need to be
informed. Also M needs emotional, fin, med and other assistance during
pregnancy. Esp here where she is a teen. Encourage F to do this early on
when can otherwise shifts burden to state and thus to society in general.
Big public problem. Also would make it too uncertain for PAP and could
dissuade them so would frustrate state int in encourage adoption / stable
homes. Need to assure PAP that adoption is perm esp since large number of
C born to unwed Ps! Also emotional damage to C from lengthy suit &
remove from PAP who now see as true P, disruption in fam rel and living
arrangements, impact C psych growth. Cites Goldstein book (1979 Beyond
the Best Interests of the C) about continuity. Separation hamr, bad to break
strong bonds.
Equal Protection piece: she gets to change mind before birth but he doesn’t. F is
given less human ambivalence. What are the policy reasons for cutting him
off at an early stage? Familiar to us from adoption. (1) we want to
encourage adoption & letting him in the process creates uncertainty for PAPs,
de facto notice to them early on (2) C immediately needs continuity of care,
perm placement once born(3) M has a short amount of time to decide, the dad
should too, same footing, EP (4) flip the EP- he should be as tied to the
pregnancy as she is, i.e. he must shoulder the duty of support during pregnancygoes with Fhood- private welfare system argument: STRIKING WE SEE CT
ACTUALLY SAY THEN, usually underneath. (5*****)Drives us that we
want him to assume FULL resp (new idea!) if wish block adoption, catch
everything she gives up, be the only P, let her term out, sole P idea thru
UPA, not just share, split custody but M can shed C in adoption: new idea,
direction in nonmarital dad area!!!!!
 Could say he chg mind on whim, druggie, sleep with 15 yr old etc.
 Even if he does all the good stuff, he only gets a BI hearing, under Lehr
and Stanley. PAP might win anyways, better atty, never changed mind
81
D.
E.
F.
5.
JH- Should/Shouldn’t we raise the standard so that the F can be able to block the
adoption? Give a Lehr grasping F a right to block it?
1. For allowing Fs to block adoption (blocking right): (1) by establishing a
relationship with the C he has a presumption of the C’s BI, so why do we
need to ask it, he established ST, and remember early rule that presume
natural Pact in BI! (2) encourages Fs to be involved in the Children’s lives,
current law tells dads Fhood is of such meager const status that don’t need
to bother being as serious as M, sends a message (3) less so: adoption is a
big deal, W on a whim, so even if she is out there is value to the F
biological link ties to the emotional link with Children, (4) the PAPs should
not get anything, they have less of a connnection to the C than the bio dad.
Just babysitters so even if his const claim is low they still have nothing.
2. Against allowing Fs to block adoption: (1) these are decisions the
biological mom makes during pregnancy & should be respected, she has BI
presumption too; if we can let her decide to abort let her decide adopt. Also
if we don’t give her power to make adoption then we incentivize her to
abort and we don’t want that. Within M-D rel, pregnancy and after, we see
there is a privilege for the M but we don’t see it up front in case since that
would be EP problem. (2) rights should not be an issue—the C’s welfare
should be of paramount concern, long tradition of PP, direct jurisdiction
over BI. (3) family privacy, he is just a sperm donor, she is family so state
stay out. No marriage, he did not do what need to do to get into family
privacy doctrine. We do not build up rights for outsiders, outsiders as
const minimal, this is what motivates Lehr and Stanley. (4) do not give
him or anyone any right or presumption, go directly to a BI hearing since
we wanna know things.
3. What if he asked for less like just visit PAP? Mor entitled then? Still policy
args above but easier side with him.
All the legal uncertainties generate situations in which the balance tips in
favor of the PAPS (June & Ward Cleaver v. the ex-druggie, statutory rape
committing guy). Each day of procedure adds to continuity of care and
args for them, legal uncertainty is written into the rules. True roadkill. Big
in In Re Clausen is: rip C from PAP to natural P so we will not tolerate
delays!!!!
BIG SUM: Stanley: sire and raise; Lehr: sire and grasp (not be indifferent,
just try, even a postcard!; Michael H in CA: gotta be willing to accept full
resp even during pregnancy. CA fed con law: he still just gets a BI test if he
gets in, unlikely win. So if a W wants him out, just find the cleavers, PAP
win litigation no matter how ready and willing he is. CA fed con law is very
unprotective for men
In Re Clausen BABY JESSICA, huge media shock. (DeBoer v. Schmidt), (SC of MI), (Scarpetta
of the 90’s) 1993, p.1465. Legal uncertainties lead to equities tipping for PAPs, roadkill from
rules, so we will no tolerate delays and we will rip C from PAP and give to bio P. (had lived
with Cleaver types til age 2.5 then ct move her to nonmarital bio F). Interstate conflict, great
procedural history. Unmarried mom named someone besides bio dad on the birth certificate in IA.
Places with out of state (MI res) PAP who petition to adopt; right yo keep custody comes from
final IA adoption and that is never gotten. 9 days later the mom switches and rescinds consent
(like Scarpetta but that was equitable basis and here is legality) and files in Iowa to revoke the
release of custody & says that Schmidt is really the F, CCE bio F, now marry, he intervenes
(Lehr type, fast, did ok so B Ps win in Iowa cts then the PAPs take the kid to MI & file in MI to
enjoin the Iowa court custody enforcement (not an adoption proceeding). PAPS don’t try to get
another adoption proceeding, just want custody. Bio M: argues that she did not get the waiting
period that she should have had (procedural claim). Court does agree PAPs may love kid but limits
to claims in face of other recognized blood rel. Also court points out foster rel has source in state,
state is partner from outset. PAPS not get standing to bring custody action; require enforce IA
82
custody result for bio P (Sister state custody order followed, MI can only modify is IA declines to
exercise jurisd to do so, here IA just won’t give PAP relied, kept jursid., exclusive). they were
unable to show bio unfit and BI is not appropriate unless show abandonment.
A.
HOLDING: there was a valid custody order in other state, & the court will
honor that baby belongs to now married bio P. JH- this forecloses in IA &
MI any Best Interest Reasoning, because it can not be in the BI of the C to take
the kid away from who she has been with 2.5 years: primary trauma. However
(counter to JH’s argument)- maybe it is in the BI of the C, b/c it would be
extremely hard for the C to learn later that her biological Ps always wanted her,
natural love. Note not rights arg. Also could argue BI: if they really cared about
the BI of the C, they wouldn’t have fled and ignored court in self-interest.
B.
Rule of Law picture of the case: VERSUS equitable approach to case, here
creates BL rule that FOLLOW OUR RULES OR YOU GET TRAUMA,
ROADKILL so more PAPs will comply, harshness is ultimate holding, no
BI, court created victims, furious so went on so long and see 1476 rude
language, direct court, mad, not remand with opinion to follow, RETROSPECTIVE RULE; something has to be done to stop the PAPs from fleeing
with the C, kidnappers, no status to get to BI, chronically made fun of kid.
Precludes the exam of BI /which of A is more trauma, procedurally do not
see BI here. C are about rel, attached to PAP like Goldstein so JH is ag this case,
says trauma, rips from PAP by rule of law. C thinks 1 is P but law says other is.
Student counters and says trade of in trauma, see who give psych support like
Baby M not abstract, see which P better deal with trauma; that case was anti
natural result. Go concrete, see what age is best for transfer, how impact based
on period in C life. So strong args on each sides and we see questions repeat in
Baby M.
C.
Dissent: we are state of MI & we have a C w/i our borders, how could we (PP)
not look at the C’s BI? PAPs say that there is a federal statute that allows the MI
ct to assert jurisdiction over a C in MI to see BI. Do not remove C from
homecooking, C identity crisis & trauma said experts. This is not relitigation
since 1st time argue BI. JH pathetic stuff in ct: costs of rule of law.
D.
What opinion do we join? Great choice between LAW and EQUITY!
E.
Comes out as an ADULT Ps rights cases (versus kidnappers). not phrase
inside BI. Other cases phrase inside BI but here its like oil and water.
F.
Think about solomon legend: P won’t cut C in half if 2 claim, sacrifice on C
behalf.
G.
Twist like Victoria in Michael H (SC version, loses since no tradition of
multiple Fhood, 3 Ps if there are 2 dads). C here says has an action- FN 5 p.
1466- C asserted an independent right to a BI hearing to determine custody.
Speaks with guardian. Ct says no- C has a “constitutionally protected interest
in family life, (but) that interest is not independent of its Ps’” i.e. until the
Ps are shown to be unfit the C does not have independent standing. It can
be good to give C rights but here problematic since action is pro-PAP against P:
nightmare of independent standing is to assert power against own P!
-Problems with the C’s action: it is bad to be naïve about the complexity of C
independent action: (1) babysitters could bring claims on behalf of the C
against the natural Ps, big fear, (2) more litigation/re-litigating: PAPs finding
a mouthpiece (hoax about “C talk”)/ speaking for the C; trial twice on same
claim, legal fiction, one voice, same BI args again (3) C maturity, does C know
its BI? (4) appt guardian adds noise to process, where are its leanings, who pays,
politics of process, opens process to politics
-Positive of C’s action: without it a human (C) is subsumed within the
dominion of another (the Ps), troubling idea
H.
Here the M told the nonmarital F FAST but what if M had waited years? 1 st see
adoption statute, term him out as unknown F, kill with final adoption decree,
duty of M to find him and disclose him, unenforced threat of UAA since nothing
83
I.
C.
bad can happen to her if she does not do UAA due diligence process to find who
she slept with. 2nd can see const. Fact of paternity, never had PDP right, opp to
be heard? Nope he is dead on arrival, see Lehr, we tried to reach him so to hell
with him. No holding to sue but use doctrinal lang of Lehr, Stanley: right to rel
no one else has but unlikely he would win. The idea of F may be out there
would disrupt adoption and demoralize it.
See notes case on page 1473 on Baby Ricahrd. There was deceit so return to bio
F (57 days after C born). M said C was dead. Do not let subterfuge!
Step Relationships & “Divorce Chains” [Skim A666-72, PM Miller]-step families exist, old rule
is that the stepP is only a babysitter. We could infuse the practice of step-Phood with rights &
duties but we have not yet. Marriage does up the new person’s status but law is WEB: all
voluntary, no rights, can drop duties if new step couple splits. We could change the law and go
pro-nuclear, not web, go for lock in new step with rights and duties as if natural P. Multiple
divorces in former spouses leads to chains and multiply P roles, could infuse with rights and duties
but not done yet, not yet match actions.
Student said upcoming ALI says es can get comp for earning capacity loss arising from care for C during
marriage; even if C from other marriage; step that worked and cared less for C he has to pay her alimony
for her having raised her C; comments say step likely shared many of Phood’s benefits and to have
developed rel that will continue after dissolution.
1.
Bevis v. Bevis, (SC of SC), 1970, p. 666. Marital F & Marital M have C. They get divorced (M
adultery) & F gets custody. M has contacted C by phone, letters, gifts and some visits. F remarries
& the stepM wants to adopt C and terminate all M Pal rights such as visitation; not a custody case
so not so important that immoral and great step care. StepM finds M obnoxious/resents intrusion
and court thinks this is why the action to adopt began. M refuses consent & contests. Classic
conflict of step and ex.
A.
HOLDING: no adoption- the stepP does NOT have a superior claim than natural M.
Do not term the natural M rights; Supervised visits are ok, still in BI, lives with step:
dominant influence. No abandonment. Trial ct discretion: sees a lot, balance C equities
and M rights. Looks at BI of the C- they have contact with the M & it is in BI to have
the natural M maintain the relationship. JH: shocker it gets into BI analysis,
amazing move to make compete with new unit for legal priority, bizarre.
B. Article following case: Bohannan, Divorce Chains, Households of Remarriage & Multiple
Divorces, 1971.Pseudokinship groups formed on basis of links btw new spouses of exspouses. Friends with ex-wife’s new H, no threat, help businesses. His first and second
ex-W are also buds. Not rare to form divorce chains, especially when C are there to
mediate new rel. Ex-W and new H help ex-H new wife when ex-H got drunk. Group
activities. Outings for C. Chains formed spontaneously by and around indiv for specific
purposes; purposes change for each indiv, some functions are those of extended kinship
group based on descent chain. Need to study this norm for small percentage of divorced
people.
C. Note says most courts let a step adopt C over objection of non-custodial P only in
EXTREME CIRCS. (eg, not in Bevis). What if cust bio P die? Pass to other bio P not to
step. Some cts say step since psychological P. What if step and cust P just wanna change
name of C to present family name? Some cases agree if unworthy F and welfare of C but
long line of cases let objecting P win. But code was revised so now can.most jursid reject
contensions that C psych health req name conform upon remarriage of M, could feel like
F rejection, or evidence F deserve rejection, or M deny true ID or that ID is shame.
Realities are present name represents ID, paternity & remaining bond with F.
2.
Miller v. Miller (SC of NJ), 1984, PM. FACTS: high mark on step duties, nothing on rights yet
in caselaw. Marital F & M, get divorced, M gets custody of C. M remarries & H #2 does not want
F to support the Children (tears up the checks he sends, also opposed visits; seems to be since
thought drug $ & worry bad influence). M divorces H #2. Serial divorce in our world.
84
Issue: can the M impose a duty of support on the (now former) stepF of her C (because he fought
off/denied them support from their natural F)?
HOLDING: NO. Court refuses to impose a duty in this case (remand), instead sets up a
doctrine of equitable estoppel which sets a high standard (burden on M here to
show step conduct met 3 reqs of EE) to impose permanent DoS on stepP; in
appropriate cases can be met, but apply w/caution. The stepF must have (1)
represented to the Children (or to P) that he would support them
(REPRESENTATION), (2) induced them to rely (RELIANCE: not force step merely
b/c developed close rel, nurtured kids, emotional support, call him daddy; key:
emotional bonding is not sufficient; policy concerns, if you create warn env you would
get penalized and reward step who refused to do anything with C), so those 2 are classic
estoppel plus (3) imposed a detriment on them by excluding their natural F
(DETRIMENT: C will suffer future financial harm as a result of step action cutting
them off from P support, cases are fact-sensitive, unique interpersonal rel, see each case
to show ec detriment; see if real F being unavailable is thru step actions). C need not
believe step was natural P, not req call him dad: too limited since step may appear when
C are infants.
-PLUS, the M must show that the natural F (PRIMARY SUPPORTER) is
unavailable to support the Children; only THEN do we get to above EE test. Law
wants ONLY ONE P not a chain to continue duty versus if all had support interest
then worry disrupt with ebb and flow, court says you get one P with DoS. Here, M
knows where natural F is, burden to bring him b4 court and seek support from him. Also
if step must pay, can always modify if natural F is able to meet duty. Natural P is always
primacy recourse for CS since society assumes natural P will support C. If step did not
interfere, cannot inherit perm support oblig of nonpaying natural P; deadbeat Ps are
persistent US prob. Step must take positive action to inherit the support obligation. Can
get reimbursed if paid too.
-Ct does say while it is deciding, if the step actively interfered with C support by natural
P and this natural P is not giving support then C get interim support from stepP to
alleviate hardship to C caused by rel breakup when step was sole fund source. Case is
about perm support.
-NJ has no statute for imposing DoS on stepP, nor does CL have obligation (said step was
just babysitter with no rights and duties), only if vol assumption (in loco Pis rel exists
when stepP receives a C into family home under cirs that give rise to presumption that he
will assume resp to maintain, rear, educate C). In loco Pis lasts only as long as parties
desire (stepP and C) unlike if natural Phood or adoption. Those two perm fix rights and
duties while former fixes rights and duties temp in nature. So usually when divorce w/I
step, ILP ends and duties cease; ILP rel lies within will/intent of stepP. But some cases
rely on principles of EE or implied K to impose continuing obligation on stepP after
divorce natural P.
A.
JH: What is preferable? Do we want step to continue with their DoS to C (i.e. stepF
divorce M but not C?) Both sides here:
-we could say that we still want C to think of step as F despite divorce & by having the
step support C that will encourage C think he is F and thus promote his Fhood. Godiva
choc view. But policy not to multiply dads: If we have multiple F then we water the
status of Fhood down anyway; if not get all of it, if not get powers as well as duties then
lose interest; need power monopoly to not lose interest.
-driving policy arg of case: concede to who exists, want stepF to enter emotionally,
worry will pull out emotionally if know forever duty, negative incentive to step,
bargain with them, strategic behavior of P but as for C, we want them to enter into an
emotional relationship with the stepF & if they know that he is tied to a DoS to them
forever they might be more emotionally involved
-or not concede to who exists, construct new people with new attitudes, we could just
say- “that’s what you get when you marry someone with C”
-JH: we do not see this; Miller is as far as we go; at no time in our course will we
find a 3 P family. Cts will always encourage 2 P family & fail to recognize more than
85
2, strong invisible rule DRIVES A LOT, next topic throws that Q open!
D.
Special Problems Involved When Children Are Conceived by Means of the New
Reproductive Technologies [1066 Baby M back to adoption and DM Thomas S Lehr grasping,
nonmarital F]
The old idea was that there are 2 sexed bodies, a M & a W marry, & they each had genetic
material that created C, gestated in M, presume legit as C of F if born within marriage. We have
been cracking this open by leaving out marriage but now we confuse the sexed bodies part. Now
with new reproductive technologies we fragment that relationship & certainty. Surrogacy
arrangements, AID: M no genetic rel to C, in vitro fertiliz, donor egg; sperm from outside in her
body, nonmarital F, we try it all! Sometimes after divorce, H proves not F b/c artificial
insemination, not want DoS, statutes were not ready for this, says waived statutes when used
reprod tech AID; statutes move from assume match up well to now fragment; reached elaborate
conflict when AID, in vitro fertiliz w/ gametes not of spouses so 4 people involved. More
sophisticated than last unit; here out of bodies, many Ps, complex. Maybe one day even just 1 P!
artificial insemination by a donor = AID
1.
In re Adoption of Anonymous (Surrogates Court of NY) 1973. Not read, she sums up. Married
couple gets artificial insemination by a donor. They get divorced, M gets custody, she remarries &
the new husband wants to adopt the C. The husband (#2) states that the husband (#1) is not the F
because the mom was artificially inseminated.
A.
HOLDING: no adoption. When a C is conceived through artificial insemination to a
married couple with the consent of the H, the H (#1) is the presumptive F.
B.
This case illustrates how now with new technologies we can get up to four people
involved in a conflict—too many people!
2.
Thomas S. v. Robin Y. 1994, PM. Biological M & her lesbian partner (AI case without marriage)
arrange with Thomas S. to have him be the sperm donor, sperm F (middle term), Thomas (stranger
to rel.) F or bio F (higher rank) (pick one of those terms), the C is conceived through artificial
insemination. There is an oral contract that the F would not be a part of the C’s life; lesbians raise
C but C knows of him as F, he spent a lot of time there at M’s initiation and encouragement. He
then wanted C to see his P but M wanna come too.
A.
HOLDING: mere oral contract is not recognized to kick F out, court will NOT term
P rights. B/c need to follow formal statutory procedure to term F rights. Ct reduces this
to a narrow legal question of the fact of Fhood, legal paternity. Held bio established this
for this order., just a paternity declaration. Blood tests: 99.9 chance, CCE. Court
says is not a Q of custody (Thomas not ask for) or breaking up a family. Just whether or
not term F rights, rest of Q for later stage he may never even decide to seek(support,
custody, visit). Entitled to order of filiation. Gives him standing to seek visitation
and see if in BI later (ct squeezed out BI now so easier Q). Gays got upset as cuts into
their alternative lifestyle.
B.
Ps behaved ambiguously; each side changed positions, contradictory behavior so EE args
could have gone either way. Aside from legal claim (above) there are equitable args.
C.
M argument: he can’t assert paternity because he entered into an agreement to give up the
relationship, he went years without contact with the C & has not acted like a F, try
estoppel but court says better in other direction, against them. Dissent has a different
picture of case, see him as interloper.
D.
Sperm-dad: the moms encouraged me to have a relationship with her so they can’t
stop him now; court says M was estopped (estoppel: if act inconsistent with claim
then we stop you) to deny his right to legal recognition of rel with C thru order of
filiation. Let rel flourish, told C, emotional attach, eyes wide open, M knew, cannot now
claim no intention he is F. M counter with they never encouraged him to have a P
relationship. Dissent agrees and says he never tried to support kid, not full commit.
E.
This case illustrates how equitable estoppel can work both ways. Can generate facts
each way in sperm donor gay cases. Could dissent & say M never agreed to his full rel
86
F.
G.
H.
I.
J.
K.
3.
and they act consistently by flip out at being cut out of him visiting his Ps with C. could
focus on most recent beh, could agree he was most Fly. But he said he would not support
them so detrimentally use their full support so estoppe him from assert F.
Estoppel is not about BI, ct not discuss BI.
JH- Distinction between this case & Lehr: Lehr was a bio F (unique opp) who
wanted to block adoption, he had a CON LAW DP right but those rights are THIN
& if there is no relationship with the C (he had no rel.) they are fully satisfied by
procedural formalities (all constitutional, he did not do postcard registry, DP
mechanism of statutes) versus Thomas S. the claims were based on STATUTE- this
is JUST a statutory decision, he gets paternity by statute. NOT A CON LAW
CASRE, court not reach rights issue unlike Lehr.
JH- the crux of this case is do we cut across paternity statute to determine the BI of a
C? This illustrates how a conflict between adults can turn the C against one of them- the
C loved Thomas S. until the case then she hated him. C then thinks he attacks her
family, should we examine this? How does that factor into BI? Maj says C ag F bc of evil
M. BI invited us into a complex morass. Dissent says wish uses PP power to see BI, 365
welfare of C, should omit statute right, antidad atmosphere, says statute is irrelevant.
Versus majority: clear legal rule, just declare paternity vision of case. Also could says
don’t turn BI into C preference, make them learn to like what is good for them. Or could
we convert the BI test so not complex look at why C start hate F; UAA crisp, if you do
not term rights you are in.
JH- this is SC’s (tradition: could say of nuke family priority) Michael H. without
marriage. Married mom has a presumption of legitimacy, & married F has it too- we
have a presumption against non-married P. Illustrates a clash in ideologies, the
rhetoric that in this case would support the moms is the nuclear family idea (Simple
EP arg: no different from other families, this gay guy is the webbified version, we are
against.) that is not the nontraditional “families we choose” rhetoric gay moms
usually use.
Con law arg for Thomas S. (from Baby M) (this is not in the case b/c he got enough from
the statute alone) could say he has done everything he can, there is a tradition that F’s
rights can be at rest (a F goes off to war & his Children are still his Children). Bio P gets
the legal rel, the Q is abt other sticks. Now in NY & CA (Michael H there) a F is
required to have a willingness to assume FULL responsibility in order to get
constitutional rights, cannot waiver (JH would drive this down as the M can
prevent, sets high std tells F go whole 9 yards or no con law right to start case off if
there was no statute here—do we want this? Yes if goal is nuke fam but not if a
relation with bio F is what we want!). Lehr grasping for con law rights req immediacy
(he can get order of paternity fast, not req do more). And some states let u later assume
SOME resp. just need to live with C (Stanley, sire and raise) or efforts (Lehr grasp).
Could have powered up the F w/ rights.
Trend in law esp in CA is if enter sperm donor K you need formalities to get the F out,
not mere oral K as here. CA is very formal!!!! Case we not read even says need agency:
public! Ct does not even think of enforcing a mere oral K. Medicalized & often written.
In re Baby M., (SC of NJ), 1988, p. 1066. INVALIDATED SURROGACY CONTRACT! New
way to bring C into a family when health risk bear C and too old/etc for adoption.. Did not work:
restore surrogate as the M. Payment of $ to surrogate is degrading to W and illegal. Here though
give natural F custody (BI) but void his W adoption (back to this topic!) and the surrogate’s
term of Pal rights. There is a K between Mary Beth Whitehead (MBW) & William Stern,
married to Mrs Stern (who is not a party to K). Sterns give MBW $10K & pay her birth/medical
expenses (beyond what her insurance would pay) & she has a baby with Mr. Sterns sperm
(artificial insemination). MBW’s H promises to terminate Pal rights (b/c of presumption of
paternity) & so does MBW, and surrender C to natural F and his W (Mrs Stern to adopt). MBW
realizes at moment of birth that she could not part with the C, felt bond, turned C over to Stern but
freaked out, they gave her back to MBW, attempt to regain for 4 months, fleed, then Sterns bring
lawsuit to enforce the surrogacy K.
87
A.
B.
Details of the Contract:
1. Escrow acct is set up: if MBW miscarried before end of 1st trimester, no payment.
2. MBW agrees to have an abortion “on demand of William Stern” if there is any
problem with the fetus (as demonstrated by the amnio at 20 weeks)
3. Nothing in the K about if the baby is born with health problems.
4. If the baby is stillborn, MBW gets $1K.
5. Also there is a private agency that is a party to the contract- they get $7,500 for
broker services.
6. When MBW & H terminate Pal rights (presumption of legitimacy, not invade
privacy when C born w/I marriage; both need to term rights) Elizabeth Stern
will adopt C. Adoption was in K so adoption law is relevant. There are too many
grown ups with new reprod techs. Usually just 1 needs to terminate rights, when
stepP adopts). Here tries to spread steps so not 1 bang of enforce the K so like step
adoption but just a formal difference.
HOLDING:
1. Ct. thinks 2 things about this case are toxic!: 1) sale of C (COURT DOES NOT
THINK IT IS SALE OF SERVICES, is sale of a baby; evils of baby bartering, no
regard for suitable P placement. Fin circs make her decision less vol.) and 2) all
termination needs to be state-mediated whereas this was run privately; not just
adoption, also termination of P rights, PUBLIC JURSIDICTION.
2. NJ law says babies can’t be sold, no compensation for transfer of C. K is invalid
since law prohibits money when place C for adoption. K tried to seem like not thr
case but seems clear money went for the adoption like no or less money if not get
kid (die before month 4 pregn or stillborn). Tries to frustrate goals of statute.
Adoption was in K so adoption law is relevant: adoption statute prohibits
selling babies “in adoption”—whole K is deemed to be “in adoption” and reach
publicly too.
3. Surrender of Pal relationship is only allowed to the state- every adoption is
state mediated, & every legal surrender must be to an agency of the state: state
jurisdiction. Need formal written doc of term or show abandon or unfit. Tried to
use K to avoid statutory prereqs. Since term invalid, Mrs Stern cannot adopt. She
was never found to be unfit and has been good M to other C.
4. Court does a bit of con law issues. Custody, care, companionship is not part of right
to procreate; Sterns lose. Just a right to have natural C and they were not deprived of
that. See right’s essentials. Note as a M, she gets right to companionship of C. Court
also says sperm donor not = birth M, 9 months, etc.
