Law and Justice Law and Justice

CJUS/POLS 110CJUS/POLS 110

Chapter 13: Family LawChapter 13: Family Law

1.1. Family = basic social unitFamily = basic social unit- since colonial times- since colonial times- central to society- central to society- greater rights / protections / support- greater rights / protections / support- family law = domestic law- family law = domestic law- protects basic social unit- protects basic social unit- primarily children- primarily children

a. a. What is familyWhat is family?? - traditional concept = husband / wife / - traditional concept = husband / wife /

childrenchildren - today = parent / child / surrogate parenting - today = parent / child / surrogate parenting

/ / palimony / same-sex marriages palimony / same-sex marriages

(1) (1) HistoricallyHistorically = husband worked = husband worked

- wife = homemaker- wife = homemaker

- children = school- children = school

(a) Greater opportunities(a) Greater opportunities

- preferred family man- preferred family man

- more benefits than single man- more benefits than single man

(2) (2) Family lawFamily law

- regulates legal relationship- regulates legal relationship

- legally recognized- legally recognized

(3) (3) Encompasses broad spectrum of issuesEncompasses broad spectrum of issues- rise among individuals- rise among individuals- joined by genetics / marriage- joined by genetics / marriage- other recognized means (adoption)- other recognized means (adoption)

(4) (4) Throughout most of our historyThroughout most of our history- women: not enjoy same rights- women: not enjoy same rights

(a) English Common Law / traditional (a) English Common Law / traditional lawlaw

- treated as subordinates- treated as subordinates- property of fathers- property of fathers- property of husbands- property of husbands

(b) American colonies(b) American colonies- somewhat better off- somewhat better off- still a substantial disadvantage- still a substantial disadvantage

(c) Could not:(c) Could not:- own property / enter into a - own property / enter into a

contractcontract- file a lawsuit / work certain jobs- file a lawsuit / work certain jobs- could not vote- could not vote

(d) Suffragist movement(d) Suffragist movement- early 1900s = right to vote- early 1900s = right to vote- little else changed = late 1960s- little else changed = late 1960s

b. b. Women’s firstWomen’s first::

(1) 1849 – medical degree(1) 1849 – medical degree

(2) 1853 – ordained minister(2) 1853 – ordained minister

(3) 1866 – dentist(3) 1866 – dentist

(4) 1869 – lawyer(4) 1869 – lawyer

(5) 1872 – ran for president(5) 1872 – ran for president- National Radical Reformers- National Radical Reformers

(6) 1879 – practice before US Supreme Court(6) 1879 – practice before US Supreme Court

(7) 1887 – mayor, Angona, KS(7) 1887 – mayor, Angona, KS

(8) 1901 – Niagara Falls in a barrel(8) 1901 – Niagara Falls in a barrel

(9) 1916 – conduct symphony orchestra(9) 1916 – conduct symphony orchestra- Bellingham, WA- Bellingham, WA

(10) 1916 – US House of Representatives(10) 1916 – US House of Representatives

(11) 1925 – governor, Wyoming(11) 1925 – governor, Wyoming

(12) 1932 – US Senate(12) 1932 – US Senate

(13) 1970 – jockey, Kentucky Derby(13) 1970 – jockey, Kentucky Derby

(14) 1981 – US Supreme Court(14) 1981 – US Supreme Court

(15) 1983 – into space, Sally Ride(15) 1983 – into space, Sally Ride

(16) 1995 – US Attorney General(16) 1995 – US Attorney General

(17) 2009 – US president?(17) 2009 – US president?

c. c. Family law encompassesFamily law encompasses::- marriage / parenthood / divorce- marriage / parenthood / divorce- state governments = primary- state governments = primary- federal = protect weaker spouse / children- federal = protect weaker spouse / children

(1) (1) Aids for Dependent Children ActAids for Dependent Children Act – 1935 – 1935 - protect / care for dependent children- protect / care for dependent children- other family matters = state issues- other family matters = state issues

(2) (2) Family Support ActFamily Support Act – 1974 – 1974 - established child support amendments- established child support amendments- obligation of parents- obligation of parents

