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Course: Family Law Nina Winter 2001
School: unknown
Year: 2001
Professor: Gold
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Family Law Outline





  • Penobscot Housing Dev v City of Brewer (Sup Ct ME 1891)

Facts: P is trying to get permit for house for 6 retarded people in a single family zone

Holding: ct said this is not a family under the ordinance

  • Hann v Housing Auth City Easton (US Dist Ct, ED Penn 1989)

Facts: Ps are unmarried, have 3 kids, they were denied housing

Holding: ct said you can’t deny it on basis that they’re unmarried. Primary purpose of act is to shelter poor

  • Borough of Glassboro v Vallorosi (sup ct nj 1990)

Facts: group of college kids living in a house

Holding: ct said they were a family under the ordinance

  • Matter of Mahoney v Marrano (sup ct ny, app div 1987)

Facts: custody of child

Holding: wife moved kids to commune - where father was not allowed to visit kids. Ct said she delegated her parental authority to the commune

  • Braschi v Stahl Assoc Co (ct app ny 1989)

Facts: rent control tenant died, P, guy living there wanted to stay

Holding: ct found for P, looked at factors

B. Constit Prot for Non-Traditional Life Styles


  • Belle Terre v Boraas (US SUP CT 1974)

Facts: college kids wanted to live in single family zone, ord had def of family

Holding: ct held against students

C. Access to Dispute Resolving Powers of Judiciary


  • Marvin v Marvin (sup ct ca 1976)

Facts: P & D lived together for 7 yrs, all prop in his name. P sued to get 1/2 of prop. P said she had oral contract w/D, she gave up her job for him

Holding: ct said p had a case. Lower ct grant of sj was wrong


  • Penobscot, ct looked at ordinance and concluded that this was not a family. No domestic bond, need trad family structure. Absence of resident authority figure was definitive (ct didn’t explain why). People would only live there 1-4 yrs, paid staff would be cooking. Ct decided the case under the ordinance.

  • Ex: could we constitute this class a family? What’s the state interest here? Keep these people away? Is this legit?

  • Bottom line: no certif of occupancy, zoning ord wins

  • Hann, ct found policy here violated fed stat. Ct looked at stat & interpreted it. Can’t deny unmarried people occupancy. Ct said purpose of act was to shelter poor, looking at state interest in defining family here

  • Borough, group of 10 students want to live together in single family zoned area. Lower ct found this was a family, higher ct aff’d

  • Bottom Line: they got their right to live there, really a zoning case

  • Mahoney, involved a commune, w/rule that kids could have no contact w/outsiders (so father was out). Ct had to deal w/custody, ct said commune was not a family, took kid away from her.

  • Should commune have been so decisive factor? They did keep father away

  • Braschi, def of a family, but also concerned rent control. person died, who had apt in their name, had person living w/him, who was not a family memeber. Ct held, under rent control stat, this type of relationship should result in the inheritance of that apt. 2 adult lifetime partners, long term emotional committment, has to look kind of like marriage.

  • Ct said this is a family for rent control.

  • So the def of family becomes a term of art, and it depends on the context in which you’re addressing it (ex: zoning, rent control, etc)

  • Belle Terre, BIG CASE - zoning case, single family only. Def of family in ord, designed to keep students out, keep neighborhood nice. Sup ct upheld this reg, this case is cited alot.

  • Douglas said this is purely econ/social reg so he applied deferential scrutiny, NOT strict scrutiny

  • Marshall dissent - strict scrutiny should apply because 1st & 14th violated, then look at state interest, it doens’t make sense, it’s under & over inclusive. Ord doesn’t promote this state interest on basis of relationship in house

  • Marvin, BIG CASE - contract action, oral agreement, this is normally a good contract. Holding, P has a breach of contract case. Problem, if this contract is for sex, it’s no good. These people can enter into contract, but you can’t recover if part of consideration was sex. Ct here doesn’t endorse an alimony type holding. Ct says, even though this relationship is immoral (2 people, not married, having sex) 1 person can get compensation from other (dev legal rights). Has negative impact on trad marriage. This is anti-family.

  • Problems in this case:

  • who knows what they said to each other, factual problem

  • autonomy to enter contract based on relationship, state could interfere or not (not here)

  • how do you separate sex part from business part, hard for ct to do

  • H & W can enter into contract, no unity theory

  • was this a family? For alimony purposes, k purposes

  • MI does not have a palimony rule, under narrow circum might enforce k


A. The Extended Family


  • Moore v City E. Cleveland (US SUP CT 1977)

Facts: housing ord, single family. Grandma had her son & 2 grandkids (not brothers) live w/her. Because they were living w/her, she was convicted of crim offense.

Holding: ct said ord violated dp clause of 14th amend. City argued under Belle Terre, but ct said that ord affected only unrelated indiv. Ct said this is intrusive reg into family (freedom of personal choice). Ord serves goals of city only marginally. Constit protects sanctity of family. Plurality found constit prot for extended family. Dissent: ct should not have used ss here

  • Painter v Bannister (sup ct Iowa 1966)

Facts: issue was custody of 7 yr old boy. Dispute between dad and maternal g.parents. boy’s mom & sis were killed in car accident. Dad asked g.p’s to take care of son, they took him to CA w/them. Dad remarried, wanted Mark back, they refused.

Holding: ct said Mark was better off w/ g.p’s. this case did not arise because dad was unfit. Ct felt g.p’s provided better/stable environment. Psychiatrist painted bad Bohemian picture of dad.