5. But does give custody, BI analysis. Claims of natural P get equal weight,
Whiteheads unstable, fin problems, criticize how handle her C, hard for her to
explain to Baby M her origin (this goes back to In Re Causen comment, she is
bad psych P). Sterns, place to thrive, fin, friends, willing learn etc. court notes need
to understand MBW suffered, love motivation but her life is not secure the quality
Baby M needsmost. Guardian ad litum also for Sterns custody. BI has many factors.
Note: she still has P rights, can try to visit at some pt.; often good to have both
natural P in life.
 On remand, MBW gets visit rights. 1080 note.
6. The Court separates “Public Policy Considerations.” Nicely done policy analysis in
this setting. Page 1071 (Ct. must have felt really strongly about them, they are
basically saying “ct acting as legislature”—STRIKING, court feels confident,
should it have turned to all these policy big guns – not seem disinterested apply
law – determined to invalidate the K). There are some things money cannot buy in
a civilized society, more important values to society. Everything below is contrary
to the objectives of our laws. Guarantees separation of C from M, looks to adoption
regardless of suitability and BI, totally ignored the C, takes C from M regardless of
wishes and her maternal fitness, and all of this through money. Public Policy
Considerations in regards to things all parties consented to so policy is
PATERNALISTIC, we know better than they do, policy issues with respect to
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C.
each party:
A. MBW (i.e. protections we want to extend to her that were not in K):
1. legal advice- she gets it from a broker but it is basically a K of adhesion, she
didn’t actually bargain for terms of perm separation of C from natural P. no
counseling, no evaluation, no warning.
2. no matter how informed she is she can’t be completely informed until after
the baby is born. Under K, irrevocably committed b4 knows bond strength,
never totally vol decision. Meaning comes from psychic overhaul. K was
too early, even before pregnant.
3. Some things she can’t consent to, value in society cannot commodify 1073
4. Cursory psych eval by broker, not for her behalf, just to check if she can
make it
5. any K that destroys the rights of the M in favor of the rights of the F is
against public policy. Equal rights, F right no greater, cannot be exclusive
right to C as here.
 Note this is about EP policy; you can waive your EP rights so here
we impose them.
6. More likely poorer surrogates and won’t be surrogates if not paid, wealth
plays a part. Note case on 1081 agrees to not enforce K involving money
since don’t want ec vulnerable women to be forced to be surrogates. Some
sates only deny enforce K if compensate surrogate; some bar all.
7. LT effect when she realizes she sold her body and C
B. Sterns- they seem to be beneficiaries, why are we concerned with them?
1. the contract does not tell them of MBW’s psychological situation, if they
knew she was unstable maybe they wouldn’t want her. Maybe they would K
with someone else. So not only protect them from risk of C but also
from K with this person. Happens here that she does waiver, disturbed
sadness, flees across state lines, self help and naked power of state is
revealed when must seize C from her.
2. the contract also doesn’t tell them abt C (i.e. the genetic health of the mom);
usually these Ks do discuss health problems
3. does not check up on their awareness of responsibilities to come
4. LT impact once realize what done
C. C
1. the K doesn’t consider the C’s BI, total disregard in K not inquiry on Sterns
fitness, effect of not live with bio M, etc.
2. policy that C should be raised by both natural P
3. peace and security, bad tug of war here
4. no representative of the C int at all- in adoption (even private; intervene if
baby in space only) at least we have the state come in, here the party with
the most money was deemed the best P. Highest bidders win adoption
regardless of suitability/quality.
5. LT effects unknow; learn life was bought, M only wanted money
6. JH- no one looks at the C’s BI in normal hetero relationships either.
D. Broker
1. in the situation for profit only, completely unlike the adoption system which
considers the BI of the C., regulatory impulse Profit motive got the better of
them and depresses policy concerns of others consistently, unacceptible.
2. Social class effect, trade babies up, new form of poverty.
JH classroom discussion: Critique of the Holding/i.e. arguments in favor of allowing this
type of arrangement: could come out other way
1. Sperm gets treated like a commodity, why can’t women’s reproductive services be
the same? Women pay for sperm all the time. Treat like product, sperm banks,
why cannot W give the only alternative she ha s (if we agree with ct that not service).
2. Fact that he is the bio dad suggests that he already has a legal entitlement (just
maxing those with a K) & custodial obligations, he isn’t acquiring a C over the
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D.
E.
counter (slavery or black market). We always pay people something to relinquish
some of their legal rights.
3. The money paid to MBW is incidental to cover her natural risks, inconvenience- she
isn’t doing it for the money she would have done it as a gift, & adoption is always a
gift of a baby.
Is there any way to save surrogacy after this ruling? What could you do as a legislature?
1. Make brokers non-profits like private adoption agencies & put them under regulation
A. require full disclosure to all the parties; med and psych to PAP and SURR
informed.
2. Depersonalize the situation- the surrogate mom is just a gestational P: require
donation of both sperm & eggs (via in vitro: more expensive K). SURR lose status
so UPA n/a to her, legally disabled.
3. Give the surrogate mom a time to withdraw. Middle path. Use adoption regs express
remorse.
4. Are we selling a baby or selling elements of a rel to a thing, bundle of rights rel.
What if baby has health probs? What terms of K do we mandate? Mixed
causation, did she smoke? Stern wanted abortion on demand to decrease risk (why
can he get what Danforth could not by marriage???; state can force innoculation. She
consented, could avoid by not get pregnant. Maybe all liable for defective C, PWS, jt
and servable liability, BI of C.
 Libertarian Q: people enter these K do we let them sort it out; regulatory calls
are hard. Complex, lots of choices: Baby M did not get at all legal probs of
surrogacy.
5. Genetic tests can show Mr W not dad so pressure ag presumption; but he had
remorse too. Note he did not assert this marital presumption here but then he is like
Michael H, Lehr, Stanley facts (he did not assert his rights) and our regulatory
agency may not handle it well.
Situation the Court puts this case in- after the Contract is voided:
1. JH cool idea: MBW & Mr. Stern (who hate ea. other) are the Ps, not unlike a
divorce when 2 Ps hate each other. Just were never intimate. See above comment,
Mr W not appear as dad, not assert rights so need not vol term rights. Mrs S is a
stranger too.
2. Left with a custody decision- ct. goes through the appellate ct’s determination of BI
and MBW lose to Stern.
3. Ct. says that NEXT TIME the maternal P is the one where the presumptive
placement should lie: hates the fact that the equities have built up in favor of
Mr. Stern by placing the baby with them, weird to take from M, probable bond
(this is all in face of the fact that its in BI of the C for the baby to go to the
Sterns).in 1998 equality of dads not getting there, mom still get a lot by natural rel to
birth, presumptive placement.
 JH: isn’t this weird given policy of ct said equal rights, not K to lessen rights of M
and more to F???
Part Two: Breaking up the Marriage & Severing or Regulating the P/C Relationship
Here ends the first part of the course: before this we have looked into all the ways adult-adult & adult-C
relationships can be formed in the law. Weirdest most complex part was new reproductive technologies. Now we
turn to how to break relationships through the law, mostly adult-adult, little on adult-C.
DIVORCE:
VII. Ending It
1888 SC Justice Field Manor v Hill: divorce by legislature, back then when no judicial divorce; no notice to her is
ok!!!! People themselves cannot change the rel of marriage rights and duties, law steps in, institution, not a K, public
is interested. 1930’s Hall v Hall: triangular H, W, state (is a party too). Duty of court to represent the public interest
in marriage. State has a monopoly over divorce. Now we must go thru courts, interest in how and if divorce, talk to
state party even if invisible before. No escape from state asserting monopoly.
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Divorce is a way that the state says that it has an interest in the dissolution of the marriage. Why would
we want to assert ourselves as a state by monopolizing this interest? Why does state want monopoly?
1. paternalistic notions- people are down during a divorce, they are potential victims & they
need the state to protect them. They are at their lowest points in personal behavior in life,
protect from each other, be there to monitor the process
2. public welfare idea: we want to interfere in the allocations of resources for our interests so
we are not hurt by the anger of people
Why might the state dislike divorce? Uphold the institution of marriage, stay in it is hard but it is good for you
and for society, do not want people to walk in and out, make exit hard so hesitate before try, restrict divorce a lot in
history, inquire if a specific one should occur, if you are entitled, old system cases had strong views on what should
last: fault system. Note: fault system not on exam!
We will exert jurisdiction if we do permit divorce.
A.
Grounds for Divorce Between the Spouses
Why would we want to make divorce available? Could be good public policy too!
1.
if we think of it as a consensual bond between two adults then they should have a way out; there is
no love then there is no state interest in force stay together (but PWS, 3 rd party kids, building block
of society not just for fun). If we think of marriage as a love bond and it is gone then defacto
marriage is gone. Do not merge 2 individuals into 1 whole.
2.
we don’t want people to commit adultery/have a relationship outside of marriage. Want a real rel
within marriage not a fake remnant
3.
domestic violence- piercing of family privacy, you are about if abuse, we get into the home.
Private versus public part of course.
4.
encourages people to get married in the first place (if they know they have a way out). Can make a
mistake, lower cost of entry
5.
inter Pal conflict is hard on Children: BI, reduce quarrels.
6.
people seem to want it & we live in a democracy—autonomy, voted it in
7.
expectations of marriage may be too high
8.
a constant is that some marriages formed will not make it. Stone in early GB said you got out of
marriage by death, mortality rate decrease as allow divorce, the death substitute.
All of this presumes public interest in allow/ monitor or not, may say no just private ordering like PACS in France
where easy divorce, K own divorce, we also could go to K law. We almost reached that point but complex picture.
JH- Let’s say that we have a public interest with respect to divorce. What are our options to enter a policy reducing
or controlling divorce?
1.
We could ban it completely (its never been that way; not a US thing to absolutely ban; always in
past there was a legislative divorce).
2.
We could allow divorce but make sure that it’s a state monopoly (US)
A.
controlled by legislation- each divorce (expensive, could require money)
B.
controlled by courts (what we do). Old system was fault grounds, had to deserve it
3.
We could monitor divorce by imposing delay, most states do this to see if you change your mind
btw file and enter divorce, if we have a policy against divorce
4.
We could require the parties to enter into a conciliation or mediation, help adjust
5.
We could impose fees to discourage divorce, stop and think, can limit if indigent parties
6.
We could appoint an anti-divorce representative, someone who acts on behalf of the marriage, GB
has such a 3rd party but US has just the parties with their interests
It used to be that you could only get a divorce on narrowly construed fault grounds (i.e. cruelty, adultery, desertion)that is changing. Had to apply to legislature
1.
A.
The Fault System [A 350-371]: not on exam
Benscoter v. Benscoter (Superior Ct. of PA) 1963, p.363- FACTS: Wife has multiple sclerosis,
becomes nightmare wife, husband says she is verbally abusive and cruel to him. He sues for
divorce on the grounds that she is cruel to him. Court does not let them divorce! Last paragraph
says for better or worse stuck in status relationship even if hates her injury.
-this case is a good example of how courts used to refuse divorces where now we would say
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that the parties have irreconcilable differences
-PWS!
B.
Hughes v. Hughes (Court of Appeals of Louisiana) 1976, p. 354- FACTS: Weird case. Wife sues
for divorce on the grounds of cruelty, domestic violence type of a case The divorce is granted. The
court looks to the testimony of one of their C which is the only evidence; C take sides
-this case (in conjunction with the one above) is an example of how much discretion
the trial court had in determining how widely or narrowly to construe the grounds
of cruelty: discretion in saying what is cruel, not predictable, problem with
bargaining! Could be cruel to hide a football show on TV?
-some judges started to pierce the fault system and say phy-mental, irrencon diffs is a
later judicial development. Fault grounds made divorce hard and 3 grounds were
stigmatizing.
Equitable bizarre defenses (to the fault grounds, leading to no divorce, stay married) rose, preserve marriage
even if fault, strong pro-marriage, override happiness.
C.
Rankin v. Rankin (Superior Court of Pennsylvania) 1956, p. 360- FACTS: Husband & Wife are
equally mean to each other. The court says if they are equally awful- NO DIVORCE!
-illustrates old defenses view: marriage isn’t a “love project” it was a “commitment project”
-court stay out (clean hands) if evil conduct from both, recrimination defense
D.
Sargent v. Sargent (Court of Chancery, NJ) 1920, p. 363- FACTS: Husband connived in the wife’s
adulterous conduct. Ct held- NO DIVORCE! He knew about it & let it happen. Defense to fault
grounds: connivance: wink along, lets it occur even if he knows she is adulterer, no divorce,
stay married.
D2.
Willan: condemnation. W cruel, H make up, sleeps with her like forgive her even if fault
grounds met, washed out. Fits with a later no-fault case where parties do not hold out as
married thus are not considered separated.
E.
Fuchs v. Fuchs (SC of NY) 1946, p. 367- FACTS: Husband divorces on grounds of adultery, she
defends & sues him for adultery, then that divorce proceeding is dropped. Next, husband sues wife
for adultery & she doesn’t contest it, instead she gets better C support & alimony. Seems like the
wife agreed to withhold her defense & get more money.
-this case demonstrates collusion in the fault system (common)- she knows she has a
ground to rebut the divorce but isn’t making that claim.
-bargaining, window into fault system
F.
Anonymous v. Anonymous (SC of NY) 1962, p.368- FACTS: Wife is adulterous, she claims that
she went insane. Ct. says not enough evidence that she went insane, grants the divorce.
-this case illustrates the old rule that insanity was a DEFENSE in a divorce
proceeding; helps u stay married if u r insane; the un-insane spouse is stuck
-PRIVATE WELFARE SYSTEM like 1st case on multiple schlr.
-now it is a ground for divorce (we read statute in CA)
-insanity trumps PWS!
G.
ON THE “DEFENSES” IN THE FAULT SYSTEM IN GENERAL- JH
What interests did the defenses preserve (they kept marriage despite fault)?
1.
they seem to track an idea of marriage as status rather than contract
-status view of marriage, not just emotional attachment, or erotic
-cannot abandon her fin/emotionally (desertion), stuck in status, no new one
-not just about money and security but rel itself, perm transform rel to person
-note cruelty often goes with marriage, defenses express this, esp if add in mental
2.
they show concern for the presumed weaker party in a relationship
3.
they show a duty placed on the stronger party to protect the weaker party
-from adultery (connivance, don’t let her fall vulnerable to divorce, note we are
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4.
5.
suspicious of adultery as often both do it, very few marriages where unclean hands and
state gets involved--recrimination), get forgiveness (condemnation; honor that moment
not the preceding bad act), insane person as vuln.
they protect / encourage relationship rather than seeing the parties as autonomous
-current divorce law sees parties as autonomous
private welfare system
H.
ON COLLUSION:
Weird idea that one party must be bad to get divorce, bad actor at fault, strategic picture
of fault system, generated an idea of a real wrongdoer (in some early cases this person
wouldn’t get custody since incapable, gets no support since waived duty, tilt property
division unlike other does better in front of judge, fault means a lot in money). So leads
us to think of party incentives as approach divorce. What motivates parties to collude
(agree to divorce), huge phenonmenon? JH- they want a divorce & cant figure out
another way to get it (need a ground in fault system: often the other woman was a
secretary of an atty, cts were demoralized so we see a shift, see connivance defense) or
one has stuck the other with a fault ground & the non-faulty party has something to
trade/i.e something he or she wants more. Try to get the divorce you want so you snoop
around to stick other with fault so needed connivance defense as a way to duck collusion.
Nonfaulting partner had huge bargaining chip as saw in Fuchs collusion.
I.
Critiques of the Fault System: who is most likely stuck with facts vulnerable to fault, hard to say
who benefited from bargaining.
1.
Feminists say men were actually mostly faulty & this was a way that women could
extract from husbands money that now they cant (under no-fault irreconc diffs: new
system as a big distrib away from women). Definitely favor weaker party in bargain
(W, in market system, status inequality, less important idea as we see EP; now power is
complex and we cannot poredict the old rule effects, like H setting domicile rule has
changed).
2.
Left too much discretion- it was unpredictable & the parties didn’t know what would
happen, as we saw with cruelty. Equitable defenses, not a matter of right. Judges stetch,
shrink suisponte. Cases differ in detail required, drives people crazy.
3.
Judges also upset with demoralizing collusion.
4.
Rising sense, see Freedman in text, that marriage was a sentimental relation, when the
sentiment is gone, end it.
2.
No-Fault Divorce [A371-79; A382-398]
 BIG JH POINT: she hates unilateral divorce on demand – alienates self from and
terminated rel – CHANGES WHO IDEA OF MARRIAGE WE HAD DURING
WHOLE COURSE--hard to get out, STATUS like, fence around, self-discipline, stuck
with person!!! She wants there to be more substance to divorce laws than the easy out of
irreconcilable differences. Still stigma if fault and more aggressive hearing on facts. Idea:
you cannot unilaterally marry, analogy to exit, consent at start and end? Sure there are still
formalities (not in private, delays etc) so may reconcile so not a total unilateral K model but
it is close!!!!
 STATUS model versus BARGAINING model.
 Dual system have problems, see Massar case
 Maybe put K break of expectations elements into think how divide property, CS, custody,
tort actions for stuff during marriage. Many states consider fault in property
division even if overall no fault system!! If marriage is a K rel, get some dmgs for
disappointed not a perm rel. See property cases.
 California Report (p.371, 1966) can be seen as marking the beginning of the change to a nofault system, revolution in law, astonishing speed in last 2 decades, with CA leading the way,
every state had it by 1985, changed the rules of ongoing rel too, changed the chips
retroactively, it ended fault grounds for all statuses of marriage, such big change can occur
again.
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







A.
where no fault, now u get divorce for irreconcilable differences (u prove—subjective marital
failure standard, individual representation that one partner has assessed the situation, CA even
affidavit; other may not show, also even if u defend no irreconcilable differences and u want
to go on, the judge may say THAT is irreconcilable differences!, but CA notes few judges
deny these requests, u can get divorce even if other spouse not want) so we have unilateral
divorce on demand (even though the CA report says opposite, says that it is pro-marriage,
pro-therapy, tries to make sure people really want divorce, slow it down, try to reconcile; it is
not true, intention is not reality; CA said there was a growing divorce rate, breakdown of the
family and associated problems, law should help family stability, reduce friction and
destructive hostility engendered by the adversary fault system, fault grounds are really just
superficial aspects, symptoms of ultimate failure of rel and ct should have discretion to deny
decree not just when defense, acts vary in significance and should not treat all same,
unrealistic, may still contain spark of life even if I adultery act, gotta reach essential Q of has
this particular marriage so far broken down and cannot be saved, legit objects of marriage
have been irretrievable lost, ceased to exist in fact, not require hangup on tech matters of fault,
elim adversary aspects of litigation, specific accusation and answer, no threats, end perjury,
look at whole picture of marriage).
after the report we see the actual CA statute also allows incurable insanity as a grounds for
divorce along with I.D, which caused the irremediable breakdown of the marriage, p. 375. If
reasonable chance can reconcile, continue proceeding 30 days. Evidence of specific acts of
misconduct shall be improper and inadmissible unless relevant to C custody.
up until now we have been looking at marriage as something that is a status- now it
looks as if it is something that the parties can get out of unilaterally. Scary to our course
policies, let’s one party do it, not even K, just 1 spouse gives one-sided evidence that
considers marriage dead. Note most states do not go full way, hedge various means. May
add in fault grounds, make fault part of IB, or say irreconcilable differences only if you
agree and court can still look in and deny divorce, we know better than you; try to
avoid demandable ones.
Uniform Marriage and Divorce Act page 378-9, see if marriage irretrievably broken (IB)
(won’t reconcile); ABA says leads to divorce on demand; so led to revision to needing
evidence that parties lived separate and apart for over 180 days or serious marital discord
affects the attitudes of ONE or both parties towards the marriage. If both parties agree IB,
court make finding whether IB or not. If one denies IB, court considers all relevant factors
and either find IB or continue for further hearing 30-60 days later and may suggest
counseling. Don’t go too far, we need to find what is truly unsaveable.
critics say anti-family, women and kids hurt by easy divorce.
note says the statutes were just a delayed ratification of a system already in place, ordinary
lawyers filled the demand for easy divorce
so we have no-fault, hedge-no-fault (limit since K may go too far, try avoid demandable
ones, UMDA), and there is also an idea in Louisiana: COVENANT MARRIAGE
structure only on fault grounds unless wishy washy form is chosen--you can opt into no
fault system. This is on DM 208.
JH predicts fault will come back; worry C get hurt, breakdown of civilization, building
block is marriage
 DM shows true! Fault is coming back.
Massar v. Massar (SC of NJ) 1995, p. 380- State with DUAL SYSTEM: Problems. YOU CAN
WAIVE ACCESS TO FAULT PART IN DUAL SYSTEM! Here we had choice btw hold to
K/waive statutory provision of fault grounds or is fault so important that cannot K to waive
it, now we call it domestic violence? Here let it be waived since seems less serious, case by
case look, need stronger facts to mobilize DV policy. (When can we do both? In NY, if
consensual ok for no fault otherwise fault grounds; stigma, rage, revenge if fault; clamp down if C,
etc.) during marriage K in which H agrees to vacate the marital home & W agreed not to seek a
fault based divorce. (Court grabs onto idea what they entered this K during marriage when fully
knew behaviors forming basis of grounds for divorce; not talking about stuff happening after K. )
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Later the W wanted to bring an extreme cruelty divorce after H already moved out. Holding: the K
is upheld (grounds can be limited to no-fault 18 months continuous separation)-W here isn’t
alleging enough (the implication is that in other more extreme cases one party may be able to
get out of the K while here there was nothing in record about phy/mental abuse, may not
enforce K if serves to hide abuse 382 but this is not this case, real concern here as he got temp
suspended from church job and W seems to have done it since not get enough property). Trial
court said she was not under duress during K, represented by atty, public policy for period of time
to assess rel and see if reconciliation is possible; SC agrees. Adds: strong state policy in enforcing
vol consensual Ks unless unconscionable/fraud, more lenient to K in domestic sphere (K
principles have little place there) and more judge discretion but do use K ideas to see terms and
intent, not draft a new K for parties, this K was clear and unequivocal, CASE by CASE basis see
if fair and just, NO PER SE RULE against K out a ground for divorce, state not promote
divorce, promotes marriage so give time to reflect, cooling off period
-this case begs the question: what is the relationship between the fault system & the no-fault
system when the fault system allows K?
-In other words, do we agree so strongly with the fault grounds that we will let the
parties use them even when they have K out? Problems of dual system!!
B.
Hanger . Hanger (DC Superior Court) 1974, p. 382- H finds out that W is having & affair, they
negotiate a separation K, they will live apart and act as if “sole and unmarried” (ct says does not
give license to engage in adultery, still married under law, he agrees not to charge her with
adultery. After that, both parties go off & have extra-marital affairs. The wife then sues the
husband for adultery and wins; she pounced even if unclean hands herself. Ct says too bad for
him- he can waive her fault but he didn’t get the same waiver for himself. Cannot rely on sole and
unmarried clause. Custody presumption against who had affair; she did too for long period of time
so he gets custody. Cannot K out of responsibilities of marriage, public policy: cannot waive
adultery, strong fault arg, BUT he can waive her individual fault without waiving his own.
Just cannot waive adultery grounds altogether. He did not K carefully so she pounced. Need
to waive in watertight way or else fault exists!!
Flora v Flora. Indiana, 1975, p. 385. Defenses are no longer applicable b/c based on fault
system, were invented by court so can rid, even if legislature has not repealed them. Indiana has
total no fault divorce. Versus other states who kept some fault grounds see complications. Iowa: if
show collusion seems marriage broke down, versus CA: collusion cannot lead to divorce since
fraud.
C.
Ellam v. Ellam (Superior Ct. of NJ) 1975, p. 386: Curious case. A lot of states let you divorce
after separation (Q define) over time. This ct splits rel into parts: live together, sex, hold out/
and says holding out is decisive so you are NOT separated if you hold out as married.
Reminds of of fult condemnation definition, you cannot do things that suggest marriage,
gotta split up (there slept despite fault). THUS IMPULSES IN DIRECTION OF FAULT
SYSTEM!!!!!! Parties are having no sexual relationship & aren’t even living together, H moved
in with his mom. Holding: still does not satisfy the statute- the neighbors must know that they are
not living together for 18 months & then they can get a divorce. They had kept up some aspects of
rel.: mom drove him to house in Am, see if all ok, kiss good morn, take car out of garage and drive
to work, return to matrimonial home after work, converse with W, watch TV, then mom picked
him up. Weekends, cleans and ate there. H did not neighbors to know separated. Question is do
they live “separate and apart in different habitations” within NJ law. Give every word effect so
none superfluous, this statute requires both: different habitations (separate roofs) and live
separate / apart (different lives). Yes different roofs here as he slept at mom. But other than no
sex, basically same lives as before. Just different quality of association not substance. We only
terminate dead marriages, need objective proof of lack of viability. Cannot just say rel devoid of
positive qualities or sex, need separate lives and not induce others to think they are together.
Separation is not just about the end of sex; about neighborhood view. Here still kept so many
elements and ties of the marriage.
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D.
Twyman v. Twyman (SC TX) 1993, p.388 Can a claim for ED be brought in a divorce
proceeding? W filed for divorce & claimed ED (general claim about forced traumatic bondage,
could be I or N). At the same time she also filed a tort action against the H (for N infliction of
ED). Previously (or around the same time) the ct in Texas had overruled the tort of N infliction of
emotional distress, & thus denied her tort claim. So this court remands saying there is no such
thing as NIED, remands for new trial to see if IIED (allow alternate legal theory). But it expressly
adopts the tort of intentional infliction of ED & hold it can be brought in a divorce
proceeding! CAN TACK ON PRIVATE LAW APPORACH onto public one; she can sue in
tort (note she was not trying to add on fault here). See if H acted intentionally or recklessly,
conduct was extreme or outrageous (remand since she needs to show this high threshold, law was
not set when she sued), and caused severe ED. See if outrageous: so extreme. Broadly accepted
but ct adopts it mostly since meaningful distinction from inadvertance. There is no more
interspousal immunity says caselaw! Affects divorce -- Can allege CL claims ag one another.
We allow joinder but subject to res judicata; resolve in 1 trial b/c same fact base but try not
give double recovery, analyze remaining factors, consider tort damages when divide property.
There are BL rules on property, damages are a separate issue, can manage to not contaminate
claims. Dissent: too personal, often suffer ED when intimate especially when learn of affair and
that is unrecoverable yet hard to distinguish for jury. Also fault becomes dominant over other
factors; see evils that legislature tried to get rid of with no-fault system, assert objective
conduct in most rel. Only 2 state courts have applied this tort to divorce and those were atypical,
physical. Worry spurious claims, long intrusive trials, weed out meritless claims. Far reaching
effetcs, many will assert it additional trial burden. Outrageous std is hard too (bondage activities).
