Family Law

When using a “functional” approach to defining a family, what elements does a court consider?

  1. Exclusivity and longevity of th relationship
  2. The members hold themselves out as a family
  3. Financial commitments among th family members
  4. Emotional commitments among th family members
  5. Interconnectedness (reliance and dependence)

Why do courts prefer a “form” approach vs. a “functional” approach in defining family
Such rigid rules help categorize and administer applicable laws and rules
What did the “Marvin” case conclude on contracting between cohabitating spouses?

  1. Divorce law statutes will not apply to distributing property for non-married cohabitating
  2. Courts can enforce express contracts with regard to certain aspects of the relationship
  3. Courts might consider implied contracts under quantum meruit
  4. Contracts between cohabitating couple are not presum

How did the Hewitt decision differ from the Marvin decision?  What was the rationale?
The court in Hewitt concluded that when a statutory prohibition exists, express contracts will be scrutinized carefully.  Generally will not recognize any contract out of respect for the law.  The concern is that couples will contract around family obligations     
What’s the general rule regarding federal jurisdiction in domestic relations matters
Generally, domestic relations and probate matters are not issues for the federal courts (Barber v. Barber).  These matters require local courts to monitor and supervise
How does the contract of marriage offer from other civil contracts?
Rights and obligations of the parties also involve the state which has in integral interest in marriage and dissolution of marriage.  
In a jurisdiction that recognizes common law marriages, what factors determine the existence of such marriage

Boswell test

  1. Capacity to enter into the marriage
  2. Mutual agreement to a marriage retaltionship to the exclusion of all other relationships
  3. Public recognition of the relationship as a marriage
  4. Also: continuous cohabitation 

What are two statutory requirements in all states for marriage

License: Sometimes not required.

Solemnization ceremony 

What are the restrictions on a proxy marriage?

Assurances made to the officiator

Usually not recognized for immigration purposes

What conditions may make a marriage void?

  1. Incapability (i.e. age)
  2. “Innocent” bigamy
  3. Fraud
  4. Coercion
  5. Unsound mind

Can a voided marriage usually be ratified by remedying the infirmity (Finalizing first divorce) 
No
Can a voidable marriage be annulled? 
In rare occasions – when the marriage was short in duration and there were no kids
What  are the elements of the Putative Spouse Doctrine

  1. Participation in marriage ceremony
  2. A good faith belief that the marriage was valid at the time it was entered into.  Good faith is presumed

What does the putative spouse doctrine hold?
Any person who has cohabitated with another to whom she/he is not legally married but has good faith belief that he/she is married to that person.  Such marriage may not be void ab initio and putative spouse may avail him/herself to all the provisions of divorce law (spousal support, communal property)
Are minimum age requirements and laws calling for parental consent for minor marriage unconstitutional? 

No.

Right to marry is a fundamental right (Loving); but the state has a compelling interest in securing vulnerable children, recognizing their inability to make critical decisions, and the importance to parents in childrearing (Moe v. Dinkins) Also State has some pecuniary interest.

What are the rationales for restricting marriage between kin 

 

 

  1. Negative eugenics
  2. Recognized moral and religious offense
  3. Negative eugenics
  4. Family harmony
  5. Social taboo
  6. Protecting welfare of young females.

 

 

Which kin usually is prohibited from marrying

 

 

  1. Parents
  2. Sibling
  3. Ancestors (by blood)
  4. Descendents (by blood)
  5. Uncle/aunts – nephews/nieces

 

 

Are half-blood relatives barred from marriage

Depends but usually yes. 

Affinity is prohibited as well as consanguinity for those relations that cannot marry (See Singh v. Singh

What is the rule concerning mental capacity to marry
Since marriage is civil contract, absolute inability to contract due to mental instability will make a marriage void.  “Weakness of mind” is insufficient unless sit causes derangement that avoids all contracts.
What is marital estoppel
A spouse is usually prohibited from attacking the validity of his own prior divorce solely to free him/herself from the obligations of his/her current marriage (See Sumner v. Sumner)
In allowing a wife to use her maiden name, what requirements should be honored 

  1. She should use it exclusively and continuously
  2. She should not use another name solely for purporting fraud
  3. Also look at certain statutory requirements

How do the courts look at the Necessaries Doctrine 

This doctrine is scrutinized carefully and under modern perspectives.  They used to be based on a husband’s obligation to provide his wife with necessaries of marriage.  This is unconstitutional and any application should be gender-neutral. 

Courts prefer that application of necessaries doctrine occur when one spouse has deserted or constructively deserted the other.

Under Trammel v. United States, what is the rule for testimonial privilege between spouses
The witness spouse alone has privilege to refuse to testify adversely.  The witness may neither be compelled to testify or to refrain form testifying.
In the Marsh case, on what basis did the court conclude an ex parte OFP with removal of spouse was not unconstitutional

  1. It was temporary not permanent
  2. Such orders are only issud for good cause showing
  3. Serves both the parties’ interest and the government’s interest
  4. Reviewable with notice

What are the grounds for fault 

 

Impotency

Adultery

Conviction of felony

Desertion for more than 1 year

Habitual inebriation

Inhuman, cruelty

Willful neglect of necessities

Incurable insanity 

 

What were the defense for allegation of fault

 

Connivance

Collusion

Condonation

Recrimination

 

What is a “covenant marriage”
One in which the couple agree by contract, to dissolve their marriage only for fault
What are the grounds for divorce in no-fault jurisdictions

 

 

  1. Incompatibility or irreconcilable differences (proven by either party)
  2. Voluntary separation
  3. Separation for more than a minimal period regardless of circumstances (1 – 3 years)
  4. Where death is presumed (Enoch Arden laws)

 

 

