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The Study of Law

Currier, K.A., Eimermann, T.E. (2016). The study of law: A critical thinking approach (4th ed.).

New York: Wolters Kluwer

Aspen College Series

The Study of Law A Critical Thinking Approach

Fourth Edition

Katherine A. Currier • Thomas E. Eimermann

• ®Wolters Kluwer

Family Law

Children are our most valuable national resource. President Herbert Hoover

CHAPTER OBJECTIVES

After reading this chapter, you should be able to:

• Discuss the concept of the modern family and the status of same-sex marriage.

• List the requirements for marriage and divorce. • Distinguish between annulment and divorce. • Discuss laws regarding child custody, visitation, and support. • Debate the merits of modern trends in adoption and assisted reproduc-

tion laws. • Discuss the role of the clear and convincing standard in family law.

INTRODUCTION

This chapter presents an introduction to the basic legal principles of what is com- monly called family law. The first section will cover the legal aspects of marriage family law and divorce. It will include a discussion of what marriage is, the requirements The area of the law for a valid marriage, and how the marital bond can be dissolved. The second that covers marriage, section will explore the legal aspects of the parent-child relationship, including divorce, and parent- problems related to adoption and paternity. It will also cover parental rights child relationships.

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• 432 Chapter 11: Family law

and responsibilities and problems related to the enforcement of those rights and responsibilities.

Family law is one of the most dynamic areas of the law. The very notio of what constitutes a family has become a politically and emotionally chargee issue. No longer can we limit our definition of a family to a husband, a wife. and children. Today a family might mean an unmarried mother and her children: a single father and his children; a mother, her children, and a stepfather; or a mother, her child, and her female spouse. Legislatures and courts are struggling to update the law in this area as our societal views on these issues change.

Family law also illustrates the inability of the courts to solve basic social problems. The breakdown of the traditional family, advances in medical science. and changing societal mores are all pressing the courts with increasingly com- plex issues that can be only imperfectly resolved within the legal arena. Family law decisions go to the very heart of what we feel is important. For example, should the best interests of the child or the rights of a natural parent govern the outcome of a custody dispute? Should the courts enforce a contract whereby a woman agrees to serve as a surrogate parent? Should couples who choose to live together without getting married receive the same legal benefits as do married couples? These are just a few of the issues that we will grapple with in this chap- ter on family law. Consider the following case of Tris and Isolde.

I

I

Tris was married to Mark for four years, and together they had one child, Chad. Two years ago, Tris and Mark divorced. Tris's very good friend, Isolde, comforted and helped her during that dif- ficult time. Gradually, friendship turned to love. Tris and Isolde would like to marry. They live in a state where same-sex marriage is allowed, but due to a

job offer that Tris just received, are thinking of mov- ing. They would also like to have a child of their own. Isolde would like to bear the child and a good friend of theirs, Jim, has volunteered to provide the sperm. They realize, however, that all of these deci- sions create legal complications and so decide to consult the law firm of Darrow and Bryan.

Because family law is dominated by state statutes and the court decisions interpreting those statutes, there is a great deal of variation from one state to the next. Therefore, when considering Tris and Isolde's situation, the lawyers a Darrow and Bryan will consult the laws both of their state and the state to which Tris and Isolde hope to move. However, while state law is the principal source of family law, recently the federal government has enacted legislation in certain areas of family law, such as those laws assisting states with the collection of ch il support and trying to prevent divorced or separated parents from kidnappin their own children and taking them across state lines.

A. Marriage 433 .

M ost aspects of family law- governing who can be married, how mar- _!ages take place, the property rights of marital partners, how marriages are dis- : ved, how children are adopted-are part of the civil law. However, criminal -:arutes cover some aspects of family law, such as child and spousal abuse.

As is true of any law, the laws that state and federal legislatures develop governing family relationships must conform to the restrictions of state con- - ·rurions, as well as the U.S. Constitution. For example, laws regulating who ~y marry and those concerning parental rights have been challenged as violat- ::J.g either the due process or the equal protection guarantees of the Fourteenth _-unendment .

. MARRIAGE

·ntil recently, marriage was defined as a "civil contract by which one man and one woman take each other as husband and wife." 1 While this definition has neen radically changed by the 2015 U.S. Supreme Court decision of Obergefell ··. H odges (see page 439), the state still retains the power to regulate marriage in a number of ways.

For example, state regulations have traditionally required persons applying ior a marriage license to be over a minimum age (usually 18), not be too closely related by blood to their spouses, and to be "of sound mind" (that is, mentally capable of giving consent). Minors are sometimes allowed to marry if they have the consent of their parents or guardians.

The legal system recognizes two forms of marriage. In the first and most common type, known as a ceremonial or solemnized marriage, the parties first apply for and receive an official marriage license from a local governmental official. Usually after a brief waiting period, they then have their commitment olemnized by saying their vows either through a religious ceremony presided

over by a recognized member of the clergy or a civil ceremony presided over by a judge. The marriage becomes official once the license is witnessed, signed, and fil ed with the appropriate governmental office.

The second type of marriage is much less common and is referred to as common-law marriage. It is one in which the parties have mutually agreed to enter into a relationship in which they accept all the duties and responsibilities that correspond to those of a marital relationship and have openly cohabitated together but have never obtained a marriage license or had their marriage solem- nized by someone who is legally authorized to do so. Most states no longer rec- ognize the validity of such common-law marriages unless the couple established their common-law marital relationship in one of the few states that still formally recognize common-law marriages and then moved into the state.

' 23 Pa . C.S. § 1102 (Westlaw 2014).

Ceremonial or solemnized marriage A marriage in which the couple has obtained the proper marriage license from a local government official and has then taken marriage vows before either a recognized member of the clergy or a judge and a designated number of witnesses.

Common-law marriage A marriage that has not been solemnized but in which the couple has mutually agreed to enter into a relationship in which they accept all the duties and responsibilities that correspond to those of marnage.

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DISCUSSION QUESTIONS

1. The following section from the Illinois Marriage and Dissolution of Marriage Act illustrates the types of prohibitions that appear in many state statutes:

750 Ill. Comp. Stat. 5/212 (a) The following marriages are prohibited:

(1) a marriage entered into prior to the dissolution of an earlier marriage of one of the parties;

(2) a marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption;

(3) a marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood;

(4) a marriage between cousins of the first degree; however, a marriage between first cousins is not prohibited if:

(i) both parties are 50 years of age or older; or (ii) either party, at the time of application for a marriage license, presents for

filing with the county clerk of the county in which the marriage is to be solemnized, a certificate signed by a licensed physician stating the party to the proposed marriage is permanently and irreversibly sterile.

What do you think is the legislative purpose behind each of these provi- sions? With which ones do you agree or disagree?

2. List as many valid reasons as you can for why states require a marriage license.

3. As part of the legal requirements for getting married many states require a waiting period between the time the license is issued and the time the actual marriage can take place. Do you think states should impose these types of waiting periods? If yes, why and how long should they be? If no, why not?

1 . Consequences of Marriage

In the romantic haze that surrounds courtship and marriage, a couple may no fully realize all the legal consequences that flow from their decision to marry. Under our common-law traditions marriage was viewed as a contract in which a man and woman relinquished their former independence to merge themselves into a new joint enterprise. For example, married persons have a legal obliga- tion to support each other not only during the marriage but often even after a divorce. Property purchased by one spouse may be seen as marital property, in which both have rights. Through a legal right known as a forced share, each oi the married partners is given a statutory right to inherit from the other, even if the other spouse seeks to prevent it. One spouse may also be immune from being sued by the other spouse for torts committed against the first spouse. There are also many legal benefits to being married that are not given to nonmarit<L partners. For example, if a spouse is injured, the other spouse may recover loss of consortium damages . Marriage partners normally qualify for employer anc governmental benefits not available to nonmarried couples. They also have the right to be taxed as a marital unit. Finally, both partners generally may not be forced to testify against each other.

A. Marriage

_\ s with other areas of family law the liabilities and benefits of marriage -= .::onstantly being altered. For example, traditionally one spouse could not sue =other spouse for torts committed during the marriage. Today, however, many

-~-es allow one spouse to sue the other for tortious injuries, at least in limited .:.arions, such as motor vehicle accidents.

Of course, choosing to live together instead of getting married also has -=- consequences. In the famous case of Marvin v. Marvin, 2 a woman who -- lived with the actor Lee Marvin for six years sought enforcement of an oral -.=--eement regarding the division of their property when they separated. The - nn held that the agreement was a valid, enforceable contract so long as it was - • based solely on immoral consideration.

_ Same-Sex Marriages and Civil Unions

The first significant court challenge to the traditional view of marriage as .xing limited to opposite-sex partners occurred in Hawaii in 1990 when two

omen applied for a marriage license. When their application was denied, they ent to the courts, seeking a judicial declaration that Hawaii's statute limiting

::Iarriage to men and women was unconstitutional sex discrimination. In 1996, hen the courts agreed, and it looked like Hawaii was on the verge of permitting

5all1e-sex marriage, 14 states amended their laws to prohibit same-sex marriage. _.=...n other 11 states added similar provisions the next year. In addition, on the fed- eral level, Congress enacted the Defense of Marriage Act (DOMA) . This federal sr.at ute declared first, that states do not have to recognize same-sex marriages created in another state. 3 Second, DOMA declared that at the federal level "the word 'marriage' means only a legal union between one man and one woman as

usband and wife, and the word 'spouse' refers only to a person of the opposite -ex who is a husband or a wife." 4

The attempt to create same-sex marriages in Hawaii ultimately failed when me state constitution was amended, giving the legislature power to limit mar- riage to opposite-sex couples. Meanwhile, Vermont created "civil unions" as a means of providing some of the benefits of marriage without calling it a mar- riage. 5 Several other states followed Vermont's example and authorized civil unions. But the movement toward allowing same-sex marriage seemed to be per- manently stalled. Then in 2004, Massachusetts surprised the rest of the nation when its highest appellate court declared that under the Massachusetts constitu- ti on, the state could not deny the benefits of marriage to two individuals of the same sex, making Massachusetts the first state to permit same-sex marriage. 6

Following the Massachusetts decision, there was a gradual movement coward allowing same-sex marriage. As of 2012, nine states and the District of Columbia allowed same-sex couples to marry. Then in 2013, the U.S. Supreme Court agreed to hear a case challenging the portion of DOMA that defined mar- riage as "a legal union between one man and one woman."

-5 57 P.2d 106 (Cal. 1976). 3 28 U.S.C. § 1738C (2012). '1 u.s.c. § 7 (2012). jBaker v. State, 744 A.2d 864, 867 (Vt. 1999). •o pinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004 ).

435 •

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Justice KENNEDY delivered the opinion of the Court.

Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for sur- viving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of "spouse" as that term is used in fed- eral statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor's favor.

I In 1996, as some States were beginning to

consider the concept of same-sex marriage, see, e.g., Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993), and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA), 110 Stat. 2419. DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to rec- ognize same-sex marriages performed under the laws of other States.

Section 3 is at issue here[:] the word 'marriage' means only a legal union

between one man and one woman .. . . ... The enactment's comprehensive defini-

tion of marriage for purposes of all federal stat- utes and other regulations or directives covered by its terms ... control[s] over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law.

III When at first Windsor and Spyer longed

to marry, neither New York nor any other State granted them that right. After waiting some years in 2007 they traveled to Ontario to be married there. It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civiliza- tion. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and valid- ity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundament al came to be seen in New York and certain other States as an unjust exclusion.

Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed else- where; and then it later amended its own mar- riage laws to permit same-sex marriage. Ne\\. York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other

married persons. After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex mar- riage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood.

[I]t is necessary to discuss the extent of the state power and authority over marriage as a mat- ter of history and tradition. State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); but, subject to those guarantees, "regulation of domestic relations" is " an area that has long been regarded as a virtu- ally exclusive province of the States."

IV DOMA seeks to injure the very class New

York seeks to protect. By doing so it violates basic due process and equal protection principles appli- cable to the Federal Government.

The Act's demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as sec- ond-class marriages for purposes of federal law. This raises a most serious question under the Constitution's Fifth Amendment.

DOMA writes inequality into the entire United States Code. The particular case at hand concerns the estate tax, but DOMA is more than a simple determination of what should or should not be allowed as an estate tax refund. Among the over 1,000 statutes and numerous federal reg- ulations that DOMA controls are laws pertaining to Social Security, housing, taxes, criminal sanc- tions, copyright, and veterans' benefits.

... By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the pur- pose of state law but unmarried for the purpose

A. Marriage 437 •

of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and pro- tect .... This places same-sex couples in an unsta- ble position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution pro- tects and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

The power the Constitution grants it also restrains. And though Congress has great author- ity to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.

This requires the Court to hold, as it now does, that DOMA is unconstitutional as a depri- vation of the liberty of the person protected by the Fifth Amendment of the Constitution.

Chief Justice ROBERTS, dissenting. . . . Congress acted constitutionally in

passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability amply justi- fied Congress's decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.

But while I disagree with the result to which the majority's analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their "historic and essential authority to define the marital relation," may continue to utilize the traditional definition of marriage.

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CASE DISCUSSION QUESTIONS

1. According to the Court, what harm had the plaintiff, Edith Windsor, suffered?

2. What are the two basic provisions of DOMA? Which provision was at issue in this case?

3. What did the majority decide? 4. Why was the dissent emphatic about pointing out the limits of the

majority's holding?

Following the Windsor decision, the pace of states accepting same-sex mar- riage picked up markedly. By the early part of 2015, same-sex marriage was legal in 37 states plus the District of Columbia. This included states such as Hawaii/ which at one point had amended its state constitution to prohibit such marriages. Lawsuits challenging the constitutionality of such same-sex marriage bans typically raised the two issues left unresolved by the U.S. Supreme Court: first, whether states must recognize lawful same-sex marriages entered into in other states and second, whether states can continue to define marriage as a union of a man and a woman. Only two years after Windsor, the Court answered those two questions in Obergefell v. Hodges.

Justice KENNEDY delivered the opinion of the Court (joined by Justices GINSBURG, BREYER, SOTOMAYOR, and KAGAN)

any person of life, liberty, or property, without due process of law." The fundamental liberties protected by this Clause include most of the rights enumer- ated in the Bill of Rights. In addition these liberties extend to certain personal choices central to indi- vidual dignity and autonomy, including intimate choices that define personal identity and beliefs.

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as mar- riages between persons of the opposite sex.

