Moscato_FamilyLaw_Answer_Fa10

Moscato_FamilyLaw_Answer_Fa10 - FAMILY LAW(MOSCATO FINAL...

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Unformatted text preview: FAMILY LAW (MOSCATO) FINAL EXAM Exam a . H QUESTION #1 Issue 1: Constitutional Challenge to State of Grace’s Marriage Protection Act / TheEht to marryis a fundamental right included in an individual’s W \/ privacy. (Loving v. Virginia; Zablocki v. Redhail) States, however, may legitimately pass / “\reasonablekrEgulations that do not significantly interfere With decisions to enter into the marital relationship” under the test announced in Zablo 1'. Generally, a significant interference exists ,/ when an individual would be completed barred from getting a marriage license. If a state’s law is found to significantly interfere with the right to marry, it must pass strict scrutiny. (Zablocki) Regulations that do not significantly interfere with the right to marry, i.e., those that are {\ procedural hurdgs, must still be reasonably related to the state’s asserted interest in passing the V.” _.,.,__ «um law. (Turner v. Safely) For a marriage regulation to be considered reasonable there mustlzqno l/ obviousandgsyajternatiyesiat the state’s disposal which would accommodate the right to marry while imposing no more than a de minimis burden on the state’s objective in passing the law. / For example, as a general rule states may regulate the time ”and“ circumstances of a couple’s actual marriage ceremony. (Turner) In this instance, both limitations interfere to some degree with Wendy and Hugh’s right to marry because the limitations require them to waLttwo yearS-. / while living together and forgoing their sexual lifestylerbefore they may seek a marriage license. Thus, each limitation must pass the Zabolocki test. / Here, the State of Grace’s asserted interests in passing the Act are to counteract}? ‘ decliningg\stability}f marriages and to stabilize the traditional institution of marriage, i.e., the exclusive civil union between a man and a woman. The State of Grace is interested in protecting the traditional institution of marriage because the State likely believes that a marriage creates a \ h \3.90 > / lifelong private economic relationship leading to the most stable household settings for couples / to procreate andflrais‘efamilies, families which become the basis for a stable society and l governance. (See Perry v. Schwarzenegger) Upon divorce, the economically stable marriage ublic resources. / household splits in two, and the State often has to step-in and expend judicial or_p r~-n...-,..<~- ._.....‘, Mar- m—-.~._.’-w >«....~~->-——4-% Therefore, the Act’s time requirements for cohabitation and monogamy are aimed at making sure. J] / couples know what they are getting into and are W to each other before marriage, thus, creating stable traditional families and lessening the chance the couple will get divorced. 8” . g Nip/f” 1. Two Year Cohabitation Requirement 0 ' cc . The Act’s first limitation requires couples to live together for at 1east\two years before / obtaining a marriage license. This two year cohabitation period creates a significant procedural ‘/ . "V” W" --.--—-——-——c~ ’ ,. hurdle for couples like Hugh and Wendy (those required to wait two years, but less likely to be concerned about living together before marriage) and requires themto order theiIVAIiEQSiQQQQLQiQE /’ to State guidelines. This requirement also creates a significant interference and outright ban to / couples who have moral and/or religious objectionstb cohabitation before marriage. Therefore, Wendy and Hugh could argue that this requirement is invalid on its face and must pass strict scrutiny. (See Zablocki) Even as applied to Hugh and Wendy, however, the two year /_\ ., . f \ cohabitation requirement is likely invalid because the procedural hurdle is counterintuitivEllo the \ tn?“ 7 ~».\‘. I i‘ State’s interest in promoting stable households, and there agobvious.altematives‘zavailable for limiting the number of divorces besides forcing unmarried couples to live together. (See Turner) 2'. The State will argue this requirement is reasonably related to its asserted interests in x/ensuring couples understand more about the rigors of marriage before choosing to enter into a “a..-” -m ., -. M ,..,..__,___~_W.-M-..i_...__.-—- marriage. Hence, the requirement will combat the failure of young or rushed marriages, and will \/ lead to more stablehuusehglds‘ and fewer divorces. However, contrary to the State’s interests, ’ ,fi .._._.__..__..,—_.-~ , I . .__ forcing two unmarried people together will likely create more unstable households because unmarried people are not legally tied together and the relationship can easily be abandoned. By requiring the less stable form of unmarried cohabitation the State is also arguably promoting pre- . 2 / . .,.. .--._..,..‘. _ .