What was the holding in Williams v. North Carolina with regard to jurisdiction?  On what condition – per Williams – could a state court invalidate an out-of-state ex parte divorce? 
If due process of requirements of notice are satisfied, then an ex parte decree of the state of one spouse’s domicile must be recognized through the nation under the force of the Constitution (FFC).  But a state has a legitimate enough interest to question or examne an element of another state’s legal residency rules and invalidate the divorce if dissatisfied.  The burden is high but ok if supported with ample evidence. 
Can a state issue a divorce to a non-domiciled couple if the parties are adequately served notice and enter a general appearance?
No, there must be legal residency established (Alton v. Alton).  A domiciliary standard is still required so that the “home state” maintains control over its domestic relations. This makes for tricky exam questions!! 
Is a minimal waiting period before establishing legal residence in a state for the purposes of obtaining a divorce unconstitutional?
No.  Although it provides unequal application if the law, there is a compelling state interest to protect its divorce decrees from collateral attack.  Furthermore, the law does not foreclose obtaining a divorce – only delays it.  (Sosna v. Iowa)
What requirements are imposed by courts to prenuptial agreements

 

 

  1. They are fair, equitable, and reasonable and made for fair consideraion
  2. They were entered into voluntarily
  3. Each parties is aware of his/he rights and the extent of waiver and afforded opportunity to consult an attorney
  4. Cannot encourage divorce
  5. Not expected to make a spouse the ward of the state
  6. In writing (SOF)

 

 

Also note that states will differ with regard to a duty to disclose (usually imposing none)

 

What are the 2 approaches used by states in distributing property and assigning support

Equitable property states

Community property states

What factors might a court consider in using discretion in ordering spousal maintenance of when distributing property

 

 

  1. Fault (this is less so) though may still be used particularly in community property states
  2. Station in life
  3. Economic partnership
  4. Support needs – do not want one spouse to become a ward of the state

 

 

What concerns are taken into consideration when determining temporary spousal maintenance or transitional support

 

  1. Income and property if both parties

Age and health of both parties

 

  1. Duration of marriage
  2. Ability of party seeking maintenance to be self-supporting – period of time needed to becoe employable
  3. Reduced or lost earning capacity as a result of foregoing education or career advancement
  4. Children
  5. Tax consequences to either party
  6.  Any wasteful dissipation of marital assets by one of the parties or extraordinary encumbrances in anticipation of divorce. 

 

 

What are some special needs that may be required as part of support demand

  1. Medical or dental needs
  2. Educational needs
  3. Life insurance to protect potential loss of support
  4. Maintenance of dwelling

Under what conditions might a court determine permanent spousal maintenance

  1. Spouse lacks property or reasonable means to be self-sufficient
  2. Unable to support herself through appropriate employment
  3. Custodian of a child (“caregiver alimony”) where circumstances prevent obtaining employment outside of the home

 

Fault? No!

What factors are considered when determining the amount of spousal maintenance 

Cost an Arm (and a leg)

 

 

  1. (S) Earnings capacity to maintain standard of living
  2. (T) Marketable skills of the supported party and time to obtain education and training
  3. (C) Extent to which the spouse contributed to the education, career, or professional practice of the other spouse. 
  4. (R) Financial resources of the supporting spouse (balance of hardships)
  5. (A) Age, physical, mental, emotional consition of the spouse
  6. (M) Duration of marriage (general rule must be more than 10 years) 

 

 

What is Rehabilitative Alimony
Short-term support that enables the spouse to complete preparation for economic self-sufficiency  
What is Reimbursement Alimony
An “equitable” contribution designed to  eliminate injustice from one spouse’s financial sacrifices made to free the other spouse to secure a degree or establish a professional career 
What is the “equalization of income” approach in determining spousal maintenance
Adjust the H & W’s post divorce incomes so that they are even.  Rarely done unless there is apparent underemployment, economic fault, or just slight resources for both parties.  Courts do not like (See Christianson v. Christianson)
When might a court modify spousal maintenance?

 

 

  1. Changed circumstances making current spousal support unfair or unconscionable
  2. Finding of voluntary underemployment or unemployment
  3. Conditions stipulated in the decree (remarriage, cohabitating)
  4. Any rebuttable assumption of decreased need (again usually remarriage, etc.) 
  5. Naturally death of the spouse will terminate spousal support (required by tax law).

 

 

What are the factors that a court will consider (or find acceptable) in division of property in an equitable property state?

 

 

  1. Separate property goes to each party
  2. Income and property interests of each party at time of marriage as compared to commencement of divorce
  3. Duration of marriage
  4. Age & health of the parties
  5. Need to remain in the family residence (kids in school)
  6. Lost access to inheritance or pension rights
  7. Maintenance obligated to or from the party
  8. Any equitable claim to joint efforts or expenditures or contributions to career of other spouse
  9. Tax consequences
  10. Waste or dissipation of assets or extraordinary encumbrance
  11. Prenuptial agreements

 

 

What are examples of “separate property”?

 

 

  1. Gifts, bequests, or devises
  2. Property acquired before marriage or property received in exchange for property acquired before marriage
  3. Increase in value of property acquired before marriage or any other non-marital property solely through market forces
  4. Property acquired after decree of legal separation

 

 

How is marital debt divided?

Normally along the same lines as mariotal assets.  The character of the debt may be divided differently. 

In cases of high marital debt, there might be unequal division based on financial resources and participation in incurring such debt 

Are professional licenses (doctor, lawyer) considered divisible property?

No

Not considered property in the traditional sense (not inheritable, not sellable or alienable, cannot be shared, was acquired with personal intelligence not $$)

Relief available in reimbursement alimony

(See O’Brien v. O’Brien – New Jersey recognized as one of several “non-traditional” forms of property.