Here W suffered but would be due to H or the bondage or the breakup. People differ abt sex rel
too, juries have own felt beliefs, indiv stds. Also too intrusive into marital rel. Pervades the
private. So detailed. Very acrimonious and injurious. Final (opposite) dissent: give her justice! ED
tort developed to comp women, dominate the claims, men have a interest in downplay claims, men
dominate jud system so ED claims have been marginalized. It is troubling the court steps back
given widespread W mistreatment by M.
 Class Q: should we be allowing spouses to pursue an IIED claim in the context of
divorce process? Or should inter-spousal immunity protect against such actions? ARGS
ON EACH SIDE:
-probably parties will always present both claims at once, it is unlikely that someone would claim
IIED & then they would stay married. What other time would they sue in tort?
-problem of subjectivity within marriage rel- we might differ about nature of the conduct. Reas
differences about what is outrageous and extreme conduct. Unpredictable test. But these are major
things, everyone knows what we mean. But there is a multicultural arg. Do not normatazie
marital behavior? Different interps, danger for case. W hat is outrageous in a society we don’t
wanna go there, see here: was W coerced or did she consent to bondage at each step? Weird she
did not sue on ED after know he see other woman; misery of adultery seen as going with
marriage and not extreme unlike the sexual here, JH says that is weird that intensity of
suffering does not track her allegations, need something weird and artificial to be ED tort,
weird!!!!! Also JH says cannot tell what part of ED is from what, some from marriage being
over, segment the ED, how compensate some?!
- too numerous facts & hard to interpret because it is an intimate relationship.( he knew her so
intimately—just that will inflict harm). Subjective invasive analysis, go far in inquiry, trial of all
details of rel. Very reinterpretable facts. Unlike an arms length K where go thru less for
answer!
-huge danger of putting decision in hands of judges, use own cultural & normative biases so
unpredictable.
-incentive to plaintiff bar: how paid? Take on spouse with less assets plus FIND a tort action. Lots
of conseq. Transfer assets plus more attys on each side.
- tort can be in different court (legal), try first; divorce: equitable action for LT even when merger
of actions/courts, arduous adversarial discovery with tort, delay. Plus special Qs to jury. May
preclude issues in divorce. These are all management issues.
-intensifies the div process, extends the claim
-incentives to be careful in marriage, power to inflict intimate harm only when divorce
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-seems to reintroduce fault!!! New form-Bad idea? Stigma, damages if cruel to each other, what
is the difference? The CA report on no fault said minimize adversarialness but get opposite if
let in tort action. Damages as a pot of gold, will not wanna waive tort claim.
Our system has some access to the fault structure.
3.
Reintroduce Fault? [PM Reintroduce Fault]
 JH said this shows her prediction as come true: fault IS coming back
 Wallerstein: PSYCH the LT effects of divorce on C—individ diffs, depends on stage, shatter
safety and reliability of world; divorced family is not a truncated 2 P family, new uncertain
rel, out of sight out of mind?, chaos and rapid change, anxiety, shadow of divorce looms over
current marriages, need LT inquiry, may not just be a ST crisis but maybe perm detriment,
sleeper effects much after the time of weaker C rearing and protection, individual cases .
 Galston: PSYCH needed, a not so fast divorce law—divorce as disruptive, harms C, we
should get decrease div in lower conflict marr and mitigate impact of unavoidable ones on C;
ok for current no fault law if no dependent C; but if C we should eliminate unilateral no fault
and return to an updated fault system; even if consent, require one year reflection, counseling,
mediation. End the current cult of divorce (1960-80 expansion). 30 percent decline in C living
stds. Easier access has not improved the lives of C coming from homes without physical
abuse and extreme marital conflict. Poorer ac perf, crime, depression etc, DM 206. If cannot
avoid div, should raise CS and enforce better, keep in familiar neighborhoods even if means
cannot include family home in division of property; improve brg position of custodial P. ec is
only a part so CCS is not only solution, divorce reduces P invest in C and disrupts social ties.
The point is not to stick W in abusive rel but to maintain lower intensity dissatifaction rel.
moral Q: keep C welfare 1st so toughen the divorce laws.
 Lewin: PSYCH differences found in care with stepM—less health care, educ, money on food
then C raised by bio M; they invest less in step C and F leave it to her to handle. Half nation
lives apart from at least 1 bio P.Note: bio C of stepM are more lilkely to go to college unlike
the step C so its not being less able P or unstable household. Esp hard when older C, less able
to bond.4-7 years for family integration.
 Etzioni: CLAMP DOWN IN LA marriage with no easy outs—criticize Lousiana covenant
marriage and no fault marriage choice system. Give option of disposable marriage and
one that lts you try to sustain marriages, easy exit versus slow down before quit. Coerced
to think like ice cream versus fro yo, or are choices the opposite of coercion. Cov marriage
req serious deliberations, will get counseling if conflicts, seek div only after mutually agreed
2 years sep (if simply growing a aprt gives you time to reflect and work things out or limited
set of fault-like circs (so can get out if abuse etc). LA is giving a new form of prenup K
focused on how to make divorce less likely, shows state wants marriage, foster what it
considers a virtue, good to promore thru give expanded options rather than force. LA
couples can still marry in old-fashioned no fault way. Bettr to prepare to marry: 20 percent
who get premar counseling do not marry sparing divorce
 Appellant’s opening brief in Parker v Parker: SO UNHAPPY THAT CON LAW CLAIMS:
marriage as FR, SS if deprive, different rules when married, JH says not a crazy arg. JH
says he cannot even get in evidence about her wanting to reconcile, swinging at times. To say
unilateral div on demand is ag PDP, entitled to more than 30 secs on irrec diffs, arg has
legs!!! Marriage is not a unit. JH reminds us of Eisen: 2 indiv with reprod rights,
autonomy, and ALSO right sof marriage itself (JH thinks CAN make that jump). But Q:
FR access marriage, not to marriage LASTING! (Class thoughts: maybe FR to marriage as
long as no IDs and deserves full hearing? But if one won’t reconcile there are Ids, no way to
monitor, will not return to be Cleavers. Maybe cts deny ID since think parties unsure what
wants, give time. JH wants to not agree with snapping fingers and ending marriage. But
she says we seem to like unilateral divorce on demand) Appeals divorce of irrec diffs,
unsure why W wanted it, exemplary H, faith, not cruel, not violent. W made bare statement
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she felt IB: trumped like irrebutable presumption over H contrary statements: says PDP
problem!!! FR to preserve marriage just like procreation. SS. Marriage as bedrock. More
litigation and divorces and says law is unconst. Tried to get rid of Family Law Act of 1969.
Says law req more evidence Ct should apply statute according to purpose of preserve
marriage and not allow unilateral unsupported conclusory statement to win.
B.
Standing & Grounds in a C’s Action to Terminate Pal Rights [A1389-93]
Kingsley v. Kingsley (Florida 1993) [p. 1389]
[bio M appeals lower order term P rights based on findings of abandonment & neglect & granting petition
for adoption filed by minor C’s foster P. Affirms term of bio M Pal rights but reverses adoption order.
Holding:
- C had tried to petition to term natural P rights and adoption by foster P but M (and court agrees) says
he does not have standing to initiate claims. Unemancipated minors do not have legal capacity
initiate legal proceedings in own name, C thin rights, NO STANDING; but procede as others
have standing, error rendered harmless by fact that separate petitions for term of P rights were filed
on behalf of C by foster F, guardian ad litem, & foster M. Age disability.
- JH: we will see MORE kid standing to div P: stay tunes.
- M says error to try term and adoption together, viol PDP bc shift to see Ping skills instead of neglect
and abandonment issues, unduly burden her to overcome comparison; court agrees better practice to
separate. Termination & adoption should be tried separately so as not to shift focus from fitness
of natural P to comparison between two sets of P, but harmless error birth M did not show that
comparisons became focal point of termination proceedings or affected trial court’s decision. Evidence
did not emphasize Pal skills comparisons plus she not show they were focus or affected decision of A
and N issues. She needs to show that.
Concurrence in part, Dissent in part:
- no cause of action that permits C to divorce Ps, that is the real life drama here: they try to get rid of P
so foster can adopt him.
- This is an end run around capacity, let in adults who say same thing as C would
- no “no-fault” termination of Pal rights. C has right not to be abused, neglected or abandoned but no
right to change Ps simply bc C finds substitutes he likes better with a better std of living.
- only employ BI standard if P has done something sufficiently egregious to permit forfeiture of right
to continue as P; trial court failed keep steps separate. Term must focus on alleged misconduct of bio
P, need 2 step analysis: first, did P do stuff so bad; unless this is yes we never get to step 2, BI
- by permitting adoption be tried with termination, focus shifted to comparison with PAP (single P
versus lawyer and W, bio M could not win contest and her alleged misconduct ceased to be an issue,
instead intertwined with BI and even that was screwed up by make PAPS parties and error to have
proposed adoptive F acting as one of C’s attorneys. She had to compete with the Cleavers, there
throughout the case, not her facts alone, implicitly BI: JH THINKS PROB BUT CT NOT FACE,
says harmless error.
- yes there was enough evidence in record for abandonment but record also supports could have shown
reverse, so not harmless error bc numerous procedural errors may have affected outcome; should be
entitled to new hearing.]
Note: if M had her way, could have termination of Pal rights before adoption; court AVOID BABY
IN SPACE moment by try simulatenously. After term, the adoption might have been derailed eg too
old, bio D appear
- notes on 1393 show may need to chose continuity over rights of bop P. like is entrusted to babysitter
for years or in foster care long time. Need psych P and M may not be able to. Case where bio M killd
prior son; give to primary caretaker (not bio M) if chance she will do so again; concurring says
presume unfit if bio M was convicted of kill her C before.
VII. Procedural & Ethical Issues in Divorce
We have some access to the fault system structure. What about the role of the attorney? CA decreases
adversarialness to save marriage as we saw in no-fault section. Now idea increase to save behavior of parties after
divorce so cooperate. Were in best position to hurt each other. Ideas to decrease adversarialness: dampen with
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mediation, one attorney for all, encourage/enforce actively settlement (pretrial process: attorney or party run it, give
BL rules so settle effectively). What do we want institutionally? Lawyers to do it all? Obligations to C against P?
Represent C? Ask C opinions? Have a settlement—what do we do with it, if it not give effect to public policy?
Adversarial confrontation?
A. How Adversarial?
1.
Law, Culture & Bargaining [A 875-883]
With the spread of no-fault divorce, lawyers are more needed to assist with custodial and fin issues
as much as with the divorce itself. Ethics says improper to assist with div and not advise on the
need to resolve alimony, support, visits, custody, jointly held assets. Don’t just help get decree.
Most useful tool for arranging cust and fin settlements is carefully drafted separation K; they may
agree to decrease total tax liability etc. courts tend to favor such K as way to reduce ct time and bc
parties more likely to comply with something they made themselves. This seciton highlights probs
to consider when draft K. Eg know tax conseq, but also predict what ct would req if no K is
reached so can negotiate effectively for client.
A. Mnookin & Kornhauser, p. 875- this is a classic article on the divorce process: bargaining in the
shadow of the law: the case of divorce. Need to reexamine private ordering – most cases never go to
court with contested issues!!! The authors divide the property to be distributed into four
categories: (1) marital property (how divide their property, (2) alimony (CONTINUING DUTY
OF SUPPORT, claims on future earnings of other), (3) C support (claim of C) (4) C custody &
visitation (resp and opp for C rearing): separate pieces of FL, independent rule structures that they
say is crazy since these are all LINKED!!!!!! Reexamine all 4 strands of law from parties
perspective (law sees as highly regulatory, imposed on parties). Parties see as all money translation
plus many ways to arrange cust plus money and cust are linked. Separation K affects all 4 matters.,
trade among the matters, ultimately monetize all, involves all being fungible, if we push twd
settlement we need to recognize all 4 divisions of property interact. Like if custody is important,
give up direct money part. Or “I’ll give up C support to get more alimony.” Points to the role of RISK
in this negotiation process, bargain in the shadow of it (law gives each P brg chips, endowment of
sorts; range of outcomes are only those that leave them as well off or better than if no brg) and
becomes part of strategy (for custody; care less and know it so u do not care abt uncertainty unlike
other scared spouse who is more likely to brg with u to avoid that uncertainty, the party that cares
more will give up more. Risk prefs matter.There is lingering discretion of judges so unclear BI
(who wins custody, lingering uncertainty). If BL rule and know win, can go for all on settlement and
never trade. If you are default BL loser at trial you give up more than if uncertain! Buy yourself out of
the rule with more concessions. Why we think law SHOULD give div spouses broad powers to
make own K?: Litigation is costly, less pain of adversary, psych evid that C benefit is P agree on cust
plans, avoid litigation risks, save time, more accepted than what ct impose. Overall points:
 Elements are regarded by parties as fungible, commensurate; we split these elements in course but
world of settlements shows commensurate even if laws think solo. PP: can we let this? JH thinks
great paper since says fictional enterprise if treat FL domains as indep – complex! Most imp
part!
 Policy baffles: give up property/$ to get custody but how let people trade CS: C hurt in expensive
household, triple whammy!!! A lot depends on presence of C; if no C, cts usually go along pretty
easy. C; doctrinal constraints, seems that P cannot make own law with CA, cust, visitation. Ct can
reject custody K in PP use. But in truth, parties DO have power to make own deals, rubber stamp
even if C, cts rarely set aside arrangement that both P agree to.P discretion since state not time
review full circs, P not give in evid damaging the K, vague stds, judges get no guidance as to circs
when override P. also practical limits when P leave ctroom. Cts seem to be about dispute
settlement not C protection.
 Strategies of brg in market are possibly working here; hold out for spite, bluff, fake care
about cust even if will decrease overall pie, just distaste of discussing with this person, 882.
Rational self-interested utility maximizers. Could get outcome no one wants if u r risk-adverse.
Hard to know what on other mind completely.
 Why some cases are litigated?: Spite, desire to punish other; distaste for neg/distrust; call the
bluff/game of chic; uncertainty and risk prefs/overestimate chance of win leads to more lit;
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
2.
sometimes no middle ground, cannot divide; both prefer risk
Random notes from text: alimony and CS are seen by parties as fung, money from same person,
not need track how spend, joint consumption, ex benefits too from CS, same std of living, noncust
bear more fin burdens. Alimony term on remarriage and CS end when C reach majority or is
emancipated; alimony is more uncertain so how characterize money does pose diff risks. Lump
sum versus get money over time, convert PV. If both are risk adverse likely settle, more ranges
preferred to risk of lit. versus both prefer risk, likely litig. Always the risk preferrer has adv in neg.
(How) Should Courts Ratify & Enforce Out of Court Settlements? [A 883-894]
A. Davis v. Davis (DC) 1970, p.883. K btw marital partners are again treated as std K law (need to
show fraud, duress, etc. to void). W said that the separation shouldn’t be in the divorce decree
because it was unfair. (Originally she didn’t want alimony or CS – law would have preferred he not
avoid duties of money and not stick any stepF but M traded it away, felt insult to W, feminist gave it
up, pressure was in her OWN head so she is help to the K -- & then realized that it was hard for her
to get a job, needed the money, hard to get on feet etc.) No actions by him, own self-pressure to get a
job and support self. Holding: separation K was in the divorce decree. Ct did not set it aside and order
alimony/CS on new terms. Need to show fraud, duress, concealment (Halley says more in securities
law) or overreaching or else can K to bar W claim. Encourage parties to K as they know what is fair in
their circs, burden to prove taint is on who wishes to change K. Enforce K unless unfair on face. Just
bc she could have gotten something better does not void the K. or else we would shake foundation of
separation Ks. Foolish but so was the marriage. Note can always modify CS; interest of C is b4 any
private ordering. But here no proper showing. Alimony is not modifiable.
 JH- this case could be in the casebook to show a person in a divorce proceeding who really
isn’t up to it. This case raises the question of what kind of formalities should we add if there is a
bargainer in the process who might not be as good at bargaining? SEE GRILLO ON
MEDIATION BELOW
 We could try to see M not as weak but as altruistic, dislike neg. so now can she waive this
money, imagine she is totally up to it? Lines of analysis: it is one integrated brg, pick 1 part
to change screws it all up. Maybe she was better off getting him to be passivism, nice twds C.
Should we question her negotiating strategy? Maybe could require a process, not just leave
them in room to neg, give her an advocate, make it more formal? (Do we do this is have
someone getting a bad barg? See cases coming.). Is it her call, she is right about ultimate
tradeoff? Or do we always deliver a certain amt of money, psych trades are not so beneficial,
like to make him passive and nice? How about the attorney?: see below..
 Also an example of adults in a divorce proceeding bargaining away the C’s rights (money
that would have gone to the C). She did not want him to support C if she remarried, felt fair.
Oedekoven, WY 1975, p. 886, not discussed in class: if a divorce decree approves/ratifies a property
settlement K but does not order the parties to perform its obligations, the violation of the K is not a viol
of the decree and not contempt of ct. Mere approval is not command to pay unless so orders. Confine
to K claim.
3.Should courts enforce arbitration clauses?
a. Faherty v. Faherty (NJ S. Ct. 1984) [p. 903]
[Holding: arbitration provision (saying any fin dispute arising out of the K must be arbitrated
under AAA rules, binding decision) in separation agreement (Property Settlement K regarding
equitable distrib, alimony, custody, CS) entered into by parties prior to divorce & incorporated
into divorce judgement is generally enforceable. And not shown to have violated below reqs.
W tried to discover exH business records and get ct order fixing past due alimony & CS; exH
moves to get arbitration; lower ct said must arbitrate so they do; she tries to confirm its result and
exH tries to now challenge the validity of the clause! Said alimony/CS should not be settled
outside the courts for public policy reasons.
 Ct says most states favor the arbitration remedy, good to resolve disputes out of courts, and
most are enforced unless violates public policy. Recent years see it a lot with domestic
disputes arising under separation Ks. Since parties may settle support rights and oblig by
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K, no policy reason to prohibit their submitting disputes arising out of such K to binding
arbitration. Fair and reasonable, agreed to bind themselves.
 In fact, public policy supports arbitration of ALIMONY disputes. Effective alternative
method of dispute resolution. Court lists advantages: less court congestion, keep sensitive
matters to private forum, less trauma and anxiety of litigation, minimize polarization, can
choose arbiter. In this sensitive and intensely private area of domestic disputes, they K for it,
it is desirable.
 Inclination to embrace arbitration of ALL phases of matrimonial disputes is tempered by
knowledge of competing public policy considerations. C support & custody disputes can be
arbitrated, but whenever validity of award is questioned on grounds that it does not
provide adequate protection for C, trial court should conduct special review of award.
Court role as PP, protect BI despite K. Ps cannot deprive C of BI thru K, nor thru arbitration.
Yet still growing tendency to recognize; we not think interferes with judicial protection of BI;
advantages of arbitration outweigh costs. Still courts have nondelegable special supervisory
function that can exercise -- (stage one) review all CS awards of arbitrator and (stage two)
court should conduct de novo review unless clear on face of award that award could not
adversely affect substantial BI (materially affects C’s standard of living, not a prob if trivial,
always ok if gives all requested CS, best to have as much support as possible, only use this if
reduce CS or refuse increase). Do stage 2 bc of PP but in future may not need to if
arbitrator protects BI just as well as judge.
 Not discuss arb of custody or visit; often deemed against PP but ct says may be better for C
than present ctroom confrontation! Same policy above may apply.
4.Mediation (See under next section)
B.Role of Lawyer in Divorce
So, really do not want fault/adv esp if C. Pressure in direction of settlement: mediation, negotiation, and
conciliation But we look to attys & rules make it hard to do all three! Duty of loyalty at least, zealous rep, disclose
int they have, disclose if conflict and get consent, not rep former client, hard as div over time, not same SM but what
is same SM, prop etc.?, not use confidence ag former client, things learn in process. Family atty tend to have
ongoing fam rel, hard to be zealous for just 1. Can attys mediate? Test Fuller ag. it. Think good for mediation
per se & attys in it? Can we have dual rep.? See bar opinion discipline proceeding. Rules in way? Good, bad?
1.
2.
with spread of no-fault divorce statutes, attorneys increasingly are needed by divorcing spouses for making
separation K (arranging custody & fin settlements) as much as for assistance in obtaining divorce itself
a. court favor K as way reduce court time
b. parties more likely comply with mutually agreed upon solution than one imposed by court
c. divorce is a judicial proceeding so people look to atty, put in scene of evolving conflict or conflict
resolution. People are angry, ambivalent, and vulnerable. Not corpporate people, psych/complex,
why so cool lawyering!
ways of being a divorce attorney: OPTIONS
a. types of representation
1) sole representation- lawyer represents one of adult parties to divorce
a) two parties represented
b) only one party represented- asymmetrical representation
2) joint representation-of both adults-reading show probs
 page 433-6: general rule, cannot ethically allow jt rep of couple seeking div. But if Cless,
equal employ/educ, already K prop div before get atty, just ask for counsel to implement
preexisting K of couple, separate uncoerced consent, full disclosure of limits, so on these
limited and specific facts we allow joint rep. Usually req for zealous rep precludes jt rep but
can do if limited in scope, no present conflict as to rep objective, full disclosure, uncoerced
consent; rare cases where no conflicts. We do not think std will be met often or easily.
Undivided loyalty. Need to caution them. Many issues in div do not allow joint such as
custody. Joint rep reduces atty to SCRIVENER and expeditor, see later on action versus
inaction. Stds here preclude most jt rep. Dissent says conflict inherent in div, unavoidable
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b.
diff int. even if uncontested div. Need to be able to be advocate, greater role as advisor, may
be unpalatable to other party. Great emotion. Would not be able to review adequacy of K.
relegated to scribe function. Narrow role takes away from zealous advocacy. Question about
saving money, likely jt rep cost more bc rep 2 clients. Other courts have agree and been
reluctant to give a mere scrivener role.
3) no representation-often all alone
modes of representation-how atty pursues/handles case
1) very adversarial
a) P v D attitude like typical civil case
b) easy if sole rep but can come into jt: problem
c) most formal
d) trusts client to know own interests
e) technician (how-to man) guiding client through process & helping avoid pitfalls; hopes to win
case with speed & honesty (Felder, p. 409). Client as always right, tough adversarial model,
win case, not let client see expert, function is to win not to get her committed, not for me to
see if good or bad, I am not judge hearing both sides. Talks about how should only divorce if
in really bad state, otherwise let C grow and W adjust to him wanting to remarry
2) negotiation
a) often if asymmetry-feel extend ST to unrep party
b) or if no rep, parties pursue self interests, negotiator not need prompt them on that
c) reading also shows often if dual rep
d) often the negotiator tries to grow the pie, max settlement for both, but if cannot, work
for your side if sole representation.
e) atty acts as broker in a negotiation, get them to negotiate, willing to set up negotiation
such as have adversaries pursuing self-interests, unlike mediation
 TAKING SIDES: if sole rep model, very oriented towards interests of my side but
not an all out war as in adversarial function.
3) mediation
a) reading separates it from negotiation
b) more probs on role of atty
c) there is court-annexed mediation, adversarial model yet mediation., a lot of states do courtmandated mediation (but see Grillo versus JH: thinks better to order it)
d) mediation = mediate conflict, facilatation, NEUTRAL party present (unlike mediation
where willing to have adversaries), FOUR DIFFERENT PICTURES:
e) FULLER’s MODEL, 917: mediator is nonauthoratative capacitor. Mediation is directed
not toward achieving conformity to norms (unlike judge orders), but toward generation of
relevant norms themselves; authority for norms of mediation come up from below- from
parties; mediator just provides structure for articulation of norms; lawyer as non-authoritative
capacitator for parties creating norms. Not trying to seduce/persuade your own view/norms
but persuade the parties to the norms of the mediation, mediation brings out / generates
norms of parties and mediator functions to hold them to this practice, seems neutral but
may not be, mediation simply creates structure (like assists parties in working out terms of
K defining their rights and duties, nothing is preexisting) but may not be realistic. Can be
directed not just twds harmony but twds terminating a rel, marriage therapy with inevitable
divorce, not one goal to all types of mediation, no general structure other than 3 rd party puts
parties on good beh, direct twds issues not recrimination, open no taboo, no rancor or evasion;
also presupposes strong pull twd cohesion even if splitting; mediator’s “power” only from
presence and help being needed badly, power of suggestion, coordination req common
acceptance of some source of suggestion; don’t think of authority imposing social order,
mediator claims no authority really & still help order, one day maybe parties won’t even need
him as order may come from social interactions it seems to govern & direct (Fuller, p. 916)
f) LEVY, 923: parties and lawyers are ambivalent, complex evolving over time, all in play,
nothing indigenous, values shift; in mediation too! can’t dichotomize trad’l adversarial
& mediative groups of lawyers (different model from Fuller who said mediation is
nonauthoratative capacitor: constant shifting of mediation as with attorneys, we need to
realize world is complex, disputant characteristics differ, do not dichotomize world not meant
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to be such, real world is more complex than saying 2 groups, lawyers accom cases and no 2
div cases are alike, style changes within parameters of values guiding div process and specific
case), also know they can influence, values differ; although cases vary 85 to 90% of divorce
cases are settled prior to trial- so in significant sense not really adversarial; in div both
lawyers enlist judge’s aid in obtaining compromise of spouses’ inconsistent positions so even
in trad’l adv situations we see folks behave in ways we’d label mediation; finally mediators
show real world complexity, some mediators believe affirmative intervention in divorce is
necessary to ensure fair settlement as well as enhance personal satisfaction of parties; but
some mediators reject intervention and may only broker agreements reached solely by
spouses’ efforts, even if one of spouses is ultimately disadvantaged.
 Some people say leave custody disputes to mediation bc leaves resp of decision with
Ps and promotes better communication. Note 924.
g) GRILLO 919: she is a cultural feminist. Virtues of mediation lost when it is imposed rather
than voluntarily engaged in; mandatory mediation disproportionately affects those already
subordinated in society; wolf in sheep’s clothing; mediation is more not less disempowering
than adversary system since people are told they are being empowered when really forced
acquiesce in own oppression . When put adversary process in place, give people formal
equality; when remove formal equality, parties default to whatever power relations had
before that got them into the divorce, scary says Grillo; if married, default to patriarchy,
greedy manipulative party will win; also weak party will have no advocate for interests. JH
unsure this is true, says indigenous rel is complex.
