Family Law Outline

Author: Anonymous
UC Davis, King Hall
Carl E. Schneider & Margaret F. Brinig, 2nd Edition
Professor Onwuachi Y
Spring, 2005


I. Introduction

v What is family?

o Newspaper articles talks about how families have changed-

§ Increase in the # of single mothers and fathers.

§ Younger people not marrying + older people not marrying for practical reason (e.g. division of property).

§ Many young people are just not marrying at all.

o Group of 2 or more people related through blood, marriage/dp, adoption

o Social unit whose primary function was collective care of anyone in the unit.

o 2 or more people related by blood, law, or commitment who perceive each other as interconnected unit.

o Unit of 2 or more people with close social based

II. Pre-Marriage issues

v Breach of Promise to Marry

o § 43.4à no cause of action for damages if broken promise to marry

o § 43.5à no cause of action for

§ alienation of affection (i.e. stealing someone’s spouse)

§ criminal conversation

§ seduction of person over age of legal consent

§ breach of promise to marriage

v § 1590- Gifts in contemplation of marriage: recovery

o Gift of money or property made in contemplation of marriage, the donor may recover the gift or such part of its value:

§ If donee refuses to marry, or

§ If it is given up by mutual consent

o If donor refuses to marry, then he/she may not recover the gift given in contemplation of marriage.

v Simonian v. Donoian

o Facts: man gave ring to woman and mom also gave watch to woman. Now man refused to marry and wants stuff back.

o Holding: can’t get ring back because he is the one who refuses to marry. The statue doesn’t state an exception for whether good reasons to not marry (probably good because not want the courts to get involved here). Can’t get the mother watch because not given in contemplation of marriage so even if she was backing out, he still wouldn’t get watch back.

v Norman v. Burks

o Facts: Husband while married gets into relationship with another woman. Gives here $$, assets, etc. relationship ended when woman said will marry someone else. Man wanted recovery.

o Woman says against public policy to return property b/c promote divorce.

o Holding: recovery ok b/c entitled to property b/c of resulting trust. No consideration for property. Presumption that woman had equitable interest in property. Creative way to protect man.

v Premarital Agreements

o Pernups are agreements made btw potential spouses. There is no federal family law. But there is uniform prenup agreement act.

o Advantages

§ Gives notice of what to expect

§ Second marriages, protect and divide assets to protect children

§ Protects your assets

§ Protect other people who could be damaged if no prenup

o Disadvantages

§ Distrust

§ Change in circumstances that parties didn’t contemplate

§ Makes people plan for divorce

§ Issues of unequal bargaining power

o Procedural Fairness Test

§ Agreements has to be mutual, full disclosure of assets of both parties, no fraud.

o Substantive Fairness Test

§ Full disclosure of assets, parties end up in substantively same situation that they were before the marriage.

o In re Marriage of Spiegel (IOWA- 1996)

§ Parties here are AJ Spiegel and Sarah. Both had married before and children from previous marriage. He brings up issue of prenup, she refuses. But 10 days before wedding, says no. Atty drafted agreement and she receives 5 days before wedding. He tells here that it doesn’t really mean anything and bankers are telling him to sign. Under the terms of the agreement, all property would remain separate, salaries would be kept separate, and no alimony or spousal support in the event of a divorce. Atty negotiated three changesà spousal support in event of death, title of house j/t tenancy, and title to the car. Who paid for the atty?

§ Enforcement of the agreement is favored. Pre-marital agreement is just one of many factors. Person who is saying that agreement should not be enforced had BOP to show that agreement shouldn’t be enforced.

§ Test: test is that agreements that are substantively unfair are still binding if they were executed in a procedurally fair manner.

§ Holding: pre-nup was enforceable and reduced the amount of alimony from $7K to $3K.

§ Fraud: No claim of fraud here. Here reliance was unreasonable.

§ Duress: she had the alternative of canceling the wedding.

§ She was a smart woman and understood the agreement.

§ Fairness: her net worth actually went up after the marriage. She didn’t forfeit all of her marital rights and atty was able to negotiate some of the terms.

§ Why is she entitled to the $3K/month?

o In re Bonds

§ On way to Vegas for marriage, stopped by lawyer’s office and under the terms of the K, wife would receive $10k/month per child. And total $30/K. Circumstances change as get married and H making way more.

§ Trial ct. rejects W’s claim that the agreement not enforceable.

§ App court held that W’s estoppel claim didn’t work because W didn’t rely on H’s statements. Also, no transmutation of MVP Corp. because H bought properties just for himself. But deed transmutedà agreement said that transmutation can occur in writing and the deeds in writing.


§ § 1500- property rights between H and W can be altered by prenups

§ 1501- limits placed on who can enter into such Ks. Allows minors to enter into prenups if emancipated or otherwise capable of entering into K

§ 1610- defines prenups. Agreements btw prospective spouses in contemplation of marriage and become effective UPON marriage.

§ Property means interest current or future.

§ Agreement is enforceable without consideration and has to be in writing and absolutely must be signed by both parties.

o What rts and obligations parties have towards each other:

§ Rt to buy and control property

§ How property is distributed upon separation/divorce

§ Making of will or trust

§ Ownership rts and benefits of insurance policy

§ What law would govern the agreement


§ CAN’T WAIVE SPOUSAL SUPPORT if the waiver unconscionable at the time of enforcement.

o § 1615: prenup not enforceable if the ct. determines that the party against whom enforcement didn’t sign voluntarily

o Voluntariness:

§ Independent counsel

  • Or waived in separate writing after being advised to get the assistance of atty

§ At least 7 days waiting period

§ Must be fully informed of their legal rts and have to be in writing and also have to acknowledge that they were told of these rts in separate writing.

  • If party unrepresented
  • Also, party must be able to speak & understand the language

§ Agreement must be signed absence of fraud, duress, undue influence

§ Fair and full disclosures of assets and liability

§ If no disclosure, the party against whom agreement enforced must have waived the rt to disclosure.

o Unconscionability

§ Examined at the time it was executed.

§ Full disclosure of the other pty’s assets, or must have waived in separate writing.

II. Marriage

v What is marriage?

o Why marry

§ Tax benefits

§ Show commitment to another

§ Religious reasons

§ So define marriage as legal, social and moral institution.

o Book

§ Moral terms: honesty

§ Social Terms: take care of each otherà Love, obey and serve promise made by wife and comfort and honor promise made by husband & FIDELITY!

§ Single ringà man is the provider

§ Man and wifeàwoman as the property of the man

§ Father gives away the bride

§ Promises, are they necessary?

o K

§ Offerà Proposal

§ Conditional acceptanceà when person says yes

§ Formal acceptance with “I do"

§ Considerationà “Vows—all that you give up"

o In CA § 300 Consent, issuance

§ Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by § 425

o § 308.5

§ Only marriage between a man and a woman is valid or recognized in CA.

o Requirements

§ It must be a personal relation.

§ It must be between man and woman.

§ Both parties must have consented to the agreement

§ Both parties must have legal capacity to consent

§ A marriage license must be issued

§ The relationship must be solemnized.

o Like any K there are certain factors that can render a marriage void.

§ E.g. someone is already married

§ Consanguinity/incest

§ Duress

§ Getting married for immigration/fraud

§ Capacity to consent, can’t be too young, intoxication

§ Inability to consummate the relationship

v How is Marriage Legally Regulated

o 301. An unmarried male of the age of 18 years or older, and an unmarried female of the age of 18 years or older, and not otherwise disqualified, are capable of consenting to and consummating marriage.

o 302. An unmarried male or female under the age of 18 years is capable of consenting to and consummating marriage if each of the following documents is filed with the county clerk issuing the marriage license:

§ (a) The written consent of the parents of each underage person, or of one of the parents or the guardian of each underage person. AND

§ (b) A court order granting permission to the underage person to marry, obtained on the showing the court requires.[1]

o 303. If it appears to the satisfaction of the court by application of a minor that the minor requires a written consent to marry and that the minor has no parent or has no parent capable of consenting, the court may make an order consenting to the issuance of a marriage license and granting permission to the minor to marry. The order shall be filed with the county clerk at the time the license is issued.

o § 304. As part of the court order granting permission to marry under Section 302 or 303, the court shall require the parties to the prospective marriage of a minor to participate in premarital counseling concerning social, economic, and personal responsibilities incident to marriage, if the court considers the counseling to be necessary. The parties shall not be required, without their consent, to confer with counselors provided by religious organizations of any denomination. In determining whether to order the parties to participate in the premarital counseling, the court shall consider, among other factors, the ability of the parties to pay for the counseling. The court may impose a reasonable fee to cover the cost of any premarital counseling provided by the county. The fees shall be used exclusively to cover the cost of the counseling services authorized by this section.

o Voidable Marriage: Valid unless file for judgment of nullity

§ nullity restores status of unmarried

  • must be brought w/in 4 years.