What type of employment benefits may be counted as marital property
What are the factors to consider when awarding child support

 

 

  1. Financial resources of the child (?)
  2. Financial resources of the custodial parent
  3. Standard of living the child would’ve enjoyed if marriage had continued
  4. Educational needs of the child – including special needs
  5. Emotional and physical consition of the child
  6. Financial resources of the noncustodial parent and other in his household
  7. Tax consequences

 

 

What are the two methodologies used for calculating child support? 

Income-Shares Model

Percentage of Income Model

How is the Income Shares Model calculated?

 

Purpose: Child should receive the same proportion of parents’ income as if family was still living together

  1. Calculate the adjusted income available for child support of each spouse.  Compare to determine what % of the support they are responsible
  2. Consult the amount of child-support the state has assigned for the combined adjusted incomes of both spouses.
  3. Divide that child support figure pro-rata per step 1.

 

 

What is “income available for child support” under the Income Shares Model
Adjusted income – child support already obligated – cost of health insurance
How is child support calculated under the “Proportion of Income Model”
Look just at non-custodial parent’s (“obligor’s) income and apply against the state recommended % for that income  
What factors are considered when determining payment for “special circumstances” private educational expenses 

  1. Was child in private school at time of the divorce
  2. Can public education meet the needs – particularly special needs
  3. Academic performance and circumstances affecting that
  4. Family preference and religious traditions
  5. Mental, physical, and emotional needs

What’s the general rule for a stepparent’s obligation to a stepchild
A stepparent has a duty to support a stepchild if, they reside in the same household and if the financial resources of the natural parents are insufficient to provide the child with a reasonable subsistence with decency & health. 
In what ways may the feds get involved in child support

  1. Assist in enforcing other state court child support orders in the federal courts
  2. Parent Locator Service
  3. PRWORA:  Title IV-D Programs.  In order to qualify for federal welfare funds (formerly AFDC) states must:
  4. Case registry including all child support orders
  5. Directory of new hires
  6. Genetic testing & Paternity extablishment
  7. Revoke passports and licenses (all types) property liens, credit reports

What’s the basic rule of paternity
A child born in wedlock or with reasonable gestational period after marriage are presumed legitimate.  (Rebuttable presumption)
What are the rules for children born via artificial reproductive technology 
The donor is NOT presumed to be the father unless both parents consented that he be.
What was the holding of the Supreme Court in Levy v. Louisiana and in Clark v. Jeter

 

Cannot deny illegitimate children a similar right enjoyed by legitimate children (i.e. pursue wrongful death tort re: natural mom).  There’s no rational basis between illegitimacy and tort liability. 


Cannot impose a 6 year SOL to bring paternity and child support against dad.  Does not pass intermediate scrutiny.

 

What was the holding of the Supreme Court in Stanley v. Illinois
The law cannot presume an unwed father is automatically unfit to raise his children and deny him custody.  Denial of due process and of equal protection (over-inclusive and under inclusive)
What factors are considered when permitting a claim of illegitimacy in a valid marriage

 

 

  1. Remember – child of marriage is presumed legitimate
  2. How long did putative father know? (Some states, Minn., limit claim to 3 years after birth
  3. How long did presumed father serve in role as father
  4. Other facts and circumstances
  5. Age of child
  6. Harm which may result to the child if determination of illegitimacy

 

 

What was the holding of the Supreme Court in Lalli v. Lalli
Requirement that alleged legitimate child produce an affidavit written by the father during his lifetime or by order of a court to claim inheritance is not unconstitutional.  The state’s interest in repose and in proper notice for orderly disposition of the estate is substantial.  
What are the different types of custody?
What are some factors that the court considers when awarding custody?

 

 

  1. Health, safety and welfare of the child
  2. Any parental plan/agreement about custody arrangments
  3. Security from any abuse, history of abuse, alohol, or drugs
  4. Being with siblings and/or any blood or affinity relations
  5. Caretakers who can be relied upon to provide love
  6. Expeditious decision to place child in a permanent home
  7. Child’s preference – provided he is mature and intelligent enough to recommend one 

 

 

What is the “tender years” doctrine”?
Holds that the mother of young children will be given preference for custody – all other things being equal.  This is no longer considered equivalent to the BIOTC.  This doctrine is pretty much obsolete.
What preference does the courts have in ordering custody?

 

  1. Both parents jointly
  2. Either parent solely – whichever is more likely to allow frequent contact with the other parent
  3. If it isn’t a parent – whoever the child has been living with in a stable wholesome family relationship

 

What factors will lead a court to determine that joint custody is in the BIOTC

            

  1. Joint custody is always presumed to be in the BIOTC
  2. Both/each parent would be a suitable custodian
  3. Child would suffer – psychologically, emotionally, developmentally if he didn’t have contact with both parents
  4. How well do the parents communicate between themselves
  5. Both parents have played an active role in caring for the child
  6. It is in accord with the child’s wishes (When appropriate to inquire)
  7. Whether the parents object to or agree to joint custody
  8. Geographical proximity

What factors will lead a court to determine that sole custody is in the BIOTC

  1. When both parents agree
  2. Parents disagree – but one parent request sole custody and the court finds:
  3. One party I not capable of parental duties
  4. One or more conditions exist that would substantially interfere with exercise of joint custody

Under what conditions should a court modify a joint custody agreement?