III Under the Due Process Clause of the

Fourteenth Amendment, no State shall "deprive

The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the

7The Hawaii statute authorizing same-sex marriages explicitly refers to the Windsor decision as mot iva- tion for amending its statute. "Therefore, it is the intent of the legislature to: (1) Ensure that same-se.-.; couples are able to take full advantage of federa l rights, benefits, protections, and responsibilities grante to married opposite-sex couples by allowing same-sex couples to marry under the laws of this State.- Hawaii Marriage Equity Act of 2013.

Constitution's central protections and a received egal stricture, a claim to liberty must be addressed.

Applying these established tenets, the Court as long held the right to marry is protected by

- e Constitution. In Loving v. Virginia, 388 U.S. ~ (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is "one of the vital personal rights essential to the orderly pursuit of happiness by free men." ... Over time and in other contexts, the Court has reiterated rhat the right to marry is fundamental under the Due Process Clause.

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment's guarantee of the equal protection of the laws .... In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause .... It stated: "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continu- ing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex

A. Marriage 439 •

may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No lon- ger may this liberty be denied to them ....

IV ... The dynamic of our constitutional sys-

tem is that individuals need not await legislative action before asserting a fundamental right. The Nation's courts are open to injured individuals who come to them to vindicate their own direct personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the legislature refuses to act ....

v These cases also present the question

whether the Constitution requires States to rec- ognize same-sex marriages validly performed out of State. . . . The Court, in this decision, holds same-sex couples may exercise the fundamen- tal right to marry in all States. It follows that the Court also must hold-and it now does hold-that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

No union is more profound than marriage, for it embodies the highest ideals of love, fidel- ity, devotion, sacrifice, and family .... It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. . . . They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Chief Justice ROBERTS, with whom Justice ScALIA and Justice THOMAS join, dissenting.

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised

• 440 Chapter 11: Family law

their laws to allow marriage between two people of the same sex.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be ....

Although the policy arguments for extend- ing marriage to same-sex couples may be com- pelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage .... The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Understand well what this dissent is about: It is not about whether, in my judgment, the insti- tution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.

II The majority's driving themes are that mar-

riage is desirable and petitioners desire it. The ...

compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, how- ever, the sincerity of petitioners' wishes is not relevant.

III

Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

If you are among the many Americans-of whatever sexual orientation-who favor expand- ing same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not cel- ebrate the Constitution. It had nothing to do with it.

Justices SCALIA, THOMAS, and ALITO also wrote separate dissenting opinions.

CASE DISCUSSION QUESTIONS

1. On what basis did the majority find that it is unconstitutional to deprive same-sex couples of the right to marry?

2. In his dissent, Chief Justice Roberts argued that state legislatures rather than the U.S. Supreme Court should be the ones to decide the issue of same-sex marriage. Do you find his arguments persuasive? Why or why not?

3. What is the effect of this ruling on the rights of same-sex couples to marry in those states where the legislature has defined marriage as the union of a man and a woman?

DISCUSSION QUESTIONS

4. Until 1967 Virginia had an anti-miscegenation law, prohibiting interracial marriage. An interracial couple was convicted of violating the statute

A. Marriage

-..: given a one-year jail sentence. The sentence was suspended but only on the _ -"'ruti on that the couple leave Virginia and not return for 25 years. The couple ;~led their conviction. In Loving v. Virginia, 388 U.S. 1 (1967), the U.S.

=- reme Court held that Virginia's statute violated the due process clause of " Fo urteenth Amendment. Marriage is a fundamental right that states cannot

_ => ate absent a compelling state interest. In Obergefell, the U.S. Supreme urt cited the Loving decision in support of its argument that prohibiting

- e-sex marriage is unconstitutional. Do you agree that the bans against same- marriage and the Virginia anti-miscegenation law are analogous? On what

.lSis could you distinguish the Loving decision? 5. Every state has laws against polygamy-that is, having more than one

band or wife at a time. What do you think are the arguments for and against ~ owing a man to have more than one wife at a time or a woman to have more

one husband at a time? Are such laws a form of religious discrimination -gainst Mormons and Muslims, who have traditionally allowed men to have -ore than one wife?

3. Premarital Agreements

441 •

remarital agreements, also known as prenuptial or antenuptial agreements, are Prenuptial agreement ~oming increasingly popular. Their basic purpose is to set forth the finan- Also known as an .:ial arrangements should one of the parties die or the marriage end in divorce. antenuptial agreement; remarital agreements are becoming especially common in situations involving a document that

·econd marriages in which the spouses have children from a previous marriage. prospective spouses ·sually, the focus of such agreements is financial considerations. For example, a sign prior to marriage

:-remarital agreement would be used when a couple in their sixties marries and regarding financial and ·ishes to ensure that the property they bring with them to the marriage will be other arrangements

:>assed on to their children rather than to the surviving spouse. Such an agree- should the marriage ent in this type of situation can put to rest the children's concerns that the par- end.

ent's new spouse will cut them out of their inheritance. Traditionally, the courts saw such agreements as encouraging divorce, and

:herefore they found such contracts to be void as against public policy. Today, · owever, most courts will enforce these agreements if the standard contract :equirements were met. First, in most states to satisfy the statute of frauds,

remarital agreements must be in writing. Second, there must be an offer, an acceptance, and consideration. Usually, the agreement to marry satisfies the con- -ideration requirement.

When preparing a prenuptial agreement, both parties must be represented individually by an attorney. Not to do so invites ethical charges of conflict of interest. In addition, if it is later discovered that through a lack of zealous representation one party had not been fully informed of all the marital assets and liabilities, the court will probably refuse to enforce the agreement.

The extent to which a court will enforce premarital agreements regarding matters other than financial arrangements depends on the nature of the specific

• 442 Chapter 11: Family Law

Anti-heart-balm statute A law that prohibits lawsuits for such things as breach of a promise of marriage, alienation of affection, and seduction of a person over the legal age of consent.

provision. For example, although courts will generally enforce reasonable pro- visions relating to the distribution of property, they will not enforce provisions relating to third parties, such as those dealing with child custody.

Normal contract defenses are also available. For example, if the agreement was not based on full disclosure of all financial assets or was the result of undue influence, the courts might see it as against public policy and either modify its provisions or refuse to enforce it. Also, as noted above, the courts view some pro- visions, especially those trying to predetermine the rights of children, as against public policy and hence unenforceable. An example would be a provision that states that the custodial spouse will not seek child support if the couple divorces.

DISCUSSION QUESTION

6. The prenuptial agreement between a Catholic woman and a Jewish man stated that any children born of the marriage would be raised in the Jewish faith. After the couple divorced, the wife was given custody of the children. The father went to court, seeking to have the prenuptial agreement enforced. How do you think the court responded?

4. Consequences of Broken Engagements

Under common law the victim of a broken engagement could sue for an array of tort and contractual damages for mental and emotional suffering, damage to reputation, humiliation, embarrassment, and even "loss of worldly advantage." However, most states have adopted "anti-heart-balm" statutes, which prohibit lawsuits for such things as breach of a promise of marriage, alienation of affec- tion, and seduction of a person over the legal age of consent.

Nevertheless, issues ranging from the return of the engagement ring to dis- position of joint property may still find their way to the courts when wedding plans fall through. Such conflicts are illustrated in the following case. Note that this suit is not barred by the New Jersey anti-heart-balm statute because it is a suit to recover conditional gifts, not an action for damages for breach of a con- tract to marry.

Aronow v. Silver 223 N.J. Super. 344, 538 A.2d 851 (1987)

Philip Aronow, plaintiff, and Elizabeth Silver, defendant, were engaged to be married. The engagement was a stormy one. Problems arose involving the parties themselves and their relatives. On three occasions, Elizabeth cancelled the engagement and returned the engagement

ring, only to recant. Finally, with the marriage ceremony a few days away, the engagement was broken irretrievably. Each party, in this result- ing litigation, faults the other. Each claims the engagement ring, certain shares of stock and a jointly-owned condominium ....

_\. The Law Concerning Engagement Rings The majority rule in this country con-

.::erning the disposition of engagement rings is ~ ·ault rule: the party who unjustifiably breaks

e engagement loses the ring. The minority rule ;:-ejects fault .... New Jersey courts have consid- e.::ed the question in only four published opinions, "Yith split results. This court, not bound by any o those opinions, joins the minority. Our earliest case is Slain v. Lavine, 11 N.J. Misc. 899 (Sup. Ct. 1933), in which the court, citing the law of =oreign jurisdictions, said:

So we have on the merits the simple case of an engagement ring and engagement broken and ring not returned. The decisions are not numerous, but we follow those holding what we deem the cor- rect rule, viz., that such a gift is impliedly condi- tional, and must be returned, particularly when the engagement is broken by the donee, as the court was entitled to find in this case.

Slain's implication that the person who breaks the engagement loses the ring was rejected by Judge (later Justice) Sullivan in Albanese v. In delicato, 25 N.J. Misc. 144 (D. Ct. 1947). The decision involved ownership of an engagement ring and a dinner ring. The court said:

As far as the engagement ring is concerned, the defendant had no right to keep it. An engagement ring is a symbol or pledge of the coming marriage and signifies that the one who wears it is engaged to marry the man who gave it to her. If the engagement is broken off the ring should be returned since it is a conditional gift. True, no express condition was imposed but the law implies a condition because of the symbolic significance of the ring. It does not matter who broke the engagement. A person may have the best reasons in the world for so doing. The important thing is that the gift was conditional and the condition was not fulfilled.

The giving of the dinner ring is an entirely different proposition. True, it was given after the parties became engaged. No doubt plaintiff would not have given the ring to defendant if they had not been engaged. The dinner ring though, has no symbolic meaning and is only a token of the love and affection which plaintiff bore for the defen- dant. Many gifts are made for reasons that sour

A. Marriage 443 .

with the passage of time. Under the law though, there is no consideration required for a gift and it is absolute once made unless a condition is imposed . There was no express condition here and the law will not imply one as in the case of the engagement ring since the dinner ring has no symbolic meaning attached to it. Defendant was under no obligation to return the dinner ring.

The fault rule is sexist and archaic, a too-long enduring reminder of the times when even the law discriminated against women. The history is traced in 24 A.L.R.2d at 582-586. In ancient Rome the rule was fault. When the woman broke the engage- ment, however, she was required not only to return the ring, but also its value, as a penalty. No pen- alty attached when the breach was the man's. In England, women were oppressed by the rigidly stratified social order of the day. They worked as servants or, if not of the servant class, were depen- dent on their relatives . The fact that men were in short supply, marriage above one's station rare and travel difficult abbreviated betrothal prospects for women. Marriages were arranged. Women's life- time choices were limited to a marriage or a nun- nery. Spinsterhood was a centuries-long personal tragedy. Men, because it was a man's world, were much more likely than women to break engage- ments. When one did, he left behind a woman of tainted reputation and ruined prospects. The law, in a de minimis gesture, gave her the engagement ring, as a consolation prize. When the man was jilted, a seldom thing, justice required the ring's return to him. Thus, the rule of life was the rule of law-both saw women as inferiors.

To accept the ancient rule of law is to ignore our constitutional insistence upon the equal- ity of women, to further the unfortunate reality that society still discriminates. That reality is one which courts must not promote. Our obligation is to enforce the law, which bars discrimination. By doing so we move reality in the right direction.

The majority rule, even without its consti- tutional infirmity, will not withstand elementary scrutiny. Its foundation is fault, and fault, in an engagement setting, cannot be ascertained.

• 444 Chapter 11: Family Law

What fact justifies the breaking of an engage- ment? The absence of a sense of humor? Differing musical tastes? Differing political views? The painfully learned fact is that marriages are made on earth, not in heaven. They must be approached with intelligent care and should not happen with- out a decent assurance of success. When either party lacks that assurance, for whatever reason, the engagement should be broken. No justifica- tion is needed. Either party may act. Fault, impos- sible to fix, does not count.

C. The Stock Purchases During their engagement, the parties, in antic-

ipation of their marriage, purchased stock with Philip's money upon the understanding that the stock certificate was to be placed in joint names. The bro- ker, however, had the certificate issued in Elizabeth's name only. She sold it without Philip's knowledge after the engagement was broken and kept the pro- ceeds. Other stock previously owned by Elizabeth was placed in joint names. That stock has not been sold. Quite clearly, these stock arrangements were conditioned upon marriage. When the engagement was broken, the stocks should have been returned to the parties who donated them. Philip's stock should not have been sold and Elizabeth must pay the proceeds of the sale to him. Philip is directed to transfer his interest in the jointly-held stock to Elizabeth.

Philip's gift of a ring to Elizabeth was con- ditioned upon marriage. When the promise of marriage was not kept, regardless of fault, the condition was not fulfilled and the ring must be returned to him.

Divorce Also called dissolution; a legal judgment that dissolves a marriage.

Annulment A legal (or religious) judgment that a valid marriage never existed.

CASE DISCUSSION QUESTIONS

1. The Silver court refused to apply a "fault standard." Do you think i: should matter who was at fault for breaking off the engagement? Why?

2. In the cited case of Albanese v. Indelicato why did the court treat the diamond ring and the engagement ring differently? The Silver court did n~­ apply different standards to the engagement ring and stock. Can you reconcile these seemingly different approaches? Do you think one approach reaches a fairer result?

3. Elizabeth's parents also sued, seeking recovery of various weddir: expenses paid by them. Do you think they should be able to recover? Why ?

5. Termination of the Marital Relationship

Once the state has recognized a couple as being married, they will continue to~­ treated as married persons until one of the spouses dies or a court grants eithe:- an annulment or a divorce. The latter is sometimes referred to as dissolutio The major difference between an annulment and a divorce is that an annru- ment can be granted only for causes that existed at the time the marriage too,.· place, whereas divorces are based on causes that occurred before or during the marriage.

a. Annulment

An annulment proceeding has the effect of rescinding the marriage anc returning the parties to the status they had before the marriage took plar= Therefore, if an annulment is granted, it is, from the legal perspective, as if

A. Marriage 445 •

.::::iage had never taken place. Because the marriage never existed, normally :.-.o are no continuing matrimonial obligations, such as a duty to pay support

- arrorney's fees. On the other hand, a divorce or dissolution ends but does : erase the existence of the marital relationship. Although the parties are no

==>er married to each other, it does not necessarily cancel legal obligations that se out of the marriage. One exception to this difference between annulment

-- marriage relates to children born during the marriage. Under the common , children born during a marriage later annulled were considered illegitimate.

:zny state statutes have changed this, at least as to voidable marriages. However, was a void marriage, some states still consider the children to be illegitimate.