§ In case of minor, parent/guardian/conservator can bring action

  • Or minor can w/in 4 years of reacing the age of consent, before age 22.

§ Can be brough during life of the other

§ Also be brought by former H or W

§ Reasons:

  • Unsound mind
  • Fraud
  • Duress
  • Physically incapable

§ Not voidable if already marred if H or W as absent for 5+ yrs or thought to be dead.

o § 2201. (a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless:

§ (1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.

§ (2) The former husband or wife (i) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (ii) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.

§ (b) In either of the cases described in paragraph (2) of subdivision (a), the subsequent marriage is valid until its nullity is adjudged pursuant to subdivision (b) of Section 2210.

o § 2211. A proceeding to obtain a judgment of nullity of marriage, for causes set forth in Section 2210, must be commenced within the periods and by the parties, as follows:

§ (a) For causes mentioned in subdivision (a) of Section 2210, by any of the following:

  • (1) The party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent.
  • (2) A parent, guardian, conservator, or other person having charge of the underaged male or female, at any time before the married minor has arrived at the age of legal consent.
  • (b) For causes mentioned in subdivision (b) of Section 2210, by either of the following:

o (1) Either party during the life of the other.

o (2) The former husband or wife.

  • (c) For causes mentioned in subdivision (c) of Section 2210, by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party.
  • (d) For causes mentioned in subdivision (d) of Section 2210, by the party whose consent was obtained by fraud, within four years after the discovery of the facts constituting the fraud.
  • (e) For causes mentioned in subdivision (e) of Section 2210, by the party whose consent was obtained by force, within four years after the marriage.
  • (f) For causes mentioned in subdivision (f) of Section 2210, by the injured party, within four years after the marriage.

o § 2212. (a) The effect of a judgment of nullity of marriage is to restore the parties to the status of unmarried persons.

§ (b) A judgment of nullity of marriage is conclusive only as to the parties to the proceeding and those claiming under them.

v Limits on marriage

o § 2200. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.

o Age:

§ Of minor age (14)

  • Capacity to consent
  • Influence of older person
  • Maturity
  • Difficulty in fulfilling marital responsibilities

o Consanguinity

§ By blood (CFC § 2200- supra)

o Israel v. Allen

§ Brother-sister by adoption wanted to get married.

§ Court held that state has no compelling interest in prohibiting adopted siblings from getting married.

  • No necessary detriment to family harmony
  • No physical detriment to children
  • No natural repugnance to this type of situation

o Judgment of Nullity

§ If you receive judgment of nullity, it is like the marriage never took place. It can be filed by anytime before child reaches 18 . . .

§ Consent by force was another ground for filing judgment of nullityà has to be filed within 4 yrs of the date of marriage.

§ If someone physically incapable for marriageà has to be filed in 4 years.

§ What should be the limits on state regulations on marriage. What is the purpose of each particular regulation and is the purpose legitimate and if legitimate, is the purpose being served by the actual regulation.

o POLYAMY—Practice of having more than one spouse.

§ Polyandry– practice of having more than one husband.

§ Polygymy– practice of having more than one wife.

§ Such marriage void from the very beginning. But two incidents when voidable if person marries of another person without getting divorced but completely unaware of spouse’s whereabouts for 5 years. OR former partner was believed to be dead and suddenly reappears. First spouse or either of new spouses can file for judgment for nullity.

§ Mormonsè now not legal and wasn’t the original intent of the Mormons and only came around 1852.

§ Congress passed Act that criminalized …

§ Raynolds v. U.S.

  • Π marries one woman and believes morman and gains approval from church and marries 2nd wife. Then prosecuted for engaging in polygamy. Whether laws against polygamy violated free exercise of religion. Whether someone can violate a law because religiously believe that was wrong.
  • Court’s holdingà doesn’t violate the constitution and doesn’t violate free exercise of religion
  • Court reasoned that it wasn’t intended to protect polygamy through Free exercise of religious.
  • Marriage is a civil social K regulated by law and if allow polygamy, it would destroy social relations.
  • Law can’t interfere with religious beliefs but can interfere with religious practices (e.g. sacrifice animals).
  • If allow this, religion will become greater than law.
  • Criminally prosecute those whose religious basis from marriage

§ § 2201. (a) A subsequent marriage contracted by a person during the life of a former husband or wife of the person, with a person other than the former husband or wife, is illegal and void from the beginning, unless:

o (1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.

o (2) The former husband or wife (i) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (ii) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.

  • (b) In either of the cases described in paragraph (2) of subdivision (a), the subsequent marriage is valid until its nullity is adjudged pursuant to subdivision (b) of Section 2210.

§ See also §§ 2210 & 2211

o Former Ban on interracial marriages

§ Loving v. Virginia

  • Facts: White man married black woman in District of Columbia where interracial marriages legal and then returned to Virginia. Then arrested one night at their home and charged with violating criminal statutes. The judge said leave the state for 25 years and won’t be incarcerated (the punishment was 1-5 years in prison).
  • Holding & Reasoning: Supreme Court held the law unconstitutional because violation of the 14th Amendment Equal Protection Clause and the Due Process Clause. Even though law punished both whites and blacks, but the purpose of the law was to protect white supremacy. Law only bans marriages between whites and people of color.
  • State argued that when 14th amendment, there was no intention on the part of drafters to abolish all bans on interracial marriages. Also presented scientific evidence.

o Same Sex Marriages

§ Trial court in Hawaii (1996) allowed same sex marriage

§ Defense of Marriage Act (DOMA)

  • Family defined: b/t 1 man and 1 woman
  • Spouse defined: opposite sex, who is husband or spouse
  • States don’t have to recognize other state’s marriages if same sex

§ Baker v. Vermont (1999)

  • Three same sex couples seeking marriage licenses
  • Arguing that law discriminates- VT constitutional law should allow same sex under Common Benefits Clause.
  • Not like equal protection analysisà higher standard of scrutiny here
  • VT saying that same sex marriages would

o Maintaining uniformity

§ SCt. But VT has history of non-uniformity

o Bridging differences b/t sexes

o –diminish society’s perception of link b/t procreation & child rearing

§ SCt.: Btu we don’t have requirement to procreate w/opposite sex

§ SCt.: But depriving children of same sex couples from getting protection that children of opposite sex couples get

o Affect female & male roles

§ SCt: But no evidence that kids are better off w/opp sex than same sex

o Minimize complications of surrogacy

§ SCt: But opposite sex ones to use surrogacy, complicate it

o Discouraging marriage of convenience

o SCt: holds for Ps and SSM okay

§ History of discrimination not a basis

o Remedy here:

§ SSM can get same benefits, but laws will stay in effect temporarily so legislature can adapt to ruling.

o Don’t award a marriage licenseà that is up to the VT legislature.

  • So Civil Union enacted in VTà differences btw marriage and civil unionà status of marriage not w/civil unionà institution of marriage larger than benefits

§ Domestic Partnership in CA

  • Community property laws apply
  • So subject to bankruptcy laws

§ Dissent in Bakerà not an issue of discrimination on sexual orientation, just discrimination on sex

  • True but effectively discrimination on sexual orientation.

§ Lockyer v. City and County of SF (CA)

  • Facts: mayor of SF decided to issue marriage licenses. As a result of this, about 4000 same-sex marriages were performed. Thought that law violated the constitution and felt that his duty to not follow this law.
  • Issue: Whether under CA law the local executive officials have the authority to decide on the constitutionality of the CA laws and stop enforcing that statute because his/her beliefs that statute unconstitutional.
  • You don’t have prior rulings from the court that same-sex marriage unconstitutional.
  • Holdings: The Mayor did not have the authority to issue marriage licenses at all. The duty of the county clerk was administerial duty and no power to decide on the constitutionality of statutes. Responsibility to issue licenses is with the clerk and this duty is NOT discretionary. Must look at statute to see requirements. The mayor had no discretion and can only supervise what the clerk does and had no authority to expand the power. The mayor can’t decide not to enforce a statute that he/she feels is unconstitutional.
  • Remedyà Marriages were void and had no legal effect.
  • Justice Kennard argued that mayor exceeded his authority but said that lets not void marriages until we have a judicial ruling on this issue.
  • Majority said the proper avenue would be for same-sex couple to file claim after being denied license.

§ Goodridge v. Department of Public Health (MA)

  • Facts: Πs are 14 individuals from Massachusetts. All had committed relationships and some with children and each was denied marriage license.
  • Issue: Whether government actions that bar same-sex marriages violates Massachusetts constitution?
  • Court applies the rationale basis test. They don’t think marriage is a fundamental right. No gender distinction.
  • Rationale Basis test:

o Statutes must bear a real and substantial relation to public health, morals, safety, . . .

o Equal Protection: That impartial lawmaker logically believes that classification will serve a legitimate purpose . . .