  1. Persuasive showing of changed circumstances affecting BIOTC
  2. Whether the child would suffer harm if left in the present custody arrangement
  3. If both parents agree that joint custody arrangement is not working

When should custody be issued to a non-parent

  1. When and only, upon clear and convincing evidence, granting custody to the natural parent would be detrimental to BIOTC
  2. When there would be a harm to child of removing him/her from stable placement. (Bennett v. Jeffreys, Painter v. Bannister)
  3. “Psychological parents” – the child has formed a strong bond and would be harmed by removal AND by reuniting with the natural parents
  4. When parents have forfeited their rights to the child: consider abandonment, surrender. Persistent neglect, “special circumstances”

What was the Supreme Court’s holding in Troxler v. Granville
Natural parents have the preeminent fundamental right to make decisions about the care and control of their child.  A law that allows “anyone” to petition for visitation rights that at any time are in BIOTC is an unconstitutional interference.  Parents should not have to disprove best interests just to assert their fundamental right 
After Troxler v. Granville, how have statutes and courts approached third party visitation?
Statute might allow petitions for visitation but acknowledge parents’ fundamental right or presume 3rd party visitation is not in BIOTC. 
Under what conditions might a court appoint an attorney as guardian ad litem?
When there is an apparent conflict of interest between the child and the parents.  Most common in custody and visitation disputes. 
What duties does the guardian ad litem have?

  1. Represent the child’s best interests
  2. Investigate the facts and prepare a written statement of the issues – setting forth the facts that bear on the best interests of the child

What rights does the guardian ad litem have?

  1. Access to the child
  2. Standing to seek affirmative  relief for the child
  3. Entitled to notice of any hearing
  4. Access to documents, records, pleadings, files, medical records, school records.
  5. May waive privilege on behalf of the child  

What inquiry (factors) would be made if a custodial parent was considering moving the child out of the state?

  1. Must assure that the move does not interfere with BIOTC. (Disruption in school, community, family support, amenities & quality of life he is accustomed to)
  2. Must reasonable assure that the move does not interfere with the visitation rights of the non-custodial parent (substantial drop in visitation opportunity, transportation costs, wasn’t made for vindictive reasons)
  3. Aside from that the custodial ha as much freedom to relocate as the NC parent.

Can a statute prohibit same-sex couples from adopting a child

Yes (See Florida)

There is no fundamental right to adopt a child

What was the Supreme Court’s holding in Caban v. Mohammed?
This case is mentioned in Roberston v. Lehr.   In cases of an unwed mother and unwed father, the Court struck down a rule that effectively would allow a mother to have a child adopted without putative father’s consent but not allow adoption by the father w/o mom’s consent.  It was gender-based distinction without an substantial relation to a legitimate state interest. 
How did Lehr v. Robertson and Quilloin v. Walcott qualify the holding in Stanley?
Both cases essentially held that parental rights do not spring forth full-bloom simply from the biological connection between a parent and child.  In each case, the Court held that when the putative father has had no contact, committed no relationship, and had been offered all available options to assert his parental rights, all that would be necessary for adoption (and denial of legitimization) is the BIOTC.
What appears to be sufficient to show that bio-dad has sufficient opportunity to be provided notice to assert parental rights in advance of an adoption?

  1. Establishing some level of relationship with the child
  2. Registering with the Putative Father’s Registry
  3. Name on the birth certificate
  4. Written identification by Mom

Does it matter that bio-dad didn’t even know he was a putative father when denied notice of adoption of his child?
Per Lehr and Robert O. v. Russell K., apparently not.
Under the Indian Child Welfare Act (ICWA) what requirements exist before placing a child in third party custody (and/or terminating parental rights)

  1. Clear and convincing evidence of serious emotional or physical harm
  2. The child must be place in custody (or foster care) with extended family or
  3. In a foster home approved by the tribe or an agency approved by the tribe

What is the purpose behind termination of parental rights?
When parents are unable to or unwilling to provide consistent care and nurturing, children should have the opportunity to develop stable, trusting relationships with other caring adults 
Under what conditions will the court seriously consider termination of one’s parental rights?
Typically occur when there is convincing evidence of abuse, neglect, abandonment, or parental incapacity
What is the tension that comes into play in proceeding for termination of parental rights
It is equally important that the due process rights of the parents be honored while timing is critical for placing the child is a safe and stable setting.  
What did the Court say in Prince v. Massachusetts when comparing competing rights and interests in a parental rights termination action
Neither rights of religion or rights of parenthood are beyond limitation when it comes to the general interests of a child’s welfare.
What is the evidentiary requirement that assures due process in a parental rights termination proceeding 
Clear & convincing evidence – nor preponderance of evidence – is the standard to ensure due process to parents
Explain the steps in the Mathews v. Eldridge test for determining due process has been met

This a balancing test that considers the following factors:

  1. The private interests affected by the proceedings (Usually liberty interests of raising a family w/o interference)
  2. The risk of error created by the state’s chosen process (Look for safeguards, lack of balance between parties, too much subjectivity)
  3. The countervailing governmental interest supporting the use of the challenged procedures. (Bear in mind BIOTC is not automatic – the child has “split interests” ; pecuniary interests almost never win) 

What did the Court conclude in Lassiter v. Dept. of Social Services with regard to court-appointed counsel in parental termination hearings
Representation by counsel is important particularly in the face of a better prepared adversary like the State.  However, not every proceeding or hearing requires a court-appointed lawyer.  The Court allowed judicial discretion rather than adopting a per se rle.
What are 4 grounds for preemptory or involuntary termination of parental rights?

  1. Relinquished parental claim to a child
  2. Refused or failed to perform parental duties
  3. Child has been deprived of subsistence necessities for physical and mental well being due to
    • Incapacity of he parent
    • Abuse or neglect
    • Severe, evident and of some duration AND these cannot or will not be remedied.
  4. Child is removed either voluntarily or by order – and the condition prompting the action has not abated (or is expected to)
  5. Dad is not the natural father, does not reside with the child, and fails or effuses to have contact with the child w/in a stated period.