(3) (3) Office of Child Support EnforcementOffice of Child Support Enforcement – – 1984 1984

- child support amendments- child support amendments

(a) Required:(a) Required:- employers: hold support payments- employers: hold support payments- delinquent parents (one month)- delinquent parents (one month)

(b) Imposition of liens on property(b) Imposition of liens on property- defaulting obligators- defaulting obligators

(c) Deduct from federal / state tax returns(c) Deduct from federal / state tax returns- unpaid support obligations- unpaid support obligations

(4) (4) Child Abuse Prevention / TreatmentChild Abuse Prevention / Treatment – – 1984 1984

- encouraged states to adopt basic laws- encouraged states to adopt basic laws

(5) (5) Parental Kidnapping ActParental Kidnapping Act – 1984 – 1984- federal penalties for “child snatching”- federal penalties for “child snatching”

(6) (6) Family Support ActFamily Support Act – 1988 – 1988- states must implement by 1994- states must implement by 1994- presumptive rather than advisory- presumptive rather than advisory- guidelines for child support- guidelines for child support

(7) (7) Defense of Marriage ActDefense of Marriage Act – 1988 – 1988

- granted authority to states- granted authority to states- grant / deny same-sex marriage recognition- grant / deny same-sex marriage recognition- valid in another state- valid in another state

(8) (8) Uniform Interstate Family Support ActUniform Interstate Family Support Act – 1992 – 1992- non-payment of child support- non-payment of child support- one state (mother) can bring lawsuit- one state (mother) can bring lawsuit- other state (father)- other state (father)

(a) (a) Elian GonzalesElian Gonzales- State of Florida vs. Cuba - State of Florida vs. Cuba - Florida = allow to stay - Florida = allow to stay

- mother died- mother died- live with relatives- live with relatives

(b) (b) US GovernmentUS Government- parental rights- parental rights- best interest of child- best interest of child- father in Cuba- father in Cuba- wanted son back- wanted son back

d. d. Washington state lawWashington state law- family matters- family matters- areas to be discussed- areas to be discussed

(1) (1) Premarital agreements (prenuptial)Premarital agreements (prenuptial)- contracts entered into- contracts entered into- before marriage- before marriage

(a) Address property issues(a) Address property issues- divorce / death of spouse- divorce / death of spouse

(b) Protect children of previous marriage(b) Protect children of previous marriage- bring greater assets- bring greater assets

(2) (2) MarriageMarriage- legal status between man / woman (?)- legal status between man / woman (?)

- union of husband / wife- union of husband / wife- based on state law- based on state law

(a) Common law marriage(a) Common law marriage- live together- live together- period of time (5 years)- period of time (5 years)

(b) Some states(b) Some states- consider married- consider married- family laws apply- family laws apply

(3) (3) PaternityPaternity

- legal action / lawsuit- legal action / lawsuit

(a) Determine father of child(a) Determine father of child- impose support obligation- impose support obligation

(b) Establish certain rights(b) Establish certain rights- inheritance - inheritance - secure consent = adoption- secure consent = adoption- gain / prohibit custody- gain / prohibit custody- establish visitation rights- establish visitation rights

(4) (4) AdoptionAdoption

- legally recognized method- legally recognized method- forming a family- forming a family- different ways to adopt- different ways to adopt

(5) (5) Children’s rightsChildren’s rights- afforded all US citizens- afforded all US citizens- also: due to status as children- also: due to status as children

(6) (6) Divorce / dissolutionDivorce / dissolution- legal process- legal process- marriage terminated- marriage terminated- legally ended / related issues resolved- legally ended / related issues resolved

(7) (7) Alimony / spousal supportAlimony / spousal support- legal term- legal term- income provided by former spouse- income provided by former spouse

(a) Alimony(a) Alimony- awarded to either spouse- awarded to either spouse- need financial assistance- need financial assistance- able to provide- able to provide

(b) Usually temporary(b) Usually temporary- becomes self-supporting- becomes self-supporting- children leave home- children leave home