 Grillo says weaken party in assym rel wants to get to judge, not go into mediation
and see what norms we generate. Page 884 Remember from Davis case that W in
neg do not wanna intro conflict (prefer give up stuff for passivism of H), character
defect for adversarialness. Grillo thinks this is always the W, concerned mediation
lets W default to indigenously powerless state.
 Remember Mnookin on pieces of div doctrine as fungible even if seems they are
diff bunches of law, trade if risk adverse. Do we care? Text questions this.
 JH thinks wrong: order into room, you are more guarded if you court order
mediation, more deferential if NOT force into room, then you lose authority/points
h) LANGE case, see further below for 4th picture of mediation.
i) Text also mentioned Silberman, 917: div mediation is less adversarial, expensive, and time
consuming than trad’l alternative. Experiments have been impeded by PR code and she thinks
the bar should not do what it has done and should promote mediation instead. There are 4
models of med: part of your legal practice (PR barrier re: conflicting, potential differing ints),
mental health professional mediator faces charges for unauthorized legal practice (legal issues
are tied to counseling); lawyer-therapist team but same prob as first plus PR rule ag share
practice, split fees with nonlawyer; lawyer just give advice in final state of med after couple
agree on issues but still PR probs above plus rules on select atty.
j) Text also mentioned Crouch on 918: criticize div mediation as lacking trad’l adv safeguards.
Mediation as expensive service adding extra lawyer to already long & costly process of
negotiating separation K; adversary process is quicker, cheaper, less stressful; in trying to
preserve mediation climate, lawyer has to make subtle judgments about when to alert other
party to overreaching; parties may pretend to be weak, or dominant may seem weaker;
mediators can unwittingly facilitate exploitation of one party; interest in “successful”
mediation may produce compromise that is not entirely fair; mediation movement’s strong
bias against moral judgments allows meet irrational proposals half way, this is not
representation, impartial umpire and discussion leader, not advocate.
k) Byran on page 924-5 note: use of mediation circumvents divorce & custody laws designed
protect rights of women & Children.
4) counseling function (Pilpel, p. 411)
a) least formal
b) Goldman, 412 Counseling the Divorce Client: Very common in business area to advice. But
most do inappropriately or not realize are counseling, leads to paternalistic stance that pushes
client to follow atty. Goldman is against the hired gun approach where u do whatever client
wants as long a pays. Prefers to SHARE BURDENS OF CASE WITH CLIENT and look to
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3.
negotiate without court. Goldman lays out numbered thoughts and gives examples from cases.
Create trust rel, feel good about your prof assistance, appropriate counseling can avoid stress
and prevent anger walls, more positive results without emotional costs. Tips on how to
counsel. Fully inform them of divorce law, give your philosophy so they can see if wanna hire
you, say shared project, evaluate before you act and not file motions just for sake of it, don’t
be paternalistic or stereotype, know what client wants and your own goals too, get them to
actively participate, determine case personalities, DO NOT DEFINE AS A WIN-LOSE
SITUATION!
 Halley discusses number 7 when she talked about action-inaction scrivenver later.
Here in sole repr, not scrivener, here adversarial. Goldman says be sure u know
what client wants; client may wish to pay for college ed, cares about C, even if u say
other spouse overreaches to ask for it. the client sees the pie. Do you tell them there
is no formal DoS after C turns age 18? Without putting your thumb on scale? Just
inform of right, can renogotiate all. Same issues emerge.
 Should represented client have complete grid of all rights?; let client exercise all
moral & strategic choices, but lay out all duties & rights. Just tell them the playing
field when sole rep.
 JH idea, client may care most about amicable settlement, over money extraction,
peace 1st but later could resent you and ex so to be truly amicable tell them now also
if we do not tell them we impose the view, assume they value peace. Class thinks we
should tell person need not pay for college.
c) Sorta on topic, acts as psychologist at times: p 411 Pilpel: takes insight for atty to make a
psych referrel, reconciliation may be beyond his depth in troubled waters. If couples cannot
afford psych, atty must cope, legal educ rarely equip him; sometimes lawyer is only outsider
advisor they have, does best he can with whatever knowledge of human beings he has gained
over years. He may wish more purposeful and scientific; attys really practice psychology, not
merely practicing law!
5) scrivener (p. 433) SEE LANGE CASE
a) reading show act like therapist even if not know what doing
b) no input in process; just formalizes parties’ agreement
c) must be no real conflict of interests; parties must have full knowledge of limitations &
possible pitfalls of representation
d) possible?
c. can think one way & end up acting another
d. or not crisp enough to maintain distinction between modes, cannot keep functions distinct is a
big TREND JH sees
divorce is stress on lawyer’s professional responsibilities (Silberman, p. 917)
a. lawyer in scene of conflict where vulnerable, angry, sometimes irrational people- complex psyche, but
divorce is judicial proceeding’ people will look to lawyers
b. traditional responsibilities:
1) duty of zealous representation of client: high!
2) duty of loyalty
3) no representation of conflicting interests, consent, diclosure
4) no representation against former client on same subject matter
5) no disclosure of past confidences
c. Atty can lose (suspend, revoke) professional license if not follow professional rules. Can sue
malpractice, court can void K if rules against the situation.
d. Divorce pressures this code, above obligations. Hard if ongoing rel!
e. Klemm v. Superior Court of Fresno County (5th Cir. 1977) [p. 425]
[Friend Bailey representing both H & H in divorce; W & H reached K; wife waived CS; W was
receiving aid for dependent C from county- third part came in and threatened W and W K,
and they stick by it Family Support Division of county wanted H to pay C support to go to the
county for reimbursment of past and present payments of AFDC payments to W.
Holding:
- Dual representation is permitted where there is full disclosure & informed consent by all parties,
& no conflicting interests are represented. Talks about actual, present, existing conflicts.
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-
OK if conflict of interest is just potential as in this case, no controversy. Had settled
differences by K, neither want CS; other values may have bee more imp like maintain good rel,
avoid ill will; if either change mind later and there is actual conflict, then Bailey cannot rep them;
fault system is gone, we want less adv nature, do not create controversy when none exists
- Policy is split, see FN to opnion, 443 DC bar says dual rep (jt rep) is so unlikely ok, rare
cases are approved (see above details in jt rep section, its dissent says never ok). States are split,
sometimes want no trial, cheaper yet see probs in case, hard area.
1) notion that conflict is simply potential is crazy
a) two different people will always have divergent interests, all people are diverse even on
honeymoon.
b) conflict is inherent in divorce, rife with it; potential is implausible
c) even if don’t have personal conflict, may still have conflicting interests. Here we see diff
interest, and it is not abt conflict but abt interests! But she declares identical, says not want
support, ct would be forcing it on he, she can waive things. Maybe other values are more
important to her, take her as making a good judgment versus no, paternalistic, bad
calculation, conflict so we will intervene. But could say of course she trades, gov’t AFDC
pays so she has a flat income.
d) especially at time of divergent- by definition have irreconcilable differences
2) case flips into private welfare system: dual rep theme is like tail wag dog. Collusive even if 2
attys here, collude against state!
a) state has legitimate interest. Do we care about the unrep C and PWS policy? So much that
we would stick in a conflict that was not there already? We seem not.
b) conflict of interest is between state & parties- even if separate int of H & W, perhaps can say
collusive behavior of H and W against govt does not trump this 3 rd party. Judge may enforce
a norm! true theme; PWS case
4.sanctions
a. suspend lawyer’s license
b. revoke agreement
c. The Client’s Damages Against His or her Atty: sue for malpractice THIS IS FOURTH MODEL
OF MEDIATION:
1) Lange v. Marshall (Missouri Ct. of Appeals, 1981) [p. 907] when does atty rel attach when a
family friend drifts to atty rel with couple? More key to mediation topic: what about giving
outside info on the law the parties bargain in the shadow of? In mediative capacity, usually
hope parties negotiate for selves or norms emerge.
[Marshall was close family friend of couple; advised W & H he would not represent them in
divorce against each other, but if could agree on terms of dissolution, would represent them jointly
& prepare necessary papers (we want them to agree, settle amicable, first stage, less conflict,
tried first just to be a formal atty, a SCRIVENER is procedurally empty unlike other modes,
just signs forms! But see below inaction = action); couple agreed, but W was in hospital for
depression and signed just as got released then later had second thoughts about settlements; W &
H sought own counsel, & Marshall withdrew from case; (bumps up to adversary here, no longer
mediation, different mode, no longer scrivener or mere formal atty) 10 months later after
considerable discovery, H received more favorable settlement; H sued Marshall for N since did
not inquire and inform her about H financial state, negotiate for better settlement / deal for W,
advise W could get better settlement, or advise W of rights (full fair disclose all),better if litigate
maybe; Marshall admitted did not do these but thought would be improper as undertook to
represent parties only as mediator, status disclosed to both, otherwise would be advocate.
Holding:
- ducks difficult questions & does not determine whether Marshall was N, simply says no causation
(once turn down settlement you change the pie, once discovery starts, there are 2 different
phases, mediation over then when parties lawyered up). Court assumes breached duties, that
status imposed duties on him. Court ignored the part where W said scrivener had duty, just
assumes obligations
- rather holds that W did not sustain any damages as proximate result of Marshall’s conduct; no
evidence that had Marshall done things W wanted him to do H would have voluntarily agreed to
wife’s desired settlement & expenses would not have been incurred; rather 10 months of heated
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litigation is evidence to contrary, he likely would not have settled for higher sum to W]
a) can’t be completely neutral scrivener -- If the parties lack knowledge, and you know it,
your mere scrivener role COLLAPSES into OTHER modes anyway! Inaction = action.
(1) interfering if let parties know law. Like if she not know litigation discovery gets her
into all H assets whereas if settle assets are hidden. What should atty do? Mere scrivener
say so?
(2) if know something about law that would matter to parties & don’t say it, also
affecting outcome—action/ inaction distinction breaks down; will rearrange
landscape if either disclose or do not disclose! Inaction is also action, it’s like you
said something anyway.
(3) scrivener supposed to be substantively empty (just sign papers), but procedure can
be substance. PROCEDURE SUBSTANCE DISTINCTION BREAKS DOWN
HERE. Sets off a mine – rearranges power rel if say or if not disclose! Fall out of
scrivener role if say or not sat ST and sign papers. Papers are technical, scary if just
scrivener and parties fill in blanks and bring in forms. Need more process or we see
repercussions years later, scary to rubber stamp ST the parties did not understand
b) states split on whether scrivener-lawyer has responsibility stop wreck, big policy concern
c) judges has norms behind them in form of statutes; scrivener-lawyers do not
d) go up to Goldman reading under counseling function.
e) Assume people come into to you for signature, they say H prefer his own dad over W, you say
need therapy; reason to hesitate? Conflicted client, utterance not rep your decision, only
momentary. Aty is in btw like a mediator so a lot can affect the client even if there is clear
law out there!!!!!!!!
Custody
 Class notes: the C custody problem in divorce: if unmarried bio P split or fight over cusotdy & F establish
standing (Lehr, Stanley) then same problems as now but without the divorce as the procedural frame.
 Big simple idea: custody is one big thing, entire possession of C, physical, legal/Pstatus, & decision making
power over C life, DoS, D to protect, etc. Wrap together may be what people mean but we know we can break
up that bundle into fragments eg legal separate from physical, from decision making, etc. all separate from
DoS & distributed among the parties = aim here!
 Very rare is a P stripped of legal custody: need to show unfit—abuse, neglect. So at least the legal rel will be
maintained after divorce although the other sticks may fly away: break off physical or even fragment within
it—primary custodian & allow other visitation rights plus there is 50/50 joint custody & can split over time.
 Can reopen custody Q upon chg of circs: another way to fragment the totality of physicla custody
 Decision making authority is not allocated: courts hope 2 P come to joint dec abt C rearing: extreme cases can
remove it from association with legal custody
 So there is a lot of negotiability here and options of what to do
 Something not negot in system: once you have C in marriage & ex is alive, your association with ex thru
C never ends; marriage never ends once you have C! often b/c DoS never evaporated no matter what
A. Types of custody
1. physical custody
2. legal custody
a. typically decision-making authority is not allocated
b. both Ps retain unless unfitness showing
3. visitation rights
B. History: there has been a big historical shift in Anglo American law about custody, reflected in cases and JH
tells story
1. Main shift from old Roman Law idea important in English law til late 19thc: P power, natural right to
custody and this natural right exsited in the F over the C, was total in Roman law, the F could even kill C or
sell C into slavery.
2. Versus English Law- if M could prove severe abuse (scale like that: kill C, slavery etc), could take away C
from F, so M custody; but the overall F right idea lasted into late 19thc
3. Late 19th century- dual shift:
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a.
shift from right of P to BEST INTEREST of C: what is good for C is how we now handle custody
area
b. in C of tender years, what is best if young, best interest of C is to be with M: independent thing even if
travels ideologically with 1st shift, soon we spring back from that in some rules we now have.
4. now:
a. trying to handle custody decisions in best interest language: startling idea! See Ex Parte Divine.
b. FURTHER SHIFT: we are notw in an equality regime- we see in cases--shouldn’t make
presumption (assume preferred custodian) that one P on basis of sex is better custodian- PURE
open best interest test without a gender spin, we have moved!
C. The Best Interests of the C
1. Note ALWAYS DO FITNESS TEST FIRST; not get into BI analysis if you are unfit P. MINIMAL
std to get in to BI test.
2. See later with Ex Parte Divine, 579. Ct case on BI. What do we need to consider for BI determination?
Invalidates tender years (presumes M) and goes with BI: facts of case, beyond sex and age, emotionals,
moral, educ, home env, experts, alternatives, child pref, and anything else relevant: startling idea! No end
to possible relavant factors & no instruction on how to balance them so BI is one of the MOST STDLIKE STDS IN THE LAW!!!
3. Bunch of weird procedure in BI. Most litigation is about acts & things people have done unlike BI: Bi is
about what kind of person is here (C & P) & the kind of rel btw them. Lititgation is also about the past
where as BI tries to predict what will happen based on soft assumptions abt personality & rel in
future—which is open and full of contingencies so courts may see possibility that if no custody P will
lost int in C—acct for that contingency as if a fact. Also unlike typical litigation where P v D, ints all there
b4 is as parties, here we have H & W but neither is the focus of the test: C, without rep is focus of
exam, weird: as C is NOT a party! Litigation: tryto set up so if equipoise, doubt, we have default winner
& loser, multifactorial tests & default rules versus BI: radically without default rules, deliberately set up
an equipoise situation! Whole idea of B of persuasion is thrown out window: unique situation of BI
 Sum: best interest examination v. adversarial litigation
a. best interest standard is extremely open-ended; no end to possible relevant factors
b. different from typical adversarial litigation where have presumptions
1) in litigation, try set up so if in equipoise have default loser
2) in best interest, burden of persuasion is thrown out
c. not about acts in past
1) asked make future predictions
2) future is open & full of contingencies; contingencies taken into account as if facts
d. in litigation, interests are represented by parties; here, Children are at center & not parties
 JH says we pretend we know what we are doing but we do not. Seems extreme discretion, unguided,
unpredictable, expensive since all facts abt am are relevant, nothing is unlitigatable. Wouldn’t we
want more law? Think we know litigation likely hurt rel, not suck into litgation, so shouldn’t we set up
presumptions, rules, law? So winner-loser? This is a rules-standards problem!
4. Rules or Standards? Text gives options and then great case Young v Hector where more to case than in
book (held: gender-neutral primary caretaker wins).
a. options
1) best interest standard (Schneider, p. 707): if we go with std instead of below rule options
a) positives:
(1) discretion is good for best placement
(a) tailored to particular circumstances of each case
(b) gives decision-maker flexibility to do justice
(c) judges reflect society’s values in making decisions
(2) discretion is good for judicial profession
(a) discourages overly bureaucratic ways of thinking
(b) makes legal profession more attractive to able people
(3) discretion enables judge conceal bias for ruling & avoid unnecessarily damaging loser’s
feelings
b) negatives:
(1) extreme unguided discretion
(2) very uncertain, extreme unpredictability
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(3)
(4)
(5)
(6)
(7)
extreme expense
any factor can be seen as tipping, see C witness part about trauma if feel decisive
push settlement without litigation, litigation is likely hurt relations
do courts know enough to decide?
Nightmare picture for women: maybe massive INCENTIVE STRUCTURE in div for
W to impoverish themsleves for C custody (still tend to want the prixe, W take up
the concern of the message, what if we are telling them to want the prize or else they
are bad!)& conduct self in marriage so max protection against that—JH says
callamity for W
(a) women are primary caretakers – are still PC statistically
(b) divorce on unilateral demand of husband – no fault; no leverage there
(c) women bargain away property & impoverish selves to have custody-settle, give up
prop for C -comes from Mnookin reading sbout fungible. JH unsure it occurs out
there but compelling logic.
2) State administered coin flip to resolve custody (Mnookin, p. 706): criticizes indeterminate
nature of BI std and thinks random decisions are better to adoid long litigation and affirm P
equality! Inquiry about what is best for a C often inadequate info, hard to predict, no consensus
on what is best, although consensus on bads (abuse). If one clearly bad then no need to make LT
predictions or complex psych evel of C personality effects. But most custody disputes present hard
Q. Wouldn’t a random process of decision be more fair/efficient that BI adjudication under
BI principle? Indiv adj turns on intuitive eval based on unspoken values and unproven
predictions; better to acknowledge ignorance and presumed equality of P by flip a coin?
Cheaper, quicker, no adversarial pain, no open exploration of intimate aspects, beneficial
effects on private negotiations (each P faces 50% chance losing, pre-compromise if both
want C and both risk adverse). Do it when marry. Search for wisdom is beyojnd our capacity,
no feedback too—judges and juries do not seem to learn from their cases. No more callous than
how we get the military draft. Lottery is social affirmation of equality of who face war, same
here with gov affirm eq of P. Also abdicated govt responsibility, denied imp of human diffs, no
forum for anger and aspirations of Ps; random process would lose these symbolic and
participatory values of adjudication. We feel a natural REPULSION; intuitive appreciation
of imp of educ, symb, participatory values of adj as a method of dispute settlement.
Indeterminate BI std may lead to random pattern of outcomes, serve these values, affirm P
equality and express social concern for C BUT judges may have value prefs as a group and
BIAS the process, make pattern less random, then these value prefs may reflect widespread
values not yet acknowledged openly in form of legal rules. But page 707 Schneider says
overlooks good discretion in decisionmakers: tailor to case, so do justice, see how well works over
time so can adjust future decisions accordingly, not overly bureaucratic ways of thinking,
discretion also lets u conceal reason so good: not need point out P faults such as not psych P.
a) POSITIVES:
(1) more efficient, quick, inexpensive
(2) no pretense know what doing; not pretend we know what we are doing with custody
(3) acknowledges presumed equality of natural Ps
(4) would protect privacy unlike litigation discovery
(5) no harm of evidence
(6) it’s a lottery anyway, who we are born to!
(7) More below as counter negatives… eg may seem more fair
b) NEGATIVES:
Mnookin says: Abdication of government responsibility; sends a message, never learn if
arbitrary, better dec in future if not flip coin. JH says reflects TWO INSTITUTIONAL
IDEAS: 1) if we do BI instead of coin flip, we show we care about C, message is more
important than roadkill but also shows respect for C by not let them be roadkill, devalue
C like auction, insult to C dignity if coin flip and 2) if Bi with a feedback loop, we learn
how to do dec right maybe no longer ignorant, in long run works best but maybe we
could study flip results and not add noise to data with terrible BI test? (POSITIVE)
(1) abdication of search for wisdom; would get no feedback- no learning from past decisions
(a) but assumes judges learn from process of decision
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

(b) can still try find better adjudicatory standard while adopting coin flip
(2) Also shows no respect for Children; hearing has symbolic significance. Offensive to
treat C like piece of property, but C has no right to be heard. Perhaps better to hear
2 P fight, disparage each other in front of judge? Prefer coin flip?
(3) But then isn’t it too value free? need more value-saturated process than coin flip,
against Mnookin.
(4) Prefer open-ended hearings, chance to tell your side but Mnookin says leads to more
roadkill if then take away your C, says you are less good P, winner-loser message
versus people want day in court, prefer to lose through fight; opportunity be heardparticipatory value of adjudication but we don’t have to do that, coin flip can be seen
as more fair than pour guts out, discovery invading privacy & humiliating 1 P
(5) Tie into Mnookin last week: div settlement psych. Risk adverse P, assymetry of risk
adversion, if coin flip, care more abt custody & risk adv then 50% is equiv of 1%
win & 99% lose) so give up more (house, car, all but the C); danger to risk adv P,
hard brg position (also may be better P but that is diff idea) but we could set up clear
rules for each thing (separate out property so cannot trade it off, no longer fungible)
but then we get more litigation so need settlement & that leads to these brgs, but we
could make it less judicial, standardize thru admin/bureaucrats but see above about
day in court. by creating uncertainty about final outcome, tossing coin punishes more
risk avers P who cares about C custody most, by loss of bargaining power over other
matters; would impoverish self & Children to avoid risk of coin toss (Elster, p. 707)
Mnookin – just a coin flip as an option for BI: make easy settlement by rule of dec reflecting out
own ignorance without false hope of certainty; clarity. CERTAINTY FROM PROCEDURE,
KNOW 50-50 chance.
Note: only flip if not show 1 P is unfit; presume 1 if fit before BI analysis always: DO FITNESS
ANALYSIS FIRST
3) rigid presumption on behalf of M, STATISTICAL P IDEA (Ellsworth & Levy, p. 579; Mnookin
& Maccoby, p. 580: SECOND MNOOKIN PIECE is bascially a GENDER PRESUMPTION,
M IF WE GO WITH STATS). Says Mnookin was wrong, coin flip went too far, we prefer a
rigid presumption for who in average case wins primary caretaker, M, already custodial so
go with M unless show unfit placement
a) positives:
(1) most of time would award custody to person who would win primary care test
(2) virtue of certainty without bureaucracy, say “so what” to F!, everyone knows brg
position, custody is taken out of brg, clear who win – ends agonized barg is answer
to 2nd negative below. Takes something off the table that we want off the table
otherwise brg & may give up more prop
(3) avoid traumatic custody disputes
(4) in line with people’s expectations: Ms overwhelmingly wish custody; although many Fs
wish for arrangement other than M custody, few Fs actually sought custody through
formal legal process
(5) shorthand for best interest of C (Commissioners’ Comment to § 402 of Uniform
Marriage & Divorce Act, p. 581)
b) negatives:
(1) what about day in court? Deny F PDP – flags a constl idea on what entitled to.
Default loser is so strong that cannot air F case-dignity loss. And in some cases a
justice loss too. Few F will litigate is the answer to “so what”?! student says it is like a
plea bargain
(2) hard for all parties, not just the F, as cannot render this element fungible if strong
presumption
(3) privileging one type of P’al relationship over another, alineate other parent, 2 nd class
rel, bad vision of family, punish the loser and winner gets the reward/spoils.
 JH GUT FEELING: WE USE JOINT CUSTODY NOT BC WE KNOW IT IS
A GOOD IDEA BUT INSTEAD JUDGES ARE JUST RELUCTANT TO
MAKE CHOICE SO SPLITS DOWN THE MIDDLE!!! Do not punish loser.
(4) custody is not supposed to be about gender: law is solidifying gender roles; will
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punish families where F is caretaker
(5) say we get to gender on the basis of stats or ideology (say we say W should be PCP)),
then under either we get to gender presumption and either punish deviant family if
the F is caretaker!
4) PRIMARY CARETAKER PRESUMPTION: actual inquity, not like the gender
presumption from stats – PROVE PAST FACTS BUT AT LEAST THEY ARE FACTS is a
gender empty idea in Young v Hector
 Garska v. McCoy: This is Mnookin & Macoby (above: statistical parent idea) without
gender!! Hearing on facts (not a judgment Q about BI but just find out the fact of who is
PCP! Gets custody whatever gender, see who had primary resp for caring duties, diff
investigation than BI, a FACT ORIENTED LOOK, not exam of BI on psyches &
personalities! Case lists stuff like toilet train. But also not just facts but send a
MESSAGE that the preferred future P did the caretaking—maybe we object to this as
we objected to gender? Maybe could be good caretaker in future, also what is both P do
things, diff tasks as in Young v Hector. PCP punished 1 party if there is a tough call, we
get ROADKILL if no PCP.
 Garska from text [in BI, rules or stds reading: 695-708] (WV, 1981) M appeals F custody.
Note new code: there is no longer a gender presumption with custody. Old, overruled law in
JB case: strong maternal presumption with regard to C of tender years. M gave C to GPA and
then the F gets involved; tries prevent GPA adopt C. F says he is better educ, int, fin, social,
Eng, looks, motive. Courts see as case btw bio M and bio F. no evid M unfit so no need
remove cusotdy from primary caretaker P and vest in someone with no prior emotional ties.
Loss of C as terrible esp if PCP, by virtue of caretaking function, was closest. Sex roles more
flexible, PCP can be F and then would treat just like W here. Usually needs support from
other since cared, not worked. Hearings are bad for C, so we narrowed the rule to where
evidence would be of no help anyway: tender years, too young form opinion abt own custody
and where had made initial detemination M was fit. Legislature has told us gender based
std is NOT accepted; so no more tender years presumption; now say BI best served by
award C to PCP, PRESUMPTION FOR PCP REGARDLESS OF SEX just if meet
fitness Alimony and CS are litigated on merits of finances without introduce possible
terrible loss of custody to PCP, cannot trade that off now, not let it be abused (get kid,
less support), protect the PCP from uncertainty, sacrifices (Solomon syndrome)! BIG
JUSTIFICATION is to ELIM THE USE OF CUSTODY CHALLENGES as a weapon
in EC BARG btw couple. Bad to litigate custody, private ordering better, has been
encouraged with no fault ID regime. Also fitness too hard to measure in fine
graduations. Urgent need for clear rules, structure to rely on in settlement. M here was
PCP; F loses. Love, affection, concern, tolerance, willingness to sacrifice build up the M and
beats out F resources arg. No intent to abandon, ok she tried get more welfare for C.
 Page 699, CRITERA for PCP: to determine who is PCP, look at meals, bathing, dressing,
cleaning, medical care, putting to bed, arranging for social interaction, disciplining, educating,
elementary skills etc. And of course, presumption iff FIT (minimum, objective std). If all
equal and no clear PCP, no presumption, ct inquire into degrees of P competence.
 Note presumption only if C is of tender years. Once old enough to form opinion abt
custody, trial ct can receive it .
 Distinguish Psych P: Goldstein p 701.