“W v marital sex, which is‘more likely to lead tomorechildrenbeing born out of wedlock that will-end * /"I up on the EEEIJ‘LEQJCS and in fragmented (families. Moreover, there are easy and obvious alternativesmavailablfie,‘toginformkouples about the / rigorspf marriage and to prevent divorces, that do not interfere with right to marriage. For instance, the State could implement pre-maritalfounse’li/ng (free if needed), so couples can /' discuss how they will handle issues that may arise Weir marriage ahead of time. The State could also \iyflement divorce laws that require pre:divorce counseling (free if needed) and/or institute a fault based divorce system which makes divorce more difficult (although this has its Q-..“ ....‘..._~ own faults). Similarly, the State could enact Covenant Marriage-like statutes akin to the optional ~wk~ 7,“. .. “WM statute in Louisiana which would promote the State’s belief that ideal marriages are for life without requiring and promoting unmarried cohabitation. Such alternatives will promote the State’s asserted interests without unreasonably infringing on the right to marry. The two year cohabitation hurdle, however, interferes with the right marry without being reasonably related to the State’s interest. Thus, this requirement is likely unconstitutional. 2. Two Year Monogamous Relationship Requirement On its face, this procedural waiting period seems like a less burdensome interference than the two year cohabitation requirement because the time period starts when the couple begins exclusively dating, not when they move in. This procedural hurdle is also morerationallyrelated / with the State’s asserted interests in stable traditional marriages and preventing divorce because it promotes longer exclusive courtships without promoting unmarried cohabitation. Therefore, if this limitation were merely a two year waiting/dating period, it would have a good chance at being constitutional under the Zablocki test because it is a procedural hurdle rationally related to the State’s interests. However, the requirement that the relationship bimogoganyusgifiinges on to Wendy and Hugh’s premaritaWs. Thus, this requirement denies the right 3 V to marry based on Wendy and Hugh’s private sexual lifestyle choices. Wendy and Hugh could argue that while the State canoutlaugBigamy" and express its / preference for monogamous marriages, the State cannot regulate the qual conduct of married or unmarried individuals. (Griswold v. Connecticut;'Eistandt v. Baird; Lawrence-Viz. M“ Texas) Furthermore, the majority’s moral disapproval alone is an insufficient basis to pass W / discriminatory laws. (Lawrence, 0 'Conner Concurrence) While the application of these rules / has only been tested by the Supreme Court in the context ofcriminaljaws, the court should be / willing to extend them to regulations which deny individuals the fundamental right to marry.) (See Lawrence, 0 ’Conner Concurrence; Perry v. Schwarzenger) The outcome here will depend ultimately upon whether the State can assert a legitimate interest in requiring premarital monogamy—other than majoritarian morals and protecting traditional marriage—and whether the interests are sufficient to justify the law and pass the Zablocki test. Regardless of the level a scrutiny the court may apply it appears that, like the interests asserted in laws against same-sex .1 1, "x 1 marriages, the state will be unable to articulaté‘any legitimate interest in this regulation besides a ‘ 45;; L151 (.1, 1 IV n. moral disapprove and concerns for the traditional family (See Perry) ‘ ,7" ‘ 'L‘v C ' P s Importantly, Wendy and Hugh would not be asking the State to formally recogniie their \ lifestyle in any manner, so any State interest in preventing Bigamy would'fail. Instead, Wendy 1 \ '1 , ‘ ‘ ' 1 and Hugh would only be asking the State not to deny them the right to marry based solely on ’ 1 “l “NV their private sexual conduct choices. The State will argue that it has a compelling interest in allowing only those 1n monogamous relationships to marry because of all the potential problems a non-exclusive relationship has on a marriage’s stability. However, the State likely has no evidence that an open polymorous lifestyle before marriage creates more problems in marriages. The monogamy requirement seems aimed at making all marriages mimic the moral majority’s / ‘ view of traditional marriage, which standing alone 15 probably an insufficient interest. The State /\/\ N m» 4 1/ could also argue it is not banning nonexclusive couples from marrying; it is merely promoting . 