(8) (8) Custody / visitationCustody / visitation- parents divorce / separate- parents divorce / separate- never been married- never been married

(a) Surrogate mother issues(a) Surrogate mother issues- put up for adoption- put up for adoption- agree to have baby- agree to have baby

(b) Court = best interest of child(b) Court = best interest of child- determining child custody- determining child custody

(9) (9) Child supportChild support

- ordered by court- ordered by court

(a) Child lives with one(a) Child lives with one- but not both- but not both

(b) Non-custodial parent(b) Non-custodial parent- responsible for contributing- responsible for contributing- portion of income- portion of income

2.2. Premarital agreementsPremarital agreements- contract between two people- contract between two people- who intend to marry each other- who intend to marry each other

a. a. Issues addressedIssues addressed- property / income- property / income- during marriage- during marriage- after ends in divorce- after ends in divorce- death of one / both spouses- death of one / both spouses

(1) (1) Address non-financial issuesAddress non-financial issues- religious upbringing = children- religious upbringing = children- who children live with- who children live with

(2) (2) Child supportChild support- cannot be resolved in premarital - cannot be resolved in premarital

contractcontract

b. b. Most often usedMost often used::- marrying for second / more times- marrying for second / more times

(1) (1) One partnerOne partner- significantly greater assets- significantly greater assets- ensure children from previous marriage- ensure children from previous marriage

(2) (2) Unenforceable / voidableUnenforceable / voidable- withheld important information- withheld important information- coerced other party to sign- coerced other party to sign- terms so unfair- terms so unfair- left with very little- left with very little

(3) (3) Uniform Marital Agreement ActUniform Marital Agreement Act- many states- many states- agreement in compliance- agreement in compliance- court = refuse to enforce- court = refuse to enforce

3.3. MarriageMarriage- relationship based on state law- relationship based on state law- recognized by all states- recognized by all states- contract = enforceable by the courts- contract = enforceable by the courts

a. a. Washington stateWashington state - civil contract = male and female- civil contract = male and female

- attained age of 18- attained age of 18- otherwise capable (no mental deficiency) - otherwise capable (no mental deficiency)

(1) (1) Contract to share liabilitiesContract to share liabilities- home maintenance- home maintenance- debts- debts- care of children- care of children- unless = prenuptial agreement - unless = prenuptial agreement

(2) (2) 17 years of age17 years of age- with parents permission- with parents permission- otherwise = void - otherwise = void

(a) 16 years or younger(a) 16 years or younger- waived by superior court judge- waived by superior court judge- county of residence- county of residence

(b) Showing of necessity(b) Showing of necessity

(3) (3) Adopted “Defense of Marriage Act”Adopted “Defense of Marriage Act”- authority to states to grant / deny- authority to states to grant / deny- recognition of same sex marriages- recognition of same sex marriages- considered valid in other states- considered valid in other states

(a) Act defines marriage(a) Act defines marriage

- purposes of federal law- purposes of federal law- a legal union- a legal union

(b) Between one man / one woman(b) Between one man / one woman- as husband / wife- as husband / wife

b. b. Legal contractLegal contract- two consenting adults- two consenting adults- bond of matrimony- bond of matrimony

(1) (1) Based on state lawBased on state law- regulate who can marry: sex /relation - regulate who can marry: sex /relation

/age/age

- grants rights: financial /insurance - grants rights: financial /insurance - require obligation: expense - require obligation: expense

/maintenance/maintenance

(a) License(a) License- state must issue- state must issue

(b) Judge / minister(b) Judge / minister- perform ceremony- perform ceremony- solemnized - solemnized

(2) (2) Common law marriageCommon law marriage- live together for period of time- live together for period of time

- married in eyes of law- married in eyes of law- 14 states have- 14 states have- Washington state does not- Washington state does not

(a) Article IV, Section 1, US Constitution(a) Article IV, Section 1, US Constitution- states that do not permit- states that do not permit- must recognize marriages- must recognize marriages- common law states- common law states

(b) Cohabited 5 years in Colorado(b) Cohabited 5 years in Colorado- considered husband / wife- considered husband / wife- Washington state must recognize- Washington state must recognize