  • Court applied Lowest level of scrutiny because maybe wanted to show that law wouldn’t even pass this low level.
  • State’s arguments

o Favorable setting for procreation.

o Insure an optimal setting for raising children.

o Preserve scarce resources of the state.

  • Court’s responses

o 1. Fertility is not a condition of marriage and many couple marry not to reproduce. Procreation arguments is a way to single out gays and lesbians

o 2. No evidence suggests that banning same-sex marriages somehow decrease the health of child raising. State conceded that people in same-sex couples may be excellent parents.

o 3. Absolute statutory ban on same-sex marriage is not rationally related to economy. No evidence that same-sex couples less dependent on each other than opposite couples.

o Πs are not seeking to undermine the institution of marraige but only seeking to get married.

  • Court defines marriage as voluntary union of 2 persons as spouses to the exclusion of all others.
  • REMEDYàvacated summary judgment, remand to trial court and trial court issue judgment consistent with this ruling.
  • Based on the opinion, what options does the legislature have?

o MA court said that civil _____ statute not enough.

  • Dissent: The constitutional protections are extended to individuals not to couples. This is not like Loving because not prohibiting individuals to marry from opposite race.
  • Justice Sosmanà This easily passes rationale basis. There is scientific evidence that children who grow up in same-sex marriages suffer more then other kids.

§ Passing argument to distinguish Gays from racial civil rights

  • You know I am black, but you can’t really tell that someone is gay.

§ Broader questions

  • Why would you want to pursue for a right to marriage.

§ CA Marriage Case (New- Superior Court Level)

  • CA Family Codes § 300, 308.5, which provide that a marriage in CA is a union b/t a man and a woman and that only a marriage between a M and W is valid or recognized in CA, respectively, violate CA’s Constitution under both a strict scrutiny and rational basis analysis.
  • Issue: Whether or not denial of marriage to ss couples violates the Constitution?

o Judge is really careful here.

o Statutory provisions fail rational basis and strict scrutiny.

o Court says that you cannot use tradition all the times to justify its constitutionality.

o Also, the fact that so many of the privileges of married couples is also given to ss couples cuts against these provisions. Court compares this to Separate but equal.

o 3rd argument of ƈ procreation. Court rejected this because never required proof that you are going to have or are capable of procreating before getting married.

  • Strict Scrutiny

o This is gender discrimination under CA constitution. This is gender classification. Marriage is a fundamental rt and that is why strict scrutiny.

o Ct. rejects that argument that this is not gender discrimination. Also, didn’t fly under rationale scrutiny so wouldn’t survive under strict scrutiny.

o No legitimate governmental interest

o Marriage between man/woman and transsexual

§ Littleton v. Prange (Texas)

  • Facts: Π is a transsexual and H dies and sues the doctor as the surviving spouse. ∆ filed motion for summary judgment and argued that P is a man and can’t be a surviving spouse.
  • Transsexualà someone’s who personal sense of identification doesn’t match his/her sex
  • Issue: can a valid marriage between a man and a person who was born a man but later changed sex? Can the sex be changed?

o Doctors assert that not only P physically a woman but psychologically a woman before and after surgery.

o This issue important because if woman, can validly marry a man.

o P asserts that Husband knew of her historyà so wasn’t FRAUD.

  • Holding: You are what you were born with! This is what God has done and you can’t change that God has created you
  • Test to determine sex at birthà birth certificate, unless inaccuracy
  • Dissent Lopez: summary judgment was inappropriate, factual question raised w/r/t sex

§ In re Estate of Gardiner (Kansas)

  • Father dies intestate. Son argues that he is the sole heir because marriage between father and transsexual woman voidà because W born as man.
  • Court held the marriage to be void.

§ So courts in both cases held that sex is not mutable.

§ What role should science play in defining sex?

  • NJ Test: Person’s sex is determined by a person’s anatomy.

o Age

§ CA Fam Code §§ 301-303

  • A person must be

o At lease 18 years old to consent to marriage

o If under 18

§ They must have a written consent from both parents or one of their parents or guardians; and

§ A court order granting the person permission to marry

o Or if under 18, and it is established that the person’s parents are incapable of consenting, then a court order is sufficient if the court so determines.

o Final requirement- if under 18, if necessary, the court will order premarital counseling.

§ CA Fam Code §§ 2210(a), 22(a)(1)

  • A judgment of nullity based on age may be granted

o Within four years after the minor becomes of age; or

o At any time before the minor reaches the age of consent if filed for by a parent.

o State of Mind/Body Restrictions

§ CA Fam Code §§ 2210(c), 2211(c)

  • A judgment of nullity based on inability to consent due to an unsound mind may be granted.
  • The action may be brought at any time before the death of the other party unless the person freely cohabitated after becoming of sound mind.

§ CA Fam Code §§ 2210(d), 2211(d)

  • A judgment of nullity based on fraud may be granted.
  • The action must be brought within four years of discovery of fraud.

§ CA Fam Code §§ 2210(e), 2211(e)

  • A judgment of nullity based on force may be granted.
  • The action must be brought within four years of marriage.

§ CA Fam Code §§ 2210(f), 2211(f)

  • A judgment of nullity based on inability to consummate the marriage may be granted.
  • The action must be brought within four years of the marriage.

o Judgment of Nullity

§ CA Fam Code § 2212

  • It restores the parties to the status of unmarried persons.

v Should Government Promote Marriage (Bush’s Plans)

o Pro marriage programsà families are better off when couples are married. Better for children.

o Other side argues that there is no one side to the definition of marriage.

v Procedural Variations/Informal Marriages

o Putative Spouses

§ Two requirements

  • Person believed in good faith that s/he was lawfully married
  • Person participated in some kind of ceremonial marriage

§ CA Fam Code § 2251

  • The Putative Spouse is entitled to the same share of the quasi-marital property as he or she would have received as an actual legal spouse.

§ CA Fam Code § 2254

  • A putative spouse may also receive an order granting him/her spousal support as if the marriage had not been void or voidable.

§ In re Marriage of Vryonis

  • Facts: Two UCLA academics dating. W performed some ceremony, then slept together for 1st time. Ceremony recognized by Muslim sect (just 2 of them present). No marriage license, written docs recording, etc.
  • Issue: Whether putative spouse?
  • Holding: NO. marriage secret. Lived separately, no public display that married, separate tax, no commingling of finance, etc.

§ Estate of Hafner

  • Facts: H & W1 married in 1953 and had 3 daughters. H moved to Cali and H meets W2 in 1963. H told W2 that was divorced. H dies (intestate) and W1 thinks split property it in 2 ways

o She said my kids, me and the kid from W2 should divide the estate.

o Divide it between all of us.

  • Issue: who gets a share of the estate?
  • Holding: W2 was a putative spouse. W2 is entitled to ½ of the “quasi community property." The other half was H’s SP share and that is shared between W1 & kids.
  • Dissent: W2 gets CP share, but also should get share of SP under the intestacy laws.

§ Hypo: Couple in CA, married, initiate divorce proceedings. But get back together, live together for another 15 yrs thinking still legally married, H dies, kids find out that actually divorced, want W out of estate

  • W would be a putative spouse.

o Common Law Marriages

§ CLM (no ceremony) requires that:

  • The couple reach an agreement that they are married;
  • Both parties are competent to reach the agreement;
  • The couple live together as husband and wife; and
  • The couple hold themselves out as married

§ All factors need to be proven by clear & convincing evidence

§ Common Law marriage is not recognized in CA. Why?

  • Fear of fraudulent claims
  • It was seen as an easy way for people who wanted to benefit from marriage
  • Protection form immorality

§ Full Faith & Credità CA will recognize a valid common law marriage from another state.

§ Hewitt v. Hewitt (Illinois)

  • Facts: Parties met in college and she became pregnant. Lived together for 15 years and had 3 children. She argued that H said that he would share his life, future, and property with W. Held themselves out as H and W told families that married. W said that she helped support H wile he in school. W’s parents financially support. Eventually decide to split up.
  • She argues that she should get ½ of what H earned in 15 yrs. 4 arguments

o Express K

o Their conduct was an implied K

o Fraudulent assurances created a resulting trust

o She relied to her detriment on his promises and he was unjustly enriched.

  • Holding: W’s claim is unenforceable.
  • Reasoning: Public Policy Issuesà State already provided for putative spouses and had abolished common law marriage nearly 100 years ago.
  • Strengthen and preserve the integrity of marriage and provide adequate procedures for solemnization.
  • Court worried that ruling otherwise would hurt the integrity of marriage.
  • Could Ms. Hewitt have done anything to win

o Not putative spouse, because no ceremony.

o Common Law marriages

§ They were living in Iowa at the time started living together so can argue that since had valid CL marriage in Iowa, IL should recognize it.