 PCP assumes just 1. Fair to discrim ag P who works outside home?
a) positives:
(1) becomes more past & fact-oriented investigation than judgment test
(2) P who shouldered most of care-taking responsibility should have custody (P-focused)
(3) better for C since will be with P with whom has stronger relationship (C-focused)
(4) no bargaining away property & impoverishment by P who cares more about C’s custody
b) negatives:
(1) will punish families where no primary caretaker
(2) operates at expense of spouse working outside home
5) psychological P presumption
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a)
5.
psychological P- one who on continuing, day-to-day basis, through interaction,
companionship, interplay, mutuality, fulfills C’s psychological needs
b) in many divorce cases, both Ps may be psychological Ps
c) term primary caretaker, by contrast, suggests only one qualified P
d) Goldtein
b. JH: great mystery of FL, if we have a clear rule of decision (eg not BI at divorce), how far back
does bargaining in shadow of law go in the marriage? how much do people know of rule of law of
custody? If std, they don’t know much, uncertain. How does this affect pre-div decisions? When
marriage is ok do you enter workforce? If atd, produce inefficient dec of both P enter workforce, see
this is we do not rely on any particular custody disposition if/when marriage breaks down? Versus if
clear rule, PCP wins, then get right people stay at home if know investment is certain? So people can
set up marriages more rationally if we have a rule, instead of just set up divorces: reason W tear selves
apart btw job and home is b/c of BI std? If uncertain what occur later if div we keep selves in 2
domains, not disinvest out of one of them for custody reasons? – JH IDEAS!!!!!
1) Yes we are rational actors and brg in shadow of law, clear rule can make a diff but unsure above
pattern are results, irony, divorce remedy as incentive within the marriage does not say much
for marriage! 40-50% young folks div.
2) But wedding psychosis- precludes thought about divorce when marrying. Do people getting
married think abt div at all, abt the rules? We will after FL course
3) Second timers will antenup K, once burnt twice shy; also maybe K as older & more assets. So
some marriages do seem to be set up with idea of div in mind. We do see some antenup K’s!
c. Treating custody as prize of divorce process sends message
1) If women don’t want prize, then bad women
2) reinforces gender roles
Applying the Standard
a. Greska v. McCoy (W. VA S. Ct. 1981) [p. 695]
[Facts: M & F did not marry; M did not receive any support from F during pregnancy; F sent package
to M after birth of baby; baby had chronic respiratory infection; M’s grandF could get medical
insurance for baby only if adopted him; M signed consent, agreeing to adoption of baby by grandPs;
upon learning of adoption plan, F visited baby for first time & began sending C support; grandPs filed
petition for adoption & F filed writ to secure custody of C
Holding:
- F by providing C support probably showed sufficient Pal interest to have standing to object to
adoption
- but no evidence that M was unfit P & no justification for trial court to remove custody from
primary caretaker & vest in P who had no previous emotional interaction with C
- tender year- primary caretaker presumption; when C is old enough formulate own opinion, court is
entitled receive opinion & accord it appropriate weight
- here F does not get custody since M was fit & primary caretaker
Reasoning:
- function of legal rules to inspire rational & equitable settlements in cases which never reach
adversary status in court
- custody hearings do not enhance justice since highly destructive of emotional health of Children
- in most instances, issue of C custody between two competent Ps cannot be litigated effectively
- want certainty so can take custody off bargaining table; need structure within which couple can
bargain intelligently
- don’t want custody issue be used in abusive way as coercive weapon to affect level of support
payments; don’t want primary caretaker to trade C support for custody of C
- primary caretaker mechanical rule limited to custody of Children to young to formulate opinion &
where initial determination that primary caretaker is fit- trial courts award custody to primary
caretaker anyway]
b. Unit 14’s Young v. Hector: PCP IS GENDER EMPTY IDEA!!(Florida 1998) [p. 701]
[what rule do we want from these facts? Fin stability is not only factor to consider; PC is
important. Fin resources are not determinative, PC outweighs. Architect & attorney have
children; for period of time, attorney living with Children alone; then rejoined by architect;
architect stayed home (SECRET: pcp HERE IS MAN!!!), has no job, dedicated to Children &
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c.
dominant caretaker (available to C after school, takes to MD appts, helps with school and after
school activities) while attorney works a lot (politics of case, why casebook avoids disclose the
W is the one who left the home to work; ct did not say who is H/W, gender deviance of case
made it hard to decide, hard to get off frame, ideologically sensitive case) ; but both Ps share
many caretaking functions; attorney more economically stable & constant throughout entire
relationship. Court hears sutff from lots of friends, neighbors, teachers. Ct must affirm if
substantial evid to support lower ct rule custody order in BI; we agree here that ct abused
discretion in giving custody to attorney. BI to continue caretaking as established.
Holding:
- financial resources should not be determinative factor in deciding primary resident P
- just one factor to balance with rest in statute; CS can always fill the money need!
- fact one P is primary caretaker should always outweigh]
1) Decision goes to elaborate lengths to show primary caretaker is gender neutral idea
2) critique of case
a) there were really more facts than given. JH tols us atty wanted architect to go work in mkt and
prefered to use a more active nanny; atty mom was too ambitious, told the F to get a job here,
this was very deviant, bad F, go get job, mom was breadwinnerarchitect refused computer
training & made a unilateral decision to stay home with C. There was a nanny there all the
time to help & decreased house resouces. So there was conflict over the ec mng of C care.
b) architect only recently became primary caretaker plus only PC when no job when move to Fl
c) C’s “go to” P was atty, cry to if sick: another flip of case missing on text facts
d) JH: !!!! Case penalizes Ps who want share duties: here they seem both involved!! Why
did ct cut 1 off? Case exemplifies the idea that PCP sounds benign but here invades
lives and makes 1 good P, terrible cut off other: creats ROADKILL if there are proper
C care splitting P that we really want, innocent, we want them to be free to share duties
yet here we punish, PCP is TOO ONE SIZE FITS ALL, not deal with NEW form of
marriage caretaking eg NEW MAN is 1 of 2 here (no one is ag that idea! We also assume
2 P are good for C). We want COOPERATIVE P but here we screw up.
Ex Parte Devine (Alabama S. Ct. 1981) [p. 574-81] [Part of BI: Applying the STD topic]
[Facts: divorce case; at conclusion, no clear preponderance of evidence for either party regarding C
custody, both have positive qualities, fit for care, custody; Alabama law- presumption that when
dealing with Children of tender years, natural M is presumed, in absence of evidence to contrary, to be
proper person vested with custody
Holding: tender years presumption in favor of M (evidentiary burden only on F) represents
unconstitutional gender-based classification which discriminates between F & M in C custody
proceedings solely on basis of sex: SEX DISCRIM! Remand to consider invididual facts, needs of
each C: emotional, social, moral, material, educ; respective home env, pref of each C if of age etc:
PAGE 579 says what to see!!!!!! to see BI of C.
Reasoning:
- classification based on sex that is subject to intermediate scrutiny under 14 th Amendment
- imposes legal burdens upon individuals according to immutable characteristic of sex
- CL: F had presumption, feudalistc responsibilities, head or master of family, superios authority
- Then questioned paternal preference bc hardships on M, feelings; swtich to M when C under 7
- Tender years presumption origin in GB. Used to be about rights of F and now we say
instinctive role of M. Come full circle.
- Had become criticized as outmoded, but still in 22 states
- Reject fundl diff btw maternal and Pal rel, roles not diff in imp., harsh to say F invariably less
qualified and entitled than M to exercise concerned j’ment about C fate. From Caban case.
- See actual capabilites of P, some alienated M could have gotten custody, versus loving F.,
searching fin analysis, presumption is cheaper but welfare of C cannot be sacrificed.
- Dissent said ok since not absolute, just compelling factor.
- On remand, F gave up since C with M 2 years and that would disrupt continuity.
- Notes says maybe F not so good, social role, male skills, time to job; often K to M custody;
society and his own patterns reinforce M claim; seems like anything else will increase costs as
more will be contested. Presumption is also reviewable by appeals cts. Note even in dual custody,
M does most of care stuff. Few F actually seek formal custody too, less 2% formal adjudication.
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-
Tender years presump is still social norm even if not legal one, when fit M versus fit F, M wins
custody most time.
UMDA : not list gender to be considered in resolve custody but says judge need not be limited by
factors listed and says when all else equal M as custodian of young C is simply shorthand for BI.
Prof. Halley points out extensive list of factors court must consider in making placement
decision (p. 570)
Unit 14, IX Custody
The Best Interests of the C & Applying the Standard, continued
Overview of 2 important cases we covered: Halley says that the Bottoms case in the DM & the OJ Simpson
unassigned case are related cases. The two cases together give us the idea that you can vest custody in a grandP
even when there is a living natural P in the picture. However, there is a LIMIT on displacing custody away
from the natural Ps (Halley talks about how the key is the grandPs were depended upon in these 2 cases,
guardianship!). These cases show where we st& now regarding this limit.
OJ Simpson case (we never read; Halley gave summary of important aspects): OJ was the natural F; he was
incarcerated during trial (a murder trial, murder of the natural M). Children were placed in temporary guardianship
with dead M’s Ps (the maternal grandPs). OJ was acquitted & he tried to use the default assumption that the natural
P gets custody. The grandPs object. Same cluster of circumstances as in Bottoms (DM case). Here we have a sole
natural P that had depended on the grandPs for care & custody of kid, plus there was something really wrong with
the natural P. Even if legally acquitted, OJ was not truly disproven of having committed crime, just like in Bottoms
there was the VA felony of sodomy even if was not formally held as having committed the crime there too. These
cases changed the ground rule of natural Ps regaining C custody. Here, because there was a grandP guardianship
established so the burden of persuasion shifted. Now the grandPs need not show the natural P is unfit but the
natural P (OJ) must show he is fit (must prove: this is striking for a P in our l&scape!) & he must overcome
the trauma of displacing the kids from the grandPs. When the natural P has been incarcerated we will
tolerate legal guardianship in the grandPs! But note, OJ did manage to show these two things.
Bottoms: in the DM. Held: Custody decisions largely vested in trial courts & are hard to reverse! Here, a woman
has a C & her mom tries to gain custody (again, the grandM tries to displace custody away from the natural P).
GrandM says the P is unfit since she is a lesbian. In VA, sodomy is criminal conduct; the P admitted to sodomy even
if not tried here so basically she has committed a crime plus in the past she has not treated her C well: for example,
she left her with the grandM (again we see P depend on own P as in OJ) without saying when she’d return or give
any contact info, abused her welfare money to get manicures, the kid curses & does not want to see her M etc. These
are all factual allegations; not mindless inferences: she actually admitted to sodomy (VA crime) & being a lesbian,
plus there are other allegations of neglect, of grandM as caretaker, & of harm to the C. All this evidence led to a
different legal reaction/apparatus in the majority vs. the dissent. The trial court gives grandM custody then the
second court reverses then this court agrees with the trial court that the natural P is unfit & so agrees with trial
court & moves custody from the natural mom (shock in our system!) & gives the grandM custody!
Presumption that M gets custody was rebutted by CCE and that BI served with GMA, important to consider
felonious sexual conduct inherent in lesbiannism in determine M was unfit and C cursing, emotional upset at visit M
and standing in corner proved C had been harmed by M lviing conditions. Said no novel Q of law. Dissent: trial
court assumed she was unfit since she was a lesbian, made a per se finding. Page 9 of Westlaw DM case. Dissent
wanted to break this inference: being a lesbian did not cause the C harm & you need that link to show unfitness.
Cannot just show the crime; need more so dissent would rem&. Versus majority: trial court made findings on more
than just conduct: also neglect, crying, diaper problems. Majority defers to the trial court findings. Trial court
took evidence just like a jury, so reverse only if clear error (hard to do!) & none here! SO HALLEY READS
THIS AS A STANDARD OF REVIEW CASE. This a controversial area (GAY RIGHTS) & courts want to
stay off the hot issues, so as jump up the appeals court ladders, we do not see it as a hot gay rights case but
instead a standard of review case. Background: the typical review of FACTS is that they are hard to reverse.
SC treats this case as a TRIAL COURT FACTS CASE & thus cannot disturb. Halley notes that all best
interests can be seen as such: there are factual issues, very standard-like, trial court discretion as sift facts. Versus
Dissent: we must cut into legal questions not factual questions to reverse & dissent said there was legal error here:
jumped from sodomy conduct to unfitness without showing connected; case is not about factual evidence. Basically
both opinions de-politicize a hot controversial gay rights case!! Sheila cites from DM itself: can rebut the strong
P over non-P presumption with clear & convincing evidence. Lesbian felony important factor in determine unfitness.
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Relationship with peers affected. No novel Q of law. BI of C trump P stuff. Dissent:no per se unfit just b/c
homosexual. Also factors not show adverse impact on C.
Discussion regarding Bottoms: Halley asked the class if we’d join the dissent or the majority; imagine we are SC &
so say it is a legal query or a factual query. There are two standards of review: talk about facts or talk about
law! Trial court record will not help us as both interpretative options seem right. One student said depends on what
unfitness means in VA (I see this as meaning it’s a query of LAW so SC can review & reverse trial court unlike if
factual as majority saw the query), whether felonious conduct tips the balance, expose its weight in analysis of
unfitness, what do we do with negative conduct when Ps are criminals or in trouble with the criminal justice system,
could not be an unfit Ps case but merely a bad mom case (seems so!). OJ was clearer: you are really not supposed to
kill your wife unlike lesbian conduct where uncertain of right & wrong. Bottoms majority said lesbians have a
negative social evaluation (STIGMA) & that goes into unfitness calculation. We query if this is valid as in
mixed race marriages stigma does not weigh in the stigma. Later in course we discuss Palmore & there the court
clearly denies the validity of looking at stigma at all. That was a SC custody case; the mom entered a mixed race
marriage. But that was a race decision & in other non-race contexts, the “Palmore Bullet” does not go at stigma! But
we are troubled & think Palmore is right not because of race issues but because of stigma issues; should not enter
calculation unlike what trial court did (it disliked stigma & let the positive weigh in against the mom). Another
student looks at idea of not having sex in front of your kid; social norm weighs in here. That is, these are all ideas
of the SC on what the trial court actually did calculate. We discuss she admitted conduct, her temper &
counseling for it. What do we do? One student wants to clear up rule, not per se unfit but felony is a factor so less
roadkill, less babies in space if we take kids from Ps. Also can keep law clean yet avoid dissent since still a factor &
may tip it against mom anyway. How can we re-frame the case from the majority, generally what can we do? How
can we argue as a matter of law (SC is appeals court: see law only, to reverse easier) that felony should not even
be a factor? Could require legal analysis to link factual allegation of felonious conduct to harm to C; none here
from watch sex, never tied to diapers, crying, etc. We also could use experts about gender identity (confused if two
moms so pro-majority) (or about better to have two moms & thus side with dissent) (She said we saw in Bear
against Lewin or some case close in name?). Here there was little Psych expertise in the case. Note on standards: the
values of judges may differ from our values thus we struggle with outcomes of cases.
In sum, with OJ, Bottoms case tells us we COULD say custody with natural Ps: normally there is a standing
problem with grandPs, especially if Lehr (dad) could not even get standing. Here we leap since the grandPs were
guardians but there are limits otherwise. Halley notes that natural Ps letting kids stay with grandPs can lead to
losing custody to them, to an intra family dispute. Appellate review is hard: standards, rich facts, deferential
review (ct sees Bottoms as a trial court facts case), hard to turn into de novo cases where could examine facts
anew; instead SC only deals with legal queries! See next section. Kemp is counterexample to Bottoms.
Unit 15:
Unbundling Custody (spreading between Ps, Halley puts in Kendall case here!)
1. Visitation
What do we do if custody is contested (i.e., there are 2 natural Ps unlike above 2 cases where one sole natural P
versus grandPs)?
Halley says to imagine all the choices.
II.
The elements of custody, the 3 salient ones in the cases are:
 Legal custody: status of being a P
 Physical custody
 Decision making
Can be unbundled, spread the 3. E.G., sometimes a P may get all 3 & other get none, or one gets 1 & 2 but all get
3. How unbundled does it get?
Goldstein, Freud: Beyond the Best Interests (See casebook note): Not accepted by the legal system but Halley
says is cool. They say to identify the PSYCHOLOGICAL P, there is ONE primary one!, trauma to lose contact.
Gets 100% of all 3 elements. Noncustodial Ps still gets legal custody, can lose other 1, ok since C needs stability,
defer to the good decisions of the psychological P. Reading shows that the law stops when it designated one physical
custodian: noncustodial P is still a P: legal, paper!
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Sheila notes from Notes on p. 654-7: custodial P decides if other can visit, state neither makes nor break psych
relationship! Leaves to them what only they can ultimately decide (if desirable for other to visit; know best!).
Versus what we do, our legal regime: Primary custodian with a visitation regime. Anti-Freud et al. idea,
psychological welfare of C requires two Ps now! Both get legal custody. Split the physical custody 30-70 (70:
primary P) & share decision making element: COOPERATE as best as they can. Tomorrow, we will see how there
is a 50-50 split in joint custody on physical element; share decisions too, both get legal too. Halley questions
whether this reflects a positive new idea of a new regime? Or if judges have lost will & nerve & give up and
cannot decide best interests so go 50-50?
Sheila also notes from Notes p. 654-7 some anti-Freud (anti 1 P only) material. Dembitz: feelings of confusion &
rejection if non custodial P disappear. Strausses also argue against one legal death, subordinate kid to one distorted
view alone can be bad. Other has strengths, tempers the household, give time off to one P. Decrease litigation, keep
it private. If you narrow outcomes it just get more bitter, big instrument of revenge so we see fault see back in, bitter
battles if one P alone can conquer. Novinson: kids grieve if lose one, fear ab&on, yearn for him, intense (interviews
& observations!), personal rejection, so young cannot see directed at other P but at kid himself, very susceptible to
feel rejected at the time. Get more affection, dad may do better with less dem&ing role of noncustodian, less daily
care, do better than could during actual marriage (p. 657).
MOMS & NEW MEN: Used to have mom always being the psychological P type. Primary P test winner too. Last
week we showed the idea that statistically the mom is most likely the closest to kid so presume did caretaking of
young kid. Legal system usually gets to the mom in some way. Old days, F did not want kids, wanted to head to
market so if seems to want kids maybe really a bluff, strategic move. Versus now there is a NEW MAN. Man
more likely to engage in caretaking so the psychological or primary P question becomes harder. There are
new quarrels: the new man wants lots or EVEN ALL of custody & now maybe the mom is the strategic
figure, bluffing her desire for custody, into jobs like earlier dads were. Harder to decide. Likely ugly fights with
uncertain outcomes.
LEGAL STOPS WITH CUSTODY:
Cases say all 4 of the below are moving, ALL ARE IN PLAY!
1. Do Ps have a right to a physical relationship with C? Best interests? But cases say “rights of Ps”; idea shows us.
Basically, best interests is interrupted by this notion. Could we say P right also to avoid custody? Cases are not
there yet but Halley says possibly can argue, work tons of hours.
2. Best interests of kid. Slip in idea of C right to relationship with both Ps, take seriously?
3. P.P.—state—Do we know what we are doing when we make choices about the preferred psychology of C
welfare (e.g., pro-2 Ps right now, anti-Freud 1 P idea).
4. Duties of Ps towards each other to maintain relationship of C with the other P. P-P isn’t just a duty of support?
KENDALL (621) & SCHUTZ (640): the two cases of Unit 15. Halley focuses on these two cases that show a
general strong anti-Freud thinking about C right/interest in relationship with TWO Ps as well as TWO Ps’
right to physical custodial relationship with the C & ought to COOPERATE with decision making. Really rare
that cooperation is there; conflicts seen in cases! What so we do about the conflict? We do a lot: we tell Ps how to
conduct relationships with kids!!!
Kendall: Held: restrict religious exposure. Ps are of different religions & agree C is Jewish. Dad becomes a born
again Christian while mom becomes Orthodox; they become so very polar opposite, “doctrinal extremes” (p.622)!
Mom tries to limit kid’s exposure to dad’s religion. Dad objects & claims she violates his freedom of religion. Court
holds best interests of C to not let him do as he wants (generate the alienation of kid & other P) because of
HARM. Court cannot rule by saying one religion is intrinsically bad as that hits the Est. Clause so there is another
idea of opinion instead. COURT MAKES FINDING OF HARM, Substantial Harm (ct says require clear
evidence, strict req. given religious freedom protection history yet finds it anyway) here: Older kid is raised by
mom as Ortho yet when visits dad is told she & him will go to hell for it (CITES ON PAGE 625, justify
interfere with his liberty interest, close question but met, not need wait for formal psych breakdown, strong
picture of future course of kids, damaging consequences are predicted, at minimum have to chose btw Ps, substantial
evidence of imminent & current harm). Jewish ID is part of soul. PLUS conflict over religion is not just about
his spiritual welfare, picking between the two Ps is bad for the kid!!! So on p. 623 the dad loses, see the
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judgment of divorce: cannot indoctrinate or alienate other P, not take kid to church if rejects mom & self ID of kid.
If Ps disagree about harm, go to psych as arbitrator, Halley says cool idea. Ramifications: If you are pro one
religion & other P if another religion, you cannot save your kids with your religion: DEEP INJUNCTIONS!! Go to
bone!!! Note here: not just divorce but also the two Ps jumped apart, became religiously more serious &
different. No way can work out on own so state intervenes with injunction. Note p. 627 Hadeen case said not
require actual harm but immediate or future impairment.
Schutz, SC of FL, 1991:, p 640 Related case. Divorce after 6 year marriage, mom got custody but dad got to visit.
Mom moves without telling him then finds out kids hate him for not supporting them but he found an empty house!
The mom watered their soil against the dad, etc. Nonreligious version of Kendall. Also a 1st Amendment issue
however. Kids here did not want to see their dad since mom brainwashed them, poisoned minds. Court (says PP
power) hold the mom breached her duty to the dad: right to relationship with kid (BOTH have right! TWO
Ps!) so she must encourage it to reestablish it, restore a meaningful relationship. “A custodial P has an
affirmative obligation to encourage & nurture the relationship between the C & the noncustodial P.” Duty owed to
other P plus to C. Not a 1st Amendment violation. Narrowly tailored. Strong state interest: pro-2 Ps! Incidental
burden only. Court minimizes the possible 1st amendment burden (incidental!), balances, says she can be silent
(requires nothing more than good faith effort to take those measures necessary to restore & promote frequent &
continuing positive interaction.. & to refrain from doing or saying anything to defeat that end) but trial court p.640
seems to show she must do all in her power, convince kids, etc. Trial court order mom to instruct kids to love &
respect the dad; trial court said she is not protected by 1 st from obligation to undo the harm she has done. There is
more to the order than the higher court sees!!! P.642 Rights talk at the end, right of dad to meaningful
relationship; but if we kept up the right road we’d hit kid rights, noncustodial rights too, both get attorney… Really
not framed explicitly & legally in rights talk! So rights talk only leaked (p. 642) in as a makeshift justification.
Smart attorney could exploit it. THERE IS LATENT LANGUAGE THERE!! Will they use it Halley says see in
years to come. Should we power up rights of P against other Ps? Tortious interference with relationship right?
Enforce it?
Sheila notes case in notes: p. 642, Candiotti, order speech outside of kids presence would be prior restraint on
speech, cannot prevent chat against other P with friends, family etc. just not to kids!
SUM: Halley is amazed by these 2 cases. Intact family with privacy rights, can fight about religion if no one moves
out, we won’t intervene & order Ps about what can & cannot say, we expect they can work it out themselves if there
is no divorce BUT IF COUPLE SPLITS, DIVORCE, KIDS BACK & FORTH, THEN WE GIVE AN
INJUNCTION, INVADE PRIVACY, STATE INTERVENE, ATTACK SPEECH AT LEVEL OF GREAT
INTIMACY!!!!! Should the state exercise its power in assuming C rights/interest & Ps rights/interests to P-C
relationship? HALLEY SAYS THIS ALL SHOWS THE IMPORTANCE OF MARRIAGE & DOMESTIC
INTACTNESS. IT’S ALL ABOUT THAT. Once marriage over, state will intervene. No default privacy
anymore!!! Divorce gets us to this model of intervention!! What court could be doing: pretend still intact, like 2
Ps (key feature!!) for best interests.
D. Cases tie to custody chart
Legal
Defer to 1 psych P:
100 percent
Freud et al.
Primary P with visitation
Both are custodial Ps,
by other: what we see, 2
paper, status.
Ps, anti-Freud, cases
above assume kids need 2
Ps as if in intact
marriage!
Joint custody
Both
Physical
100 percent
Decision making
100 percent
30-70
Share as if married, work
it out, start
COOPORATING even if
you do not want to. See
cases above! *****
50-50
Share
***** Cases show this is really hard, entrenched & out of reach, worse & worse, like religious differences get
more & more apart in Kendall. So why not return to Freud??
 But p. 657 kids will feel ab&oned if they lose a P. This page has a collection of rebuttals to Freud.
 Reality training if there is a hard relationship: keep the two Ps even if conflict, better than fantasy of one P
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
being totally gone.
Freud also lets us use the kids as a PAWN to get other things. Raise the stakes so high if one P get 100%.
Halley says this maxs the chance you get strategic behavior. Anti-Freud! Prefer clear rule getting cooperation:
you must cooperate, get what want unlike War of Roses. Make up people who cooperate, punish noncooperators! Halley says we are unlikely to go to Freud.
We are pro 2 P model on what best for kid, on rights theory, on strategic theory, etc.
EGLE CASE: p. 644, 5th Circuit, 1983. We also transfer from one primary P to another. We will modify custody
orders away from noncoopertive P!!!! Dad had trouble locating & catch up with wife & kids. Then finds note
asking for divorce & still no location of them. Went to court & got visitation rights. Unreasonably interfere with
husband’s visitation rights, evade court order, no right to use custody, kids as a pawn also impregnate kids minds
against the dad, she was unreasonable, consistent interference, try alienate him, son even got hostile towards him.
Even here where new P lives in Canal Zone & has a busy job, away days, even if not typical BI outcome but here
the mom did not cooperate with his visitation!! Rights language creeps in here too. C right but then case logically
switches to BI talk. It’s weird, not rights, something stopped court, complex, willing to support right of other
person tells us that other person is in the C’s BI so we need to honor the P who honors the other P’s right! Not
direct rights talk. Wife never heeded court warnings, kept moving without tell dad whereabouts, start separate
proceeding to harass him, will do anything in her power to frustrate “HIS RIGHTS” (p. 648) with respect to his kids
& her interest is not for their welfare but to retaliate against him. Sabotage, doubt fitness, unwilling to observe
other’s “RIGHTS” (p. 649) to maintain contact to BI to change primary custody to P more likely to honor other P’s
& C’s rights. P. 649 says that!!! Only way for stability is if give dad custody. Outweighs any disruption. Court is
pro-preservation of both Pal relationships: BI OF C!!!