7 monogamy by procedurally making unmarried couples try monogamy for two years. However, the State will fail the Zablocki test here because it is unreasonable to hinge the right to marry on giving up the right to make private intimate choices. Thus, this regulation would fail the Zablocki test because it is constitutionally unreasonable and the State’s interests are insufficient. Issue 2: Enforceability of Wendy and Hugh’s Commitment Contract Assuming the State of Grace has laws similar to California, Wendy will have an opportunity to enforce the written agreement. In California, a contract between nonmarital " partners will be enforced unless the contract is based expressly andtj‘nseparably upon illicit consideration of sexual services. (Marvin v. Marvin) Parties to these valid contracts mayagree to pool their earnings and hold all property acquired during the relationship as if it is community property. (Jones v. Daly, citing Marvin) “Even if sexual services form part of the consideration, ., any severable portion of the contract supported by independent consideration will still be enforced.” (Marvin) Courts basically do not want to promote and enforce prostitution-like agreements. Marvin also seems to suggest in dicta that when there is an express contractual obligation for support after a nonmarital relationship terminates, the obligation could be k... ., - . enforceable as agreed to by the parties. (Marvin, fn. 26 stating “[w]e do not pass upon the question of whether, in absence of an express agreement, a party is entitled to support payments from the other party”) Thus, the commitment contract will be enforceable if it is not based upon consideration for sexual services. First, Wendy, unlike the plaintiffs in Marvin and Jones, will not have to prove an agreement existed or what the terms of the agreement were because she and Hugh reduce theirs to writing. A court will, therefore, look to the contract’s language to determine if the consideration is based on sexual services. Here, they contracted to enter a “covenant of commitment” and agreed to “combine our efforts and earnings and will share equally any and all property accumulated as a result of those efforts, whether individual or combined.” They promised to “always love each other” and “give all that we have to each other” and “care for each x ‘, . / :_/ other.” Hugh will argue that the love and care and “giving all that we have to each other” in the -—"”"‘\~~.~‘ t..." contract includes sexual services. However, a court will likely view these statements as affinnations of a marriage-like commitment to each other, not a relationship where one // . individual will be providing sexual services in exchange for financial support. Hugh will also point to the language that announces what their covenant of commitment is based upon to argue sexual services are an inseparable part of the consideration.‘ While the ‘ contract does refer to sexually relations and beliefs, it does not say sexual services within their V“; relationship are expected. Instead, the contract indicates the opposite. It says their commitment is “built upon values of trust, loyalty, and transparency,” and the contract in fact states that they will not be sexually exclusive and do intend to have other partners. Thus, this indicates no sexual services need to be provided by Wendy or Hugh under the contract. Their contract says nothing about providing services as a lover or companion, the buzz words that cause the Jones Qourtto declare that agreement based entirely on sexual services. Hugh may also try to argue that consideration which includes having a polyamorous relationship is just as illicit or meretricious ' as consideration for sexual services, especially in the State of Grace which denies people the f 3 . . a, ,7 “x - 4 ~\~ , ‘ J right to marry based on this lifestyle. However, the distinction here is that the worry inherent in contracts which include sexual services is prostitution, which is criminally prohibited; meaning a polymorous relationship, while. possibly morally frowned upon, is not as illicit as prostitution. V. Finally, it is apparent from their actions that they lived under the terms of this agreement and structured their lives _l_il§e‘a married couple in an open relationship for five years. There is a?“ evidenceWendy relied upon the agreement by taking primary responsibility of the household v“ 6 duties while only working part-time. A court, therefore, is more likely to enforce this contract for policy reasons as well. For instanceja courtwould notwant Wendy and Penna lefi with “nothing just because Hugh and Wendy arguably could not get married under state law and Hugh kept all their property in his name. Thus, a court should enforce the commitment contract. Hugh may try to argue that even if the contract is valid, Wendy should not be entitled to half the assets and instead should be limited to her contributions and services rendered to their relationship like in Marvins. However, the Marvins agreement was not in writing, so Wendy need not resort to restitution or quasi contract. The court should give Wendy half of the earnings and assets acquired during the 5 years of cohabitation per their agreement to “combine their efforts” and “share equally.” Wendy may try to argue for a spousal-like support obligation based on the contract term which states that “we shall care for each other, emotionally and finically, for all the days of our lives” and the Marvin Court’s dicta about support payments. However, a court will likely try to avoid this because of judicial enforcement difficulties and the amount of such payments is not specified in the contract. It should be noted that the outcome of this contractual agreement in no way would affect Hugh’s duty to pay child support if Donna were confirmed to be his biological child or presumed biological child. If he were legally considered the father, he cannot get out of his child support obligations even if he did not plan to have children or wanted Wendy to get an abortion. (See People in the Interest of S. P. B.) Issue 3: Likely Outcomes of Geraldine’s Adoption Petition and Hugh’s Custody Petition 1. Geraldine’s Adoption Petition The outcome of Geraldine’s adoption petition willdepend'on whether Hugh can prove he - _. ~V. .,.. .w_.