§ Marvin v. Marvin (CA)

  • Facts: Couple lived together for about 6-7 years. Property that acquired during this period in his name.
  • Alleged agreement (oral)à while they lived together, they will share any property that accumulate during this relationship. W would render her services to him as housekeeper, cook, food, crap and H would financially support her for life.
  • CA supreme Court’s initial holding

o Distribution of property acquired during non-marital partnerships in CA is subject to judicial decision.

o Express Contracts between non-marital partners will be enforced except to the extent that they were explicitly founded on the consideration of sexual services.

o In the absence of express K, CA courts will

§ Look at the conduct of parties to determine whether it demonstrates an implied K

§ Employ the doctrine of quantum meruit[2] to compensate parties for reasonable value of services provided; or

§ Use equitable remedies such as constructive or resulting trusts (actions give rise to arrangements whereby one party holds property in trust for the other (constructive fraud misrepresentation or concealment)).

  • Trial Court on Remand

o “What I have is yours and what you have is mine." “I will always take care of you." Guy is opposed to marriage.

o The court doesn’t find a K between the parties. Given his opposition of marriage, and vague language, no express K. No implied K also because she was the one who changed the name, had nothing to do with him. No joint bank accounts. No property owned jointly between them. It was clear to the public that weren’t married. She was the one who was benefiting.

o But they do reward her something $104Kà because of economic disparities for rehabilitation.

  • H challenges and Court of appeals reversed

o Held that W benefited economically and emotionally but didn’t give up much. H paid for W’s recording.

o CA court not as concerned with the institution of marriage as the IL court.

v Duty of Support in Marriage

o CL, man had duty to support and wife was to take care of house and husband.

o Because a wife couldn’t K and anything belong to her was his, he had the duty to provide to her necessaries and if failed to do so the doctrine of necessaries made him liable

o Today all jrx either don’t have this doctrine or apply it in gender neutral

o CA Family Code §§ 720, 4300

§ Husband and wife contract toward each other obligations of support, which include the provision of food, clothing, shelter, medical treatment and expenses, and legal expenses.

o Basic Necessaries

§ Food

§ Housing

§ Utilities

§ Clothing

§ Medical needs

§ Legal services

o CA Fam Code § 4303

§ The obligee spouse, or the county on his or her behalf, may bring an action against the obligor spouse to enforce the duty to support. The party seeking support must show:

  • S/he was married to the person who received the benefit of his/her services
  • S/he fulfilled his/her obligations
  • The necessaries were not provided to him/her.

o Orr v. Orr

§ AL statute only applies alimony rqts on Hs.

§ Holding: Statue unXNL because violates the Equal Protection Clause. Reinforces stereotypes.

§ Duty of support btw men and women is equal (post-dissolution support case)

o McGuire v. McGuire (Supreme Court of Nebraska)

§ Facts: W and H married for 33 years and actions to cover for atty fees and other expenses. H had reputation for being frugal. Both had been married before. She fulfilled her duties as a wifeà cooked and cleaned, taking care of house, raised some chickens. He didn’t buy her sufficient clothing. Refused to give her money for appliances for the house. No indoor bathroom, no sink in kitchen, and didn’t provide her $ to see daughter.

§ She doesn’t want a divorce. All she wants is suitable maintenance and support $.

§ Holding: She is not entitled to anything that the trial court had ordered. In order to maintain this cause of action, she needs to separate from her husband. Her only option is to file for separation or support. BUT SEE CA § 4304 supra

§ The dissent thinks that this is ridiculous: Why do we force her to obtain a divorce to get support (don’t we support family).


  • Courts respect privacy of families
  • Better for families if they determine how to resolve the problem
  • Assumption of the riskà expectation of parties
  • Difficult for courts to decide what should happen in any particular thing (courts don’t have the expertise)
  • Allows gov to define family in ways we don’t want to.
  • Trouble enforcing such judgments

III. Family Autonomy

v Principles of Family Autonomy

o No adequate standards are available to guide a governmental decisionmaker’s thinking.

o Courts lack expertise in dealing with family problems.

o Courts lack information about a particular family’s situation.

o Governmental intervention invades familial privacy.

o The judicial process will exacerbate the family’s problems.

o Enforcement is difficult within the context of the family.

o As a normative matter, it is better that families be allowed to make decisions for themselves.

o Families must be allowed freedom to organize themselves as they wish if a pluralist society is to be possible.

v Kilgrow v. Kilgrow

o H, W had prenup, said that children will be educated in father’s religion, not Ws. Had 1 kid during M. still married, NOT divorced, NO custody dispute. H and W dispute over where kid should attend school. H filing for injunction against W from interfering taking kid to religious school. aying in best interest of kid to go there. kid had been there for a yr, doing well, had friends there, etc

o trial ct: in favor of H, kid should attend H’s school

o W appeals, that lack of Jx over dispute w/in intact family

o SCt: in favor of W, no Jx

§ A court lacks jx to resolve through injunction an internal family dispute when the family is intact and otherwise happy, even when there is an antenuptial agreement providing for educating any children in the religion of the father.

v Domestic Violence (this is where courts say that yes, we will get involved)

o State v. Rhodes

§ Man Strikes wife with a small switch and then charged with battery. Trial judge ruled that H has rt. to hit W with switch smaller than thumbà but if involved H and a third party, that would be battery.

§ Court overruled trial ct’s ruling. But makes it clear that court will not get involved unless there is some serious permanent damage.

o Phases of Domestic Violence

§ 1. Increased tension, anger, blaming, and arguing;

§ 2. battering, hitting, slapping, kicking, choking, use of objects or weapons, sexual abuse, verbal abuse, and verbal threats; and

§ 3. calming, in which the batterer either denies the violence or makes an excuse for his or her violence.

o Reasons for staying

§ Economic dependence

§ Isolation

§ Low self-esteem

§ Barriers due to immigration status

§ Childhood experience

§ Loyalty to the batterer

§ Fear of losing social contacts and shame

§ Lack of serious prior intervention

§ Children

§ Custody of children

§ Knowledge of abuser’s whereabouts

§ Religious beliefs

§ Learned helplessness

§ Hope

o State v. Norman (North Carolina)

§ Facts: H didn’t work and made W prostitute. Made W eat dog food. Really abused her. Married for 25 yrs and abuse for 20 yrs. She tries to commit suicide, he prevented her getting help. On the day that she kills him, H sleeping. Baby begins to cry, goes to mother house and there comes across gun and shoots him. She is charged with Murder. She trying to pursue self-defense.

§ Issue: whether it was error for TC to not instruct jury on SD?

  • Whether the fact that H was asleep precludes D from claiming perfect SD.

§ 4 elements for perfect SD

  • She believed that she needed to take deadly action to protect herself from imminent bodily harm.
  • Whether belief was reasonable under the circumstances.
  • ∆ was not the aggressor in bringing on the affray
  • ∆ didn’t use more force than was necessary

§ Ct. of appeals held

  • 1. trial ct. erred and there was sufficient evidence to meet all elements
  • With respect to the first element

o Satisfiedà subject belief + expert testimony that she believed that needed to kill

  • 2nd element

o in the context of someone who is suffering from such behavior

  • 3rd element

o provocation has to be looked at in the whole cycle of violence

§ SC reversed and held that ∆ wasn’t entitled to instruction for perfect or imperfect SD. There was lack of imminent harm here.

§ Slipper slope argumentà if have broader def. of imminent harm then open the can of worms.

o Methods of resolving the problem of domestic violence

§ Mandatory arrest

§ Mandatory referrals to prosecution

§ Mandatory prosecution

§ Shaming


IV. Procreation

v Artificial Insemination

o Insemination by male donor or by Husband whose Wife is unable to conceive.

o CA law very briefly deals with reproductive technology.

o CA Fam Code §§ 7613, 4300

§ If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.

v Surrogacy

o Johnson v. Calvert (CA)

§ Facts: Wife had hysterectomy but can still produce eggs. The kid placed in Surrogate mother. Agreement with the surrogate mother (Anna). Troubles arose, couple said that Anna never told them that had miscarriages in the past. Anna is upset because H-W refused to take her to the hospital. She begins to have concerns that they wouldn’t be good parents. She sends them a letter that if want the kid, better pay up all the $10K. HW file lawsuit claiming that they are the parents

§ Procedure: TC held that H-W were the parents and Anna had no parental rights.

§ Issue: Who is the parent, H-W or Anna?

§ Holding: CA SC held that 2 ways someone can prove that parent

  • Actually giving birth to the child
  • Genetic connection.

§ SO here both mothers can be mothers- one gave birth and one had genetic relation

§ But when the two means do not coincide in the same woman, she who intended to procreate the child and raise him/her as her child is the natural mother. Ct. held that had to look to the intent of the parties at the time they made the surr agreement

  • Anna is not the natural mother. Some reasons

o Doesn’t go against public policy.

o Unlike adoption b/c no financial pressure to consent to surrogacy

o She had the chance to consider pros/cons of her decision;

o This test best because certainty

o But for H-W’s actions, the child would not exist

§ Dissent

  • They want to use the best interest of the child test instead of the intent test.

o In re Marriage of Buzzanca (CA)

§ Intended parents are not genetically related to the baby. They eventually split and guy says I don’t want any responsibility for the child. The birth mother also says that she has no interest in the child.