Recall the contract law distinction between void and voidable. A void - tract is a legal nullity, even without court intervention. A voidable contract - ains valid unless one of the parties takes steps to void it through legal pro- :eedings. Similarly, marriages are considered void in certain situations, as when -:!ey involve incest or bigamy. A voidable marriage, on the other hand, is one

ere the marriage remains valid until a court has determined that it should be oided.

The grounds for voiding a marriage that are typically listed in state statutes ::1 Jude such things as the following:

1. One of the parties to the marriage lacked capacity to consent to the marriage because of being either mentally incapacitated or under the influence of alcohol, drugs, or other incapacitating substances.

2. One of the parties lacks the physical capacity to consummate the mar- riage, and the other party did not know of the incapacity.

3. One of the parties was under the prescribed age for marriage and did not have a parent's or guardian's consent.

4. The parties are too closely related to each other-for example, siblings or first cousins.

5. One of the parties was induced to enter into the marriage by force, duress, or fraud.

Most of the criteria listed in these statutes are fairly straightforward and relatively objective, but the language in the last provision relating to fraud often leads to difficult and controversial cases. For example, courts in some states have ruled that it is appropriate to annul a marriage on the grounds that the woman falsely represented herself as being pregnant or was pregnant but lied about who the father was. On the other hand, it has also been ruled that false representa- tions as to being a virgin at the time of marriage do not constitute a basis for granting an annulment. Another interesting line of cases involves fraudulent rep- resentations regarding one's wealth and ability to support and maintain a certain lifestyle after the marriage. In such situations the courts have generally adopted a " buyer beware" attitude and have not recognized such representations as being the basis for granting an annulment. An example of a situation that would be the basis for an annulment based on fraud would be one where a spouse made promises of love, devotion, and living together in a normal marital relationship and then fled with the other spouse's bank account a few days after the wedding.

Voidable marriage A marriage that was valid when it was entered into and that remains valid until either party obtains a court order dissolving it.

Void marriage A marriage that is invalid from its inception and that does not require court action for the parties to be free of any marital obligations.

Fraud A false representation of facts or intentional perversion of the truth to induce someone to take some action or give up something of value.

• 446 Chapter 11: Family law

No-fault divorce A form of divorce that allows a couple to end their marital relationship without having to assess blame for the breakup.

Keep in mind that there is a difference between legal annulments and reli- gious ones. The two are completely separate processes, and clients must take additional steps to attain a religious annulment.

DISCUSSION QUESTION

7. Most statutes require the parties to be "mentally competent" in order to marry, but what does that mean? Should someone who has a mental or genetic disability, such as Down's syndrome, be allowed to marry? Should a court annul a marriage if the parties later allege they were so intoxicated at the time of the ceremony that they did not realize the significance of their actions?

b. Divorce/Dissolution

Traditionally, marriage meant that the norm was for spouses to be together for life, and divorce was seen as the exception. Therefore, the spouse wishing a divorce had to convince the court that there were extraordinary reasons jus- tifying that request. Those reasons, called grounds, included such behavior as adultery and desertion. Today, every state also allows a divorce based on "no fault." Rather than having to assess blame for the breakup, either party can end the marriage, with or without the consent of the partner. Either spouse can simply file a petition for dissolution. The parties merely must allege that the mar- riage has suffered an irretrievable breakdown, with no hope for reconciliation. In some states the parties must also allege that they are living separate and apart.

The "costs" of divorce are many. First, when couples seek a divorce, they relinquish to the state the power to make major life decisions for them. State courts can oversee a divorced family's financial arrangements in ways not per- mitted for intact families. For example, normally a court will not interfere with an intact family's decision as to whether to send a child to college. However, dur- ing divorce proceedings child support orders can include a requirement that the parents pay for their child's college education. In LeClair v. LeClair8 the court stated that it could enforce such an order because the state had an interest in promoting higher education and in protecting children of divorce.

You can find various uniform laws governing the family, such as the Uniform Child Custody Jurisdiction Act, the Uniform Interstate Family Support Act, the Uniform Premarital Agreement Act, and the Uniform Marriage and Divorce Act at www.law.cornell.edu/uniform!vo/9.html.

8624 A.2d 1350 (N.H. 1993).

A. Marriage

T addition, divorce can have severe economic consequences. This is espe- ;:rue for women. The money that may have been insufficient to maintain ousehold is now being asked to maintain two homes. Studies have consis- shown that in the first year after divorce the standard of living for men

eases anywhere from 17 to 43 percent, while that for women and children ~es by 29 to 73 percent. 9 Finally, for many divorcing parents the greatest

:S the loss of daily contact with their children.

1) Divorce procedures

Whichever method is used, there are basic divorce procedures that must be owed. First, the grounds, even under no-fault, must exist to end the marriage.

the party wishing a divorce must file a petition or complaint, requesting =divorce and including the reasons why one should be granted. Most states

--:uire the petition to include the following information:

1. the age, occupation, and residence of each party; 2. the length of time each party has resided in the state; 3. the date of the marriage and the place at which it was registered; 4. the names, ages, and addresses of all living children of the marriage and

whether the wife is pregnant; 5. any arrangements as to support, custody, and visitation of the children

and maintenance of a spouse; and 6. the relief sought.

: the petitioner wants to proceed on a fault basis, then there will also be an ..: ntification of the grounds. Exhibit 11-1 on page 449 provides an example :a no-fault petition. Usually other documents, such as affidavits, must be filed

- ong with the petition. Once the petition is filed with the court, the opposing party must be noti-

-ed. This can be accomplished as in other civil suits through service of process. T • the other spouse cannot be found, then an alternative method of notification

ust be used, such as publication in a newspaper. When both parties are agree- ab le to the divorce, the defendant may willingly appear in court without the need ior formal service of process.

The other party can indicate he or she does not want to contest the divorce or can countersue. Then both sides may engage in discovery.

Many states incorporate alternative dispute resolution mechanisms into the decisions regarding distribution of property and child custody and support . .\1ediation is becoming increasingly common, on either a voluntary or a court- ordered basis, especially if minor children are involved. The philosophy behind mediation is that it can create a win-win atmosphere as opposed to the court- room mentality of winner take all. In addition, it allows the participants to have

'Lenore Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America xii (1995); Joseph I. Lieberman, Child Support in America: Practical Advice for Negotiating and Collecting a Fair Settlement 11 (1988), cited in J. Shoshanna Ehrlic, Family Law for Paralegals 181 (1997) .

447 •

• 448 Chapter 11 : Family law

Temporary restraining order (TRO) A court order of limited duration designed to maintain the status quo pending further court action at a later date.

Protection order A court order issued in domestic violence and abuse cases to keep one spouse away from the other, the children, or the home.

Settlement agreement A document that contains the arrangements agreed on by the parties to a dispute.

Marital property Property that is subject to court distribution upon termination of the marriage.

Alimony Also known as maintenance or support; financial support and other forms of assistance required to supply the "necessities" of life.

Collaborative divorce A non-adversarial process whereby the divorcing couple hires a team of professionals to help them reach a mutually satisfactory agreement.

a sense of ownership in the decision, as they craft it themselves rather than allowing a judge to impose it on them.

After the petition is filed, the court will hold a hearing to deal with such matters as temporary child custody; child and spousal support; who remains in the house and who leaves; liability for home mortgages, car payments, and credit card bills; and orders protecting existing joint assets. In cases where there have been allegations of domestic abuse, there may also be a hearing on the issuance of a temporary restraining order (TRO), sometimes also called a pro- tection order, to keep one spouse away from the other spouse, the children, and the home. Although these are labeled temporary orders, do not be fooled. If the proceedings drag on for any length of time, when it is finally time to frame the permanent orders it may prove very difficult to change the "temporary" arrangements.

In an effort to help parents appreciate the needs of their children during the divorce process, some states are starting to mandate parent education programs for all divorcing parents. A certificate of attendance must be submitted to the court prior to a hearing on the merits of the case.

At any point in this process a settlement agreement can be reached and submitted to the court. The most important aspect of divorce is the separation agreement, as it sets out the rights and obligations of the parties, including the custody and support arrangements for the children, the distribution of marital property, and alimony (maintenance). In most cases these negotiations eventu- ally lead to agreements that are then formalized in the final court decree. In those instances in which the parties cannot reach agreement, a trial is held at which witnesses testify to such things as the spouses' fitness as parents, how and when various financial assets were obtained, the fair market value of various assets, and the nature of the children's or spouses' future financial needs. This is often a poor solution, as all major decisions as to custody, alimony, property division, and child support will be taken away from the parties and left for the judge to decide. The judge then renders a decision on the basis of this evidence and issues the final divorce decree and related orders. The court retains jurisdiction in mat- ters of child and spousal support, and at a later date the parties may come back to seek a modification of the original order based on such things as a change in marital status, a significant change in income, or a child's unanticipated needs.

As mentioned above, many state courts now incorporate alternative dis- pute resolution mechanisms, principally mediation, into the divorce process. A new alter!J-ative to traditional ADR techniques that attempts, so far as possible, to minimize the court's involvement in the divorce process is known as collab- orative law or collaborative divorce. In 1990 a Minnesota attorney was tired of seeing the damage that the divorce process often produced. He started telling his clients that he would represent them but only so long as they agreed to settle out of court. If the negotiations broke down, and they had to resort to litigation, then they would have to find another attorney. From that beginning has sprung the nationwide movement known as collaborative law or collaborative divorce.

Collaborative divorce is similar to mediation in that all of the parties seek a win-win resolution rather than a battle based on individual interests. However, it differs in that a mediator is a neutral who cannot represent either of the parties.

A. Marriage

Commonwealth of Massachusetts

The Trial Court ______ Division

Probate and Family Court Department Docket No .

JOINT PETITION FOR DIVORCE PURSUANT TO G.L. c. 208, § 1 A

----------~~~~--------------- and Petitioner A

(Stree t address}

(City/TOI.m) (State ) (Zip)

Petitioners were lawfully married at

Petitioner B

(Street add ress)

(CityfTown) (S tate)

oo ___________ and last lived together at --- ---- ---------- ----

on _________ _ _

2. The minor or dependent chi ld(ren) of this marriage is/are:

(Name or child and date of birth) (Name of child and date of birth)

(Name of child and date of birth) (Name of ch1ld and da te of birth)

3. Petitioners certify that no previous action for divorce , an nulment or affirmation of marria ge , separate support , desertion , living apart for justifiable cause, or custody of child(ren) has been brought by either aga in st the other

except: ----------------------------------------

4. On or about ----------- , an irretrievable breakdown of the marriage under GL c. 208 , § 1A occu rred and continues to exist.

5. Wherefore , the petitioners request that the Court:

O grant a divorce on the ground of irretrievable breakdown

0 app rove the notarized separa ti on agreement executed by the parties

O incorporate and merge the ag reement executed by th e parti es O incorpo rate but not merge said agreement, which shall survive and remain as an independent contract

0 allow petitioner A to resume the former name of

O allow petitioner B to resume the former name of

0

Date

(Sig nature of attorney or petitioner A. if prose) (Sig nature of attorn ey or petitioner B, if prose)

(Street address) (Street address)

(C,fy/Town) (Stale) (Z1p) (C1fyrtown) (Stale)

Tel. No. Tel. No.

B.B.O. # B.B.O. #

(Z1 p)

CJ-0 10 1A (9/07) C.G.F

Exhibit 11-1 joint Petition for Divorce

449 •

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Community property states States that classify all property acquired by either the husband or the wife during the marriage, with the exception of gifts or inheritance, as marital property to be equally distributed between the spouses at the time of the divorce.

Doctrine of equitable distribution A system for distributing property acquired during a marriage on the basis of such factors as the contributions of the spouses, the length of the marriage, the age and health of the spouses, and their ability to make a living.

In a collaborative divorce, typically each partner has an attorney who advocates for his or her client. Further, what makes collaborative divorce truly unique is that all four parties - the divorcing couple and both attorneys-sign a participa- tion agreement. That agreement contains a number of standard provisions, such as promises to show respect for all participants and not to hide any information. The most important provision is that the attorneys will not litigate the case. If the collaborative process does not succeed, then the attorneys must withdraw and the parties must retain new counsel. Obviously, this means it is not only in the parties' but also in the attorneys' best interest to work toward a negotiated result.

The collaborative model is based on a team approach. First, the two parties and the attorneys meet frequently as a group in joint sessions to try to deter- mine what is in the best interests of the divorcing couple as well as any children. Second, the parties agree to jointly hire experts to help them with the process. This can include a financial specialist, a divorce coach (to help with communi- cation skills), and a child specialist if there are children involved. Because the couple shares experts, they save the cost of hiring two of each type of expert and are better able to reach agreement on key financial and other matters. Only when a mutually beneficial understanding is reached, does the court become involved, as the recipient of the couple's written agreement.

(2) Property settlements

When a marriage ends, decisions need to be made regarding how jointly owned property will be divided. Such decisions relate not only to major assets, such as a home, but also to such specifics as who gets the living room sofa or the good china. In fact, some of the most hotly contested property fights relate to who gets "custody" of the family pet. Because only jointly owned property is subject to distribution, the first task is to determine which property is joint and which is separate.

Traditionally, there were three methods the courts used to determine what qualifies as marital property: by who holds title, by community property law, or through equitable distribution. Only the last two methods are still in use. Under a community property statute everything acquired during the marriage, with the exception of gifts or inheritances, is owned 50150. Property acquired prior to the marriage is separate property, but it can lose its status if it is commingled. For example, if money acquired before the marriage is placed in a joint bank account, it)oses its separate identity. At the time of divorce each spouse retains his or her share of separate property, but all property classified as community property is divided 50/50.

In non-community property states courts follow the doctrine of equitable distribution and award a "marital interest" in any property that was acquired during the marriage through the efforts of both spouses. This acknowledges the contributions of both spouses, whether that contribution be financial or through a spouse's work in the home, regardless of whose name is on the legal title. Typically a statute will provide that the judge must look at several factors, including the length of the marriage, the age and health of the spouses, and their ability to make a living. While this process may also result in a 50/50 division, under the theory of equitable distribution such an equal split is not mandated.

A. Marriage

Where the specific piece of property, such as a house, cannot be literally = ·r between the parties, the court can either require that it be sold with a distri-

tion of the profits or that a portion of its assessed value be given to the other _ use, either in cash or through some other item of equal value.