__..—_.... ,,.,,,__,.‘.. , is_ either Donna’s ological or presumed’fatflhea lf Hugh is able to prove he is legally Donna’s father, he can refuse téconsentfto Donna’s adoption and Geraldine’s petition would be denied. r”-..— . V, (CF. C. § 8604(a)) If Hugh is not Donna’s presumed or biological father, geraldingfg petition should be granted because it would be 1n Donna’ {best interestslo be adopted by her current ' -~‘ \/aretaker anfialood relative. Obviously, Hugh may prove he' 15 Donna’s biological father through / a atemity test. Hugh may also establish he 15 Donna’ s presumed, father under C. F. C W§ 7611 even if he is not her biological father. However, in an appropriate action a court in its discretion will rebut this presumption with evidence that there is no biological connection between the presumed parent and child. (Elisa B. v. Superior Court, citing Nicholas H.) Under C.F. C. § 7611, Hugh would be presumed Donna’s father only if he could show he /. / . \/ {'eceivedIDonna into his home and gpenly held her outas his natural'childeunder subsegtjon (d). Subsections (a), (b), and (c) of CF. C. § 7611 will not apply to Hugh. Subsection (a) does not apply because he and Wendy were never formally married. Subsection (b) would not apply because Hugh and WendyLnever attempted to marry in “apparent compliance” with the laws of the State of Grace as they knew eir marriage was not in conformance to the law. Subsection (c) also does not apply. WhilehHughfshname‘is on Donna’sbirth certificate; Hugh refused to Vtgrmally and legally marry Wendy after Donna was bom.“ (CFC. .§761,1,(€)) 1v ‘1‘ Although it somewhat seems from the language of CF. C. § 8604(a) that a CEO § :: 7611(aD presumed father’s consent is not necessary in an adoption proceeding, 1 will assume it is. Hugh will argue he is a presumed father under C.F.C. § 76! 1 (d) because, first, he received M \a/Donna into his home for the\_ first 6 months of her life, and hesupponed herand Wendy ~.... because he assumed he was Doyafiathgr. He gave Donnahisdast name and listed himself as her father on hegb'urth certificate: He also still considers Donna his daughter and holds himself / “my.” < out as her father. However, even if under these facts the court may find that Hugh deserves to be deemed a presumed a parent, Geraldine should be able to persuade the court to rebut this presumption with evidence there is no biological connection. (See Elisa B.) For instance, Hugh 8 did not want Donna to begin with and tried to persuade Wendy to get an abortion unlike the causes 17/ where a non-biolog1cal parent actiyelyfparticipates and encouragestheprocreation. (See Elisa B.) Hugh has also @yspgléflmgngis supporting Donna in his home and holding her out as his daughter- He has ‘3‘???"0inlst‘at i9 hsr. or act¢<la§h3f9th¢t €95. 133339911}; 8" while she has been living in what appears to be a stable household with Geraldine. The court, in its discretion, will be mindful of the potential harm Hugh’s presumed parenthood could cause to Donna if Geraldine was unable to rebut Hugh’s weak presumption. For example, if this were a child support case and Hugh wanted to rebut the presumption, the court would be less inclined to use their discretion to do so as this would be more beneficial to Donna. (See Elisa B.) Thus, although the court may find Hugh is Donna’s presumed father, the court will rebut this presumption with evidence he is not because such an outcome appears to be best for Donna. . 1‘}; 1 Therefore, the only way Hugh could prevent Geraldine from adopting Donna is if he \l‘l‘y, ,3, g 1: \/‘ ”'1" 32.55%“ ‘~ . . ., 1 , proves he is her biological father. Assuming he is her biological father, Hugh can prevent . J a 1; , . ’ ,1 1"”: Geraldine from adopting Donna. Although Hugh has not provided any financial support or care i, - f. . _ ‘ in the last l8 months, his consent as the biological father 1s still required because the step-parent SWAP , I O / ‘3 / adoption exception is not applicable here However, even if Hugh may prevent Geraldine from if}! jlkl/ , . .0 MIL" adopting Donna, Geraldine may still attempt to retain custody of Donna. 2. Hugh '3 Custody Petition / The general rule is if one parent dies the other legally recognized parent is entitled to — w— _..- ._. a‘, M. .. .-... ..- custody....
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