KEMP CASE (p. 650), Maryland Ct Appeals, 1979: Divorce, mom custody & dad visitation but keep arguing.
Mom says his new marriage is wacked so stop his visitation rights. Says he has domestic problems with his new
wife so she won’t let him visit their son. Court rules for visitation. Pro 2 Ps, leads to visitation even if C not want
it & resists visitation. One P’s new marriage going poorly so that P’s spouse (new wife, not a P) called spouse’s
ex’s attorney (lawyer for other P! That bad!) & advised better not let other kid visit (not her kid! Wild! Said affects
her own two kids, quarrels near physical striking etc. p. 652). 2 versions to tale: dad no harm if visits (loosen up,
enjoy self), mom said visits are forced against kid (kid reaffirms what mom said! Never wanna see dad again but
court forces visits. Court says C just not want visits since object of controversy btw Ps, p. 654 & circs do not
stop all access to C for the dad; the squabbling btw Ps cause the harm to the kid not the contact with the dad
per se, so agrees with psych; also says kid wishes are not controlling p. 654) who also has asthma, tummy &
school problems, psychologist said [Halley is wrong, she said: it’s mom’s fault so not deny visits of dad] heavy
burden on kid by Pal friction & bickering over issues such as over himself, what he should do, who spend time with,
really burdened by their differing, torn in loyalty as to who to please so Psych says not force it on kid, too
destructive to future relationship with dad. (p. 653). Weird standard to NOT disrupt trial ct: reinstate trail cy
p.654. Did NOT clearly show SO DETRIMENTAL to kid to SERIOUSLY ENDANGER WELL BEING in
order to stop visitation kid does not want!! Court rules against kid here, mom needed to do A LOT to get
100% custody. CLOSE TO F UNFITNESS (need to show dad unfit to visit, basically!!). Halley says we can set
it lower. There are other rules of decision for such a case. Even de novo BI: could say changed circumstances so
reanalyze BI. Could use BI to let dad visit: stability, 2 Ps, & continuity, far from substantial harm. To remove his
visits could rely on somatic symptoms & psych finding too!!!!!! Halley likes that psych not say worthless dad
relationship. Just says good interrupt now the current visits, better for long term relationship!! (p. 655-6 lack
of visit will only further alienate kid from dad) THIS CASE IS ABOUT COURT FEELINGS, really like de
novo BI, remand with instructions unlike Bottoms Standard of Review, trial court power.
COUNTEREXAMPLE TO BOTTOMS!!!! Halley option against how case came out (it did not follow the kid
desires): C can talk to a judge or if old enough can testify. Strong preferences, psychologists agrees. Cases do say
kids have right to relationship so maybe a right to no relationship? We deal with this tomorrow. Plus Finish Unit 15,
Start 16 & recall Mnookin connected alimony, property, etc.!
 Notes 654-657: Golstein on BI of C: once we determine custodial P, that P has right to decide whether it is
desireable for C to have other visit. Protect security of ongoing rel.; state leaves to adults only what they can
unltimately resolve; state does not make or break rel of C with noncust P.
 Dembitz: Goldstein is blind, cust P may punish other, erase all links, C may feel rejected, need psych assets,
why did other P disappear, use ct mediation.
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

Strauss: do not go with legal death as C has rel with both, keep both ongoing continuity, one has distorted view.
Other can temper, give cust time-off, let them work it out privately. Fault is gone so emotional harms moved
over to C custody area, instrument of revenge.
Novinson: cont rel with both after div, grieve if lose F, fear total abandon, not tie to his qualityyoung see as
personal rejection since cannot see it as directed twd other P. Also bad state got teens, time of feel rejection.
Some F do better when noncust, less demands, can be more affectionate.
B. Unbundling Custody
1.VISITATION (continued)
 Consulting Children in custody cases
 Options for listening to Children in custody cases: when C is of an age to form opinion about custody
o In camera (Ferguson, Kemp)
 In Kemp, the C presents info against F yet ct orders visitation the C not want
 Honors 2 parent rel/commitment in this domain
 Similar lang in Ferguson custody case where C testify in camera ag F too
 Big step in Ferg, put C on stand, add’l formality.
 Out of party presence, to judge
 Can K for this exception to DP idea here!
 If add in guardian ad litum we get more noise than in camera inquiry like in Bottoms, in
person the homo info came thru even is less intimdating.
o In court or not
o Not ask C Q
o Judge can ask general questions or probing questions
o Judge can write it up in the opinion or sink it
 What is on mind when we decide to ask C any Q at all?: see pos/negs
 Pros of hearing from Children in custody cases:
o Best interest. Better if make C a witness, usually is a nonparty. Overcome best interest problem;
it’s unusual in our system to be concerned about the well-being of a non-party (i.e. the C)
 But child may be an effect of P counsel/noise, may be a pass thru, exaggerate poison the
mind problem, C become pawn
 And gives P incentive to poison C mind, be more fun to live with, exciting, as well as to
be desired to visit, P seel self as fun resident placement or the less disciplined “loose” P
o Could find out more abt family, otherwise P collude keep some evidence out, cannot get at it
otherwise, less subject to adversarial framing here just like civil inquisitiveness where parties do
not dominate the facts. There may be things about family you can’t find out any other way, things
that are less conducive to adversarial framing & more conducive to an inquisition
 Cons:
o Is it useful? Kids will likely be coached by P (poisoning of the mind problem); kids likely to be
intimidated by judge & agree with whatever s/he says
o C becomes pawn  strategic behavior by Ps
 Incentive for Ps to, for example, become more fun to live w/, sell themselves to C, loosen up
on discipline, etc.
o Trauma to C to be asked what one wants, plus knows info above could tip, this is problem with
multifaceting BI appraoch: any factor can be seen as tipping! Trauma to C by testifying if C views
his/her testimony as decisive
 Some kids may say NT to avoid this or may lie and we get NT of value
 Student judge prefers to be alone with C, C can be intimdated by attys, openended Qs: is there
ST you wanna tell me? If not answer then ask more piercing Qs like who wanna live with,
wait before you probe. He lets C utter, does not lead, likely C would agree with anything u
saw, say what u want. P may eahc sincerely think C opt for me, he doubts this so he sees the
C. tough issue on C testimony!
 Case: leading Qs -- if miss F. C may be put into new attitude abt P by performing, gets
firmer view of F in case from leading Q. JH: PROCESS CHANGE CHILD, NOT
REVEAL CHILD. And here the ct went ag C wishes. Kemp case.
 If we care so much about maximizing the relationship of C to both Ps (see Birnbaum, honot 2 P rel), why do we
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care what C thinks anyway? We force C to visit with P he not want--See Kemp: we heard from C but didn’t do
what he wanted, perhaps thought strategic coop with 1 P. Maybe says ST about parenting, raw spectrum
inquiry into BI, not C pref a a vote but just get more info for BI factorial analysis. Also predictive piece
of BI: C has better sense of contingencies than anyone else.
2. JOINT CUSTODY Unit 15
A. Birnbaum v. Birnbaum (p. 684) (Ct. Appeals CA, 1989); case in JH hometown. Note 2 P live across a midslide,
true goegr barrier from Bay.
 Facts: Contest for sole custody but fails. Joint custody (legal and physical) arrangement in which the kids
live three weeks per month with dad, one week with the mom & weekends with the mom. Parties are not
cooperating together. Mom moved to the coastal part of the peninsula without telling dad, he says inferior
schools. After Mom moved, both Ps moved to modify the existing order & filed for sole custody. Trial
court altered the living arrangements so F gets more time but both Ps still had joint custody. Mom’s
motion for reconsideration denied, & she appeals denial
 Holding: Affirms modification. But keeps JT CUSTODY, 2 P pref. Trial court’s joint custody order
stands. Trial court has a lot of discretion.
 Strking: P want sole but ct gives jt then gives F more time
 Yet we see how complex the plans are in the court order. JT CUST TO THE MINUTE. Ct distress P
cannot coop better / hold out for each max only, yet complies and divides time as if follow the dispute
structure.
 Criticize: Seems not to be a good case to go pro 2 P—they do not coop here, move house to house etc.
we have gone too far with 2 P pref.
o Expert Ricce 686-7 said C safe home was CAR!
o JC not resolve probs. No time outside fam or for self focus, time all with P and torn
o Cannot build up social world in either, cut up, cannot manage geogrp here, mudslides, tricky
car trip. Asset to C is continuity of life, here care is cut up, casualty, C divided like prop. But
perhaps close, proximate, can keep friends, social network to manage stress but NOPE that is
other cases, here is a 1.5 hour commute and C needs to eat that! 2 P are not proximate!
o 2 views of case: prim res seems to have better schools. BI idea dirves it here, build life there so no
prob. Versus above JH negative view of case.
 Court laments the P inability to cooperate but then utterly complies w/ their inability to cooperate by
dividing up their time—practically by the minute. Equal time, quality time and schooling involvement.
Ct discusses complementary characteristics, positve sides, balanced fashion. Same custody as beofre just
change residential arrangement timetable. Ct says W arguing better school system was not in evidence. Ct
says jt custody has various arrangments. Populat misconception that 50-50 time, C needs time with friends,
not possessed, not want math exactitude. Equal division of time is not the hallmark of jt cust. Ct says sees a
lot of parallel Ping in jut cust: both involved, esp in dec making, but little P interaction. Really divide the C,
not healthy unlike shared and coop forms where work together and for the later even forgive.
 Main factor in determine if jt cust is nature of Ping rel btw the P. Public needs to know success depends on
quality of the P rel, not the quantity of time. P must know its harder to be in jt cust rel.
 Upset a P likethese who are inflexible abt slight chg in time with C; judge had to become super-P and
make the P decisions since P could not agree, unwilling to communic for BI. Now no basis to complain
abt decision made! Broadest possible discretion in adjusting residential arrangement. Conscientious
and competent trial ct, observed the P and C personally.
 Halley: wouldn’t this be a good case to throw out presumption that C needs relationships w/ both Ps?
o The effect of this arrangement: kids moved back & forth in an uneven way; their experience of
building a social world has been cut up; no way they can manage geography
o Fact that court allows this reflects its commitment to 2 P continuity idea. This case
represents a TREND IN THE PREFERENCE FOR JT CUSTODY.
o Joint decision making of this kind may kick decision making out of the relationship & to the
court—every decision about C is an adversarial one. Maybe we think we are req 2 P to coop in rel
and get coop (want and get joint dec making: 2 P do it) but here we we 2 P who have hardened up,
not coop but ct will give timetable, make their decisions for them, kick decision making up to
court (not 2 P do it not coop here), each decision is adversarial, JC is actually highly regulated!
P here explot availablity of ct to ramp of conflict, ct manages it – also like marriage never ends!
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Yet C gets rel with each P, social science is pro 2 P, intuition on what psych is needed. But this
case shows what we will do for that!!!!!! Legal intervene with obstinate P but here we get too
stressful of an arrangment. Ct says M moved and that is troubling, unilateral decision chg env and
that hurt F.
o But how could you create an incentive for jt custody cooperation when P have reached this kind of
deadlock? How change hearts of P, what incentives to get out of deadlock? RESIDUAL PROB
OF CASES: we dunno about incentives?! What incentives can ct give to COOP???
o Does this create the wrong incentives for P? Do we want to tell spouses they can’t move away or
that they shouldn’t move away (bc counts againt you in factor analysis!)? (Formal legal issue, JH)
 If we say she has to live near husband, in a way she’s still “married” to him, i.e. has a
legally enforced obligation to him
 Why should C’s BI prevail over P’s? maybe it’s in C’s BI that P is financially &
emotionally stable. May not really be your own BI over the C BI. Do not lose
presumption of BI, could be in BI to move, we dunno!
 Maybe we should require the “sitting person” to move too? Sitting spouce versus Move.
Like old rule if one spouce move you must too.
 Big factor in record if disrespect when leaves town what if M lost job so had to move?
Trial ct here thinks M move due to divorce wars not bc cheaper. But right to travel!! Not
preclude from move on in life. Hard bc jobs geo tied, hard bc tied to ex. Like still
married without status, by legal oblig to H, ball and chain.
 But BI trump? Just sentimental why C prevails. P want cake and eat it too, vol
marry, div after had C, no longer indiv choice once u have C!!!! Make
sacrifices so JC works. JC or any type of shared cust such as primary cust
with visitation (still jt decisions) will not work without ball and chain!!!!!!
Needs closer geo
 But C does not prevail in intact marriages—child BI can be ignored there—
crazy once div must sacrifice all, fin upside too, prefer steeper prim cust.?
 To move on cannot you just give up cust, if u wanna move on so badly, but why
not make other move, other gets power to not move, not coop?
 P may move to best school for edge; Baby M dicey prob of class prefs,
upward mobility in BI analysis, ct slips it in, hard to not.
 Have a loss (need move for job), gotta allocate or can u say there is always
another job so not allow that one.
 Ball and chain, reinforces power structure; if you have less to lose, you have
more power. Custody is another object in parties brg war, strategic. Prior
class ideas.
o custody is one of the hardest pieces of the course; no social movement behind it, only one like that
o Notes before case p 683: Macoby & Mnookin: jt legal custody has no significant effects on P
contact or CS; not incrase non-res F involvement in decision making; little effect on P relations.
Yet they like it: affirms that both M and F have rights and resp. with respect to C after div. Not
make them equal partners in C lives but does affirm the idea in the eyes of the law that F should
play a continuing role in their C lives despite div.
o Relationships after divorce with non-res P grow worse over time; barely see absent P.
o Singer & Reynolds: p684 ct-imposed jt cust is easy way out for judges who are afraid of making
tough decisions abt cust awards; probs arise if BI sidelined in favor of expedience or equitable
results btw P. Prefer primary caretaker preference.
B. Advantage & Disadvantages of Joint Custody
(1) On one hand, JC is a good approach. Used to keep people interested in their Children over time.
Avoid picking a loser & a winner in a custody fight. Not an unfit P, then hard to pick one P b/c this is
such a subjective interpretation. Visitation model will create just as much tension b/t the Ps as a JC
situation. JC model is having two homes, rather than forcing the C to go to a hotel every week.
(2) On other hand, JC model is a bad approach. Better to have each P go for the entire enchilada & get
complete custody. Not good to have Children jumping back & forth from one house to another house.
Nuclear family ideal – C will benefit from having the next best thing to a marital household.
Encourages Ps to have a possessory interest in C’s time.
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Unit 16: X Property, Alimony and C Support.
Monetary Aspects of Divorce: Property, Alimony & C Support [325-32, 761-74, 779-94]
A.Alimoney and Property Division
Property Division: Obligations of Divorced Spouces to One Another: Shifting Legal Regimes
 JH says easier than custody part.
 Mnookin insight, we do not want litig, aberrant if settle, so brg in shadow of law, fungible elements.
Alimony, prop division, CS. Really any substitute but note each has distincitve features.
 Fault used to be imp piece of dynamic, impose funding, better position for better prop settlement, we
got colluse div, but gone now.
 But cases show prob of fault permeates domain even if not formally!
o Some states are pure no fault, no fidning, just irrec diffs and ct see BI but prop division may
accum testimony making ct think 1 party is bad, fault sneaks in, as you move twd equitable
division of prop, make judgment about person!
o There are some parallel system where fault grounds can be used
o Some cases consider fault allowed, but can also come in thru judge attitude, in equity!
 THRESHOLD Q IN PROP DIVISION: how big is pie? How divide pie up?
 Intro: Back in days before no fault divorce, the party who was innocent had a good way of extracting
favorable settlement: refuse to put up with divorce unless they got a favorable property settlement. But
that leverage is gone under no-fault regime & the parties must negotiate property agreements in the
shadow of law that is increasingly unclear & complicated
 Main Issues in Property Division:
o What is in the pie of property? How do we slice it/ Divide it?
 Common Law System v. Community Property (p. 325-32; also good on 765-6!): answers those 2
Qs differently!
o Already covered in rights (to prop) within intact marriage
o Common law states said that each spouse takes at the end of the marriage all the property that
each spouse has paper title to, & you have title to anything that your dollars purchased. So
divorce was very difficult for women under the common law states’ regime b/c they usually
got very little. Split prop by title so steep assymmetries; not a 50-50 split. If not tile, CL said
party whose assets converted into it, acquired it, gets to own it! so CL prefers party with
assets, wageearner, not homemaker.
 Most states follows CL principles when resolve prop disputes btw spouces
 Not statutory right to claim a share of others prop upon div
 In most states cts can equitablyapportion all prop even sep held and acq b4 marr
 Mass.
o Community property states said that there is a community of property b/t the spouses of all
property acquired during the marriage (effort during marriage, belong to the coimmunity—the
marriage) (but spouses retained property formerly owned that each brought into the marriage
as well as gifts and inherit, are separate). Tricky if mix, like add onto former house. This was
50-50 split. Not a Q of who earns the money, seems more fair to non wage earner but there
are separate property assymmetries like ojne may have more gifts or stuff before got married.
From continental law. More complex rules than CL
 Sounds like a system that would be more fair to non-wage earning spouse but are
exceptions—since some assets not deemed part of the community  potential for
steep asymmetries
 Fits below partnership approach / contrabution principle
 9 states(eg, LA from France, CA from Spain origins, TX)
 New Trends in Property Division: Trend of CL states towards community property idea through
equitable assets: move asset out of “title” position into marital assets category or marital property
(just like CP in CP states, shared assets, jt community idea) —ct use equitable powers to undo
title--trend toward equitable contribution to the overall pie & equitable distribution between the
spouses. Once put stuff in marr prop category then divide along eq lines.
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o
o


Note: to the extent there is an equitable division of assets, fault can sneak in
Note: not only Cl but also Cp states have undergone transition twd equitable powers.
Like if 50-50 proves unfair even in CP state, ct can fix it inequitable effects.
o We see an equity versus law conflict in the Unit 16 cases. See Ferguson.
Text page 761 on: policies guiding division of family assets intervenes in lives in unpredictable, often
unjust ways. Lack of attention to property, alimony, CS awards is surpirsing given family is a key inst for
distrib wealth in US. Loss of economies of scale when dive into 2 households.need more money to keep
std of living once divorce. Differeing ec consequences--W: 30% drop, H:10% drop in avg income is less
than expected. Current polices are hard to say as states differ and left to trial ct judge discretion. Little
data on policies judges follow. 3 types of assets: Prop accumulated by 1 or both at point of div. Alimony
may be awarded to 1. And 1 may be ordered to pay CS. No alimony at CL, few GB divorces so used to be
H support of W. Cts in US then give after div, maybe to deter H div W or keep W from be pauper when
few jobs for her. No historial basis but maybe to offset harsh effects of early prop laws where W
incapable of hold prop. Entered without fanfare. Today most states have list of factors that may be
considered in allocating assets at div. Polices furthered by lists are vague. CT: see length of marriage,
cause of end, age, health, station, job, amt/sources of inc, voc skills, employability, liabilities/needs, oppo
for future acq of cap assets/inc, contrib in acq/preserve/appreciation in val of respective estates. Factors
listed in most states seem to further one of 5 principles: text 763-4 often mutually exclusive. Most
states mix them up and not guide judge as to which weighs more so judges find hard to use lists thus hard
to predict how apply in each case.
o The fault principle: use allocation of assets to punish the spouce who caused the breakup is the
oldest guiding principle, even in many no fault divorce statute states. Fault is alive even in CA
that started the 1970 no fault revolution. Still admissible in custody determinations.
o The need principle: leading candidate to replace fault as key principle guiding allocation of
assets at div. Stay off wlfare rolls, saving to taxpayers. But fosters life of contuining depedency.
Not depend on marriage length and alimony ends only when need does like when die/remarry.
o The status principle: windfall view of marriage; live like a millionnaire after he dies. Not see
marriage length. Term only when dies or can support herself at approp level eg thru remarriage.
o The rehabilitiation principle: only slight diff from need principle; needy spouce given enuff
only to rehab her to pt where no longer need alim. States not clarify if end point is need / status
o The contribution principle: marriage is ec p’ship to which each spouce contrib, some in
services not cash. Virtue is receipient need not feellike get priv welfare dole from payor but
instead entitled to receive earned benefits. But hard to compute benefits owed. Could do: market
val of services (see length of marriage, ded expm room/board) but may come out low as many
services underval by mkt; partnership approach divides all assets equally but does not fix the
labor disadvantage of nonworker (this is community property states idea!); foregone
opportunities approach sees what usually W would have earned if had worked thru marriage and
split that cost but specualtiv; enhanced earnings approach says capacity attributed to supporter,
sent other to HLS, uncertain, debt not end even if remarry or die, only when get fair share, new
worth and income earning ability as ceiling
Ferguson v. Ferguson (p. 766) (Miss. SCt 1994): Recognition of Homemaker Services: when equities
so suggest, ct can order a fair division of prop accumulated thru the jt contributions / efforts of
parties. Gives guidelines (big discretion) for appl of eq distrib method of division of mar assets
o CL state. 1st worry about title.
o Here without statutory authority, ct supplants CL rules (statutes on titles)
o Sets up guidelines 767: nature of equity trent in CL: COULD HAVE HAD RULES!!!!!!
o Facts: Divorce. Married for 28 years. H worked as cable repair man, Note: grounds of div
were his adultery. W stayed home with kid. Chancery Court gave W a huge settlement of
property: custody of son, $300/ mo. C support (ct says depends on cirs of cases, not
manifestly in error here), marital home (title divested from husband; judge within authority!),
most of the home’s contents except husband’s personal belongings, he has to pay off
mortgage, she got half of his pension, lump sum alimony payment of $30,000, health
insurance, atty’s fees. Husband gets: all the investment assets & half of the 32 acres. Husband
challenges the Chancery Court’s discretion.
o Court says there have been 3 systems of divide marital assets at div: sep prop system, eq
distrib system, system of fixed rules/commun prop. Sep prop leads to unjustice bc most prop
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o
o
o
titled in H so houseW gets unenforceable alimony; biggest prob with it is ignors her non-fin
contrib – considerable for tradl houseW, gets unjust division if ignore! Cts often use
resulting trust to fix or do it thru guise of lump sum alimony. Full development in area is
allowing ct to divest title to prop, last vestage of sep prop methods of distrib of mar assets. Ct
has abandoned title theory method of distrib and evolved into equitable distrib system,
evolved thru caselaw.
Holding: Chancery Court was within its discretion. A spouse who has made a material
contribution toward the acquisition of property which is titled in the name of the other
may claim an equitable interest in such jointly accumulated property incident to a divorce.
Go beyond formal title.
Rule: Miss. is a common law state, but court announces that it wants to shift away from a
common law regime. Using its “equitable powers,” court declares that it is adopting a
MARITAL ASSETS REGIME which will have EQUITABLE DISTRIBUTION of
marital assets. Guidelines to aid judges in adjudicating mar asset division / equitable division,
not exclusive list. Courts should look at the following FACTORS: each spouse’s
contributions to the acquisition of the property (both economic & non-economic: subst
contrib to accum of prop so homemaker services count– see direct/ indirect ec contrib,
contrib to stability (versus adulterer who not maintain rel) / harmony of mar / fam rel by
measure quality/quantity/duration; contrib to educ/train bearing on earning pwr of spouce – 1
P has opp costs or human capital, redistrib that in equitable scheme), emotional value of
the assets to each spouse (not just selling price), tax conseq, elim periodic payments or other
friction sources, need for fin security (cts thinks about status maintenance), degree
withdrew assets (see next case on fin misconduct as a factor) anything else you want in
equity (massive eq opening!). Reaches out well past title. But no indication about how to
weigh these factors against each other—a lot of discretion! Ct address Q as arise, fairness
prevailing guideline, measure homemaker services on by mech formula but see contrib to
emotional / ec wellbeing of family. Prefer to finalize, leave as self-sufficient. Experts for
values.Limited appeals review in domestic matters.
Halley: this is a HOMEMAKER HYPERCORRECTION; taking equity too far; fault
sneaks in here. Not enuff for F just to leave. W had no job incentive and got CS over
guidelines as a result of case. She need not work! Crazy. Maybe we wanna chg her
incentives? Too amply support 700/month plus lump and free free as he pays mtg, shocking.
We want to flatten the distrib a bit. Think about fairness..
 Husband was cleaned out essentially b/c court disapproves of his lifestyle
(pornography, adultery, paramours = bad stuff of H not in textPLUS was a
redneck, chews tobacoo, kid buba, farmer : social class prejudice may be in the
case!!!!! Ct dislike not just bc BAD MAN). He is just left with investment to work
with for it to give money versus she got a ton. Cases amazes JH: gave her tons of
stuff. CS, home, land, inside, give C to non-adulterer (grounds for divorce)he pays
mtgs (wow)—title of home divest from F and give to homemaker M with C custody,
equity overtook CL!!!!!!!!! Eq overlay: it was jt prop but trf posession plus
trump legal structure!!!! Blue job dude was cleaned out by equity. Got opposite
rule from CL title was his.
 Paramour testified he told her he hid money so drag him down, hearsay
could be vindictive though
 Seems fault moved the prop div analysis and enters BI too. Comes in with
equitable opening. Yet H is now homeless, think of GB homeless M. Could still sell
house, split it, so not really indivisible? Usually prob of house is indivisible. But
could say decrease in ec of scales, 1 less person so hoe leave her with sole resp over
house, need to give her more stuff. See aslo Reality: gain custody, more urgent if
young C, pulled out of labor market to care for C, that is an expense.
 Or make sense as she had the 2 C so let 3 live there and 4 th must go for BI
reasons not about fault etc.
 Idea of indirect contrib to his salary, so like asstes flow from her
 Court notes page 770: if live with H will dislike M but not if live with M; boy rel
with M seriously deteriorate if let live with F who makes fun of her etc. Judge said
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o
o
morally unfit, not abuse of discretion.
Dissent: Usurpation of legislative powers, b/c courts should not be making these
decisions about fairness issues in prop divisions. Law versus equity!!!!!
Shift to equity, would we follow this case? (I think Jh asked this Q for next case). Extreme,
severe, too far? But where cut back? Isn’t fault a moral idea? Paramous, slept around, bad
guy, but should the other benefit? Just let her out? Pluralistic society may not share all our
ideas of norms (eg morals - Marriage as commitment). Use fault to alter private conduct
within marriage is a big price; duty is more tractable. And there are barg assym in shadow of
law, is that a power thing? Morals mehs with power differences.