In addition to the types of property that you would normally view as being -- ailable for distribution, such as the family home, cars, and jewelry, the courts -ye recently been faced with the necessity of deciding whether such items as

:-ersonal injury awards, pension plans, and professional degrees qualify asmari- property. Once the spouse has a vested interest in either a personal injury

;:ward or a pension plan, most states will view it as a divisible marital asset . ....:rowever, the courts have come to varying conclusions as to how they should

sify professional degrees. At one end of the spectrum, some courts do not fac- - r it into a property or alimony agreement. Others view it as valuable marital ?~operty that must be valued and divided. Somewhere in between, other courts .::o not view it as property but do award the party without the degree reimburse-

ent for the time and money expended in assisting the other spouse in attaining - e degree. Finally, some courts simply take it into account when calculating ?OSsible future earning power and alimony awards.

Another area of concern involves frozen embryos. In the following case, the .:ourt discusses the three main approaches that courts have taken to determining -ho controls the disposition of cryopreserved pre-embryos.

Szafranski v. Dunston 993 N.E.2d 502 (Ill. App. 2013)

451 •

This appeal is a case of first impression in Illinois involving a dispute between Jacob Szafranski and Karla Dunston (collectively, the couple), over the right to use pre-embryos created with Jacob's sperm and Karla's ova. The circuit court ultimately granted Karla's motion for sum- mary judgment and denied Jacob's cross-motion for summary judgment, granting Karla full cus- tody and control over the pre-embryos ....

On March 25, 2010, the couple met with physicians and staff at Northwestern regarding the creation of the pre-embryos .... The couple also signed a document entitled "INFORMED CONSENT FOR ASSISTED REPRODUCTION" (the informed consent). Besides outlining the risks involved with in vitro fertilization, the informed consent states that "[n]o use can be made of these embryos without the consent of both partners ....

I. BACKGROUND [I]n March 2010, appellee was diagnosed

with non-Hodgkin's lymphoma and informed that her chemotherapy treatments would likely cause the loss of her fertility. She asked Jacob, with whom she was in a relationship, if he would donate his sperm for the purpose of creating pre- embryos with her eggs, and he agreed to do so.

On the day oftheir meeting at Northwestern, the couple also met with an attorney, Nidhi Desai, to discuss the legal implications of creating pre- embryos .... On March 29,2010, ... Desai sent the couple a draft of a co-parent agreement .... The co-parent agreement provided . . . that "[a]ny eggs retrieved and cryopreserved as a result of this [in vitro fertilization] retrieval shall be under Karla's sole control" and that" [s]hould

• 452 Chapter 11: Family law

the Intended Parents separate, Karla will control the disposition of the pre-embryos."

The co-parent agreement was never signed by the couple. Nevertheless, on April 6, 2010, Jacob deposited sperm and eight eggs were retrieved from Karla. The couple agreed to fer- tilize all eight ... and three of the pre-embryos ultimately survived to viability. The next day, appellee began her chemotherapy treatment.

In May 2010, Jacob sent Karla a text mes- sage ending their relationship. On August 22, 2011, he filed a pro se complaint in the circuit court of Cook County seeking to permanently enjoin appellee from using the pre-embryos so as to "preserv[ e] [his] right to not forcibly father a child against his will." Karla responded with a three-count verified counterclaim. [S]he sought a declaratory judgment granting her sole custody and control over the pre-embryos and the right to use them to bear children.

II. ANALYSIS This case presents an issue of first impres-

sion in Illinois; namely, who controls the dis- position of cryopreserved pre-embryos created with one party's sperm and another party's ova. Courts in other jurisdictions have addressed this issue under various circumstances and generally conducted three types of analyses in resolving this question: (1) a contractual approach; (2) a con- temporaneous mutual consent approach; and/or (3) a balancing approach. Reber v. Reiss, 42 A.3d 1131, 1134 (Pa. Super. Ct. 2012).

1. The Contractual Approach . . . Under this approach, courts will enforce

contracts governing the disposition of pre- embryos which were entered into at the time of in vitro fertilization so long as they do not vio- late public policy. The benefits of a contractual approach are that it encourages parties to enter into agreements that will avoid future costly litigation, and that it removes state and court involvement in private family decisions ....

Criticism of the contractual approach, on the other hand, includes ... that "[o]n matters

of such fundamental personal importance, indi- viduals are entitled to make decisions consistent with their contemporaneous wishes, values, and beliefs," ... and that "treating couples' decisions about the future use of their frozen embryos as binding contracts undermines important values about families, reproduction, and the strength of genetic ties."

2. The Contemporaneous Mutual Consent Approach

... Under this approach,

"advance instructions would not be treated as bind- ing contracts. If either partner has a change of mind about disposition decisions made in advance, that person's current objection would take precedence over the prior consent."

Like the contractual approach, the contemporane- ous mutual consent approach acknowledges that "decisions about the disposition of frozen embryos belong to the couple that created the embryo, with each partner entitled to an equal say in how the embryos should be disposed." However, it addresses many of the concerns with the contrac- tual approach by allowing a party to change his or her mind prior to use of the pre-embryos.

... While the approach benefits from ease of application and at least the appearance of respecting the rights of the parties' involved, the Superior Court of Pennsylvania has aptly noted: "This approach strikes us as being totally unre- alistic. If the parties could reach an agreement, they would not be in court." Reber, 42 A.3d at 1135 n.S .

"One commentator has noted that [the con- temporaneous mutual consent approach] puts someone like [the husband] in a particularly pow- erful position."

" . . . Someone who wanted to get back at an ex- spouse might well say that he or she had no inter- est in cryopreserving the embryos, thereby shifting the costs to his or her ex-spouse. Further, one could imagine such a person imposing continuing psychic

damage by hinting that he or she might consent to the ex-spouse's use of the embryos sometime in the future-the ex-spouse might well continue to be on an emotional rollercoaster when consider- ing the possibility of finally becoming a parent. Or the embryos might in effect be held hostage-they would be released for use only if the ex-spouse were willing to give up something valuable in return, for example, in a property settlement or in exchange for more favorable support terms."

... The next approach attempts to address these concerns by placing the disposition decision exclusively in the hands of the court. 3. The Balancing Approach

. . . Although this approach allows courts leeway to determine who is entitled to use pre- embryos absent an agreement regarding disposi- ti on, the Supreme Court of Iowa has criticized this approach for its internal inconsistency, noting:

"Public policy concerns similar to those that prompt courts to refrain from enforcement of con- tracts addressing reproductive choice demand even more strongly that we not substitute the courts as decision makers in this highly emotional and per- sonal area. Nonetheless, that is exactly what hap- pens under the decisional framework based on the balancing test because the court must weigh the relative interests of the parties in deciding the disposition of embryos when the parties cannot agree."

otwithstanding this concern, the balancing approach has been applied in three states.

Most recently, the Superior Court of Pennsylvania applied a balancing approach in Reber. In that case, a husband and wife underwent in vitro fertilization to preserve the wife's ability to conceive a child after she was diagnosed with breast cancer and prescribed cancer treatments. The husband subsequently filed for divorce, and the wife sought their pre-embryos for implanta- tion .... [T]he Superior Court of Pennsylvania noted that ... "it was quite obvious that Husband and Wife could not come to a contemporaneous mutual agreement regarding the pre-embryos." Reber, 42 A.3d at 1136. Under the circumstances, the court found that "the balancing approach

A. Marriage 453 •

[was] the most suitable test" and concluded that the balance of interests weighed in the wife's favor because "Husband and Wife never made an agreement prior to undergoing IVF, and these pre-embryos are likely Wife's only opportunity to achieve biological parenthood and her best chance to achieve parenthood at all." Reber, 42 A.3d at 1136, 1142.

C. The Proper Approach [W]e believe that the best approach for resolv-

ing disputes over the disposition of pre-embryos created with one party's sperm and another party's ova is to honor the parties' own mutually expressed intent as set forth in their prior agreements. We therefore join those courts that have held that " [a ]greements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them."

We believe that honoring parties' agree- ments properly allows them, rather than the courts, to make their own reproductive choices while also providing a measure of certainty neces- sary to proper family planning ....

[W]e further hold that where there has been no advance agreement regarding the disposition of pre- embryos, "then the relative interests of the parties in using or not using the preembryos must be weighed." ... We note that under a balancing approach:

"Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the preembryos in ques- tion. If no other reasonable alternatives exist, then the argument in favor of using the preembryos to achieve pregnancy should be considered. However, if the party seeking control of the preembryos intends merely to donate them to another couple, the objecting party obviously has the greater inter- est and should prevail."

[W]e remand this matter to the circuit court to apply the contractual approach to any facts previously adduced and to any facts the parties wish to present on remand ....

Reversed and remanded with instructions.

• 454 Chapter 11: Family Law

CASE DISCUSSION QUESTIONS

1. What did the court say were the three approaches to determining the disposition of pre-embryos when the parties who created them disagree?

2. Which approach did this court adopt? Which do you think is the best approach and why?

3. On remand what do you think will be Jacob's main arguments? Karla's ? Who do you think should prevail?

4. One of the first cases to deal with the issue of who should control the disposition of embryos was Davis v. Davis. 10 Mrs. Davis was unable to carry a pregnancy to term. She and her husband turned to what was then a new medical technique, in vitro fertilization. The doctors removed eggs from Mrs. Davis and fertilized them in vitro. Seven were frozen for future use. When the Davises decided to divorce, Mrs. Davis wanted to donate the frozen embryos to a childless couple. The husband did not want to become a parent. How do you think the court ruled?

5. A husband and wife decided to try in vitro fertilization. They signed an agreement that provided that, in the event of their separation, the wife could use the embryos. The procedure was successful, and the wife gave birth to twins. When the couple separated, the wife sought "custody" of the remaining frozen embryos. The father objected. How do you think the court ruled?

(3) Alimony/maintenance agreements

Alimony, also referred to as maintenance or support, was traditionally awarded to the wife, who had stayed at home and raised the children, while the husband was working outside the home to provide the income needed to support the family's needs. The primary rationale for alimony was that the divorced wife needed continued support from the former husband because she lacked either the skills or experience to support herself after the divorce. In its 1979 decision in Orr v. Orr, 11 the U.S. Supreme Court ruled that gender-based alimony violated the equal protection clause of the Fourteenth Amendment and that the court must decide solely on the basis of the educational backgrounds and job oppor- tunities of both spouses.

In determining alimony the court looks to many of the same factors that are used in equitable property division. Also, the court may take into account the lifestyle to which the parties have become accustomed.

The trend in recent years has been to award rehabilitative or limited-term support rather than a permanent alimony for an indefinite time period. In many cases the nonworking spouse will be given support for a specific amount of time to return to school and reestablish job skills. After that period has expired, the spouse has to provide for his or her own support. Modern reforms also look to such factors as the length of the marriage, the impact of future cohabitation or remarriage by either ex-spouse, and retirement.

10842 S.W.2d 588 (Tenn. 1992). 11440 u.s. 268 (1979).

A. Marriage

Alimony can also be paid in one lump sum rather than over time. Psychologically a lump sum payment may allow the parties to "get on with their ·ves ." However, there might be severe tax consequences for the recipient, who

might have to pay taxes on the entire amount when received.

(4) Custody, visitation, and child support

Child custody and visitation rights often become two of the most con- -entious and difficult issues to deal with in a divorce case. Ideally the divorc- !ng couple puts their own selfish interests aside and works with a professional mediator to arrive at an arrangement that is in the best long-term interests of the hildren. All too often, however, the issues of custody and visitation are decided

in an atmosphere of acrimony and retribution. Sometimes those ill feelings can even lead to false charges of child abuse. Nothing can compare to the emotional trauma felt by everyone involved in a contested child custody dispute.

(a) Custody Custody can be either legal or physical, and it can be either sole or joint. Traditionally, it was common for the mother to get sole legal and physical custody. The trend today is toward joint legal custody, regardless of who has physical custody.

455 •

Physical custody determines with whom the child will live and who will Physical custody supervise the child's day-to-day activities. Legal custody relates to who will have The child lives with authority to make legal decisions for the child relating to such things as health and has day-to-day care and education. If one party to the divorce is given sole cutody, that parent activities supervised by has both physical and legal custody of the child until either the child reaches the the designated parent or age of majority or the court decides that it is in the best interests of the child guardian. to change this custody arrangement. Joint legal custody allows both parents to have an equal say in making major decisions-for example, decisions regarding legal custody the education of the child. Joint physical custody is also possible, allowing the The designated parent child to spend a significant amount of time with each parent. When parents live or guardian has in different states, they often have split custody, whereby one parent has both authority to make legal physical and legal custody during the school year and then the other parent gets decisions for the child both physical and legal custody during designated vacation periods . The term relating to such matters split or divided custody can also refer to those rare situations when the court as health care and separates the children so that each parent is awarded custody of one or more of education. the children.

If the parents cannot agree on a mutually acceptable custody arrangement, the court holds a hearing at which interested parties give testimony regarding the child's needs and the fitness of each parent. The court should consider the wishes of the parents and the child; the child's adjustment to his or her home, school, and community; and the mental and physical health of all involved. The court may appo int a guardian ad litem, usually an attorney or a social worker, to speak for the interests of the child.

(b) Visitation In addition to determining which parent will be given cus- tody of any children, the court must determine the extent to which the noncus- todial parent can visit the child. Normally, when physical custody is given to one parent, the noncustodial parent is given visitation rights and ordered to pay sup- port. H owever, the right to visit is not tied directly to the obligation to support.

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Therefore, if the custodial parent wrongfully denies the other parent access to the children, it does not relieve the noncustodial parent of the obligation to pro- vide support. Likewise, if the support payments are late, that does not give the custodial parent the right to deny visitation. The appropriate response in either case is to return to court and ask for a court-ordered remedy. This is often a dif- ficult concept for divorced couples to grasp, as evidenced by the following case.

Carroll v. Carroll 593 So. 2d 1131 (Fla. Dist. Ct. App. 1972)

PARKER, Judge. Jane Carroll, the former wife of Ira Carroll,

Sr., appeals a supplemental final judgment which temporarily suspended child support based upon her sixteen-year-old son, Hunter Carroll, refusing to visit his father, Mr. Carroll. Although we sym- pathize with a trial judge dealing with an almost impossible situation, we reverse that portion of the judgment suspending the father's child sup- port obligation, concluding that the noncustodial parent's child support obligation does not cease upon the child refusing to visit the noncustodial parent.

[F]or six years following a final judgment of dissolution of marriage, there has been bitter strife between Mr. and Mrs. Carroll over Mr. Carroll's rights of visitation with their three children. Two things happened to involve this court. The first was that the parties' sixteen-year-old child filed a motion through his mother's attorney to have the trial judge terminate the requirement that he visit his father. The trial court granted the son's motion. The next thing to occur was the trial court, on its own motion, terminated Mr. Carroll's child support obligation for that child on a temporary basis until visitation was reinstituted.