§ Question was who has responsibility for taking care of the child?

§ Procedure: TC ruled that Luan is not the lawful mother so John is not the father. Also other mother and dad has no responsibility

§ Appeal: reversedà Luan is the natural mother of the child. § 7613à Luan’s status here is by virtue of her intent to the process and John is also obligated to provided financial support because consented to the process. Therefore, the intended parents are the parents and have a financial duty to support the child they caused to be born.

o Elisa Maria B. v. Superior Court of El Dorado County (CA)

§ A person in a same-sex relationship, who encourages her partner to give birth to a child via artificial insemination and who then holds out the child as her own, cannot be required to pay child support after she and her partner have split up.

§ The former partner, Elisa B, was not a parent within the meaning of the Uniform Parentage Act and thus was not obliged to pay child support.

§ A child can have only one mother, and here the mother is not disclaiming her maternal rts.

§ Emily was not a surrogate. Buzzanca never addressed whether the same rationale would apply to a sex-sex couple.

§ Domestic partner legislation did not applyà the couple never registered as domestic partners and § 297.5 did not become effective until Jan 1, 2005. Former partner, Elisa B., was not estopped from disclaiming financial responsibility for the children.

o Proposed Alternatives to Determining Parentage in Cases Involving Alternative Reproductive Technologies (as applied to heterosexual couples)

§ Best Interests of the Child

§ Uniform Status of Children of Assisted Conception Act

  • A woman who gives birth to the child is the child’s mother unless a court has approved a surrogacy agreement before conception. In the absence of court approval, the agreement would be void.
  • If the agreement has been approved, the intended parents are the parents of the child. The surrogate would have counsel, and court would have to make certain findings before giving approval of agreement: 1. medical evidence regarding the ability to bear a child without risk; 2. medical evidence that she has already given birth to one child, 3. a finding that all parties involved are fit to be parents, 4. a finding for voluntariness of agreement, 5. a finding of knowledge of terms and effects of agreement, and 6. professional mental health counseling for all the parties involved.


v Adoption is a legal process of creating a parent-child relationship. It terminates the legal rights and responsibilities of the natural parents and creates new legal rights and responsibilities for the adoptive parents.

v Consent

o Mother’s consent must be voluntary

§ Huber v. Marshall

  • Paula and Tim are married and has one child who is 5 yrs old. P is pregnant, and have 2nd child and T loses her job and tells her that leaving her. Julie (actually sleeping with T) tells P that there is a good couple who wants to adopt a child. At atty of Hubert calls P and tells them to go to the dept. of public aid.
  • Basically sign away their rts to their child (thought had 6 months)
  • Was the consent voluntaryà NO, timing too short for someone in her state of mind. Also, victim of misrepresentations.

§ Myers v. Georgia

  • Facts: 23 yrs. old Single womanà has masters and pregnant and takes the child and puts him in basket. Police finds the baby. Then mother begins to have an interest in the child. One of the police officer wants to adopt the child. Now mother thinks that she makes a better mother than the officer.
  • Issue: Whether there was true consent to relinquish the rts. to the baby.
  • Holding: NO, mother was in a state of shock and disbelief and didn’t want to relinquish rts to the baby.

o Father’s consent must be voluntary

§ Lehr v. Robertson (US SC)

  • Facts: M&G knew each other for a while. M’s name not on the birth certificate. M doesn’t provide any support for the child. G marries someone and the couple wants to adopt the child. M had petitioned in some court for proceedings paternity established. M finds out about the adoption proceedings after he has initiated the petition for paternity. The petition for adoption signed by judge before the M’s proceedings are finalized. The court searched the putative father registry before ruling and M’s name not there
  • Some categories

o Any man identified by the G in the birth certificate

o “ in sworn statement

o any man living with the G and representing as F

  • M didn’t meet any of these categories
  • SC HELD that in this case there was no constitutional violation.
  • Reasoning: the biological tie btw unwed father and child by itself doesn’t create constitutional rts. But require that the F come forward and participate in the rearing of the child
  • All F had to do was mail a postcard and get his name in the registry
  • Dissent: Due process violated because never had opportunity to present its case. Here we have an unwed father who was trying to establish a relationship with the child. HOW: he had offered some financial assistance but G refused. G interfered with the F’s attempt to create relationship.

§ In re Baby Richard (IL)

  • Facts: Couple, pregnant, F supporting M, goes away, cheats on M, M gives birth, M lies to F says that kid died, M puts kid up for adoption. Adoption went though.
  • Trial court said that F unfit.
  • SCt. Reversed, not just best interest of Kid, F demonstrated reasonable interest in kid. F demanded rts as F. M & co. knew who was F, should have done more to get his consent before adoption
  • **Best interests of child standard should not apply here.

§ Michael H. v. Gerald D. (USSC- Plurality)

  • H&W. W has affair with M. W & M have baby. M’s biological baby but gets back with H. H’s name on the birth certificate and assumed parental responsibility . But blood test M father. M files an action to establish his paternity and visitation rts but presumption that child born to married women is the product of the marriage. But exceptions

o H impotent

o Or blood test within 2 yrs. of the birth

o H & W were not living together when child conceived

  • M doesn’t fit into any of these categories.
  • SC held that H is the father. State law not unconstitutional. It is legislative policy as to who CA determines father at any time.
  • Here state has decided that Father is the Husband and it is not unconstitutional. “Where the child is born into an extant marital family, the natural father’s unique opportunity to develop a relationship with his child conflicts with the similarly unique opportunity of the husband of the marriage, and it is not unconstitutional for the State to give categorical preference to the latter . . ."
  • Dissent:

o M took steps to provide financial support. Child calling him daddy. IN all our previous cases, we looked at whether the father has taken steps to create relationship with child and here we have such actions.

v Child Custody (Visitation) NON-PARENTAL RIGHTS

o 1. parents who are fit have a fundamental right to the upbringing and education of their child, and the state may not infringe on that right without a compelling state interest.

o Courts cannot place the burden of proving that visitation is not in the children’s best interests on a fit parent.

o A parent’s decisions concerning visitation are entitled to “at least some special weight."

o Troxel v. Granville (USSC)

§ M&F were in a relationship but never got married. Had 2 daughters. 1991 separated but paternal F continued to bring children to his parents. Father committed suicide. His parents continued to see children. Mother said grandparents can only see kids once a month.

§ WA statute at issueà anyone can petition for visitation rts at any time. Ct. can order visitation for any person if in the best interest of the child.

§ Trial court granted GP’s petition

§ WA SC affirm judgment denying visitation. The statute unconstitutionally deny the parents the rt to determine to whom to meet. The statute was facially invalid because allowed any person to visit

§ US SC held that mother’s interest was at stake and the statute was overly broad and denied GP’s visitation

§ The Supreme Court made ruling on the statute as applied

§ Concerns of Justice O’Connor

  • Statute was too broad and anyone can challenge the visitation
  • Best interest of the child standard really just allows judges to insert their own judgment over the parents
  • There is a presumption that a fit parent is acting in the best interest of the child and we shouldn’t have statutes giving visitation rts to be awarded without giving special weight to parental decisions

§ SC decides not to address whether visitation should be allowed only when there is show of harm

o In re Marriage of Harris

§ Facts: Young couple- get married have daughter. Separate right before daughter born. Mother says F was abusive. Mother leaves the daughter. M has sole legal custody of D. Mother’s initial objection to GP’s visitationà the paternal father was abusive to H and there should be therapy before visitation to D. Mother moved and GP hired investigator. GP want D to come visit them in CA. They go through several counseling sessions. F very aggressive and F should only have visitation when under supervision of a trained person. F moved in house with GP. M agrees to the visitation but wants it to be very limited.

§ Superior court orders visitation, ignores mother’s wishes and applies best interest of the child

§ The Ct of app reverses and holds that M’s due process rts were violated. The GP should have shown by clear and convincing evidence that M’s decision were harmful to the child

§ CA SC says § 3104 applies here because parents not married or living separately.

§ Visitation under 3104 may be granted if

  • Preexisting relationship between GP and child
  • The interest in the visitation by the grandparent is balanced against that of the parent to exercise parental authority and
  • The presumption is not in best interest of the child where the parent with the sole legal and physical custody objects to it is rebutted.

§ Rebuttable presumption that visitation of GP is not in the best interest of the child where the parent with sole legal custody of the child objects to the visitation

§ M believes that it unduly burdens her liberty interest in how the child is cared for

§ CA SC also holds that statute not unconstitutional. Remand to see if GPs have rebutted. Unlike the WA’s statue, CA statute is narrower. There were some limitations. Even then, there is a rebuttable presumption. It is not unconstitutional as applied because the other parent (F) supported the visitation.