In N.J. Div. of Y.F.S. v. B.G.S. what were the reasons for terminating parental rights 

  1. Child’s health and development was and would continue to be endangered by the parental relationship
  2. Parent was unable or unwilling to eliminate the harm or provide a safe and stable home.
  3. The agency had been diligent in assisting the parent to correct or remedy the harmful elements
  4. Terminating parental rights would Not do more harm than good.  

According to Matter of Gregory B – what two burdens are placed on the incarcerated parent to avoid termination of parenatl rights?

  1. Continuous contact
  2. Upon a ceratin period after the child has come under agency supervision, establishing a plan for the future of the child including steps necessary to provide a home that is adequate and stable.  Good faith alone is not enough

 

Keeping the child in foster care is not “adequae and stable” 

What is the prima facie case for contempt?

  1. Establishing existence of a child support order
  2. Proof that the ∆ had knowledge of the child support order
  3. The ∆ failed to comply with the order.

What is the essential difference between civil contempt and criminal contempt?
In civil contempt the ∆ “hold the keys to the jailhouse in his pocket” meaning he need only serve his sentence until he brings himself into compliance with the order.  In criminal contempt the goal is punishment and the ∆ must complete a sentence.
Why is it important to distinguish between civil contempt and criminal contempt?
A ∆ in criminal contempt is afforded a few more constitutional protections – the burden of proof is on the State (to show he was non-compliant OR to defeat his affirmative defense of indigence) 
What are some things the appellate court may review to determine whether a contempt order was criminal or civil
In Hicks v. Feiock the Court remanded on reviewing the determinant sentence in relation to the “purge condition”;  if the purge condition can reasonably be met during the determinant period – and so doing would terminate the punishment.   
When is a separation agreement controlling with respect to matters like division of property visitation, etc.  
The divorce decree (J & D) is usually the final controlling document with regard to these matters.  Ordinarily the separation agreement will be incorporated and merge into the J & D.
Can the terms of a separation agreement remain in effect without being incorporated into the J &D?  Why would parties want to do so?

Yes.  The parties can stipulate that the separation agreement is a separate stand-alone agreement.  However, if the J&D states that the agreement was incorporated, merged or was incorporated by reference, the terms of the agreement are superseded by the J & D.

 

Parties may be interested in keeping the agreement as a separate contract under which they can make modifications without reopening the decree

Can a spouse object to a divorce on constitutional grounds of freedom of religious expression?
In all likelihood, no.  The dissolution is a civil procedure and does not purport to terminate the ecclesiastical elements of the marriage.  Compelling the spouse’s religious objection to prevent the dissolution would actually infringe on the other spouse under free expression and possibly establishment clauses.
How did the Supreme Court in Reynolds v. United States determine that prohibition of bigamy did not infringe on the π’s claim of religious expression
In a very narrowing interpretation, the Court held that although a State law could not interfere in Reynold’s religious opinions or beliefs, it could interfere with a religious practice.  Religious doctrine cannot be superior to the laws o the land
What is “battered child syndrome”?
A clinical condition of a child presumably caused by serious physical abuse.  New York uses a brand of this syndrome as a basis for res ipsa loquitur finding of child abuse. 
What is the difference between an “open adoption” and any other adoption?
An adoption in which all parental rights are ended and transferred to the adopted parents.  However, post-adoption contact with natural parents may be negotiated 
What did the state court hold in State v. McKnight?

The court held that any woman who unintentionally heightens the risk of a stillbirth could be found guilty of homicide with “extreme indifference to human life.” Under this doctrine, the court held, any pregnant woman who engages in activity “potentially fatal” to her fetus could be charged with murder. 

 

Minn. statute: Neglect of child includes exposing inter utero.  

What general argument is made in disputing a holding like McKnight?
Lack of legislative intent and strict stutory interpretation (See Johnson v. State – “delivery” of drugs does not include unintended diffusion between mom and  fetus)
Is a medical exam a mandatory procedural requirement for marriage?
No
What is the difference between co-sanguinity and affinity in determining whether relatives are prohibited from marrying?
Per outlines consanguinity refers to degrees of relationship and affinity refers to degree of relationship based on adoption or previous marriage. (Step-relatives seem to fall in both camps)
If Minnesota has abolished common law marriages but a common-law couple from Texas moves into the state, will Minnesota recognize their common-law marriage
Yes – FFC
What are 3 requirements for common law mariage
1. An exchange of consents between 2 people
2. Cohabitation
3. Holding out publicly that they are living together as husband and wife

Do Pre-Nups require consideration?

Are Pre-nups subject to the Statute of Frauds

What 4 requirements are needed to make a Pr-NUp Valid

Yes Pre-Nups require consideration.  Entry into marriage is sufficient consideration

Pre-Nupa re suject to the Statute of Frauds and must be in writing and signed by the party against whom it is being enforeced

To qualify as a Pre-Nup it is required that:

  1. It had been entered into voluntarily
  2. There was fair and full disclosure by both parties as to financial net worth
  3. They provide, ntl, for fair and adequate provision for the claiming spouse (can’t leave him/her ward of state)
  4. Some states will require independent counsel;

What 3 reasons make a marriage “void per se” and allow it to be annulled?

;

  1. Bigamy
  2. Adjudicated incapacity (mental but not physical)
  3. Consanguinity

Can a void marriage be attacked collaterally (i.e. by a third party other than by annullment) ;Can a voidable marriage be attacked collaterally.

Third-party challenges are permissible and any interested party may seek an anullment. ;A void marriage may be attacked collaterally.

;

A voidable marriage may be attacked only by the spouses (one of the spouses is sufficient);

Are there any defenses to a void marriage? ;What happens to a void marriage if the impediment is removed

There are no defenses to a void marriage other than to deny the existence of the defect that makes it void.