We recognize the dilemma of the trial judge and quote from his order denying Mrs. Carroll's motion for rehearing:

The Former Wife's position is that the Court erred in tying a child support obligation to a visita- tion issue. Ordinarily, the Former Wife would be

correct, and as a general rule it is clear that both Chapter 61 and the apposite case law provide that child support cannot be conditioned upon visita- tion. However, the instant case defies,- in many ways, the general rule.

... By the time the temporary visitation order was entered in the fall of last year, the parties and the child in question had reached a point justify- ing not only a temporary cessation of visitation, but also support for that child. Hunter Carroll and his father had become adversaries in about every sense of the word . They had escalated their enmity to the point of a physical confrontation. Hunter referred to his father as "Mr. Carroll," and indicated no respect whatsoever for him. Hunter actively resisted visitation with his father and in fact was the movant himself in the motion to terminate visitation. Hunter Carroll is a very sophisticated, bright, articulate sixteen year old boy who has, as he so forcefully points out, reached an age of discre- tion which all but insures that if he doesn't want to have meaningful visitation, it simply will not occur. He believes he has been driven to this emotional juncture by his father's behavior; the father believes his son's attitude is a by-product of the poison- ous relationship between him and his former wife who is the custodial parent. Whatever the truth, it appears to the Court that where a child of sufficient maturity and intellect and discretion moves to ter- minate visitation, and where the motion is granted, this conduct justifies the suspension of support on a temporary basis. Of course support will be auto- matically and immediately re-instated once visita- tion re-commences.

We first note that this record contains no findings by the trial judge that Mrs. Carroll orchestrated

A. Marriage 457 •

er son's motion to terminate visitation. We do ot have to address today what this court's posi- . on would be if that were the case ....

Both natural parents share a duty to sup- port a minor child .... Thus if this animosity had developed between the father and child while the parents were still married, the father still would have a duty of support of his family, including Hunter.

[W]e are unwilling to say that conduct by a child, not shown to be orchestrated by one of the parents, should relieve a parent of his or her duty to support the child. This seems to punish only the other parent's ability to pay for that child's needs.

This court has recognized that ordinarily, if a parent supports his child, he has the right to visit the child. However, this court has further recognized that there are instances where a for- mer spouse has a duty of support when visitation would not be advisable for various "sociological, psychiatric and other reasons." ...

ASE DISCUSSION QUESTIONS

The all too familiar tragedy in this case is [that] throughout this scenario, quality time between a child and his father is being lost which can never be replaced. The parents also should consider the effect this may have upon the other children.

While fully understanding the trial court's attempt to do equity in this case, we reverse and remand with directions for the trial court to order the payment of all of the suspended child support payments.

1. Do you agree with the Carroll court's decision in this case? Why? 2 . Should the court have considered the needs of the two other children in

reaching its decision? 3. Do you think the court would have reached a different result if it had

£o und that Mrs. Carroll had "orchestrated" her son's decision to terminate visitation? Most courts will not relieve a parent of his or her obligation to supply child support solely on the basis that the custodial parent had denied that parent his or her court-ordered visitation rights. Do you agree with this? Why should the noncustodial parent have to continue to pay child support if he or she is being denied visitation rights?

(c) Custody and visitation rights of others Until recently the only party with standing to request custody or visitation rights after divorce was the non- custodial parent. Today, however, in some cases courts have expanded those rights to encompass unwed fathers, grandparents, stepparents, and gay and les- bian partners.

(i) Unwed fathers In contradistinction to the legal protections offered unwed mothers, with regard to unwed fathers the U.S. Supreme Court has stated that the "mere existence of a biological link" is not enough to merit protection. For example, an unwed father who has not participated in the rearing of his child or given any financial support is not entitled to a hearing before his child can be adopted by the stepfather. 12 However, if an unwed father has demonstrated a full commitment to parental responsibilities, then his desire for personal contact

12 Lehr v. Robertson, 463 U.S . 248 (1983).

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with his child will acquire substantial protection under the due process clause of the Fourteenth Amendment. For example, where the father had lived with the mother and his children off and on for 18 years, the unwed father was entitle to a hearing before the state could take his children from him. 13

(ii) Grandparents Traditionally, grandparents had no legal rights to vis- itation. In recent years, however, the courts have been more willing to gram visitation rights if the children are no longer living in an intact home with both parents and if it can be shown to be in the best interests of the children.

By 1999, a majority of the states had enacted legislation allowing third par- ties, such as grandparents, to petition for visitation, at least in situations where the parental unit was no longer intact due to divorce, separation, or death. In Troxel v. Granville, 14 the U.S. Supreme Court was asked to rule on the constitu- tionality of a Washington state statute that allowed any third party to petition for visitation if it was in the "best interests" of the child. The Supreme Court held that the Constitution protects the interest of parents in the care, custody, and control of their children and that the Washington statute unconstitutionally infringed on that right. The Court noted that the statute was "breathtakingly broad" in that it allowed any person (with no requirement that the person have established a substantial relationship to the child) to petition the court for visita- tion at any time (with no requirement that the parent first be deemed unfit, that evidence be introduced showing that the child would be adversely affected by the lack of visitation, or that the parent first have unreasonably denied visitation). Although the Court invalidated the Washington statute, it limited its decision to the specifics of that statute and declined to address the validity of the statutes enacted by the other 49 states. However, the case can be seen as standing for the general proposition that the rights of grandparents are subservient to those of a fit parent's right to exclusive care and control of the child.

(iii) Stepparents When divorced parents remarry, their children often form very strong "parental" bonds with the new stepparent. However, if step- parents do not take the necessary steps to adopt the child of the new spouse, they may have no visitation rights if they divorce or their spouse dies. Sometimes visi- tation is allowed if the court determines that the person has become a "de facto parent" through prolonged contact and care for the child. However, it is not wise to rely on this exception. A safer approach is to adopt the child. However, adoption is not always a viable option. For example, in In re EWB Applying for Adoption15 a stepfather was denied the right to adopt his wife's daughter even though he was "an ideal father figure" and the girl only occasionally saw her natural father, who owed unpaid child support. The court determined that it was in the best interest of the child to have "the best of both worlds" and denied the adoption req uest. 16

13Stanley v. Illinois, 405 U.S. 645 (1972). 14530 u.s. 57 (2000) . 15 441 So . 2d 478 (La. App. 1983) . 16ld. a t 483.

A. Marriage

In an unusual case an Oregon court granted custody to a stepfather. In :::enimore v. Smith 17 a 12-year-old girl was present when her mother died of ~eart failure. Experts testified that the girl suffered great guilt because she felt -· e mother died as a result of being upset over an argument between her and .-::.er half-sister. In addition, the girl did not administer CPR and called her father -ather than dialing 911. In those circumstances the court ruled it would be an _dclitionalloss for the girl to be taken away from her stepfather and half-sister.

However, other courts have held the opposite, stating that unless the bio- - gical parent has abused or neglected the child, the award of custody must be to - e natural parent. For example, in the case of In re A.R.A., 18 the parents, Tracy and Bill, were married for six years. During that time A.R.A. was born. When - e was 19 months old, they divorced, and Tracy was given custody. A year later - racy married Patrick, and they had a son. Then Tracy died in a plane crash. m her will Tracy named Patrick A.R.A.'s guardian. When Bill came to pick up _-\. R.A., Patrick refused. The trial court determined that there was a close rela- ·onship between Patrick and A.R.A., that she was attached to her half-brother,

:hat Patrick's parenting skills were better than Bill's, and that A.R.A. would be adversely affected by changing schools and homes. The court awarded custody -o Patrick. The Montana Supreme Court reversed. It stated that the "best inter- est of the child" test can be used only after a showing of dependency or abuse and neglect by the natural parent. Because there was no such showing here, the

atural parent should be awarded custody. 19

(iv) Gay and lesbian partners The rights of homosexual parents consti- a~te an emerging issue in family law. Traditionally, a homosexual parent had difficulty being awarded custody, as the court often thought that the parent's hoice of lifestyle would have a bad influence on the child. As recently as 1996, a

headline in the National Law Journal could proclaim: "Mom's a Lesbian, Dad's a Killer. Judge: She's Unfit." The article reported how a Florida judge, looking at rhe following facts, found the mother unfit. An 11-year-old daughter had been living with her mother for the past five years, ever since her parents' separation. When the mother went to court seeking past-due child support, her ex-husband responded by suing for custody. He had served eight years in jail for killing his first wife and was currently living with his fourth wife. Because the mother was living with a female partner, the judge sent the daughter to live with the father. The judge noted that the daughter should be "given the opportunity and the option to live in a non-lesbian world." 20

In another well-publicized case the Virginia Supreme Court upheld a trial ourt's decision to allow a grandmother to seek custody of her grandson on

the grounds that her daughter was a lesbian. The court noted that "living daily under conditions stemming from active lesbianism practiced in the home may impose a burden upon a child by reason of the 'social condemnation' attached to

,-93 0 P.2d 892 (Or. App. 1997). 1 919 P.2d 388 (Mont. 1996) . ' "'d. at 392.

Na t'! L.J. Feb . 12, 1996, at A9 .

459 •

• 460 Chapter 11: Family Law

such an arrangement, which will inevitably afflict [sic] the child's relationships with its 'peers and with the community at large.' " 21

At the other end of the spectrum, many courts hold that, absent evidence that the child is being harmed, a parent's sexual orientation should not be a sig- nificant factor in custody cases. For example, in Bezio v. Patenaude11 the court noted that "[b ]oth parties introduced evidence to the effect that a mother's sex- ual preference per se is irrelevant to a consideration of her parental skills." 23 The court went on to hold that the "state may not deprive parents of custody of their children 'simply because their household fails to meet the ideals approved by the community' . .. [or] simply because the parents embrace ideologies or pursue life-styles at odds with the average.'' 24

Until same-sex marriage is accepted in all states, additional problems can be created when a same-sex couple marries or enters into a civil union, brings a child into that union, and then later separates. Matters become even more dif- ficult if one of the former partners moves to a state that does not recognize same- sex marriage or civil unions. Such was the case of Janet and Lisa. In 2000 they traveled to Vermont to enter into a civil union. They then returned to their home state of Virginia where they decided to have a child through Lisa undergoing artificial insemination. Their daughter was born in 2002, approximately a year before ending their relationship. A custody battle ensued in which the Vermont court entered an order awarding Janet visitation rights.

Unhappy with that decision, Lisa, who had returned to Virginia, petitioned the Virginia court to declare her the sole parent and to deny Janet any parental rights. The Virginia court found that Virginia's Affirmation of Marriage Act, which states that same-sex unions from other states are void in all respects in Virginia, meant that Janet had no legal rights. What could have turned into a major jurisdictional fight between the courts of Vermont and Virginia ended when the Virginia court of appeals accepted the Vermont ruling. 25 Meanwhile, Janet had gone for more than two years without seeing her daughter. As is the case with step parents, it may be that the best way to ensure that both same-sex parents retain parental rights after a separation, is for the non-birth parent to take the additional precaution of adopting any children conceived during the umon.

Even in the case of states where same-sex marriages are legal, issues regarding child custody can still arise as illustrated by this 2012 case from Massachusetts, the first state to recognize same-sex marriage.

21Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995 ). 22410 N .E.2d 1207 (Mass. 1980). 231d. at 1215. 24Jd. 25Miller-Jenkins v. Miller-Jenkins, 637 S.E.2d 330 (Va. 2006).

Gabriella Della Corte appeals from a ... judgment . .. maintaining joint legal custody of the child with Angelica Ramirez. On appeal, she claims that Ramirez is not the child's legal parent ....

Della Corte claims that, despite the fact that she and Ramirez were married when the child was born, Ramirez is not the child's legal parent because Ramirez is not the biological par- ent of the child and the couple was not married at the time of conception. We disagree. Della Corte places a high value on the obvious fact that Ramirez is not, and could not be, the biological father of the child. Della Corte was artificially inseminated with the sperm of an anonymous donor approximately two months before Della Corte and Ramirez were married. Ramirez was, however, involved in the insemination process and was an integral part of the couple's decision to conceive. Pursuant to G. L. c. 46, § 4B, "Any child born to a married woman as a result of arti- ficial insemination with the consent of her hus - band, shall be considered the legitimate child of the mother and such husband." We do not read " husband" to exclude same-sex married couples, but determine that same-sex married partners are similarly situated to heterosexual couples in these circumstances. There was no requirement that the parties be married at the time of conception, as

CASE DISCUSSION QUESTIONS

A. Marriage 461 •

the statute plainly states "[a]ny child born," not "any child conceived."

Della Corte further contends that in order for Ramirez to be a legal parent, she had to adopt the child. We disagree. In Goodridge v. Department of Pub. Health, 440 Mass. 309 (2003), the Supreme Judicial Court specifically noted that without the right to civil marriage, same-sex couples were required to "undergo the sometimes lengthy and intrusive process of second-parent adoption to establish their joint parentage." Goodridge, 410 Mass. at 335. As a result, it follows that when there is a marriage between same-sex couples, the need for that second-parent adoption to, at the very least, confer legal parentage on the nonbiological parent is eliminated when the child is born of the marriage.

Other salient facts supported the judge's con- clusion. Both Ramirez and Della Corte are listed as parents on the child's birth certificate. The facts contained on a birth certificate "shall be prima facie evidence of the facts recorded." G. L. c. 46, § 19. The parties' separation agreement referred to Ramirez as a parent and granted dual legal custody and visitation rights to Ramirez. Also, in the divorce complaint, Della Corte admitted that the child was born of the marriage. Finally, Ramirez pays child support to Della Corte. Based on the foregoing, we determine there was no error in the judge's determi- nation that Ramirez is the child's legal parent.

1. On what grounds did Della Corte argue that Ramirez was not their child's legal parent?

2. Why did the court reject those arguments?

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Case 13: The Modern Family (continued)

Tris and Isolde decided to marry in Massachusetts. Isolde would also like to adopt Chad. Massachusetts has no prohibitions against adoptions by gay or lesbian partners. However, unless Mark agrees to surrender his parental rights, a family court would not allow the adoption to

occur. Therefore, even though Isolde may become Chad's primary caregiver, in the event something were to happen to Tris, it is most likely that cus- tody would be given to Mark. Whether Isolde would be able to get visitation rights depends on the evolving notion of who is a parent.

Child support Money that the noncustodial parent contributes to assist the custodial parent in paying for a child's food, shelter, clothing, medical care, and education.