§ The GPs can overcome the presumption by providing evidence that the visitation should occur and the standard is only preponderance of the evidence.

o Troxel stands for the proposition that parents who are fit have a fundamental rt. to how they want to raise their children.

§ Fit parents are always acting in the best interest of their child

§ After Troxel 2 things clear

  • Courts cannot apply presumptions in favor of visitation
  • Decisions of parents regarding visitation are entitled to some special weight

o How do you define special weight

§ Harrisà CA § provides that special weight by holding a presumption that visitation is not in the child’s best interest.

§ Unlike WA statute, CA statute much narrower.

§ On top of that, there was a presumption.

  • Parents can rebut this presumption by preponderance of the evidence

v Race & Custody Decisions

o Palmore v. Sidoti

§ M&F split. M get custody. M begins to live with black man.

§ F says that circumstances have changed and modify custody

§ There was no determination that M unfit

§ The trail court decided to give custody to the F

§ SC held that this classification didn’t meet strict scrutiny and violated EPC

§ Compelling state interest was best interest of the child and ct. held that this was not met by this classification.

§ Can’t have custody decisions where race is the sole reason. The effects of prejudice on child can’t be justification for removing child.

§ The court does NOT say that race can never be considered in custody decision. As a matter of fact, CA statute says that race can be considered in determining the best interest of the child.

o So when can race be considered?

§ Biracial children and determine which parent get the children. Read 2 articlesà one person favored considering race in biracial child.

§ Old cases said that we wanna put the child with the parent who looks like him the most.

§ Perri’s arguments that shouldn’t use race. She says people can manipulate process

v Parental Notifications (GUEST SPEAKER)

o 1973: SC recognized woman has rt to terminate pregnancy Roe v. Wade

o Griswold v. Ct. à ct. said that can’t pass law prohibiting contraceptives btw married couples

o Trimester framework

o Right after Roe, the battle about abortion shifted to legislature

o In Roe the court didn’t discuss the rt of minors

o Several states passed laws where parental consent rqd for minors to get abortion

§ Key cases

  • Danforth
  • Bellott v. Bairdà Judicial bypass (can impose parental consent unless there is a judicial bypass (ct. decides whether girl mature enough to make decision on her own, what if she is notà it is in her best interest to have the abortion, so 2 issues before the ct)). There has to be a provision for anonymity. Hearings must be scheduled in an expeditious manner.
  • HL v. Matheson
  • Akron v. Akron Rep. Health Center
  • Casey v. PP of SE PAè preserve essential holding of roe- by drop trimester analysis and adopt 14th amendment liberty interest

o Under the CL, the parents have the authority to decide what is best for their children (including medical decisions).

o There are statutory exceptions for purposes for providing treatment for drug use, and treatments for STDs (reason that many minors may be reluctant to seek treatment if parents permission rqud).

o Parental situation brings two constitutional conflicts against each otherà rt. for abortion and rt of parents

o There is no national data in what happens in bypass hearings

§ Judges fall into 2 categories

  • Those who Refuse (moral objection to abortion or up for the election)
  • Those who say yes to most bypass petitions (

o What is the reason for these rules

§ Preserving parental right

§ Encourage young women to talk w/parent(s)

§ Encourage young women to think through decision wholly

§ Discourage teen pregnancy

§ Protect health

o Political Context

o Some of these are notification rules and some are consent rules

§ One or 2 parents

§ Evidentiary standard- In re BS

  • Clear and convincing evidence- Preponderance of the evidence
  • 48 hour waiting pendingà Is OK
  • sexual abuse reporting

v Transracial Adoption

o CA FAM CODE § 8708

§ No department or licensed agency can “categorically deny to any individual the opportunity to become an adoptive parent, on the basis of race, color, or national origin of the individual, or of the child, involved" or “delay or deny" placement on these basis.

o § 8709

§ Race can be sued as a factor in determining the best interests of the child in custody decisionmaking.

v Interracial Adoptions

o CA Fam Code § 8527

§ “Intercountry adoption" means the adoption of a foreign-born child for whom federal law makes a special immigration visa available. Intercountry adoption includes completion of the adoption in the child’s native country or completion of the adoption in this state.

o Open adoption

§ Should we re-thing our views on adoption, taking into account the ways in which adoption usually means the transfer of children from the poorest families to the wealthiest families?

o CA Fam Code § 8524

§ “Independent adoption" means the adoption of a child in which neither the department nor any agency licensed by the department is a party to, or joins in, the adoption petition.


§ Parents having financial troubles and tried to look for temp foster parents. But permanently placed with the bakers, and parents sought to get the child back but ct. held not in child’s best interest.

§ Bakers make argument that other are bad parents, assault charge, and also deported so bad life in China.

§ IN CA, we apply the best interest of the child standard. This is a very vague standard.

§ Judge rules that it is in the best interest of the child to be with the Bakers

Parent Child Relationship

v Rights of Children vis-à-vis parents

o IN CA, courts have to look at 4 factors when determining custody of child

§ Health safety and welfare of child

§ Issues concerning domestic violence

§ Contact child has with both parents

§ Substance abuse

o In re Phillip B.

§ Facts: Phillip is a 12 yrs old boy who suffers from down syndrome and lives in a facility and doctors recommend surgery and parents opposed to surgery. Juvenile department wants to make P a ward of the state so that can have the surgery ordered.

§ Holding: Although parents have the right to raise their children as they think best, state officials may interfere in family matters to safeguard the child’s health, educational development and emotional well-being.

§ The court held that there was substantial evidence to support the decision of the trial court that there was no clear and convincing evidence to sustain the petition for the surgery. Phillip’s case was riskier than others, not clear that benefits outweighed risks.

o Factors to be weighed

§ The seriousness of the harm the child is suffering (the inevitability of a progressive loss of energy and a greatly shortened life span)

§ An evaluation by medical professionals of what treatment is desirable (the only doctor who gave an opinion recommended an operation)

§ The risks involved in treating the child (5-10% chance of immediate mortality and a chance of needing a pacemaker)

§ The expressed preferences of the child.

o In re Scott K.

§ Facts: SK is a 17yrs. old guy arrested for possession of marijuana with intent to sell. Mom found mj and gave it to police officer. Officer called dad and came to house and arrested. Dad consented to search of SK’s bedroom and toolbox. All this without a warrant.

§ Trial court finds that search was appropriate but appellate court reversed.

§ Issue: can parents give consent here?

§ CA SC hold that parents do have protectable interest in children but children still given rts

§ Court lays out circumstances when third party like father can give consent

  • 3rd party can give consent when have some common authority over the property or interest in the property. Third party has a protectible interest in the property when s/he possesses common authority over or a sufficient relationship to the premises or effects sought to be inspected.

§ Dissent

  • Argues more for the parent’s rt. to disciplining their children. Parent’s authority to control their children.


v Mediation

o (GUEST SPEAKER- She is a mediator)

o 50% of us end up divorced

o Inour society, the model is litigation. JudgeàAttysàparites

§ Biggest problem in family law is that when have litigation with people with intimate relationships, you have meltdown

§ The parties don’t talk to each other, not to other atty and not to judge. Just talk to their atty. You don’t learn how to coparent in this process.

§ Litigants have no power in this situation. Only power with their atty and the judge.

§ Even though speaker doesn’t like the Litigation model, but sometimes tough decisions need to be made.

o Mediation

§ Mediator becomes not exactly like the judge. Mediator is a neutral, actually telling the parties what the law will allow. Mediator is trained in alternative dispute technique.

§ Mediation is absolutely voluntary.

§ Yolo county is a recommending partyà so if party can’t agree, the mediator will make a recommendation and judge will consider it

§ In Sac county, have office of family something

§ CA has 2 tier order

  • Legal custodyà each parent has it by virtue of the fact that this is your child.

v In Ca, there is a presumption that it is best interest of child for parents to consult each other before making such decisions.

  • Physical custodyà how much time kid spends with each parent. There is no presumption that joint physical presumption is in the child’s best interest.

§ In Mediation and Collaborative Negotiation we can talk about parenting styles

o Collaborative Negotiation

§ Process where parties and their attorneys agree to resolve their disputes together as a group and without litigation. Collaborative negotiation helps to address some of the criticisms of mediation, which include unequal bargaining power between men and women and failure to account for gender differences in bargaining.

o Litigation is absolutely the most expensive alternative. Because so not in your control.

o Mediation is the cheapest because only paying the mediator

§ But this is not good model if there is power imbalance or if the wounds or so bad

o Collaborative model

§ A little more expensive than mediation because 4 people involved.

o (Another Guest Speaker- Mediator)

§ All counties shall provide mediation programs in their courts.

§ Yolo countyà 6 mediators. Then have an outside mediation program as well.

§ Divorce or separationè a lot of stress and smart people can do dumb things.