Appears there is a split regarding making the marriage proper by removing the defect. ;Some parts of the notes say “no subsequent act can ratify the marriage”; other spots in the notes say it makes the marriage voidable and can be ratified if the couple carry one (???);

What makes a marriage voidable?

Nonage

Incurable physical impotency

Lack of capacity (other han adjudicated insanity)

Duress and Fraud

What is the specific rule regarding prohibition of consanguinous marriages

A man may not marry another who is related to him in linear consanguinity (direct blood ancestors and descendants) or his sister, aunt, or niece.

;

A woman may not marry another who is related to her in linear consanguinity (direct blood ancestors and descendants) or her brother, uncle, or nephew.

What are the Factors that are Considered in Equitable Distribution of Marital Property (Minnesota Rule for Distribution)

;

  • B-ackground of the parties (Age, education, earning capacity)
  • U-nilateral or bilateral source of the property (basically, did he buy the pipes and did she buy the thimbles)
  • L-ongevity of the marriage (and where thee any othe rmarriages)
  • L-et your spouse pay forYOUR education?
  • S-aving the marital home for the kids to grow up in
  • H-ealth of the parties
  • I-Interruption of a career
  • T-ax aspects

Remember, separate property goes to its owner and WATCH for pre-nups

    ;

    A Quick Overview of Jurisdiction

    ;

    • One of the parties must be a bona fide resident of the jurisdiction where the action is brought (If the other isn’t, notice??)
    • In order for a court to have jurusuduction over spousal support, property rights, etc. the court must have personal jurisidiction over the D (so, yes notice, however, in ceratin circumstances constructive notice will suffice)
    • A valid divorce decree issued by one jurisdiction must be affirded full faith and credit in all other jurisdicitions.  
    • Coity encourages recognition of foreign decrees however, ne party must have been domiciled there

     

    Which forms of Spousal Support are NOT modifiable?

    Lump sum (They are vested)

    Rehabilitative (per lecture notes)

    Reimbursement

     

    Permament (periodic) is modifiable only by deminstrating a substantial change in circumstances.

    In Minnesota who is presumed to be the parents of a child? 

     

    1. When the woman is married, the husband and wife are presumed to be the parents.
    2. If divorced (but were married) the husband and wife are presumed to be the parents of any child within 300 days of divorce.
    3. Father receives the child in home and “holds out” the child out as his own (Bio-dad)
    4. Father has acknowledged paternity in writing
    5. Blood or tissue show probability of 97% or higher (judicial decree?)

     

    Although many factors can conribute to awarding child support, what is increasingly relied upon to make child support awards

    Two general overriding factors were used – needs of the parent and earnings of the parents.  But today, most states rely on formulaic guidelines to arrive at the amount and, to some degree, who is responsible for paying it.  Factors here are number and age of the children, parental ncome, and ceratin special needs.

    Courts may also require providing insurance.

    On what events might child support terminate.  On what basis might child support be modiied?

    Child support will be terminated on dath of child and termination of parental rights.

    Most often terminates upon age of majority, emancipation, and marriage. 

     

     

    1. What is the purpose of he Uniform Child Custody Jurisdicion and Enforement Act (UCCJEA).  How is jurisdiction determined?

     

    The UCCJEA responds to jurisdictional disputes between states – particularly if the parents have or attempting to obtain new custody orders in another state.  A set of jurisdictional priorities are established:

     

    1. Home State Jurisdiction:  The most important jurisdictional test: A child’s “home state” is the state where the child has lived with a parent for 6 consecutive months. ;The state’s court may enter or modify a child custody order if their’s is the “home state” OR was the home state in past 6 months and parent is still living there
    2. If no hm0e state (or home state declines jurisdiction) where child and 1 parent has significant connection withthe state and substantial evidence reagrding child’s welfare is available
    3. Any other court if no state takes jurisdiction under #1 or #2 or there is none

    Court that made INITIAL DETERMINATION has exclusive and continuing jurisdiction.  (Severing “significant connection” may end jurisdiction

       

      In addition to the UCCJEA, under what other conditions might a court obtain jurisdiction for child custody determination
      A court has temporary emergency jurisdiction if the child has been abandoned or abuse (or other family members).
      What is the overriding determination for determing child custody? What factors are weighed? (CHIPS)

      The Best Interest of the Child

      Child’s preference (weight of preference is consumate to age)

      The mental and physical Health of the parties involved

      Instiutions – Schools, Community, Church

      Pecuniary welfare

      Siblings, natural ties and interaction and interrelationships

      What are grounds for modifying a child custody order

      Substantial or material change in circumstances.;

      Courts MAY consider only circumstances occurring after the original order and may limit modificiations until after a certin and reasonable period of time (e.g. one or two years)

      If your non-custodial (or custodial) client thinks her circumstances require the visitation or custody arangements to change – what’s the most important advice you should start with.  

      Don’t take the kid(s) out of the state. ;

      The new “circumstances” might include a relocation by this client. ;A grant to move the child out of jurisdicition is possible but it is best for the court to make that determination. ;Moving a child out of jurisdiction might be a violation of custody or visitaton orders and hould be done so only after such orders have been modified.;

      Is a writ of habeas corpus a permitted means to bring a child and the parent with possession of the child into court to address a child ustody dispute

      Yes…BUT

      There is no federal writ of habeas corpus for child custody cases (only state HC proceedings)

      Only for custody cases – not visitation cases

      ;

      Non-custodial Mom has taken (snatched) Child out of Minnesota to Illinois. ;What must custodial Dad do?

      File a copy of the custody decree in Illinois and obtain an order from that state to enforce the decree. ;

      Alternatively, Dad can bring a habeas corpus action in Illiniois and serve on Mom.