Siegel v Siegel, NJ 1990, p 772: what is financial misconduct? casino gambling losses incurred when
marriage was irreparably fractured even though pre-complaint equates with a dissipation of funds to be
born solely by the one who placed the family treasury at risk. This is a ct of equity; says debt belongs to
debtor without offset or credit. Financial dishonesty/misconduct!!! Can be material for dividing
marital assets. Factors of eq distrib see contribution to DISSIPATION of mar prop!!!!!!!! Liability ripe
for mischief, facts of case show this. Some losses even when separated, note was written after losses but
after complaint too (seems fake), note was payable on demand yet never called, forged sig on jt tax return
to min tax liab!!!! Ct had said cannot compel her sign so he engaged in illegit tax evasion, shows contempt
for court and bankrupted his credibility. Perverted the jud process with impunity. Places parties not just
where belong but where they put themselves!
Rules or Standards in Property Division?
(1) On one hand, there should be a rule-based structure. More certainty & the parties can bargain in the
shadow of the law if they know how the court is going to decide. Too mushy to apply the standards &
balancing test. Increased discretion benefits lawyers: provides opportunity for attys to duke it out &
sucks up limited resources by making it more expensive to litigate. (Note: probably better to keep a 5050 split of the community property).
(2) On other hand, discretion is preferable. Oftentimes, property division is going to be pretty subjective.
Within a marriage, people are not going to plan her behavior & get rational, self-interested behavior
anyway, so there is no need for a rule. Judge could reach a fair or better decision by making a case-bycase judgment. Even with a 50-50 rule, do not eliminate discretion in determining the value of the
property & splitting it down the middle – so why keep a rule???
*********************************************************************************************
HALLEY’S LIST!!! DIFFERENT MOTIVES MIGHT ENTERTAIN AS DIVIDE PROPERTY: casebook
did an intro but it left out some distinctions, see Ferguson case, here JH maps out taxonomy:
 Fault: break up marriage, you should pay
 Isn’t this a moral idea? Should we not force norms on a pluralistic society that may differ (eg not see
marriage as a commitment, why use fault to alter conduct, ties to incentives). Doesn’t this mesh with
power imbalances? Bar assymms from power diffs?
 Need of spouce for resources, several different idea of this:
 Status maintenance, or
 Rehab of nonwagearner
 To what leval of market competence?
 Note: foregone opportunity costs look like this but under different model (fairness)
 Subsistence, keep them off off welfare rolls, private welfare system, minimalist idea
 Fairness, marriage as partnership in which parties invest/participate, compensation idea, get
backdisproportionate non$ contrib equally valuable as $ contrib unlike what mkt think, unfair if leaves
market without giving back
 Market value of services, implied K
 Partnership idea, like partners in law firm shares assets and liabilities, relative earning power of
spouce if asset of partnership
 Could limit to assets, or
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Could expand to human capital assets like degree case Postema (minority case), both earn it in
some sense!
 Fair to nonmarket spouce to compensate for foregone opportunities, reliance interest in partnership,
opportunity costs!, sacrifices, ID and comp like rehab, tangled in practical effect.
Equality idea, redistribution from beneficiary of earnings capacity assymmetry (both H and W have DoS,
gender neutral). Background assumption that market rewards M more than W, earnings capacity
assymmetry seem in both later alimony cases, W upon div suffer more severe decline in social class, look
to equity, need alimony, to undo that. Idea: status theory of alimony (see 2 below cases: need, status,
which si right?) laves W in rel of depedency (prefer autonomy? Liberal feminist, incentives after div:
another topic here, likewise how about incentives during marriage and incentives to marry? Like to get
std of living) versus redistrib idea is more socialist feminist. Cool idea: take away costs to W for exit by
guarantee continuing std of life, autonomous to leave marriage! yet form of depdency, give you more than
market, hold H to be a LT supporter even after rel: MILTON REGAN says we want to do this NOT bc of
feminist ideas but bc libertarian iidea of rational actor, DoS of market earner bc most marriages want
assym ditrib (who does market, other does housework), focus efforts on 2, each specialize and get good,
rational for couples to do this, most want to too, so alimony is not fair & need idea but instead incentives
to have rational marriage idea. If strong legal rule, UR free, not change the incentives you have – you
really want this
Above includes ideas like incentive to have rational marriage (not abt changing but instead you have
desire to role specialize really!), incentive to marry etc.
Motives
 See stuff above but more here
 Incentives: Bargain in show of the law (property rules, make clear, know what deal with), incentives
during marriage, rules alter behavior during marriage, do we want this altering of behavior, strong
alimony regime creates incentives to change the bargain. See page 781 Regan: render parties in
ongoing marriage utterly free to pick as want, most want 1 P in market and 1P at home (can Q this),
so regime should not interfere with freedom to make rational choice, role specialization versus strong
alimony regime creates incentives not to make rational choice during marriage. Might expect real
shifts in incentives based on what rules are. Incentives during marriage & after marriage, incentives
TO marry, C – continuity of status or domicile
 Related to other pieces of divorce package, child BI issues, Q divide marital home, has downside of
displace C out of home, tilts all in doctrinal landscape. “CS ex ante” usually match expenses, do we
include services provided by custodial P? Pay for day care not just expenses? Could discount by
pleasure of be with C/winning? (Ct does not but maybe could in equity) (thru C the marriage never
ends!_Cap it? Equitable dimensions of cases. Be aware of what motive is there when we say to divide
marital home or not, think of homeless men, flip to payor, and PWS.
 Aren’t bargains connected to power – bargain assymmetries. Ties up with fault, as moral idea.
Halley: wondering about the moralism behind the fault idea, & how that meshes with power
imbalance issues.
We also see how we want more continuity of status or of domicile with C. See this in property division.
Expectancy idea. Same house: BI of C is fed back into property issue.
Do exit rules give incentives? Maybe want to stay in marriage, not think past,, not internalize divorce rate (Lynn
Baker studies: subjective uptake of rate, wedding psychosis. Nice to send incentives but we do not empirically
do so?). Or think infront of you, since neighbors get div.?
Because we have equity as mode in which property division is done, we’re moving away from rule-based
community prop regime. Inchaote, unpredictable, which considerations are going to come in?
What if we decreased alimony as statutory structure in Mills case—might tell less powerful spouce you have
less brg power at exit so gotta stay in marriage to keep status, is this good, as pull for marriage? or bad since
less powerful person is pressed down on leverage? If less importance of fault and that ties to alimony, then
less bargaining effects of fault !
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Move onto explicit alimony cases: compare Mills and Simmons. Old rule: faulty party cannot get alimony
(continuing DoS, assumed at time of marriage) – could only get property. Now there is a new rule, alimony idea
is in decline bc it was H DoS to W and now we are in an equality regime. But bleeding in through equitable
doctrines is the underlying ideas of alimony, party's ongoing need. Seems inequitable to ignore the ongoing
need of the payee!!!!!
ALIMONY DURATION: Mills (Oregon, 1996, p. 779): Addresses the duration of spousal support. Should a
young, healthy, educated wife be allowed to be supported indefinitely? No. Spousal support should not be
permanent, but rather be awarded for a reasonable period of time until wife can get herself back on her feet
again & end her dependent relationship on her ex-husband. Lists FACTORS such as the age, health, emp skills,
earning capacity & work experience of the parties as well as extent impaired bc stayed at home with C. JH
analysis: Statutory rule that duty of husband to maintain her after end of marriage, need-based idea. Doesn't go as
far as entitlement to the class status she had in marriage, but more like rehabilitation idea. Shortened period of
alimony, to afford her the necessary time to develop her economic potential. This is definitely a ramping down of
old idea of alimony. JH said lots of money here.
 Alimony is not perm, just get her to fin indep, statutory rule: duty of H to maintain her, often marriage is
need based, not entitled to cont class status of marriage, rehab idea here!!! Shorten the period of alimony,
develop her full ec potential then cut her off, ramps down old idea of alimony.
 No perm support, W is young, good health, trained in sales, will have cash at her disposal upon prop div, she
has a license, good prior experience at jobs, skilled
 We are not trying to equalize parties incomes but to ease W transition to fin independence and comp her
for any initial reductions in her earning cap bc bc of dissolution. Here she had work exp, earn pot, propr div
so 4 years is reas time for her to develop her ec potential!!
 Objective of alimony is to get just and eq amt of time, acct for need and ability to pay and stat goal of end the
support depedency within a reasonable time.
 Note on 781: court increasingly see perm alimony with disfavor. ALI says duration should be proportionate to
dur of marriage. Trend away from see need as basis. Ellman agres, prefers to comp spouces for marriage related
ec losses. Ellman says marital specailization makes sense for most couiples, with one spouce concentrate on
market and other on domestic matters if see it as one unit sharing enterprise; lower earning spouce often sent
home, often is W who gets this dispropr loss upon breakup, while higher earner maxs their income. Function of
alimony as reallocation to prevent distorting incentives; no penalties from diff marital styles, lets parties shape
their marriage as they want in any nonfin sense. Ellman big idea on comp loss as function of alimony. Some
criticize his idea of role specailization
ROLE OF THE MARITAL STANDARD OF LIVING: STATUS PRESERVATION IF THE IDEA Simmons
(IL, 1980, p. 782): Discusses whether the purpose of alimony is to keep the spouse at the same standard of
living that she enjoyed during marriage: YES!!!!!!! Alimony is only appropriate if income from spouses
property settlement is insufficient to support her reas needs (in reference to priot status) & spouse cannot support
herself through employment or is otherwise w/o sufficient inc. Must be decioded on a case by case basis, since
each family will have a different standard of living. Reasonable needs analysis, not enough $ so split the difference
in this case. Ct motivated by status maintenence idea. They lose status equally. She doesn't get to eat out to
console herself. Eat out is not a reas need bc exceeds her std of living during marriage, cannot do just since she
prefers to, ate at home when married (ct sees std of living while married in determine reas needs), necessary
part of div that she now must do so alone. Also need not take cabs to work, lots overstated expenses. Loss of
economies of scale: consolotory function of amenities, spike in expenses after divorce. Simmons has no kids &
homemaker services. Facts are 16yr marriage & when they split his earnings are bit more than hers, needs are same,
so he shifts his earnings to W so they take equal hit in class status.
 Q level of support (prior case was on duration), down to one buck in analysis! Split diff if both M and W
needs unmet, status maintenance idea, if one lose staus, both do equally but not increase status (eatout)
 JH idea: when marriage end you lose EC OF SCALE, 2 household now, maybe feel bad and spend money
as go out, spike in consumption as a result you both get a class downturn. Gender neutrl DoS (both) so
higer earner pays alimony
 Trial ct discretion, presume correct
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Cts are given wide latitude in seeing what are reas needs, no objective std, cts see wide variations in stds of
living of parties coming before cts, case by case basis. Court can consider a lot: std of living b4.after marriage,
duration, social position, special needs like med exp, but can consider more.
Cut off entanglements so can each go separate way in life but still consider style of living she was used to,
reas needs still look bad at std of living she previously enjoyed.
Could have perm award if her future income won’t provide std of living she enjoyed when married.
Says here she cannot match H earning power; what is reas differs in diff cases; need alimony here as she cannot
be self-sufficient when measured against her reas needs. A former W who cannot meet her own reas needs
should not have to shift for herself without H assist if he can provide it even if society says W do better now
She has a shoftfall here: needs. What does he pay is second Q. Unless duaration of marr, health or H ability
says no, H award to W must provide her with std of living during marriage. THAT IS HOLDING.
But here he cannot pay it all, not fortunate enuff to satify both of their reas needs in full, not enuff to go
around, living apart costs more than to live as couple, both take a but, ct apportion the deficit, balance
FACTORS and see here duration, age give them eq right to remainder; plus their reas needs are so equal
so share equally the cost of the failure of the marriage. Each are 53 bucks short of reas needs.
Notes 785: Goff: also status maintenance; Oregons loves status principle as a factor in alimony, preserve status
not comp for lost earn capacity is driving idea behind preserve mar living std. Not to equalize inc or look
out indefinitely, just keep std of living in prop to what had during marriage!
VERSUS ALI: disporp time caring for C get comp alimony, caretaker residual loss, look at Ccare period.
Both alimony cases it was the female who got paid.
Mills says rehab: want her to get on her feet.
Simmons: marriage created social class expectation that we use alimony to maintain.
Which of 2 views is right?
WHAT CONSTITUTES PROPERTY? EDUCATIONAL DEGREES: usually NOT mar prop!!! (p. 794)
Minority case says marital prop!: Postema v. Postema (Mich, 1991, p. 786)
Facts: Couple was married for five years. W supports H while he goes to law school & earns a law degree.
Issue: Will law degree come into the property division? Note: fault div. Seems to come in!
Held: Yes. Formulates a new test & sends it back for remand.
Rule: First, characterization of a claim for an advanced degree. Discuss how the law degree could have been valued
as a factor in alimony or as a factor in property division. But problem with alimony is that it gives a cut-off if wife
remarries. But problem with law degree as property is that it is not inalienable & disappears when the holder dies.
So instead, court invents the term of marital asset & focuses on “compensation.” Second, courts looks at how to
value a degree. Rejects the present-value of future earnings (that the spouse has invested in the degree & has a
present interest). Instead, court thinks in terms of what wife contributed & she has a restitution interest. Fault: ct
decided husband was not only hard to live with, but as soon as gets degree, goes off with someone else. Ct explicitly
considered fault in property division. Could have given alimony, but ct doesn't go down that road because alimony's
in principle support. Ct worried that going down alimony road means discretion used against spouse.
Classnotes: equity is a mode of property division away from the CL rule-based way, so we see factors in equity
tests, all/none/some come in is the problem of standards and it affects bargaining. Here the court comes up with an
equitable “marital asset.” Here W supported H, he was hard to live with, did all domestic labor, most of income,
cut off own training, so now need to compensate her. FAULT divorce (consider in property division), he went
off with someone else after degree. Note, she did get back on feet, got her higher degree later. Court distinguishes
(says this is not) alimony. COMPARISON OF ALIMONY AND M.A.: Said p 790 alimony is rooted in a
principle of support, a need idea, not go down that road or else too much discretion, operates with disfavor, want
spouce to get on feet, but here we do not want alimony since goes against desired result plus would terminate upon
remarraige, idea of not relying on prior H; so court here pursues anoother idea. Also alimony is taxed and is PWS.
Versus here marital asset: see the word in equity, use equitable powers to deem things property to divide without
saying property (fudge it!), divide in equitable mode. Why say marital asset?: idea of concerted family effort. Fits
with partnership idea, you made an investment (note: beyond assets, human capital form!), divorce makes you
not reap the investment so we have a restitution idea, restore to whom detrimentally relied (equity talk), get value
of what you put in. (Restitutionary idea - homemaker services & lost opportunities both come in. Restoring what she
invested, rather than delivering to her the upside that the husband captured. ) Also unlike alimony in that there are
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no tax consequences. Let judge max the pie in light of this for both sides. There are two alternative ways of how to
treat MA: two ways to consider its value once you got it.
This court went with restitution: LOWE R FIGURE, ct says consistent with why not alimony, it is not about
expectations!!! Calculus chosen: what she contributed in homemaker services, worked, lost chance/opportunity
costs. Restore her investment, not deliver to her the upside of the degree. She may already have gotten some
back as lived together a bit of time when he had degree already. 2 nd method was rejected: percentage of PV of
future earning—trial court did this, future income stream of degree, did not go with for same reason as not go with
alimony. Note says rare, most courts do not deem degree to be M.A. Graham p. 794, 1978 case. Most refuse. This
case is an outlier. Minority position.
Who is right? Should we treat degrees as MA in Postema or not treat degree as MA in Graham?
 Pro-Graham: majority of jursidictions agree with deeming a degree a MA is WRONG. either way we
treat MA (restitution, or PV) is wrong, income stream approach would have spouce do as the court predicted
(like an HLS grad must go to Skadden), basically stuck, trapped!, or unpredictable, may be an artist so made
a wrong prediction, and the idea of restitution is unpredictable too as there are too many soft factors, even if
more monetizeable it is still hard to calculate. Plus unlike alimony it is final, you can midofy alimony if chg of
cirs but cannot do so here. If you use MA, you get a lump sum or periodic payments, cannot chg either. Want
people to be free to be downwardly mobile, anti MA. Also could say I did it and do the degree is mine, I
suffered so it is mine, not belong to us, partly bc skill, you did not marry my skill, that was not put into the
partnership. restitution effort is hard to calc unlike PV?: maybe do services for love, its not an ec partnership
but a love rel, so not impose partnership model on it. Maybe policy against put her in situation where we seem
to reward her after; prefer he take out loans before? Also maybe easier to do domestic services, maybe she did
what she wanted for not money reasons, so nothing to restore. Also like in Eisen, two individauls making
individual decisions. (JH sees Griswold to Eisenstadt feeling, seeing people as individuals making independent
decisions.) Maybe they both decided to go for a high standard of life without debt: she enjoyed it too! Big
thing with valuation is he could have taken on debt. (BIG mystery of family law: There is little law on duty of
support to each other in an intact marriage, likely subsitence only). Fact Q whether he would have gone for a
law degree without her? Less uncomfty saying marriage as a partnership if evidence was he would not have
gone without her then we have a mere accountants (he would not have been an atty); would be like an antenup
K saying I support you while you are in school, so seems like partnerships, but irrelvant Q if we think aboout
incentives/bargain in shadow of law, do we want mutual dependency? (We could say we'll impose
partnership if there was an antenuptial agreement to that effect. But that’s irrelevant if it's about incentives, if
trying to create rules to guide behavior for married couples.) Maybe she got what she bargained for!
Policy against putting her iunto a dependent position and we have a hunch he would have been a lawyer
without her, so do NOT compensate her now. And it is a license to work so it is unlike property so do not
deem it to be an asset, also cannot sell it so it is unlike property. Need to work to realize or else just paper;
also increase value if work more. Next policy / equality arg.: degrees are not that different from other
human capital assymmetries between spouses like getting better at their job or getting promoted, which
we do not treat like property. We tried to say degree has rigid thing-ness white other not but the assymmetry
does not hold up, both are not property. JH: PROFESSIONAL NARCISSISM: only people with law
degees sit in equity on this so this case is motivated just like the atty-client privilege as sacrosanct and
above all other privileges, so here degree above other job advancement!!!!!! Also, it might discourage to
get a degree (we want attys) if must share it but even more imp: if you want a degree, may hurt the incentive to
marry (marriage is something we want to promote, we might just get unmarried attys) and also student
loans are lowered if you get married, another disincentive (harder to borrow money). Also see below the worry
about PRECEDENT/jump to other domains, court seemed just to attck him for not being gentlemen.
FAULT GOT IN. Also there is the idea we commit him to be atty, to make the payments, when maybe he
could be an artist otherwise.
 Pro-Postema: YES MA, partnership model but MINORITY VIEW. Degree is not just a license to work
(other side said only by realize or increase value by work), it does have value, enables you to compete in
market, otherwise cannot get into the remunerative market, means more money. Also above comment on fact
Q of evidence, would he have gone without her, like an antenup saying you support me through school so like a
parternship. (We could say we'll impose partnership if there was an antenuptial agreement to that effect. But
that’s irrelevant if it's about incentives, if trying to create rules to guide behavior for married couples.). Key
points: Paretoa Optimal, encourage the behavior of 2 spouces, if move assets back to her now we do not
get a mere accountant (unlike what said above, if evidence like antenup K) but we get an attorney—great,
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since she invested, she helped so we got an atty not a mere accountant, we wanna encourage her to invest
and help get us attys, a good thing—people to do this. But it might discourage to get a degree if must share it
but even more imp: if you want a degree, may hurt the incentive to marry (something we want to promote) and
also student loans are lowered if you get married, another disincentive (harder to borrow money). Next, degree
is not just what you did at school, here W at home mixed her labor with it, Lockian view, property right is
not just what done on campus, goes to partnership idea not out of marriage principles but through property
principles, we are always inventing new kinds of property. But was this a gift rather than a K? Seems no K.
(If a gift, she gets nothing back). But marriage itself may be a K. Should marriage be a place where gifts
happen? Regulate, interfere with marriage? Marriage is a partnership (so give her the MA back), stay out if not
want interference, we do not enforce fornications laws anyways! DIFFERENT PICTURES OF MARRIAGE
EMERGE OUT OF THIS DECISION: structure out thinking!!!!!!!!!! Big point!!!!!!!!! There is:
Individual, gift (other view) versus here Partnership. JH: It is worrisome that this case was pushed the way
it was by the fact he was a jerk & ct was so indignant that he's not a gentleman. Was fault div., in testimony we
see stuff about adultress, hard on her: not a gentleman, court notes that with umph! We see fault coming in. Ct
nearly commits him to be an attorney, has to make payments. (but maybe he will be fine, he is now). NOTE:
The worry is that this case is now a form of precedent and (fault) can jump to other domains. Next, a real
no-fault idea is W on lookout, antipaternalism idea, do not stay with him, so we let you out easy, better
look out for own rights, be on notice, leave once you are not doing ok with him. (Doing prop div makes it
possible to sever bonds of marriage (since it’s so screwed up) more than continuing alimony payments).
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So…. Good args on each side! Law is very split in some areas but not here, there seem to be more args
AGAINST MA (Postema was minority case anyways).
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Alimony would let you capture the income stream since you can midofy it as degree holder gets furtehr into his
career. In Postema, we saw instead the idea of POTENTIAL (he can go to Skadden) so did an upward
valuation.
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alimony:
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equitable marital asset:
support/need
discretion
terminates on remarriage
can modify later
partnership: made investment, human capital
can't modify later
Text on Postema: W put off school, work and support H while at law school, whole life revolve around not agitate
him, treat her poorly and blame on school stress, trial ct said his fault and consider in prop div, law degree as marital
asset subject to distrib, no alimony. Goal of trial ct with divide mar estate is fair and eq distrib under all cirs, no rigid
rules, primary Q is what is fair. Accept trial ct unless clearly erroneous. Fairness says comp spouce w/o advanced
degree if it was (clearly here) end product of concerted family effort involving mutual sacrifice by both. The
degree itself not lead to claim, idea of end product of effort as part of plan of both to benefit fam as whole in LT.
Prolonged undertaking, plan to eventually share fruits unless div and nonstudent left with NT so need to return to
her at least val of what she contrib twd H attain degree. Effort in many ways not just tangible/fin but also
intangible nonpecuniary efforts (clearly here) like more daily tasks, rear C, fam mang to mate gets time / energy
to cram, also W shared in emot/psych burdens thru more tension in house or indirectly thru vicarious stress. Both
chg lifestyle, less time persona int pursued, postpone own plans to benefit fam as whole as here she did not go for
nurse degree and work plus household cohres plus stress (H blamed stress on school and she try revolve life around
avoid agittate him). Now need to characterize the claim for com: not regard as a factor in award alimony; some
say it is not prop but we ct says degree stuff is not based on notions of support, but is a recognized right, entitled
to comp, not depdent on factors related to alimony. Would jeopardize as there is discretion with alimony, ends if
remarry, unlike here where comp not evaporate then plus here nonstudetn can do self-support and that would factor
against alimony. Do not focus on if can define degree as prop,just see if facts in case give rise to equitable claim. Ct
says there arises a marital asset; interest of spouce consists of an equitable claim regarding the degree.
Valuation:could award % share of PV of all future earnings attributable to degree or could do restitution: second is
less complex, just see cost of obtaining degree. Do not value using PV since seems like pecuniary int in degree
itself; restitution better shows underlying premise upon which comp award based, return what contributed,
does a 2 step analysis (efforts then means to comp under circs such as see how long married afte got degree,
overall prop div, if were married some time after degree so less award as was already rewarded and also had outside
sources of money for which she was not liable; then H could help her with money twds a degre or just award here
split soon after H got degree, W got little reward already and she gave most money, plus efforts/hardships/cut
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career but note he does have loans: all are factors to see on remand). Actual val of degree n/a, no int in that, just
comp for burden/sacrifices made so other get degree. Ct dislikes idea of loss of expectations, just reimburse what put
in given now that they will not share fruits. Not matter its value cannot be ascertained. Not like a commercial inv
loss
UNIT 17: X. B. CHILD SUPPORT
Biggest problem for policy is enforcement. We have several big problems in enforcement domain,:
 have a lot of nonpayment of CS orders
 & some nonpayments are accepted by custodial spouse as ongoing bargaining of divorced people. Spouses
will hold C support hostage to get something in visitation schedule, in property (some says this justifies
nonpayment).
 Versus nonpayment of C support: Rhetoric that it's always outrageous (some say this).
 also counter to bargain justifying nonpayment is to say:
 private welfare system underlies CS.
 also Ps patriae underlies CS & gives us interest in enforcement, even when 1 party rationally (bc
bargain is ongoing idea) is not interested.
 also, interstate piece - people move around - brought fed gov in as major player (come in and help with
legislation to help enforce). Federal rule mandates: States must legislate to courts by giving guidelines on an
easy schedule, but we see equity leak in. Federal mandate lets state legislatures let courts deviate but how
much? How do we set the amount of support due, when does the duty of CS end?
When does DoS to C end?:
Age of majority: moved back to age 18 after Vietnam (age that you become expensive: college). Weird effect, DoS
ends at age 18 then. Most parents in an intect marriage do not think DoS ends then.
Intact marriages or not:
There is a DoS to C thru intact marriage but privacy doctrine not interfere with decision. During intact marriage
can be cheap to C unless abuse or neglect. Only interefer with DoS decisions if nonmarital parent or divorce.
Then the walla fall off, support machine requires certain economic decisions. We read divorce cases but could have
started earlier with paternity actions, cases about standing to be declared F for P rights purposes. . DoS attach to
nonmarital P too. See SPB earlier.
1 main idea in calculation of CS & 2 alternatives:
 Case we will see: Schmidt’s raw percentage method. Not in most states.
 Take custodial spouse income & say C gets percentage of that -- period. Transfer income from one spouce.
Was criticized for rigidity, not say where money go (for what ends), policy richness in cases.
 Income shares model or pooling model: pretend marriage is still there, put all $ into single ideal pot & make
rough guess about how intact. Have each P share proportionally in delivery of C's needs from the pool of
income. Most states do this instead of Schmidt method. Whatever rigid arithmetic guidelines require, they
allow deviations for equitable considerations.
Equity comes in: All rigid calculations allow equitable deviations. Page 810 guidelines: unless court has a reason
to deviate because of everything, any factor it wants. Weird mix with rigidity, suggests confused. Page 801
Schmidt, DISSENT, 1989 in SD: “the rigidity of guidelines turns logic on its head”: rage/anger at rigidity of rules, p
804 despise mechanical/guidelines – “mechanical jurisprudence shall disappear bc of its despisement”, “May the
sunshine illuminate the lady of Equity” –(dissent) judges wanna keep poweres, not legislate away.
Equity: first take the problem of disproportionate incomes btw 2 spouses (F rising income, 2 cases give C wealth
of non-cust P: yes or not entitled to noncust P status? Kaplan says C yes benefit if income gone up). Then nonmonetary contribution issues of custodial P, even at expense of earn money. How to factor in harms to other C.