§ Goal of mediation is to help parents try and do something less stupid or more smart

§ Responsibility for mediators is to help people find a place to talk.

o Yolo county

§ 6 are in there when family matter is going on.

§ Judge will not hear case until go though mediation.

§ Typically people don’t have attys.

§ Goal for mediator is to put everything in contextà what do you see your kid doing when 30?

§ By law, if there are allegations of domestic violenceà mediator has to see the parties separately

§ 2 fundamental rts

  • guaranteed accessà parent has guaranteed access to child
  • what is in the best interest of childà this law supersedes guaranteed access rt of the parent.

§ By law, joint legal custody must be considered

§ Splitting physical custody is usually difficult to do 50/50

v Divorce & Dissolution

o UMDA § 305à allows divorce where irretrievable breakdown[3] of family and both parties confirm under oath that is the case.

§ Or divorce allowed where irretrievable breakdown and one party makes the claim and the other doesn’t deny it.

§ If one of the parties denies it, court can continue the case for 30 days with an eye for encouraging the couple to seek counseling.

o Jurisdiction Issue

§ CA Fam Code § 2320

  • At least one of the parties must have been a resident of CA for six months and a resident of the count in which the petition is filed for three months.

o Grounds for Dissolution[4], CA §§ 2310-12

§ Irreconcilable differences– means the irretrievable breakdown of marriage

§ Incurable insanity- which must include competent medical or psychiatric testimony, that the insane spouse was at the time the petition was filed, remains, incurably insane.


§ Evidence of specific acts of misconduct is improper and inadmissible.

o Some states moving back to fault type divorce

§ Arizona Arkansas Louisianaà covenant marriages. Gets married, have marriage education, counseling before hand before can get a divorce also have to go though counseling. Grounds for divorce are slightly more fault based. Other spouse committed adultery, felony, physically or sexually abused other spouse or children. Spouses have been living separately for 2 years without reconciling.

v Tort Actions Between Divorcing Spouses

o Doe v. Doe

§ Facts: Wife sleeping with art professor. Husband finds out and turns out, twins fathered by the professor. Father files for divorce and then also brings tort action for fraud and IIED.

§ Court of appeals reverses the dismissal of those counts and says that no spousal immunity per Lessley.

§ But reversed, because Lessley only allows claims for outrageous intentional torts.

§ There was an old tort of criminal conversation/alienation of affectionà but was held unconstitutional

  • Court says the facts here are similar to this old tort and court feared that this old tort might come back under a different title
  • Side noteà these torts are making a comeback.

o Hakkila v. Hakkila (New Mexico)

§ Facts: Petition for divorce filed and wife filed a counter-petition for damages

  • She claimed physical abuse + sexual abuse. Then incidences where screamed at her in public and private.

§ Issue: Whether recognize IIED in marital context?

§ Holding: NM court of appeals held yes but has to be really really outrageous. Here the H’s conduct failed to meet this standard.

o Massey v. Massey

§ Appeal from a lower court ruling that absent a finding of physical injury, can’t file for IIED.

§ Wife claims that there was severe emotional abuse

§ TX court of appeals rules that IIED does not require some kind of physical injury.

o Now in most states, we have no fault marriages. If we allow tort claims to come into action, does it really change the meaning of no fault?

Alimony & Spousal Support (JUST USING CLASS NOTES NOW)


v Today look at alimony and spousal support

o Under fault divorce, it was sort of a damage payment for breach of a marital K

o With no-fault, move away from alimony and more towards property dissolution.

o Today, spousal support/maintenance/alimony is generally viewed as temporary and rehabilitative.

v CA FAM COD § 4320, 4330, 4332

o Court may order award of support to spouse and shall make specific findings regarding standard of living during marriage and other factual determinations (as requested) in doing so.

o Considerations for support include:

§ Person’s earning capacity, including marketability of skillsà whether sufficient to maintain standard of living established during marriage

§ Contributions of supported party to education, training and career of supporting party.

§ Supporting spouse’s ability to pay spousal support

§ Needs of supported spouse, taking into consideration the couple’s standard of living during marriage.

§ Obligations and assets of each party

§ Duration of marriage

§ Ability to work without negatively affecting dependent children in custody

§ The age and health of the party

§ Domestic violence

§ Tax consequences

§ Hardships to each party

§ Ultimate goal to become self-sufficient

§ Criminal conviction, which may result in elimination or reduction of spousal support.

o CA FAM CODE § 4323(a)

§ There is a rebuttable presumption of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex.

o Code § 4323(c)

§ The income of the supporting spouse’s subsequent spouse or non-marital partner shall not be considered when determining or modifying spousal support.

v Most couples don’t make money that will allow one to give support and maintain the same standard of living.

v Pfohl v. Pfohl (Florida)

o Facts: W is a wealthy woman. H not so rich and average. W asked H to move to NY and give up his sales job because didn’t want him away. H’s standard of living while married was about 5K/month. H has about $200K in assetsà all from her.

o H is 37à good physical health. Owes her about $60K.

o W seeking divorce and wants kids and the $60K back. H wants permanent alimony. He cheated on her

o Trial court awards him payment of $30K and then $5K rehabilitative payments (his standard of living during marriage) for 18 months

o Holding: Trial court didn’t abuse its discretion. Wives may also be obligated to pay spousal support or maintenance.

o Criteria used in determiningà traditional criteria, 2 factors

§ Spouse’s ability to pay (in this case W, still has income and worth about 4.5 million)

§ The needs of the spouse seeking alimony, taking into account the standard of living shared by the couple during the marriage (they’ve been living together for 5 years)

o Questionà

§ Why shouldn’t the 200K assets he has from his wife count?

§ What if support had come from father throughout the marriage, would that have made a difference? Father has no duty of support to son in law

o Should we have standard of living before the marriage?

§ Would encourage remain in bad marriage

§ Sacrifice/investment in spouse

o Pg. 318-19 Uniform Marriage and Divorce Act

§ Look at 2 things

  • Does the supported spouse lack sufficient property to provide for his reasonable needs?
  • And is the supported spouse unable to support himself or herself through appropriate employment, or is he or she the custodian of a child whose condition requires him/her to say at home?

§ UMDA is tougher

  • 1. sufficient assets
  • 2. 1 year

o What could Mrs. Foley done to protect her assets

§ Premarital agreement

  • All has to be in writing
  • Lawyer for husband
  • Full disclosure of assets
  • 7 days to review
  • H has to be proficient in the language

§ Things don’t want as defense to K

  • No threats
  • No Fraud
  • Capacity
  • Unconscionability is measured at the time of the enforcement


Tuesday 4/19/05


v Last class discussed Pfhol v. Pfhol

o Florida SC held that husbands alimony will be judged on the same criteria as a wife would be

o We made fun of Mr. Pfhol.

v Mahoney v. Mahoney (Pennsylvania)

o Facts: Couples married and at the time of marriage, H has engineering degree and W had science degree. H went on to get an MBA and W supported himà about $24K. She also went for a Masters degree but she paid herself. She sought 50% of the amount that she contributed and 50% of the cost of H’s tuition.

o Issue: whether professional degree is property for the purposes of dissolution of property after divorce?

o Holding: Professional degree is not property subject to equitable distributionà future monetary value uncertain and unquantifiable, can’t be sold, can’t be inherited, earned through hard work/not simply a matter of spending money, ends at death

o What is wife entitled toà she is entitled to reimbursement alimony for the expenses she incurred during H’s school. 4 reasons why:

§ Supportà during school

§ Sacrificeà W sacrificed her standard of living (H could have been working)

§ Expectationà W’s expectations were that they both would share, that both would benefit from H’s higher earning capacity

§ Contractà she agreed to end up SOL for the future

o Look at the Pfohl standard where looked at ability to pay and needs of spouse?

§ Would W qualify for support under this standard? She is not going to receive any because here needs as a spouse are not great and she can support herself.

o § 318.19 UMDAà looks like wife would lose out under these factors



o Legal custodyà ability to make decisions about the child’s health, education, etc.

o Physical Custodyà having the kid in your home and making day-to-day decisions

o There can be joint legal and physical custody. So joint custody includes both legal and physical custody.

o You can have sole physical custody with one parent and have joint legal custody

o In CA, there is a presumption in favor of joint custody § 3080, and ct. can award joint custody even if both parents don’t agree.

o § 3010à provides that both the mother and father of child are equally entitled to custody of the child. Unless one partnet not entitled because abandoned or dead, etc.

o § 3011à lays out what should be considered when determing what are the best interst of child

§ health safety and welfare of child

§ any history of abuse

  • includes who the parent is currently living with. Account the other children living in the home.

§ Nature of relationship of child with the parentà amount of contact child had with parent.