      Under what condition may Child Custody orders be given FFC in a foreign jurisdiction? Visitation orders?;

      The rule at common law is that since child custody orders are modifiable, they are NOT final orders and not subject to FFC. ;THe federal Parental Kidnapping Prevention Act mandates FFC in such cases where the Act’s juridictonal standards have been met.

      Visitation orders are also modifiable, do not fall under the PKPA and therefore, do not qualify for FFC.

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      Family Law

      void
      never legally existed; cannot get divorced and quasi-partnership to divide assets; can be attacked by TP. Can be challenged after death of parties. Cohabitation won’t ratify the marriage.
      Bigamy, incest
      voidable
      minors, mental incompetency, marriage w/o license, fraud, 6-month; can ripen when impediment removed. Can only be attacked in suit for annulment by parties (voluntary action or death) only while disability remains. annul in timely fashion or valid by CL marriage.
      CL marriage indicia
      1) actual and mutual agreement between spouses to be husband and wife
      2) a permanent relationship
      3) an exclusive relationship
      4) cohabitation as man and wife
      5) parties to the marriage must hold themselves in public as husband and wife (bills, travel together, etc)
      Parties have to have a meeting of the minds that they are married.
      If it’s valid where it’s formed, it’s valid most of the time.
      NO CL divorce
      3 types of marriage presumptions (rebuttable)
      1) presumption of the valid ceremonial marriage
      2) presumption in favor of the subsequent marriage’s validity- previous marriages have been dissolved
      3) presumption of marriage from cohabitation- less significant
      6-month rule
      you can’t marry anybody during the 6 month period after divorce, except the person that you are divorcing.
      CL: voidable until after 6-month period, terminated either by voluntary action by either party or death of either party
      marriage as fundamental right
      state law that interferes with right to marry must be in support of an important state interest and (closely) carefully tailored to achieve that goal (same sex is legal)
      non-age
      if it’s non-age, and the person dies before they reach age of consent, the party would become heir at law
      divorce decree
      must recite the date when it was entered, and effective when it was pronounced. If no appeal from fact (granting) of divorce, then divorce is final when pronounced.
      appeal
      can appeal: alimony, child support, property division, and not appeal from fact of divorce
      3 ways to deal with marriage gone wrong
      1) dissolution (divorce)
      2) annulment (marriage is void and never happened)
      3) legal separation (divorce from bed and board)- ct can do everything like in a divorce except pronounce divorce
      fault divorce
      adultery, abandonment, extreme cruelty, gross and neglect of duty, failure to perform normal functions of marriage
      no fault divorce
      irreconcilable incompatibility and living separately
      condonation
      defense; if it has been shown, divorce for condoned offense is banned
      X: when the condoned offense is happening again– by a breach of either express or implied condition
      multi-state divorce
      each state is required to give full faith and credit to decision in another state except you have right to question jurisdiction (domicile and PJ) of the person in that state
      OK domicile in multi-state divorce
      if a person is domiciled here and is married and the spouse moves to another state, you can sue them in that state and the court here retains jurisdiction
      writ of prohibition
      order of senior ct to junior ct to prohibit junior ct from taking some action
      writ of mandamus
      senior ct is getting the junior ct to do something
      extrinsic fraud
      a) any fraudulent conduct of a successful party
      b) which was practiced outside of an actual adversary trial or process and
      c) which was practiced directly and affirmatively on the deceased party
      d) whereby he was prevented from presenting fully and fairly his side of the case
      If you find it within 2 years of discovery of fraud, doesn’t matter if it’s intrinsic or extrinsic. But after 2 years, then has to be extrinsic to recover
      intrinsic fraud
      a) happens in the case
      b) perpetrated within the course of adversary proceedings
      Must be brought within 2 years of entry of decree
      fiduciary relationship
      fiduciary relationship between husband and wife ceases when the divorce filed and the parties hire counsel; can also end when the parties separate with intent to get divorce
      jurisdiction
      a) at least 1 of the parties is domiciliary of that state- person who has residence at state with intent to make it home
      b) PJ
      PJ
      obtained by getting service of process on that person in the state in which divorce is to be granted or that person has to come to the state in an appearance to a proceeding
      4 approaches to compensate support spouse for their loss of financial compensation
      cost value, opportunity costs, student spouse’s enhanced earning capacity, and variation of the labor theory of value
      cost value
      HOW MUCH DID IT COST?
      a) calculate the value of the supporting spouse’s contribution, not only in terms of money for education and living expenses but also in terms of service rendered during the marriage
      b) look backward; restitutionary approach
      c) it doesn’t give the spouse who supported the student spouse anticipatory income that she is entitled to
      used in OK
      opportunity costs
      a) income the family sacrificed b/c student spouse attended school rather than working
      b) only works if student spouse quit job to go back to school
      enhanced earning capacity; benefit of the bargain
      Entitled to recover what I paid in investing
      calculate according to present value of enhanced earning capacity.
      too many unforeseen variables, like premature death and job market
      variation of the labor theory of value
      figure out how much time, effort and energy the support spouse did
      equitable division of property- judge considers:
      1) what is in marital estate
      2) what is the value of the assets
      3) what is an equitable division- just and reasonable
      marital property
      what you receive after you married. Strong presumption any property received after marriage is marital. Burden is on person claiming separate property to prove otherwise
      pension plan
      during marriage, pension plan replaces life savings– marital property. 2 kinds:
      a) defined contribution
      b) defined benefit
      defined contribution
      individual account set up by employer and contributed by both employer and employee
      defined benefit
      employer put some money in on your behalf for as long as you work there, and you will receive money after a length of time. More common; government/military employees
      how to divide pension plan
      a) present value (immediate offset)
      b) deferred distribution
      present value (immediate offset)
      1) guess of how much it is 2) something to offset