(3) (3) Domestic partnershipsDomestic partnerships- man / woman living together- man / woman living together- share love / expenses- share love / expenses- do not profess marriage- do not profess marriage

(a) Many states do not provide(a) Many states do not provide- benefits married couples receive- benefits married couples receive- SSI / health insurance / pensions- SSI / health insurance / pensions- file taxes separately- file taxes separately

(b) Some cities / counties do recognize(b) Some cities / counties do recognize- Olympia: provides benefits- Olympia: provides benefits

c. c. Legal consequencesLegal consequences - requires obligation- requires obligation- mutual obligation of support- mutual obligation of support- support children- support children

(1) (1) Property rightsProperty rights- marital property / separate property- marital property / separate property- Uniform Marriage / Divorce Act- Uniform Marriage / Divorce Act

(a) Marital(a) Marital- property acquired during marriage- property acquired during marriage- no matter who acquired it- no matter who acquired it

(b) Separate(b) Separate- property acquired before marriage- property acquired before marriage- during marriage = gift / inheritance- during marriage = gift / inheritance- prenuptial agreement- prenuptial agreement

(2) (2) Community property jurisdictionCommunity property jurisdiction- Washington state = community property- Washington state = community property- win $10 million lotto = half to spouse- win $10 million lotto = half to spouse

(a) Unless otherwise agreed on(a) Unless otherwise agreed on- earnings are owned equally- earnings are owned equally- dissolution of marriage = 50/50 split- dissolution of marriage = 50/50 split

(b) Commingling(b) Commingling- mix separate property = - mix separate property =

communitycommunity- primarily = money / property- primarily = money / property

(c) Separate property(c) Separate property- immune from debts of spouse- immune from debts of spouse- husband sued civilly- husband sued civilly- can attach community property- can attach community property- husband’s separate property- husband’s separate property- not wife’s separate property- not wife’s separate property

(d) Doctrine of Spousal Immunity(d) Doctrine of Spousal Immunity

- for years = unable to sue each - for years = unable to sue each otherother

- now allowed = “outrageous - now allowed = “outrageous actions”actions”

- assault / child molestation / stress- assault / child molestation / stress

- lawsuits for infidelity- lawsuits for infidelity

4.4. ParenthoodParenthood

- joy of marriage- joy of marriage

- basic social unit = fulfillment- basic social unit = fulfillment

- provides rights / obligations- provides rights / obligations

a. a. Roe v. WadeRoe v. Wade

- right to an abortion- right to an abortion- what conditions- what conditions

(1) (1) LegitimacyLegitimacy- child = birth mother / birth father- child = birth mother / birth father- all rights entitled- all rights entitled- inheritance / support- inheritance / support- carries father’s name- carries father’s name

(a) Does not want husband(a) Does not want husband- wants child- wants child- rights of child- rights of child

(b) Later determine who father is(b) Later determine who father is- demand support- demand support

(c) Birth father(c) Birth father- gain father –ship of child- gain father –ship of child

(d) One birth parent(d) One birth parent- put up for adoption- put up for adoption

(2) (2) Surrogate mother contractsSurrogate mother contracts- used in many states- used in many states- valid agreements- valid agreements

(a) Unless mother(a) Unless mother- files for possession- files for possession

(b) Most states(b) Most states- side with birth mother- side with birth mother- protects best interests of child- protects best interests of child

(c) Determined by the courts(c) Determined by the courts

(3) (3) Parenting by same sex couplesParenting by same sex couples- courts = adoption is allowed- courts = adoption is allowed- de facto parent = obligations- de facto parent = obligations

5.5. AdoptionAdoption- two-step legal process- two-step legal process- birth parents legal rights = terminated- birth parents legal rights = terminated- new rights / obligations created = adoptive parents- new rights / obligations created = adoptive parents

a. a. Through adoptionThrough adoption - same rights / privileges / duties- same rights / privileges / duties - biological child- biological child - inheritance / support- inheritance / support

(1) (1) Adoptive parentsAdoptive parents- same rights / privileges / duties- same rights / privileges / duties