(Let's say payor P’s also custodial P to someone. In a way 1 C is subsidizing another. Or if there is split custody.
Affects the whole house!!)
Tangle of issues: hard to separate Disprop Inc, Rising inc, Non$ Contrib to C or other C, Step Fams.
Kaplan (PA 1975, last page of DM)
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Facts: Couple with one son, divorce. W is the custodial P. Her salary reduced to $90 a week, C has med
needs & she petitions to get C support from her ex-husband, alleges change in circ. W wants increase in
CS. F remarried and his new C benefit from new higher std of living (W wants original C to benefit). F
makes $29,000, lives in a big house, has expensive homes, luxury cars, provides for F in his second
marriage. She wants to focus on them as a unit. But she is not doing all she can do to increase her income,
she wants to be home with C. (We see this issue again in non& issue section below).
Issue: Should the F benefit from the F’s increased standard of living?
Held: Yes. Increase prexisitng CS order. Can share in some of the affluence. But note M should
be judged by her earning capacity so only partial increase in F CS as she could take better job. She is
requesting too much. There is a limit but we will order increased CS on remand. Noncust C benefit from
increased CS of noncust F. Note there is a new C in the picture here.
Rule: C should be given SOME of the advantages of the F’s new income status. C does not get the benefit of the
economic class status of the marriage (during marriage: privacy), but of the non-custodial P. Issue of F's rising
income. Children of remarriage are benefiting. Wife says C should benefit too. Ct says C deserves to benefit
although there's a limit (remands to middle amount since M has DoS too and is judged on earning capacity), order
increase in C support. Court says purpose of CS is to protect and advance the welfare of C, support C to best of P
ability consistent with their own support in life. Notes she has a higer earning capacity than she makes. Not just F
but M too had oblig to support her C; test is not what M actual earnings are but what M earning capacity is,
such as always been the law with the F DoS. M had refused to work elsewhere even if pays more so take home
pay not reflect all. Given F income, higher support order; F is living well, provides for other C, his W need not
work, luxury as expenses. C deserved benefit from fortune yet cannot ignore M unwillingness to increase her
income; award is inadequate so partial increase so C gets some of benefits other C got.
Bush (IL, 1989, p. 807): OPPOSITE OF KAPLAN CASE ABOVE, also unlike Murray below, only one
without status chg when non-cust P gets rising income!!! JH says huge CS payment since guidelines say 20%
of income to C, trial ct knew too much over C needs and mom is MD too so looks like a pute STATUS decision,
not one of needs. App ct says reas needs met, go above is windfall so remands to see see std C would have enjoyed.
Facts: Two doctors are married & got divorced. Anathesiologist paid a lot & ordered to put a lot of money
in a trust on behalf of C to guarantee payment of CS (continuously put in money), general practitioner not
paid as much and is custodial P. Noncust P thinks excessive CS award given reas needs and sep abilities to
pay. Ct says abuse of discretion, resevoir trust improper too (total of 2 were 20% of huge income: 30,00
per year is more than most of US makes; why does 4 year old C need that sum? Trust was likely set up to
cover it up, so just smaller direct payments fit guidelines in IL that said 20%inc for 1 C; guidelines did
allow you to deviate if see all relavant factors such as std of living if not div, educ needs, etc., can increase
and DECREASE). Trial ct had done pure status decision: entitled to it even if cannot absorb all of
trust fund now. But this court sees reasonable needs of C, not entitled to windfall.
Issue: Whether or not the non-custodial P higher salary should be calculated when determining CS.
Rule: Guidelines/equity case. Court should use its discretion & not order the wealthier P to pay so
much. C should not get the benefit of the non-custodial P’s earnings. Both parties have more than euff to
provide for C (M is MD and remarried too), this exceeds anything C can want/need, there are no high med
exp here and not old enuff for pricy priv school (then might be ok) and no unmet needs. Merely a dispute
over lifestyle. Although look at status C may have had w/o divorce (std of life is married, may have
not let C benefit, be frugal if wealthy maybe, NOT EQUATE BIG INCOME WITH LIFESTYLE,
CT IS MAD! see W is above income too), not req cts to auto give WINDFALL for C with P with big
incomes, when a parent has huge income, upwardly mobile status at stake. Large inc not necess trigger
extravagent lifestyle or trust fund accum. For anymore, getting more inc not mean must lead to lifestyle
chg, there are other rational uses; wealthy may be frugal or defer inc thru tax delay inv or build estate.
When both M & D are welathy need not diminish estate of noncust P. not req to equate big inc with
lavish lifestyles. Need not provide excess as award for CS just bc one P has it. Act is about giving
ADEQUATE support payments to provide for reas needs. On remand 800/month
 Notes p 810: US Office of CS Enforcement gave states 8 general principles in establ their guideines.
So note that the states are the ones who make the guidelines. Principles: both P share legal resp but ec
respon divided by inc, acct for P needs but never 0 CS, needs as C 1 st priority but if either P go over
subsistence then C benefits too, age, sexual nondiscrim, ok if illegit!!!!, not neg incentives on P choice
like no ec disincentives to remarry or get job, encourage both involve in upbringing. Also endorced
one of 2 approaches to guidelines: income shares and melson, see below.
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Class notes: Above 2 cases diverged with divergent factors! See next case below. Basically issue is if a P has huge
income, upwardly mobile status is at stake, notwithstanding need: should we allow? Pros and cons on chart below.
In all 3 cases rising status is NOT a status maintenance idea of CS (status would have had if marriage not break up).
All but Bush, cases move to C win status CHANGE -- NOT status maintenance (where say C only gets old
status) Bush: F inc up, earlier ct did a guideline figue, not trustfund-- was a windfall, only case NOT to give chg in
status. Kaplan did increase support obligation, note stay home mom.
Murray v. Murray (Court of Appeals of Ohio, 1999) page 812
Notes: Onto a third related case. Ct did include rising stock options bc substantive part of F comensation package,
convey F’s rising status / benefit to C. Did not wanna P hide inc / strategize / shift current to future streams. All
about incentives. P. 813 likewise cases: int on retirement plans, loan to copr w/o ask int, SH w/o options but stock
and value goes up. Inequitable to let hide it, would have enjoyed had marriage continued: would have realized. So
hold noncust P to some of appreication of stock options: include val in CS order. Proceeding each year to value
appreciation of that year.
Facts: M has custody of the son, F salary goes up because of his unexercised stock options.
Issue: How should the stock options be figured in C support? How do you calculate their value?
Holding: Calculates the options as part of his income, but only the amount of appreciation per year.
The Court doesn’t want the P to hide his income so he doesn’t have to give it to the C.
 Put into income for CS purposes, how value them? Cases on what is gorss income incluse imputed interest on
loans P gave to a corp that he owned, potential cash flow from any source, choice to lend was solely P choice,
prevent shift to enjoy in future, defer in to avoid/defe CS: will not allow. Cases where obligor is maj SH in corp,
impute retained earnings when determine CS, share in equity even if not actually got the cash. Expansive def of
inc. inequitable to let him sit on assets, hide behind copr bus decisions and prevent C from stf of life had
marriage kept up. Could have increased salary whenever wanted.
 Here integral part of his compensation. Options given each year and only he can exercise them, solely his
discretion, investment choice to let value increase if wait Mirror deferred comp and that’s in GI.
 Do not let self-shield, deprive C of std of living otherwise enjoyed. Otherwise is ag purpose of CS statute: BI.
 Considered part of yearly salary versus trial court look to 4 years of options. Yet one year base salary. Be
consistent in how treat income. Consider only the apprec in option’s worth which accrued during same year as
inc. Not treat as bonus or overtime. Reflect the compensatory nature. Hard to value by nature, do not pick
arbitrary date, need explain, follow fin models to be most accurate and equitable, reliably reflect imputed inc for
period of time at issue. Ct thinks best date is when can exercise options and realize inc. Times number of shares
granted in option. Similar calc for all previous options and attrib that to inc in prior years, use prices of those
years. Eliminate gamesmanship of obligee wanting a high mkt date to increase CS and obligor wanting low mkt
date to decrease CS. Remands for recalculation.
3 cases above: See policy effects -- debate: Counters are side by side!!! Some are blank (that is fine).
Family model, adjust -- transfer of rising income,
give C a status change, increase CS when noncust P
salary rises, some courts are willing to tap into
money when ec class status changes
But noncust P otherwise DoS to people he not know,
DoS expanded to strangers, extra oblig out of his
control, autonomy, only be obligated to people to whom
you had some role in producing. (he never produced 2 nd
C living with orig C so no DoS to new C just to old C).
Idea is in part PP, to invade family privacy. Also if we
use only need based PP, we violate privacy in poor
families but not in rich, redistrib privacy, equality,
Direction of Bush, against the transfer, original C get
status maintenance only (gets old status only), not
increase CS when noncust P salary rises, some courts
are less willing to CS to ec class status changes
Noncust remarried, noncust’s other C would lose money
if original C gets a windfall, step families, transfer
would be from family to family not just from F to C.
Why shhould this other fam subsidize C of 1st marriage?
Say the cust P remarried, fairness within cust par’s
stepfamily, that orinignal C would get increase but the
new C living with the old C would not.
But that is usually minimalist unless Q of fitness or
neglect. We key PP to need with adults, here exercise of
state power extends PP beyond need, too big step, need a
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fairness problem.
We could adjust the money down, can fix it, can transfer
in light of expectations of F’s new C/step family. Also
for the person marrying this F we could say people wear
price tags, we already see indiv resources of the F you
marry. If serial fam / div, tie them to existing fam. No
clean slate, induce people if marry person with prior C
that it is a given no clean slate. Note idea of spouce’s ex
as not a stranger, is my family, make sacrifices. We do
not want P to “divorce” their C, still be responsible.
BI rights of C * Their lives will be better with more
money.
Psychological view: C feel non cust adandon if not saw
in cust dec wants rel with both P—huge child welfare
presumption. Rejection, you are less worthy than new C
otherwise. Money speaks, it is not just money but a
message to the orig C. Psych reasons: financial
support as a proxy for care
C from 1st marriage should have the same lifestyle as the
new step C bc the norm if intact marriages is to give the
C all the same money since if the marriage survived they
would been living that lifestyle and we want them
equally welloff. .Here the family—albeit 2 units—is one
ec unit and money needs to be shared among them.
Nonearning non cust P could have married rich so
someone supports him, could take that into account, as it
enabled him to make contrib.
why. Re: equality prob: legally under EP, wealth is not
suspect, need socailists on the SC, not a constil issue.
Gap between W and C if individual model—money
directly to C. W not getting alimony (ec class differs).
This pairs with first problem. And also there is a vice
versa: money may go to the W when should really be CS
when it should be CS: “de facto alimony problme”,
transfer to W/cust P, alimony without saying so. Cannot
support C without supporting the cust P (at least when
there is a ton of money involved as in Kaplan),
troublesome bc essentially alimony.
Also in first problem, say we have a noncust family.
There is a new marriage but no C (Bush) or C (Kaplan).
Do not transfer out of the new step family, it is not just
the F’s money. Big sums here. Right to second marriage,
Right to marry!!! Entitled to a clean slate. So original C
gets old status only (status maintence). 2nd families have
their own beginnings. Could say spouce’s ex is a
stranger, de facto loss of inc, not my family. C of the
former marriage should get the status of the former
marriage and that doesn’t change. Otherwise, new
spouse of non-custodial P is forced into obligations to
a stranger (ex)
If the cust P does well they are under privacy (Bi) but
the noncust P is under regulation. *
Noncust is entitled to form new dependency rel, what if
new stay at home? Are you out of CS forever? Take
money from new spouce if old one becomes stay at
home P? downwardly mobile. This is Bender (last case,
nurturing mom presumptions) plus like defer stock
options. Q of nonearning pops in!
C entitled to have benefits of have parent, not harm,
model, treat as if not divorce ever occurred.

Both sides bargain in shadow of law, what incentives to chg cust to joint and chg P bargain. BI/better custodian
not primary custodian? Might think imp for C to enjoy others assets so trade away prim cust position?
Note 2 sides of step fam:
There are step families to think about: a) non-custodial P’s new family- he/she should have a right to take care of
them, b) custodial P’s new family- all the kids should share, one shouldn’t have more than another. Both are cons.
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Note CS is calculated as if C alone but less cost with each C if in big fam, should we account? DE Melson and
raw % methods ignores except for the payor’s side of family. Versus income shares approach that does not
ignore the new family, sees the full ec picture, pools inc like one big family.
Normally, we calculate C support as if the C were all alone, but in ME (supplied by John) it is tied to the duty to
other Children, not to the benefit received if stepfamily.
Theme:
In intact family, we let privacy trump all; P can treat group of C very unequally, can have a fave C, we do nothing
about fairness among C in intact family, reward/punish.
One student said we overemphasize in continuing support duty the value of money psychologically, C prefer trip
with other fam or maybe not, need need such status, only minimally share estate. Is money really a proxy
for care? Or are we over-valuing the benefits of money?
What about non-monetary care, i.e. support- Bender (non-custodial P), and Kaplan (custodial P)?
P has freedom even if P, stock option case, Court saw stock options as payment, even thouhg compensation you
cannot realize, F made less to make rat’l decision of case out time. Eg, may need to do irrat’l mng of funds now to
pay the CS: cuts infto freedom, liberty idea. JH: loan to corp without int where u r only SH is sleeping on assets
versus stock options, maybe u r trying to max value, other motive at stake, not shirking. Yet we convey to C the
rising status.
Maybe psych better if money is for gift not bc required, private ordering as better than mandate?
Different C Support Guidelines states choose:
1. Raw % model- to determine support, ct takes a % off of the non-custodial P’s income (payor income) and
gives it to the C. Could impute more income (see Schmidt ideas like labor of C, in kind comp on farm).
2. Income Shares-most states use-34 states use collective pattern of needs and assets-based on principle: C
should receive same proportion of P income that would have gotten if P live together-- ct pools the income
replicate as if the parties are still 1 intact household (maybe could add non$ in here too) and then get a
collective need figure for each. Basic CS figure is computed based on combo inc of P; the basic
obligation (twds C) of each P is pro rated in proportion to each P income (what put into big pool).
Pro rate shared of C care and extra med exp on top of ea P basic oblig too. After everyone’s collective
need is met (food, rent etc), P gets remainder parts back in amount proportional to what they brought in.
Each P only pays twds basic need plus extra care/med.
3. Equity- (dissent in Schmidt) try and figure each case out equitably, rigid guidelines are bad.
4. Delaware Melson Formula (by judge, p. 810, shown in some cases): defines levels of basic (substinance)
needs for P & C. P entitled to support themselves at a basic level (set aside own basic needs) before
having formula applied. Reserve is often 450/month (less if P live with others). Any extra income
beyond the basic level for P must be first applied in CS form to meet C basic needs (remainder to C
basic needs) including Ccare costs and extra med exp (often 180 first C, 135 for each of 2 nd and 3rd C, 90
for rest, all per month). When inc is sufficient to cover basic needs of P and all C, a portion of what is left
of P income is allocated to additional CS (last remainder for non-need based expectations of C, add’l
CS) by a FORMULA (RAW% of remaining inc) (15% for 1st C, 10 % 2-3, 5% for rest). Can adjust for
joint cust and for oblig to C living with obligor. JH sum: each P gets what needs, if there is any left over
(non-custodial P pays to) needs of C are met, if any left after that (non-custodial P pays to), additional CS.
Class discussion: which method is more apt to generate good outcome where there is disprop inc/ nonmarket
and split custody (in Schmidt). Raw % generates pressure to get exceptions, generated case law, can see that
as good or as bad. Also with pooling, ct can see if needs are reasonable, go back each year to it, cases on what
is subsistence change in cirs, can always reopen CS cases. Idea of continuity of PP power, never brokwn,
continuing jurisdiction of ct on CS. Raw % (unlike pooling that sees collective, not just one payor idea):
seems never 0 CS if disprop inc of noncust, strong pressure on noncust to pay even if low inc, good for C.
Drop rel and CS go together, no visit, rel is less so if think rel is imp, do CS. How about Melson versus
Pooling? Melson goes back to raw percentage at the end, more subtle some say (assures need, put that 1 st,
unlike pooling, which is not senstive to need versus more than non-need based childcare) but seems crude, not
really sunshine of equity, so we are still pro-pooling. Pooling does not take acct of NEED versus STATUS (not
ignore that if mellon) distinction (back to original chart reasons!), keyed to relative prop btw 2 P inc, commit
to CS payment tied to that.
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Notes p. 811: infer cost of raise C only by observe actual exp in existing households, formulas from detailed studies.
Like poverty guideline (how we get basic needs levels), estimates are good benchmark for CS levels, tends to be
constant prop thruout all inc range. Redistrib from adults in house but as add C, less spent on other C. Over age 12,
more exp. Few data on single P homes All this is from 2 P homes.
NONMONETARY CONTRIBUTION TO C:
Kaplan: cust P took lower paying job so less commute, to be better cust P of C of the marriage.
Bender below adds an extra wrinkle: noncust P waives income to care for a new C, not the of marriage, stranger.
These two are just about presumptions (can rebut so remand), simpler nurturing P presumption, noncust P trumps
normal operation of guidelines about what he must pay: should we do this?
Class discussion:
Nurturing P Preumption:
PRO: Encourage cust P stay home with C, earn less, ANTI DAY CARE IDEA (less good than P care).
CON: We do not want families living off of prior spouces. Let the cust P decide not to let support oblig received
change bc waives income, let her decide to earn less, it is her decision not the noncust P’s, cust P is free to decide
what is good for C, presume BI, entitled to presumption (court can find if bad faith). Or avoid rights talk and say
divorce was trauma, let P be there – BI not rights. Kaplan accounted for earning capacity, former spouce tied to her
decisions, divorce has an effect, noncust P cannot control choice, it is not his, so not required to pay more. Let’s
have divorce be real versus shirk, never end marriage, deadweight without freedom, bad faith of decisions, intact
family might not have done this.
Complex next cases:
C support case: Schmidt v. Schmidt (Supreme Court of South Dakota, 1989). Page 801.
Issue of guidelines: modes court have to make CS allocations, see here raw %. Take noncust P inc % of it for each C
not in custody there. Here one P inc was so high it cancel others oblig (dad) for 2 with only an oblig for one.
Seems irrational to the court so will remand for specific fact finding to deviate. Use rigid guideline but
stumble there. VERSUS dissent wants equity NOT fact findings but fairness, justice, flexibility, sit in
judgement of fairness of whole situtation. Guidelines rigidity (stumbles) case, income of 2 parents, way of life
drove the case result (they were so different, cannot treat as commensurate). JH says money out of the F costs him
more than it buys when it gets to the mom. Kinda like homemaker cases, work in the way we value care for C there.
On remand: assess things while remembering dad stock option case. Non$ unreliazed gains. Lack of expenses.
Impute income to him, pay more to her. But that work hurt his one C like if mom needs to buy a car, hurts him to
extent he relies on market, each dollar to him had more va bc less income than her. How far do we go in allowing
him to opt out of market (he is a bit in). An unusual thing we could do is impute the va of C services to dad as the C
wanted to work on the farm. Could then use guidelines raw percentage.
Income
Expenses
Custody
Mom
$1582 mkt work
normal
2 kids
Dad took self out of mkt unlike Mom
$1250 less inc but lives in assets, non$ dimension to life
less because he lives on a farm (kinda pays self in kind)
1 kid
F appeals (and we reverse/remand) paying $250 CS for 2 of C (note: had been higher when she had all 3, affirms
chg in custody to F) that M has custody of. F has a farm, 1 C love farm and prefer live with F, C did chores on farm.
Lower ct had canceled each out for 1 C and treated it like M had 1 C so consider F CS for 1 C. F said should have
compared amt of CS for 2 against CS that M pay for 1 C and subtract to get F amt. Ct agrees with F in part.
Guidelines say CS established in accord with obligor net income and number of C affected. M had more
income so her CS oblg for 1C nearly canceled his oblg for 2 C under guidelines and we will not deviate so trial
ct erred. Does note may be inadequate support for the 2 C; F farm provides necessities that are otherwise
expenses so on remand trial ct can made addl finding which may support deviations from guidelines (like
more money to M 2 C b/c expenses). Dissent: rigidity of guidelines turns logic on its head. Judges should not use
formulas for CS, judgment flees, schedule automatons, should consider needs of C, P ability to pay, (non)abuse of
trial ct discretion (not do inferior test of see if follow guidelines). Value of equity; independence of judiciary from
legislature. Congress said guidelines of states need not bind judges, rebutable presumption that guideline amt is
right, can deviate if unjust, in equity: state legisl said so here. See realities of domestic scene before it.so here I
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would say ok for F to pay Mo as if she had 1 C instead of what ct did where let’s his DoS for 2 C be canceled out by
her DoS for 1 C in his custody just since she has higer inc.
 This is a guidelines rigidity case: her income is higher but he has a lot less expenses because of the farm.
 JH- liken this case to a homemaker case, the custodial P disappears from the market but to work in the
home (act like the F really had higher income!!!!!!!!!!!)
 Notes p 804:not easy to determine what each P share is of CS; caring for C is support esp is young, req cash of
custodial P undermines care received, do not penalize them for stay at home choice instead of earn up to
capacity; not talking about lazy but about Ping labor as a form of CS: idea would be to deduct that from
earning capacity number of custodial P. Note if take out CS gts if cust P works we reduce their incentive to
work, reduce by a % instead so incentive to work—gets some money just not as much and still supported if noit
work--so option to care for C at home (bascially do not police their decision to work or not, leave it up to them).
Compare with Bender case where can stay home with a new baby and not give money to custodial P!!
Next complex case is Bender:
Stepfamily problem on top of the NPP debate. In all step family situations we will see the support of a new
spouse which should be taken into account.In Bender, the noncust P not earn anything at all (prior cases, some P just
earn less). Unilateral idea: who gets the veto? Usually cust P if NPP. In marriage, we expect P to negotiate,
money and nonmoney contrib to C life, so private, so we see lots where both work in reality!!! Effect of PP:
courts can change nature of case without party consent. Subject matter of litigation is either Rights/Support
or Custody/BI. Court can change between the two. Not care if stigmatic earner like exotic dancer, ok to be that.
All CS is about the amount of the check, not about being tainted.
Should we extend NPP to step fam? Dissent in Bender says cannot believe you did not notice it’s a stepfam.
Shadown of law: organizes arrnagments. What about nurturing the 1 st C. Fit with continuing DoS stuff:
discourage noncust from being a nonearner, not acct here bc other C, would be a race to leave market, and
the total money of the fam would go down!! We want bargaining in the shadow of the law- you have to keep in
mind your previous obligations! Also public WS: id she depends on us, force her into market, maybe carry this
policy pref fwd to div fam in priv WS? Why cannot the cust P work more (if sole), or assume that’s different,
depend on others, new fam allocate resources in light.
Bender v. Bender (Pa. Super., 1982) FOOTNOTE p 805.
Facts: M is non-custodial P, wants to stay at home with her new baby (not from the marriage) and not go to work;
she requests to suspend the order of her paying CS to custodial F. unusual since it is sually good to lower
SC if you are nurturing C of marriage. Should we extend NPP to step fam
Issue:
Should the C support (to custodial F with C) be lowered because the mom is now not working?
Holding: Yes, mom is entitled to remain at home to nurture the new baby (not penalized by req CS if not
working) - “NURTURING P PRESUMPTION.” (Doctrine from Wasiolek page 806). Give order to suspend
her CS payments to H. That case involved the M having custody of her own C and wanting to care for them at
home. (This case is her staying and caring for her new C court notes this can be a factor, that the C to be
nurtured is not subject of support order but ct not feel removes case from application of NPP). Case facts
matter, carved out exception to general rule that M has obligation of support measured not by her actual
earnings but rather by her earning capacity. Purpose of CS is further welfare/BI of C for whom it is entered; ct
cannot ignore substantial non$ contribs Ironic isf support order makes you desert your home, esp if young C; court
reversed order forcing her to work. Nurture is imp, emotional wellbeing not killed by fin wellbeing. Court should
consider desire to stay at home to nurture minor C.No 2 support cases are ever alike. No absolute rule, not bound
by NPP to say BI if P stsay home, balance facts such as age, maturity, avail and adequacy of others who can
nurture, fin resources if does not work, NPP is not dispositive, couts need to see factors (like if F in Bender can
support C on own, his earnings are indeed relevant.
Last case:
Solomon v. Findley, AZ 1991, p. 818
They divorced, H agree provide educ funds for C thru college or til age 25, whatever first: incorporated this K into
div decree. W tried to say no merger (K into div decree) and so try to pursue claim in contract rather than by
enforce div decree, H tried to say merger since then div ct cannot adjudicate this obligation. (Oblig to perform K
ended when C reached majority bc div court lack jurisidction to adjudicate Q of liability for CS beyond age of
majority). NO MERGER since div ct had no authority to enforce post-maj educ support provisions, that
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PORTION did not merge into div decree, can only merge what div ct can actually enforce so retained indep
nature enforceable as a K claim! So ok for K action! States have differed. Penland case: imposed oblig on H to
pay all C exp for school beyond HS; K’al oblig outside scope of legal DoS during minority. Can go past age 21 with
K. That ct said retains K’al nature even if incorp in final div decree! Other cts agree can enforce H’s improvident K
independently in a court of law (div ct is equity). Div ct cannot order this stuff so parties need to have made a
separate and indep enforceable K about CS past majority. Not let H modify, he is not trying to relieve self of DoS
but rather what he K’ed to past what law reqs. Ct noted often parties promise more to get the div then try scale
down. But we enforce their vol K, stability in negotiations and prevent penalize one party when other won’t
comply. Ct here did not give contempt ruling in div ct (some cts allow for economy even if such cts cannot reall
order DoS past maj). Here says to enforce in separate K action.
 Notes p. 821: Curtis case EP claim that intact families who P refuse college funding would not benefit from an
act letting judges order college support for divorced, sep, or unmarried P (only those C could benefit). Versus
Crocker: this was ok. States differ on ordering only divorced P to pay for educ up to age 21.
 Div P often neg K to cover post-HS educ; hard to enforce. Hawkins: need to join the C to get dmgds from H.
Needs ec interest in performance of oblig., dmgs the C suffers. Plus unless M was oblig to pay for C educ, her
dmgs are nominal. Ditto with Noble: C and not M has standing as 3 rd party beneficiaries to enforce tuition
clause in settlement K.
 Stanton: SC saidviolates EP to say 21 minority for M and 18 for W (so female C gets less CS). Do not
distinguish sex and hurt educ, would role type female C. So state had to go with same age for both and it
picked 18 for emancipation so neither gets CS after that for school.
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