Garnishment A process through which a court can require an employer to withhold money from an employee's wages and turn this money over to the party to whom a debt is owed.

Extradition The transportation of an individual from one state to another so that person can be tried on criminal charges.

A few states have passed legislation allowing for more than two legal par- ents. For example, a California statute states: "[W]here more than two people have claims to parentage, the court may, if it would otherwise be detrimental to the child, recognize that the child has more than two parents." 26

(d) Child support The level of child support that the noncustodial parent will be required to contribute is another frequently contentious aspect of divorce proceedings. These determinations require a careful balancing of such factors as the parents' income and standard of living, the child's age, and the child's health and educational needs. The courts retain jurisdiction over this aspect of the divorce decree and often modify the support order based on changes in a parent's job status or remarriage.

Every state has guidelines to help the courts determine how much the child support payments should be. Usually, the court has discretion to either increase or decrease these amounts based on a number of factors, such as the income of the parents and the number of children.

One of the biggest problems with child support is collecting it. The problem of "deadbeat dads" has been widely publicized in recent years and has resulted in significant legislation at both the state and the national levels. In most states the custodial parent can attach the wages of the delinquent parent. Through a process called garnishment a court can require an employer to withhold money from an employee's wages and turn this money over to the party to which a debt is owed. Some states assist in the collection of child support by requiring that the payments be made directly to the local clerk of the court.

If the parent with a child support obligation moves to another state, two uniform laws come into play: the Uniform Reciprocal Enforcement of Support Act (URESA), adopted by all 50 states, and the Uniform Interstate Family Support Act (UIFSA), adopted by approximately half the states. Both allow an order for support issued in one state to be enforced in another state. A major difference in the two laws is whether the enforcing state is allowed to modify the original support order. Under URESA it can; under UIFSA it cannot. The federal Child Support Recovery Act of 199227 authorizes extradition-that is, the return of

262013 Cal. ALS 564. 2718 u.s.c. § 228 (2012).

B. The Parent-Child Relationship

.:elinquent parents for criminal prosecution- in states that make willful failure : pay child support a crime.

DISCUSSION QUESTIONS

8. In settling custody issues the courts are supposed to use a "best interest ' the child" standard. To what extent do you think it is appropriate for the

-ourts to take into consideration such things as a parent's gender, age, or religion? determining custody how much, if any, consideration should be given to the

2ct that one of the parents smokes and would therefore be exposing the child :o secondhand smoke? What if the new partner of one of the parents is of a different race than the child? What if one of the parents openly lives with his or

er new homosexual partner? 9. To what extent should children at various ages be permitted to help

etermine which parents should have custody? 10. What should the court do if a child refuses to visit the noncustodial

arent? In the case of In re Marriage of Marshall, 663 N.E.2d 1113 (Ill. App. 1996), nine-year-old Rachel and 13-year-old Heidi flatly refused to visit their iather. The court "found both Rachel and Heidi to be in direct civil contempt. The court 'grounded' Rachel, and ordered that she not leave her mother's home. Rachel could not watch television or have friends over to the house, but she could read and do crafts. The court ordered [the mother] to enforce these measures. The ourt placed Heidi in a juvenile detention facility until she agreed to go to North

Carolina. The judge indicated that the girls' conduct arose from the efforts of adults to manipulate the system." Id. at 1119. Do you agree that such sanctions are appropriate? What other remedies do you think the court could have pursued?

11. Which of the following two provisions for child visitation do you prefer? Do you think your answer might vary depending on the couple involved? Why?

• The parties shall determine visitation schedules between them. At a mini- mum the husband will see the children at least two weekends a month and one day or early evening during the week.

• The husband will have visitation with the three children every other weekend, commencing at 6:00 P.M. on Friday evening, when he will pick up the children at the wife's home. He will return them at 6:00P.M. on Sunday evening.

B. THE PARENT-CHilD RElATIONSHIP

Having discussed the legal nature of the marital relationship, we now turn to a second major area of family law-the relationship between parents and their chil- dren. In this section we will cover the procedure for establishing paternity, adop- tion, surrogacy, parental rights, child neglect and abuse, and the status of minors.

1. Establishing the Relationship

In most cases the parent-child relationship is legally established at the point at which the names of the mother and father are recorded on a child's birth

463 •

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certificate, either at the time of birth or later through an adoption proceeding. While there have always been situations in which the identity of the father has not been clear, because of current advances in the scientific methods for treating infertility, both legal (as opposed to biological) paternity and legal maternity may be difficult to establish. For example, in the case of an anonymous sperm donor, state statutes cut off all rights of the donor and vest paternity in the married hus- band. However, if an unmarried woman has knowledge of a sperm donor's iden- tity, then the donor may later be in a position to assert paternity rights. Another difficult situation occurs when an infertility clinic artificially combines a man 's sperm with a woman's egg and then implants that fertilized egg into the womb of a second woman. The result is a genetic mother and a gestational mother. In this section we will discuss how parental rights are established through paternity actions, adoption, sperm or egg donation, and surrogacy arrangements.

a. Paternity Actions

The need to establish paternity usually arises when the mother wishes her child to receive court-ordered support payment from the alleged father. As one aspect of recent attempts at "welfare reform," many states have become much more aggressive in identifying fathers of children born out of wedlock.

Regulations in some states require the mother to name the child's father as a condition of qualifying for welfare benefits. The government itself then takes the lead in filing petitions to establish paternity that require the alleged father to submit to blood tests and to pay child support if found to have fathered the child.

An increasingly common occurrence is the case of a presumptive father who voluntarily desires to establish paternity in order to gain custody or visita- tion rights. For unwed fathers who wish to voluntarily assert their paternity, some states have established a putative fathers ' registry. Signing the registry ensures that the father will be notified before any court determination regarding adoption of the child.

When a man wishes to establish himself as a child's father and he was not wed to the mother at the time of birth, he may run into a presumption that a husband who was living with his wife at the time of the birth is the father of the child. Such presumptions sometimes can be overcome if evidence shows the husband is impotent or sterile or if a blood test shows the child could not be his. However, some courts treat this presumption as a conclusive presumption and will not allow paternity to be established even through DNA testing.

An example of a court allowing the father to overcome such a presump- tion in favor of the husband is the case of Comino v. Kelley. 28 In that case the evidence established that although the child's mother, Stephanie Kelley, was legally married to Jeffrey Moyer, the marriage had been a mutually convenient "business relationship" that involved living in separate bedrooms. When Ke lley became pregnant after having had intercourse with Paul Camino, she told him that he was the father, and prior to the birth she moved into Camino's home. Camino attended at least one Lamaze childbirth class with Kelley, was present at the birth, and was identified as the father on the birth certificate. After the

28 25 Cal. App. 4th 678 (1994 ).

B. The Parent-Child Relationship 465 •

..,irth Kelley, Comino, and the baby all returned to Comino's house, and birth announcements were sent identifying him as the father. More than two years

rer Kelley moved out of Comino's home. When she threatened to restrict his .:. cess to the child, Comino went to court to formally establish his parental rela- ·onship and to obtain joint physical and legal custody. Kelley, in turn, asserted

- at "as a matter of law" Moyer was presumed to be the child's father because - e had been married to him at the time the child was conceived.

In ruling in Comino's favor the California appellate court found that Comino's fatherhood was established by another section of the California Code - at provides a presumption for paternity when a man "receives the child into - ·s home and openly holds out the child as his natural child." 29 The court ruled,

effect, that this statutory presumption took precedence over the one on which T elley relied.

ISCUSSION QUESTIONS

12. Do you agree with a policy that denies welfare assistance to a child because the mother refuses to cooperate with authorities in identifying the child's £ather?

13. A 15-year-old girl was raped and found herself pregnant. She decided aot to have an abortion but to give the child up for adoption. The rapist, however,

ad other plans. He threatened to assert his paternity rights by signing the state's utative fathers' registry unless the girl dropped the charges against him. What

actions do you think a state can take to protect the rights of unwed fathers, while reventing such abuses of the system?

14. Do you think the courts should continue to follow the conclusive res umption that a child born of married parents is their child?

b. Adoption

Adoption is the legal process by which someone other than a child's natu- ral parent assumes the legal rights and responsibilities as a parent for the child. The new adoptive parent literally takes the place of the child's natural parent. Therefore, before the new parent-child relationship can be established, either the child's natural parent must voluntarily relinquish his or her parental rights, or a court of competent jurisdiction must terminate such rights. For example, if a woman remarries and her new husband wishes to adopt her child from her pre- 'ious marriage, he cannot do so until the child's natural father either voluntarily gives up his parental rights or has them terminated by a court.

There is also a process for adult adoptions, which allows one adult to adopt another adult as a son or daughter. Such an adoption requires the consent of both parties and is designed to establish certain rights under the probate laws. The remainder of this section will focus on the more common occurrence of infant adoption.

Most states have different procedures and rules for agency adoptions and independent adoptions. Many agency adoptions involve children born out of

3Jd. at 685.

Agency adoption An adoption in which a licensed agency assumes responsibility for screening adoptive parents and matching them with available children.

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Independent adoption An adoption that involves a private agreement between the birth parents and the adoptive parents.

wedlock to parents who do not feel they are prepared to accept the responsibili- ties of parenthood. Licensed agencies assume responsibility for these children, providing temporary foster care, and screen individuals and couples who wish to adopt. An independent adoption is one that involves a private agreement between the birth parents and the adoptive parents. Such adoptions still require investigations by approval agencies and formal actions by the courts.

Some states have adopted formal criteria that are to be used in selecting among potential adoptive parents. In California, for example, the first choice is a relative. If that is not possible or is not in the child's best interest, the fos- ter parents as well as others can be considered. In making that determination the religious background of the child may be taken into account. However, the agency may not delay or deny the placement "on the basis of the race, color, or national origin of the adoptive parent or the child involved." 30 When a match is made, the new parent or parents are given temporary custody of the child for a trial period, during which the agency monitors the new parents' care of the child. During this time a social worker or other official conducts a home study to determine whether they are fit to adopt.

Before an adoption can be finalized, the birth parents must sign a docu- ment agreeing to give up their parental rights. Usually, this release cannot be signed prior to the baby's birth. Once it is signed, however, normally the birth parents cannot take back their relinquishment of parental rights unless they can show their consent was obtained by fraud. After the birth parents have released their parental rights and the adoptive parents are deemed fit, the adoptive par- ents must go to court to have the adoption finalized. Therefore, the child can live with the adoptive parents for a lengthy period before the adoption is fina lized by the court.

DISCUSSION QUESTIONS

15. Do you agree with the placement criteria included in the California statute discussed above? What is the justification for matching the child's religious background with those of the adoptive parents? Should that factor take preference over the economic and lifestyle advantages that an alternative placement might have?

16. Should children be allowed to "divorce" their parents so that they can be adopted by others?

The importance of obtaining and documenting the consent of the child's natural parents to an adoption is illustrated in a highly controversial Illinois Supreme Court decision, the "Baby Richard" case.

3°Cal. Fam. Code §§ 8708-8709 (2014 ).

J ustice HEIPLE delivered the opinion of the court: John and Jane Doe filed a petition to adopt a

newborn baby boy. The baby's biological mother, Daniella Janikova, executed a consent to have the baby adopted four days after his birth without informing his biological father, Otakar Kirchner, to whom she was not yet married.

The mother told the father that the baby had died, and he did not find out otherwise until 57 days after the birth. The trial court ruled that the father's consent was unnecessary because he did not show sufficient interest in the child dur- ing the first 30 days of the child's life. The appel- late court affirmed with one justice dissenting. We granted leave to appeal and now reverse. Otakar and Daniella began living together in the fall of 1989, and Daniella became pregnant in June of 1990. For the first eight months of her pregnancy, Otakar provided for all of her expenses.

In late January 1991, Otakar went to his native Czechoslovakia to attend to his gravely ill grandmother for two weeks. During this time, Daniella received a phone call from Otakar's aunt saying that Otakar had resumed a former roman- tic relationship with another woman.

Because of this unsettling news, Daniella left their shared apartment, refused to talk with Otakar on his return, and gave birth to the child at a different hospital than where they had origi- nally planned. She gave her consent to the adop- tion of the child by the Does, telling them and their attorney that she knew who the father was but would not furnish his name. Daniella and her uncle warded off Otakar's persistent inquiries about the child by telling him that the child had died shortly after birth.

Otakar found out that the child was still alive and had been placed for adoption 57 days after the child was born. He then began the instant proceedings by filing an appearance contesting

B. The Parent-Child Relationship 467 •

the Does' adoption of his son. As already noted, the trial court ruled that Otakar was an unfit par- ent under section 1 of the Adoption Act because he had not shown a reasonable degree of interest in the child within the first 30 days of his life. Therefore, the father's consent was unnecessary under section 8 of the Act.

The finding that the father had not shown a reasonable degree of interest in the child is not supported by the evidence. In fact, he made vari- ous attempts to locate the child, all of which were either frustrated or blocked by the actions of the mother. Further, the mother was aided by the attorney for the adoptive parents, who failed to make any effort to ascertain the name or address of the father despite the fact that the mother indicated she knew who he was. Under the cir- cumstances, the father had no opportunity to dis- charge any familial duty.

In the opinion below, the appellate court, wholly missing the threshold issue in this case, dwelt on the best interests of the child. Since, however, the father's parental interest was improperly terminated, there was no occasion to reach the factor of the child's best interests. That point should never have been reached and need never have been discussed.

Unfortunately, over three years have elapsed since the birth of the baby who is the subject these proceedings. To the extent that it is relevant to assign fault in this case, the fault here lies ini- tially with the mother, who fraudulently tried deprive the father of his rights, and secondly, with the adoptive parents and their attorney, who proceeded with the adoption when they knew that a real father was out there who had been denied knowledge of his baby's existence. When the father entered his appearance in the adoption proceedings 57 days after the baby's birth and demanded his rights as a father, the petitioners

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should have relinquished the baby at that time. It was their decision to prolong this litigation through a lengthy, and ultimately fruitless, appeal.

The adoption laws of Illinois are neither com- plex nor difficult of application. Those laws inten- tionally place the burden of proof on the adoptive parents in establishing both the relinquishment and/or unfitness of the natural parents and, coin- cidentally, the fitness and the right to adopt of the adoptive parents. In addition, Illinois law requires a good-faith effort to notify the natural parents of the adoption proceedings. These laws are designed to protect natural parents in their pre- emptive rights to their own children wholly apart from any consideration of the so-called best inter- ests of the child. If it were otherwise, few parents would be secure in the custody of their own chil- dren. If best interests of the child were a sufficient qualification to determine child custody, anyone with superior income, intelligence, education, etc., might challenge and deprive the parents of their right to their own children. The law is otherwise and was not complied with in this case.