§ Considers if any allegations of substance abuse

o § 3040 Order of preference

§ custody to both or either parent

§ person who has housed the child in a stable home (e.g. grandparent)

§ any other person the court finds worthy of custody

o Painter v. Banister

§ Mom and daughter killed in auto accident. F gave son mark to maternal GP (both said that would be temporary). After some time- F got remarried and wanted son back.

§ Background

  • F: not really smart, home wasn’t as nice, dropped out of school, switched jobs 7 time in the span of 10 yrs.
  • GP: wll-kept confy house and went to church regulary, raised daughters all college graduates.

§ Court never finds that F was unfit parent but still holds that best interest for C to live with GPs.

§ Although there is a presumption that child best off with parents, but that is rebuttable. Even though wife wishes to have dad be custodian of child. Based on asych testimony mark will go wrong if go back to say with father.



Thursday 4/21/05

v Guest Speakerà Michael Newdow

o Fundamental rt.

o We violate the constitution all the times in family courts

o What harm inflicting on parents?

o Best interest of the Child. What is it


Monday 4/25/05


v Last Class looked at Mahoney v. Mahoney

o Trial court erred in characterizing MBA as property. MBA not property

§ Valuable nothing more than possibility of enhanced earning

§ Amount speculative

§ Difficult to measure

§ Costs of wife’s financial contribution has nothing much to do with the degree

o Court then hled that trial court can compensate wife though reimbursement alimony and can be given to spouse when some kind of expectation that couple would together benefit from the degree.

o Reimbursement alimony proper when someone has sacrificed something

§ Supported though school

§ Suffering some kind of loss in income and standard of living

§ Contractà arrangement with expectation that both would benefit

o Interesting questions

§ How do you measure what reimbursement alimony?

o Also began to review child custody cases

§ Legalè both parents have legal custody of the child (make major decisions such as schooling, medical treatment)

§ Physical custodyà where child livesà primary physical custody. Can also have joint legal and physical custody.

§ Mr. Newdow prefers joint custody unless some harm.

§ Payner v. Banisterà best interest of the child standard.

  • Custody dispute between grandparents and the biological father
  • Court granted custody to grandparents even though father held to be fit parent. IW SC held that in best interest of the child. Relied on testimony of experts.

§ Question: Was the question inconsistent with Troxel?

  • Troxelà US SC said

v 1. we are going to presume that it is in best interst of child to remain with natural parent so never going to put burden on natural parent to prove that in the best interst for child to remain with them

v 2. special weight given to the consideration of the birth parent.

  • Arguably consistent because considered what mother wanted.

v Today looking at number of different standards in determining who gets custody of the child.

o Some things judge can consider in a custody case? Two fit parents.

§ Stability

§ Finances

§ Child’s preference

§ Other relationships in the home whether someone arguably unfit

§ Amount of free time

§ Primary caretaking

§ Placement of siblings (want to keep siblings together) or other kids in the home

§ Psychological elements (experts).

o Dire v. Howel

§ Young teen couple married and had baby, H killed his wife. Child palced in custody of juvi court. That agency placed him with maternal aunt and uncle. Dad was given opp to visit with him. During trial found not guilty for reason of insanity. Father released for being competent. Aunt and uncle adopt child against the wishes of F. F files for custody when remarried.

§ Trial court said not in best interest of child to given to father.

§ F said that standard should be that F entitled to custody. Howels said that child’s best interest is the standard. Court says that this is different situation because already with uncle and aunt.

§ Court standard: F needs to show 2 things

  • 1. his circumstances have changed & changed so much that best interest of child.

§ 1st prong met but not sufficient to overcome the best interest standard.

§ Was this case rightly decided?


§ Tender year standardà children in young years should be placed with mother.

§ Parents are married, separated. In divorce ct, judge gives custody to father. Mother appeals, citing the tender year acception. F says violates the Equal Protection. They upheld child staying with mother based on tender year standard. Not followed in any jrx.

o Primary caretaker standardà whoever has been taking care of the kid mostly, that’s the person who is better off with kid. (e.g. bathing, washing) In this case, had a couple, daughter moves with mother and sleeps with mother’s boyfriend and gets pregnant. MISSED THE FACTS.

o Grandmother’s boyfired initially granted custody of childà smarter, more educated, better command of English Language.

§ Court applies the primary caretaker standard to give kid back to mother.

o Last CaseàMurray v. Murray

§ Two parents had joint cusstoyd, M gets new bF, father has problem with new BF spending night. Father files for changed cusoty order. BF-M get married. And then trial court again gives joint custody and both parents appeal.

§ Court says that going to give custody to the father. She tried to exclude him after got the new BF. Modified circumstances have been shown here. Best intest of the child to placed with F because more financially stable. F has a grandfather and can spend time with the child.


Tuesday 4/26/05


v Last class looked at tender years presumption. Primary caretaker presumptionà if both partens took care of child equally, then the presumption doesn’t apply.

v Today we’ll at relocation

o Burgress

§ Married and had 2 kids and separated. Initially had joint legal custody and mother had sole physical custody. H visited the children and M gets a job that requires her to move 40 minutes away and child wiould have better access the health care. Father challenges the move.

§ Trial court rules that best interest of childrent to stay in physical custody of mom when she moves.

§ Court of appeals, standard

  • 1. first look at impact of the move on child—non-custodial
  • 2. if impact, then whether the move necessary—custodial
  • 3. if necessary, weigh benefits and harms

§ burden is on the non-custodial parent to show that there is some detriment to the child. Provided that the custodial parent has bona fide reason for doing so.

§ What if the F was able to prove that harm to child, the ct will probably do the balancing of benefits and harm.

v Child Support

o § 3900 of the family code makes clear that each parent has responsibility to support child, until child finishes 12th grade or is 19- whichever happens first. § 3901

o § 4000 can enforce the duties of support for child

o § 3950, if one of the parent neglects to provide for the child and a 3rd party does so, the 3rd party can recover those expenses from the parent.

o § 4001 allows a court to issue an order of support

o § 4002 allows a county to enforce a duty of support

o § 4055à don’t really have to know

o Pencovic v. Pencovic

§ F oreder child support. Makes one payment and no other. F found guilty of nonpayment of child support. Then makes payments. Mom has car accident and she cannot earn as much money and so wanted support increased. Dad appealed.

§ F complains that he is not making any money. F had this religious foundation and foundation gives him gifts.

§ The court applies standard where looks at 2 facts to see whether child support modified:

  • 1. Needs of the children
  • 2. Ability of the parent to support the child, includes his capacity to earn money.

§ Holdingà no abuse of discretion, and F can afford to pay this amount of money. F’s religious defense was no defense at all.

o Why might parent resist making payment

§ No understand the true costs

§ Resents paying ex-spouse

§ Selfish

§ Fear of the $ being misused

§ May not wanted the kids in the first place.

o Curtis v. Kline

§ Act 62 requires either unmarried or divorced parent to support the child through college.

§ Issue: Whether violates the EPC. Classifications: Children in married families vs. children in unmarried or divorced

§ Court applies RATIONALE:

  • Legitimate gov. interest involved
  • The classification furthers that accomplishment

§ Holding: Violates EPC. Gov. gave some policy reasons for enacting this statute. Children of non-marital families need advantages to overcome obstacles, but court doesn’t buy this interest

o In re Marriage of Crocker

§ Similar statute for higher education expenses for children over 18 yrs old.

§ F argues. Classification—> between married couples and non-married couples + married couples who do not live together.

§ F argues that no rational basis for this classification.

§ Court’s holing: what was state’s interest-> well educated populace and children of unmarried or living separately have lesser chance of going to college so putting them in equal footing with children living in joint household.

§ In this case, focusing on the parents

v Raises issues that should parents have obligations to support kids over whom have no control

v Soloman v. Ball

o Parents are married and have 2 children. Mother files motion to have her child support increased because kids from public schoolsè private schools. Kids get into better private schools so again files for increased amount. Trial court increases it again because best interest of children. F challenges it and argues that shouldn’t have to pay more than the guidelines and challenges the increase in the child support order. The court says that education amounts are included in the amounts listed in the code and if trial court wants to deviate, it has to find written findings of facts to justify.

o When noncustodial parent to pay for private things, consider 2 things

§ Need of the child and

§ Ability of parent to pay

o Found trial court abused discretion and second time, didn’t make any findings as to why increase amount and only said that best interest of child.

v Question: Do custodial parent has duty to mitigate costs if has ability to earn more $?




v Pamela P.

o Misrepresents to the father that using birth control and had baby. Now she wants child support.

o Family court held that she was being deceitful and he should be barred from giving child support

o Court of appeals ruled that he has to pay. There was no gov interference with the rt to use contraceptive and he has no rt to have his rt not to procreate honor by private parties.

[1] CA can also impose counseling for under 18 folks.

[2] a claim or count grounded on an implied contract that the defendant would pay the plaintiff as much as deserved for services or materials provided

[3] To find irretrievable breakdown, one must determine that there is no reasonable prospect of reconciliation.