FAMILY LAW OUTLINE SUMMARISED
NOTES 2022/2023
COMPLETE SUMMARY!!
Family Law Outline
1
I. Private Rights and Family: Constitutional Protection
– In general, internal affairs of a family cannot be regulated by the courts; families have the right to
expect privacy for actions within their hom...
FAMILY LAW OUTLINE SUMMARISED
NOTES 2022/2023
COMPLETE SUMMARY!!
, Family Law Outline
I. Private Rights and Family: Constitutional Protection
– In general, internal affairs of a family cannot be regulated by the courts; families have the right to
expect privacy for actions within their homes and freedom from governmental interference in
their domestic affairs.
– Right to privacy isn’t explicitly in Constitution; Court has recognized that a right to marital privacy
is constitutionally protected because it is implicit in the concept of “liberty” within the protection
of the Due Process Clause; therefore, privacy is fundamental right and regulation is
unconstitutional unless government has a compelling interest.
a. Evolution of the Right to Privacy
i. The Birth of Privacy
– Griswold case is the birth of privacy; Eisenstadt gives privacy a broader meaning;
– Griswold: defendants were convicted for accessory for violating a statute banning
contraception because they provided advice to married couples for birth control. Court
held that an implied “right of privacy” exists within the Bill of Rights that prohibits a state
from preventing married couples from using contraception.
– Eisenstadt: defendant was arrested for dispensing contraceptives under state law that
distinguished between married and single people. Court held state may not discriminate
between persons on the basis of marital status in regulating the distribution of birth
control. Under Equal Protection Clause, a state may not outlaw distribution of
contraception to unmarried persons.
– Many states (13) allow healthcare providers to refuse to provide contraceptive services; some
states (6) explicitly permit pharmacists to refuse to dispense contraceptives; some other states (6)
have broad refusal clauses that may apply to pharmacists.
– Burwell v. Hobby Lobby: closely-held corporations whose owners have sincerely-held
religious beliefs do not have to provide full range of contraceptives free to employees
under the affordable (health) care act.
ii. The Roots of Privacy
– Within right of privacy is recognized sense of pluralism and right for families to make
certain decisions without interference; Meyer and Pierce establish roots of right to privacy,
without directly mentioning privacy.
– Meyer: plaintiff challenged statute restricting teaching foreign language.
(i) Court held violates due process clause, state cannot infringe on fundamental rights
of individuals.
– Pierce: appeal from upholding of state law requiring children to attend public school.
(i) Court held violated due process clause, states can’t unreasonably interfere with the
liberty of parents to direct the upbringing and education of children; right of
privacy includes the right of parents to education their children outside the public
schools, subject to the state’s right to prescribe reasonable educational standards.
iii. Growth of Privacy
– Right of privacy includes the right of a woman to have an abortion under certain
circumstances, without undue interference from the state.
(i) Abortion as a Private Choice
Roe v. Wade: the constitutional right of privacy encompasses a woman’s right to an
abortion. However, abortions may be regulated by a state after the first trimester of
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Family Law Outline—Fall 2017
pregnancy and may be completely prohibited after the point of “viability” of a fetus
unless necessary to preserve the health of the mother.
(1) Court recognizes that states can regulate and ban abortion when statute
is narrowly tailored to uphold compelling state interest, such as the
health of the mother or the viable fetus, after the first trimester.
(ii) Anti-Abortion Laws
Funding cases: state can refuse to support abortion clinic; okay for government to
express preferences through funding, just can’t create undue burden.
– Parallel to Meyer/Pierce: can make choices about kid’s education
but state doesn’t have to pay for private school.
Courts allows laws that require pregnant women to be shown fetuses at two week
gestational periods before allowed to have an abortion; but, did not allow info of
availability of support of father and other options.
b. The Limits of Privacy
i. Privacy v. Morality
– Moral disapproval is insufficient to justify discrimination.
– Bowers v. Hardwick: Court held no constitutionally conferred fundamental right to engage
in consensual homosexual sodomy; narrowly construed question, not looking at
overarching right of privacy.
ii. Burdens on Privacy
– Stenberg v. Carhart: challenge to statute banning partial birth abortions. Congress may ban
a specific type of partial-birth abortion provided its restriction on the practice are narrow
and clear and the ban does not constitute an undue burden on a woman’s right to abortion.
c. When Privacy Rights Conflict
i. Wives and Husbands
– Planned Parenthood v. Casey: statute provided that a married woman cannot get an
abortion without giving doctor signed statement that she notified the husband; Court finds
that “undue burden” exists if its purpose or effect is to place a substantial obstacle in the
path of woman seeking abortion; spousal notification is undue burden, but 24-hour waiting
period is not an undue burden.
ii. Children and Parents
– Minor’s Abortion Rights: most states require at least one parent involvement in minor
obtaining abortion by requiring notification and/or consent; virtually all states require
judicial bypass proceeding.
(i) Bellotti Rule: upheld parental consent provided there is judicial bypass option;
rationale why Constitution permits greater regulation of minors’ rights:
(1) Minor’s vulnerability.
(2) Minors lessened ability to make informed decisions.
(3) Need for state to promote parental consultation.
(ii) Test at Judicial Bypass
Minor must prove:
(1) She is sufficiently mature to make decision; or
(2) Abortion is in her best interests.
Factors judges have considered in assessing a minor’s maturity which have bene
upheld by appellate courts:
(1) The minor’s age
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Family Law Outline—Fall 2017
(2) The minor’s performance in school, including academic performance
and extra-curricular activities
(3) The minor’s future plans
(4) The minor’s familiarity with the abortion procedure
(5) The minor’s consideration of alternatives to abortion such as adoption
(6) The minor’s employment at a part-time job and ability to handle her
finances.
Criticisms:
(1) Judges must assess minors’ maturity.
(2) Courts haven’t clarified meaning of “maturity.”
(3) Few judges have expertise to evaluate.
(4) Judges make decisions based on their own values.
Taft: Ohio has parental involvement law, requiring consent of one parent, and a
“single-petition” provision limiting number of times teen can petition for judicial
bypass (one per pregnancy). parental notification must have judicial bypass
provision; statute limiting judicial bypass hearings operates as substantial obstacle
and is unconstitutional.
Reasons for Multiple Petitions:
(1) Teens acquire increased maturity.
(2) Teens acquire more medical knowledge.
(3) Teens discover medical abnormality.
– Although, in reality, many judges deny petitions so teens can “forum
shop” for judges.
iii. Life and Death
– Right to Die: though patient has a right to forego or terminate lifesaving procedures, state
may establish procedural safeguards in order to properly balance the state’s interest in
preserving life; Court distinguishing between individual liberty and privacy of the family to
make choices.
(i) Cruzan: state required the family of a comatose patient to prove by clear and
convincing evidence that the individual had expressed a desire not to continue
medical treatment; Court held state may require that a guardian seeking to remove
life-prolonging treatment by clear and convincing evidence that the person in the
persistent vegetative state would have wanted the treatment withdrawn under
such circumstances.
II. Getting Married
a. What is Marriage?
– Marriage can be seen as a contract, religious function, social relationship; how we define it
changes our view of how it should be handled. Marriage has dual nature as both contract
and status in our society.
– Marriage is the legal union of two individuals. Once this legal status has been formed, the
law imposes various obligations and liabilities upon the parties.
– Maynard v. Hill: Marriage is something more than a mere contract; other contracts may be
modified, restricted, enlarged, or released upon consent—but marriage is different.
– Rule of Lexi Loci (traditional rule):
Common Law Rule: marriage is valid where it is performed is valid everywhere
(law of locale marriage performed)
Exceptions:
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