Accordingly, we reverse. Justice HEIPLE, writing in support of the

denial of rehearing: I have been a judge for over 23 years. In that

time, I have seldom before worked on a case that involved the spread of so much misinformation,

nor one which dealt with as straightforward an application of law to fact.

As for the child, age three, it is to be expected that there would be an initial shock, even a long- ing for a time in the absence of the persons whom he had viewed as parents. This trauma will be overcome, however, as it is every day across this land by children who suddenly find their parents separated by divorce or lost to them through death. It will not be an insurmountable trauma for a three-year-old child to be returned, at last, to his natural parents who want to raise him as their own. It will work itself out in the fullness of time. As for the adoptive parents, they will have to live with their pain and the knowledge that they wrongfully deprived a father of his child past the child's third birthday. They and their lawyer brought it on themselves.

This much is clear. Adoptive parents who comply with the law may feel secure in their adoptions. Natural parents may feel secure in their right to raise their own children. If there is a tragedy in this case, as has been suggested, then that tragedy is the wrongful breakup of a natu- ral family and the keeping of a child by strangers without right. We must remember that the pur- pose of an adoption is to provide a home for a child, not a child for a home.

CASE DISCUSSION QUESTIONS

1. The trial court stated: "Fortunately, the time has long past when children in our society were considered the property of their parents . . .. [W]e start with the premise that Richard is not a piece of property with property rights belonging to either his biological or adoptive parents. Richard 'belongs' to no one but himself .... A child's best interest is not part of an equation. It is not to be balanced against any other interest." Obviously, the Illinois Supreme Court disagreed. Articulate the standard adopted by the Illinois Supreme Court. Which standard, that of the trial court or that of the supreme court, produces the more just result? Just to whom?

2 . The Illinois Supreme Court's decision in the "Baby Richard" case brought on a great deal of negative media coverage, including Chicago Tribune columns by Bob Greene entitled "Damn Them All," "The Sloppiness of Justice Heiple," and "Supreme Injustice for a Little Boy." Following Greene's columns

B. The Parent-Child Relationship

- e governor publicly backed legislation designed to change the court's decision. 'Jo you think this is the type of decision that should be left to the courts, or could _ be better handled through legislation? Why?

3. If you were drafting a statute to cover the type of situation that occurred this case, what balance would you strike between the parents' rights to their

:::arural-born children and the rights of adoptive parents? In drafting your statute ns ider the proper balance between the natural parents' rights to keep their

:hildren and the "best interest of the child." 4. Three years after this case was decided, it was reported that Otakar

:'-irchner had moved out of his home, leaving custody of Baby Richard to his irth mother. Does this have any impact on your view as to whether the court

·eached a just decision in this case?

(1) Adoption records

Once a child is adopted, the original birth certificate is placed in the court ·ecords, and a new birth certificate is issued with the names of the adoptive ~ arents. Those records are then sealed to protect the privacy of all the parties.

recent years many adults who were adopted as children have sought access ::o such records to learn the identity of their natural parents. In response to this .. desire to know," some states have developed a registry system whereby adopted ;::hildren and birth parents can let a state a'gency know they desire to be reunited.

both sides contact the agency, then the agency will facilitate such a reunion. In addition, records may be opened if the adoptee can show a compelling medical need. However, in the absence of such a procedure or a medical need the courts

ave been reluctant to open adoption records. In recent years a few states31 have changed this traditional approach by

enacting laws allowing adult adoptees access to their original birth records. This makes it much easier for adoptees to track down their birth parents. Such laws have created an emotional debate. On the one side are the adoptees who feel hey have an absolute right to find out "who they are and where they came

irom." On the other side are the birth parents who wish to remain anonymous and who do not want to be contacted by the children they gave up for adoption. In response to this concern, most states have a provision whereby birth parents can file a "no contact" request.

(2) Tort of wrongful adoption

Although adoption is a lifelong commitment from which the parents can- not escape, recently several states have developed a new tort of wrongful adop- ti on. For example, in the case of Mohr v. Commonwealth 32 the court held that an adoption agency must notify the prospective parents of information that would enable them to make a knowledgeable decision about whether to adopt the child. In that case the social worker had not told the parents that the birth mother was

"Alabama, Alaska, Delaware, Illinois, Kansas, Maine, New Hampshire, New Jersey (effective 2017), Ohio, Oregon, Rhode Island, and Tennessee. 12653 N.E.2d 1104 (Mass. 1995).

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hospitalized for schizophrenia and that the child had been diagnosed as develop- mentally delayed. While this would not form the basis for revoking the adoption, it would provide grounds for the recovery of resulting medical and educational expenses. States vary as to whether they require an act of intentional fraud on the part of the agency or whether negligent failure to disclose will suffice.

c. Assisted Reproduction

While sperm donation and artificial insemination have been available for many years, thanks to advances in medicine, those yearning for a child have found new ways to conceive: through egg donation and surrogacy arrangements. All of these methods have spawned a host of legal issues.

(1) Sperm and egg donation

As mentioned earlier, traditionally, an anonymous sperm donor acquired neither parental rights nor obligations. Absent a written agreement to the con- trary, in some states this remains true even when the donor is known to the woman receiving the sperm. For example, a Kansas man was asked by an unmar- ried female friend to donate his sperm so that she could have a child. He agreed with the understanding that he would act as the father. However, they never put their agreement in writing, and when the woman petitioned the court the day after her twins were born, he found that he was without any parental rights. 33

This is because the state in which he lived, Kansas, had enacted a statute provid- ing that absent a written agreement, sperm donors have no parental rights.

However, most states do not have any provisions covering situations such as this where the donor is known to the mother, and so the law varies greatly from state to state. In fact, in some states a sperm donor doing a "favor" for a friend may later find himself obligated to provide child support. Consider the case of William Marotta. An advertisement on Craigslist caught his eye. It had been placed by a lesbian couple, seeking donated sperm. Intrigued, he decided to help and donated three cupfuls of his sperm. He and the women signed an agreement that he would not be financially responsible for any child conceived with the use of his sperm. Nonetheless, four years later, the state pursued Marotta for child support. The state argued that because the insemination procedure was performed at the woman's home, rather than at a doctor's office, the signed agree- ment was meaningless. Marotta had no way to prove he was a sperm donor rather than the woman's lover. A judge agreed and ordered Marotta to pay child support. 34

In an interesting case involving egg donation, a dispute arose between a genetic father and a gestational mother. The unmarried couple had conceived and given birth to triplets following an egg implantation from an anonymous donor. When the couple's relationship deteriorated, the mother sought custody and child support. The father argued that she did not qualify as a parent as she

33 ln re K.M.H., 169 P.3d 1025 (Kan. 2007). 34Kansas Court Says Sperm Donor Must Pay Child Support, retrieved from http://www.cnn.com/2014/23/ justice/kansas-sperm-donation.

B. The Parent-Child Relationship

d no genetic connection to the children and asked for sole custody. The court : und that the woman was the children's legal mother. 35

(2) Surrogacy contracts

In 1984, Mary Beth Whitehead agreed to be the surrogate mother for a - · dless couple, William and Betsy Stern. Mary Beth was impregnated using her wn eggs and William's sperm. Once the child, Baby M, was born, Mary Beth

:~mnd she could not give her up, ignored the contract she had signed, refused the ·10,000 surrogacy payment, and fled the state. Four years later, the New Jersey - upreme Court invalidated the contract as "the sale of a child." 36 The court :"eared long-term negative effects if surrogacy contracts were allowed:

the impact on the child who learns her life was bought, that she is the offspring of some- one who gave birth to her only to obtain money; the impact on the natural mother as the full weight of her isolation is felt along with the full reality of the sale of her body and her child; the impact on the natural father and adoptive mother once they realize the consequences of their conduct. 37

The court granted custody to William, the natural father, based on what . viewed as the best interests of the child, but refused to terminate Mary Beth's _ arental rights, granted her visitation rights, and voided the adoption by Betsy tern.

Prior to the Baby M case, most states had no laws regarding surrogacy .::ontracts. However, that case created a flurry of state legislation and within a . ear over half of the states had new laws regulating or banning all but "compas- sionate surrogacy." Such laws provide that the surrogate can receive no financial · ompensation. Since then, there have been changes both to the methods used · o create a child through a surrogacy arrangement and societal views towards surrogacy.

As to the methods used, the Baby M case involved "traditional surrogacy," whereby the surrogate was artificially inseminated using her own egg and the intended father's sperm. Today, it is much more common to use "gestational sur- rogacy," whereby the egg and sperm come from either an intended parent or a donor. The surrogate is not genetically related to the baby.

States, such as California, have approved of gestational surrogacy and pro- \ide that the "intended parents" will become the legal parents. California also allows compensation to the surrogate. Such fees for services, along with medi- cal costs and legal fees, can easily bring the cost of a surrogacy to $100,000. One reason the cost is so high is because those living in states that do not allow paid surrogate contracts arrange to have their child born in California, thereby increasing the demand for California surrogates. Also increasing the demand is the number of married male couples who see surrogacy as a way to create a child genetically linked to at least one of the spouses. To make surrogacy more

3-'In re C.K.G., 173 S.W.3d 714 (Tenn. 2005). i6fu the Matter of Baby M, 537 A.2d 1227, 1248 (N.J. 1988). >rd. at 1250.

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available and affordable, some states, such as New York,38 are considering amending their surrogacy laws to allow for compensated surrogacy.

DISCUSSION QUESTIONS

17. Opponents of surrogacy contracts argue that they should be outlawed because they amount to baby selling. Defenders of surrogacy contracts claim such contracts do not involve the purchase of a baby-they merely provide compensation to the surrogate mother for her time and expenses. With which position do you agree?

18. Opponents of surrogacy contracts also argue that they should be outlawed because they exploit women. Defenders counter that they are not exploitive because the women who agree to be surrogate mothers do so voluntarily and wish to help other women have babies of their own. Whose arguments do you find most persuasive and why? What kind of protections, if any, could be built into surrogacy contracts to prevent exploitation?

19. Jane and John Doe entered into a traditional arrangement. The result was the birth of a girl. Since birth, she has lived with Jane and John Doe. However, the surrogate mother never terminated her parental rights. Jane and John Doe are now divorcing. The girl is 13 years old. Through blood testing John Doe was determined to be the natural father. The surrogate mother, not Jane Doe, is the natural mother. Both Jane and John Doe are seeking custody or, in the alternative, visitation rights. How do you think the court should rule?

20. Do you think the law should treat anonymous and known sperm donors the same?

Case 13: The Modern Family (continued)

Given all of the possible legal complica- tions involved in both in vitro fertilization using a "friend's" sperm and issues establish- ing a same-sex marital partner's parental rights,

Tris and Isolde would be well advised to return to Darrow and Bryan before proceeding with either approach to bringing a child into their family.

2. Parental Rights, Responsibilities, and Liabilities

Parents have traditionally been given a great deal of discretion with respect to how they raise their children. Although they are required to provide an educa- tion, they can choose public schools, private schools, or in some states "home schooling." Parents can also decide the religious tradition and value structure in which they wish to raise their children. And short of crossing the line into child abuse, they can determine how they wish to discipline their children.

38And Surrogacy Makes 3, N.Y. Times, Feb . 20,2014, at El.

B. The Parent-Child Relationship

Under the common law parents are normally not liable for their child's neg- ent acts unless the injury was caused by the parents' own negligent failure to

~roperly supervise the child. In addition, if a child intentionally harms someone, - e parent can be held responsible only if the parent was negligent in supervising - e child's activities. Section 316 of the Restatement of the Law of Torts, Second .iescribes a duty to exercise reasonable care to control one's minor children to _ revent them from intentionally harming others. However, the comments point

ut that a parent is only responsible for a child's conduct insofar as the parent :tad the ability to control it.

In derogation of the common law, some states have statutes making par- ents strictly liable for the intentional torts of their children. However, when only

roperty is damaged, there is often a liability cap, usually set to a relatively low am ount of no more than a few thousand dollars.

3. Child Neglect and Abuse

The state imposes responsibilities on parents to provide food, shelter, medical care, and other basic needs for their children. It also prohibits parents from

hysically or mentally abusing their children. Unfortunately there are often dif- ferences of opinion as to when one crosses the line between a parent's right to discipline a child and the state's right to protect that child from abuse.

As a society we have been reluctant to criminalize family law issues for everal reasons. First, the courts are already struggling to manage their caseloads

and are naturally cautious about adding to them by criminalizing family law issues. Second, law enforcement personnel have often been hesitant to arrest those who abuse family members. This is due both to a concern that an arrest will escalate the tension and to an awareness that frequently the victim will later refuse to prosecute, thereby eliminating any possibility that the abuser can be convicted. Third, what constitutes child neglect or abuse is colored by time and culture. For example, corporal punishment has been viewed with varying degrees of approval over time and across cultures. Fourth, as a society we are torn by the conflict between our belief that parents should have the right to raise their children as they see fit and our desire to protect those children. For example, if a parent's refusal to allow his or her child to receive needed medical treatment is based on strongly held religious views, should the state be allowed to interfere with that decision?

Generally, child neglect can be defined as the negligent failure to provide a

473 .

child with necessaries, such as food, clothing, shelter, and education. Child abuse Child neglect involves intentional misconduct. However, in specific cases it is often difficult to The negligent failure to determine where neglect stops and abuse begins. For example, the failure to feed provide a child with the a child breakfast occasionally might be seen as neglect. The failure to feed a child necessaries of life. breakfast every day might be seen as abuse. ·

Evidence of abuse or neglect triggers state intervention, which can begin a Child abuse multiyear process of trying to meet the needs of both the child and the parents. Intentional harm to N ormally the state first becomes aware of a potential neglect or abuse situation a child's physical or when someone reports suspicions of child neglect or abuse. Every state requires mental well-being. th at those in a position of trust or authority with regard to children, such as teachers and doctors, report any suspected abuse. Because the state has the power

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Guardian ad litem Someone appointed by the court to speak for the interests of a child.

Clear and convincing An evidentiary standard that requires more than a preponderance of the evidence but less than beyond a reasonable doubt.