  • Matter of Peter L. (Ct app ny 1983)

Facts: soc services instit proceed in family ct to review foster care of Peter (5 yrs old). No one could care for him, so mom executed & delivered a vol placement agreement to transfer temp custody & auth comm to consent to his adoption

Holding: ct said family ct did not err in denying grandma custody. Ct said there is no stat or judicial pref for idea that a fit member of an extened family takes precedence over adoptive parent selected by agency

  • Brooks v Parkerson (ga sup ct 1995)

Facts: kid’s maternal filed petition for visitation under ga g.parent visit stat, it was opposed by both parents.

Holding: ct found ga stat unconstit violation of state & fed constit. Sup ct has made clear that state interf w/a parent’s right to raise kids is justifiable only when state acts in police power to protect kid from harm. State may only impose visit over parental objection on showing that failing to do so would harm kid.

  • Americana Healthcare Center v Randall (sup ct s.dakota 1994)

Facts: trust doc, mom needed hospital care, son put her in nursing home, he was named as income benef. Son wanted her to get medicaid, it was refused because she had $, son refused to pay bill, declared bankruptcy

Holding: son was liable for mom’s nursing home bills, son was not denied ep or dp. Son could pay from trust assets, ct applied rational basis test, son was just deadbeat


  • Moore , BIG CASE (plurality op) - zoning ord, which is defined in terms of family relationship, cousins could not live together here. Assume state interest here is to prevent overcrowding. The classif made here (about those who can & cannot live together) does not make sense w/asserted state interest. Plurality uses ss here because it involves family, a fund right, sub dp right. Belle Terre had nothing to do w/interference of family, so ct used lower scrutiny.

  • Is Stewart, in dissent right? Or Powell? Stewart seems to say this doesn’t involve fund right. Dissent says they each involve associational rights, fact of relation shouldn’t mean a thing. They say this doesn’t interfere w/her right of family, this is not a trad right of privacy (narrow def of privacy)

  • here is a ct recognizing an extended family, and giving it constit dimension in context of zoning

  • Belle Terre & E. Cleveland are 2 very diff places

  • Powell recognizes sub dp right, interest fits under dp cl, receives special prot from state agency - ct is usually very reluctant to do this. Ex is 1st amend is fund right, sub dp right

  • Painter, 7 yr old kid, dad left him w/g.p’s. shrink said kid was better off w/g.p’s, more stable environment. Ct agreed. Father does not fit image of good family person. This is case about what is family. Idea of importance of blood relationship, this is getting less favor. Opinion is saying be careful about giving your child to relatives to stay with.

  • Matter of peter l, BIG CASE, ct held that g.parent had no greater parental right to child than stranger. But here, parent surrendered kid to social services. Not a clean case on its facts. In MI, law req pref to be given to relative for placement, foster care. MI recognizes g.parent visitation rights under some circum

  • Brooks, nature of GA stat. Says how g.parents can have standing. MI has stat that gives g.parent standing for visitiation, under certain circum. Ga stat is more broad - reas visit if in best interest of child. G.parent needs standing. Ct here is defining family as mom, dad, kid - not g.parents. ct recognizes fund right of parents to raise kids free from state interference, state can only step in when child might be harmed.

  • To what extent does parent have fundamental right to raise kids? They have one, state can interfere if state interest is compelling.

  • Might have to ask: what is nature of g.parent? do they have fund right to see g.kid?

  • if standard is “best interest” - ct decides this

  • dealing w/conflict between parents & g.parents, but what about the kid? Does s/he have rights? Fund right to associate w/g.parents? can argue it diff ways

  • in general, parents should retain control of their kids

  • Americana, nursing home benefitted here, not mom, she was taken care of



A. Restrictions on who may marry

1. Trad Restrictions - Incest


  • Singh v Singh (sup ct conn 1990)

Facts: H & W married 1/13/83, they got their marriage annulled by ct because they didn’t know they were related. Nov 1988, both parties wanted to re-open judgment because W is his half-niece not niece. They challenged stat, remarried in CA

Holding: ct said this marriage is incestuous under stat. Incest is crime in US. Cite Skinner which said brother & sister include 1/2 blood

  • Back v Back (sup ct iowa 1910)

Facts: william, who is now dead, married widow who had daughter from former husband (who is P here). 1900 wife got divorce from William & 4 yrs later, he married P. William has 4 kids from P (her mom died). P tried to get prop after William died, estate said no, your marriage was incestuous & void.

Holding: this marriage is valid. When william got divorce from p’s mom, p was no longer his daughter.

2. Trad Restrictions - Sexual Pref & identity


  • Jones v Hallahan (ct app ky 1973)

Facts: 2 females were denied marriage license. Argued 3 constit rights were violated - right to marry, right of assoc, right to free exercise of religion

Holding: ct said marriage between 2 people of same sex is not a “marriage.” Ct looks at dictionary def of marriage, marriage has always been considered union between opposite sex. Ct said appellants are not prevented from marrying under ky statute, they are incapable of entering into marriage as that term is defined. What they propose is not a marriage.

  • Baehr v Miike (hawaii cir ct 1996)

Facts: ps are all same sex couples, were denied marriage licenses solely on ground that they were of same sex. Ps challenge constit of HA stat.

Holding: ct said stat was unconstit, it estab a sex-based classif. Sex is suspect category, ss test. D carries burden (heavy). Violates ep of HA constit.


  • Recurring themes in family cases

  • family autonomy (indiv autonomy)

    • Many rationales support this:

    • info problem

    • standard for state intervention

    • privacy interests (state intrudes)

    • enforcement of jud actions

    • when state acts, almost always bad

    • what really took place, what do you apply? Does family law take into acct gender? To what degree?

    1. Biological makeup







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