Concerned over making decisions about abused and neglected children's lives without sufficient information, a Seattle judge conceived the idea of using trained community volunteers to speak for the best interests of these children in court. So successful was this Seattle program that soon judges across the country began utilizing citizen advocates. This program is now known as CASA, Court Appointed Special Advocates. To learn more about CASA and how to train as a volunteer, go to its national website at www.nationalcasa.org.

to protect its citizens, including its children, it has the right to investigate such reports. Usually, the first step is to try to get voluntary compliance. If that is not possible, the investigating agency may request court-ordered physical examina- tions of the child, visits to the home, and a general psychological evaluation of the family. During this process the court may appoint a guardian ad litem to represent the child. If the end result of the investigation is a determination that the child is in danger, the court may remove the child from the home and place the child in foster care. The final and most drastic remedy is termination of parental rights.

A state must have "clear and convincing" evidence before parental rights can be terminated. A clear and convincing standard is something more than a preponderance of the evidence (used in most civil suits) but less than beyond a reasonable doubt (used in criminal cases).

Child advocates argue that this standard is too difficult to meet, thereby allow- ing children to remain with abusive or neglectful parents. Those representing par- ents, however, argue that, short of incarceration or death, there is no harsher penalty that the state can impose than removing children from a parent's care. Therefore, they argue the standard is not efficiently stringent to protect parental rights.

Evidence of the lack of parental fitness can result from direct actions of the parent, as well as from a parent's refusal to act to protect a child. For example, when a mother did nothing to protect her child from the abuse of her third hus- band (the child was found naked in a filthy motel room with multiple bruises and cigarette burns), the court involuntarily terminated her rights. 39

DISCUSSION QUESTIONS

21. To what extent should child abuse protection laws apply to the actions of pregnant women? Should the fact that a pregnant woman smokes or drinks alcoholic beverages be treated as child abuse?

22. When deciding whether to terminate parental rights, some argue that a "clear and convincing" standard gives abused children too little protection. They would advocate a "preponderance of the evidence" standard. On the other hand, parent advocates argue that termination of parental rights is such a final

39In the Interest of B.R.S., 402 S.E.2d 281 (Ga. App. 1991).

B. The Parent-Child Relationship 475 .

~etermination that parents should be judged unfit only if the court can find them -o " beyond a reasonable doubt." Which standard do you think best balances the eeds of the children and the parents?

23. A New York judge ordered a couple to abstain from procreating until - ey could prove they can take care of their children. Over a period of five years, - e mother had four children. As newborns, all four babies tested positive for .:ocaine and were placed in foster care. The judge ruled the woman could not ue a mother again until she could prove that she could care for the children - e already had. A representative of the American Civil Liberties Union argued :hat this ruling was inconsistent with fundamental principles of privacy and autonomy. What do you think about the judge's ruling? Can you think of other approaches to the problems presented by pregnant women suffering from drug addiction and poverty?

4. legal Status of Minors

From the time they are born until they reach the age of majority (18 in most states), children are classified as minors. Being classified as a minor has both its oenefits and its detriments. Although they have legal rights, minors must rely on their parents or other guardians to act on their behalf in enforcing those rights. For example, minors cannot file lawsuits on their own.

Also, minors have more limited rights than do adults in regard to making major life decisions, such as whether to obtain an abortion. A minor who wants an abortion may be required to get the consent of a parent or the authorization of a trial court judge.

As we discussed in Chapter 8, Contract Law, one of the benefits of being a minor is that when he or she enters into a contract, it is considered to be " voidable." The minor may either enforce the terms of the contract or "disaf- firm" it within a reasonable time period. In some states this has been modified so that contracts for necessaries may be enforced, at least as to their reasonable value. Also, some states have developed special laws to change this principle as it applies to contracts for things such as artistic performances and sports as long as the contract has court approval.

If a minor commits a crime, the case is ordinarily handled by a special juvenile court system, which is designed to be less punitive and more focused on rehabilitation. However, if the crime is a violent felony, in some states the minor is automatically transferred to the regular court system and is tried as an adult. In other states the judge holds a transfer hearing to determine whether the child should be treated as an adult.

Once minors have reached the age of majority, they are no longer legally subject to parental authority. They become adults and at that point trade in the special protections and liabilities they had as minors for the full set of legal rights and responsibilities given to adults.

An emancipated minor is someone who is still under the legal age of adult- ho od but who has nevertheless been released from parental authority and given the legal rights of an adult. Such emancipated status is usually given when a minor has entered into a valid marriage or is on active duty in the armed ser- vices. It can also be given at the discretion of the courts in situations where the minor is living independently, physically and financially, from his or her parents.

Minor A child who is under the age of legal competence.

Emancipated minor Someone who is still under the legal age of adulthood but who has nevertheless been released from parental authority and given the legal rights of an adult.

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Ill

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CHAPTER SUMMARY

Marriage, no longer viewed as the union of only a man and woman, is catego- rized as either ceremonial or common-law. If the proper grounds exist, either type of marriage can be ended through annulment or divorce. An annulment is usually granted because of factors, such as fraud, that existed before the couple was married. A divorce can be based either on grounds or on no fault. Under no-fault divorce neither party is blamed for the divorce. As part of the divorce process, the parties must reach agreement as to property division, alimony, child custody, child support, and child visitation rights. Once the parties enter into a settlement agreement, the court can finalize the divorce. If the parties are unable to agree, the case proceeds to trial.

A rapidly changing area of family law relates to child visitation and cus- tody rights for persons other than the natural parents. In recent years grandpar- ents, stepparents, and gay and lesbian partners have all received more receptive hearings from the courts than they have in the past.

Finally, family law deals with many issues relating to the parent-child relationship, including establishing the relationship through paternity actions, adoption, or surrogacy and defining parental rights and liabilities. In this latter category child neglect and abuse have received national attention as the legal system continues to struggle with these concerns.

CRITICAL THINKING EXERCISES

1. A prenuptial agreement stated that the wife could not share in her husband's property. During the early years of their marriage the couple kept their businesses and bank accounts separate. Eventually, however, the wife left her job to work full-time for no pay in the pro shop at her husband's golf course. When the golf course ran into financial troubles, she cashed in her retirement plan and took out a loan to keep the business going. Now the couple has divorced, and the wife wants "her share" of the husband's golf course. What do you think the court decided?

2. Before the honeymoon was even over, Ashley Jones realized that her new husband had a major drinking problem. When he refused to seek help for his drinking problem or look for a job, she sought to have the marriage annulled. If you were the judge, would you grant her an annulment? Why?

3. Brian LeClair lives in Tucson, Arizona. In early 2011 he bought a small home for $50,000,$45,000 of which he financed through a mortgage. Later that year, Brian met Monica, and they married within the week. Brian was later to regret his quick decision.

Shortly after they were married, Brian discovered that Monica liked to shop. In fact, she entered the marriage with approximately $5,000 in credit

B. The Parent-Child Relationship

-- · bills. During their marriage this pattern persisted, with Monica on average · g $500 per month for clothes and jewelry for herself. Brian and Monica

-- deposited their earnings in a joint checking account, and each paid half of --

3 monthly mortgage payments. When Brian's father died in 2012, he left Brian 100 shares of stock, valued

_- 10 per share. Brian, knowing little about investments, asked Monica to han- - ~ his stock for him. She did so, and through careful buying and selling Brian

· owns 150 shares of stock, valued at $15 a share. Brian's father also left -_ ·an his mother's wedding ring, which as part of his father's estate was valued - 1,000. A jeweler recently appraised it at $1,500. Finally, his father left him -,000, which he deposited into his and Monica's joint banking account.

In 2013 Monica stated that she was tired of living in Brian's tiny house and anted to buy some land so that they could build a new, larger home. Brian was

_gainst the purchase both because of the cost and because of the rumors the land as about to be rezoned industrial. Monica went ahead anyway and took out a

__ 0,000 loan from Commercial Savings to purchase the land. Brian did not sign - e loan papers. The deed, however, lists them as joint owners. When the rumors _::-oved to be true, the value of the land plummeted to $2,000 .

Last week Monica informed Brian that she was tired of being married and - t she needed some "space." When Brian got home from work the next day, e fo und that she was gone. Later that day when he opened the mail, he found

~letter from Commercial Savings notifying him that the remaining amount of - e loan ($18,000) was due immediately, as Monica had not made any payments

the last year. Also, there was a letter from the credit card company showing _ 1onica's total balance of $12,000. As far as Brian could tell, at least $4,000 was :noney she had charged before they were married.

Brian has come to your firm because he is thinking of initiating divorce roceedings against Monica. He realizes, however, that Arizona is a community roperty state and is concerned, first, that he may be liable for what he consid-

ers to be Monica's debts and, second, that she may claim some of his property -hould be categorized as community property, thereby allowing her to take one half. Your boss wants you to research (1) whether Brian is liable for either the Commercial Savings loan or Monica's credit card bills, (2) which assets would qualify as community assets and hence be available to satisfy a community debt if the court were to find him liable, and ( 3) which remaining assets Monica might

e able to claim belong one half to her as her share of community property. The contested assets include the stock valued at $2,250, the house (with a

mortgage of $40,000 and a resale value of $60,000), the diamond ring valued at $1,500, the land worth $2,000, and $10,000 in their joint checking account. As to the latter, Brian claims that $5,000 is from his inheritance, $4,000 came &om money he earned, and the remaining $1,000 came from Monica's earnings.

In doing your research, you found the following Arizona statutes: Chapter 25-211 All property acquired by either husband or wife during

the marriage, except that which is acquired by gift, devise or descent, is the com- munity property of the husband and wife.

Chapter 25-213 All property ... of each spouse, owned by such spouse before marriage ... is the separate property of such spouse.

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Chapter 25-214 C Either spouse separately may acquire, manage, control or dispose of community property, or bind the community ....

Chapter 25-215 A The separate property of a spouse shall not be liable for the separate debts or obligations of the other spouse ....

Chapter 25-215 D [E]ither spouse may contract debts and otherwise act for the benefit of the community. In an action on such a debt or obligation the spouse shall be sued jointly and the debt or obligation shall be satisfied: first, from the community property, and second, from the separate property of the spouse contracting the debt or obligation.

4. Michael and Bonnie were married. The couple separated, and Michael began living with Donna. Bonnie filed for divorce. On February 10 a hearing was held to end the marriage, but because Bonnie's attorney sent Michael a notice with the wrong date, a new hearing date was set. In the meantime Michael and Donna won a $2.2 million jackpot in the Arizona state lottery. At the rescheduled hearing Bonnie claimed an interest in one-half of the winnings. Should the judge award it to her? "Note: Arizona is a community property state. Would your answer be different if it was not?"

5. As a favor to Joan, Bill agreed to donate his sperm so that she and her female partner could have a child. The baby was born in 1994. Over the years, as the three adults were friends, Bill frequently visited them and when he did so, often brought gifts for their child, Sam, and signed the cards as "Daddy." In 1997, the mother, partner, and child moved out of state to Oregon. Over the next 15 years Bill talked with Sam about seven times. Sam is now 18 and his mother has petitioned the court asking that Bill provide child support until Sam reaches the age of 21 (the statutory age in Oregon for the termination of child support). How do you think the court should rule?

6. Mark and Chris Cooley were unable to have children because Chris had undergone a hysterectomy. They decided to enter into a surrogacy arrangement whereby a zygote formed of the gametes of the husband and the wife would be implanted in the uterus of Anna Johnson. Therefore, Mark and Chris were the natural parents of the child, and Anna served as the host surrogate. Anna was a co-worker of Chris's and had volunteered to serve as the surrogate. In return for agreeing to act as surrogate, the Cooleys agreed to reimburse Anna for her medical expenses and any loss of wages for the time she had to take off from work, both during and after the pregnancy. In return, Anna agreed to relinquish all parental rights to the child. Shortly before she was to give birth, Anna announced that she would not go through with the agreement unless the Cooleys gave her an additional $20,000. The Cooleys responded with a lawsuit asking that they be declared the parents of the unborn child. Evaluate the arguments both for and against having the court rule in favor of the Cooleys. Base your arguments on In the Matter of Baby M, as well as on any additional policy considerations that you think should matter to the court.

7. Jane and John Doe entered into an arrangement with a surrogate mother. The result of that arrangement was the birth of a girl. Since birth she has lived with Jane and John Doe. However, there was never any legal termination of the parental rights by the surrogate mother and her husband. Jane and John Doe are now divorcing. The girl is 13 years old. Through blood testing John Doe

B. The Parent-Child Relationship

-- d etermined to be the natural father. The surrogate mother, not Jane Doe, - e natural mother. Both Jane and John Doe are seeking custody or, in the

-ernative, visitation rights. How do you think the court should rule?

1. Go to www.mediate.com. Once there, on the left-hand side, click on the link la belled Video. In the new window that will appear, search for and then select a video on the topic of divorce. Which video did you watch? What did you learn?

2. As the readings indicate, one of the newest methods for resolving the issues raised by a divorce is to use collaborative law. Go to www.collaborativedi- vorce.net/ and click on the link for "Negotiation Tactics." Read through the suggested tactics. Which tactic do you think would be most effective in help- ing divorcing partners reach a resolution of their differences? What made you select that particular tactic?

REVIEW QUESTIONS

Pages 431 through 444

1. What are some of the legal benefits of marriage? 2. What is the difference between ceremonial and common-law marriages? 3. What requirements does the state usually impose before allowing a couple to

marry? 4. Describe the history of the legality of same-sex marriage in the United States. 5. What is the current status of same-sex marriage? 6. What is the purpose of a prenuptial agreement? What restrictions are placed

on the enforceability of such agreements?

Pages 444 through 455 7. What is the difference between void and voidable marriages? 8. How does an annulment differ from a divorce? 9. What are some of the " costs" of divorce?

10. Describe the basic procedural steps involved in obtaining a divorce. 11. How do courts determine what qualifies as marital property and how it should

be divided at divorce ? 12. When dividing marital property how have the courts handled professional

degrees?

Pages 455 through 463 13. What is the difference between physical custody and legal custody? 14. Is the right to visitation directly tied to the obligation to provide support pay-

ments? Why? 15. How are the courts handling the requests of nonparents for visitation and

custody?

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Pages 463 through 475 16. What must happen to the natural parents' rights before a child can be freed for

adoption? 17. Why are adoption records normally sealed? Are there any exceptions? 18. What is a surrogacy contract? What factors would tend to make such a con-

tract enforceable? Unenforceable? 19. When are parents responsible for the negligent acts of their children? When are

they liable for the intentional torts of their children? 20. What is the difference between child neglect and child abuse? 21. Describe the normal procedure that is followed when child neglect or abuse is

suspected. 22. In what ways does the law favor the rights of minors? In what ways are minors

legally disadvantaged? 23. Who is an emancipated minor?