      – works with defined contribution plan; make them pay immediately to spouse–ct preferred
      deferred distribution
      wait until the employee becomes eligible for the retirement benefits; you don’t get anything until the earning person gets something. Then you get a piece of whatever they get
      minority prefers
      requires QDRO
      problem with immediate offset
      – doesn’t work well with defined benefit– so many uncertainties out there b/c it’s hard to place value on the benefit–> not easily ascertainable present value
      – require presumption and there may not be enough funds to offset
      replacement method
      wages replace marital until time of divorce
      retirement replaces savings so marital
      QDRO (Qualified Domestic Relation’s Order)
      order of the divorce court to administrator of the funds that will tell them to pay a % directly to the spouse of earning person; deferred distribution requires this
      disability benefits?
      received post divorce: replace post-coverture wages that would be earner’s separate property
      BUT if retirement benefits extinguish disability, then disability will become joint property
      military benefits
      Like other pension funds, but to be eligible for it, has to be married for at least 10 years. (for OK state pension funds, has to be married for at least 3 years before you can do QDRO)
      4 methods to determine workers comp awards
      1) mechanistic- statutory based
      2) case by case- too inconsistent
      3) unitary- precluded by Workers Comp Act
      4) analytical (also replacement)
      analytical method
      court-preferred; Determine what compensation awards paid for (wages or medical expenses) to determine what to replace
      A workers comp award is marital property to the extent that it recompenses for the couple’s loss of income during the marriage.
      To the extent that it compensates for loss of post-divorce earnings by the injured party, it is separate property.
      A former spouse has no inherent right to the salary earned by the other spouse after divorce, there is no right to a disability award which is intended to replace future wages
      awards?
      1) property if they were earned during the marriage by the skill of the receiving spouse, even if they aren’t received until after marriage ends
      2) most lottery awards are divided equally between the parties
      tracing
      separate property determination (source of funds rules)
      A marriage partner may acquire separate property during the marriage by separate gifts and by property which has been obtained in exchanged for, or from the proceeds of, separate property
      commingling
      if separate property cannot be traced and is mixed with marital property, the entire mass may be treated as marital
      3 elements of a gift
      1) intent to give
      2) complete delivery of the thing given
      3) acceptance by the donee
      trusts
      joint property even though each party put their own separate property into it. The parties jointly used it
      income from and appreciation in value of separate property
      income from separate property during marriage is marital. income earned by one of the parties is marital
      3 critical value assessment elements for income from and appreciation in value of separate property
      1) cost/value of separate property
      2) non-divisible in-marriage enhancement caused by inflationary factors or other marketplace forces producing appreciation in price levels
      3) increase in value, if measurable by proof due to personal efforts, skill, or expended fund of the spouses’ labor
      enhanced value test
      enhanced value of separate property will be considered marital if the increase in value is due to the marital effort of either spouse
      value increased by market forces outside control of individual is separate
      enhanced value formula
      subtract value when he began (before marriage) from present value (what has been accrued since marriage)
      degree/licenses
      in OK: not divisible property, but we do have restitution alimony to compensate support spouse who put earner spouse through school–> alimony value dissipates over time as people are marred longer–more time to enjoy your investment
      professional practices
      in OK: take asset of the profession–equipment, account receivables
      if solo practice: no goodwill, but if practice continues, it is a marital asset
      valuation date
      increases during separation and after valuation date is probably separate
      3 ways to value stock- when spouse forms a corporation after the marriage started
      1) market value- take the # and multiple by the value
      2) net asset- take all physical assets and subtract debt from it, then that is property
      3) investment value- take earnings of company each year for 5 years and capitalize it to give you a value
      4 kinds of agreement
      1) antenuptial- before you get married
      2) postnuptial- after you get married
      3) separation- after couple separate
      4) settlement agreement
      support alimony
      -only awarded when underlying basis for award has some rational connection to the marriage (need must also be rationally connected, caused, or exacerbated by the marriage)
      – has to be a fixed amount, calculable and definite
      -90 days to file
      Burgess Test for whether prenup can be followed
      1) is it fair and reasonable to the party opposing the K?
      2) if not, was a full, fair and frank disclosure of the other spouse’s worth made before execution of the K?
      3) if neither of the above, did the party challenging the K in fact have a generally accurate knowledge of the other’s worth?
      consent decree (settlement agreements)
      judgment under which people operate after the agreement disappears:
      -need to incorporate it into the agreement
      -can only be modified by the agreement of both parties
      -not a judicial finding
      -court will examine to make sure decree is fair before it adopts it
      -statutory are IN unless you say they are OUT
      termination
      abrogate so much of an obligation as remains unperformed; ends the unperformed remainder
      modification
      process by which new terms are sought to be added to a judgment or old ones changed, even though general purpose and legal effect of the decision remain intact
      2 types of alimony
      1) rehabilitation
      2) support
      rehabilitation alimony
      long time marriage, older person; needs support alimony to maintain lifestyle
      -lawyer needs to find out how much that will be, i.e. tuition
      -temporary order to see how much she needs to live on
      alimony in lieu of property
      -can be insured against
      -doesn’t terminate, nor end in 90 days
      when can support alimony be modified
      when there is a change that is substantial, continuing, and not contemplated at time of trial
      – cannot be modified if paid in full
      – jurisdiction to modify remains with trial judge
      settlement
      -permanent amounts to live on
      -when agreement is not incorporated n decree, separate Ks from the parties
      -when it is incorporated, and it is consent decree, has to be modified by both parties
      agreements voided?
      can be voided by fraud, coercion, deceit, anything you can do to set aside a K
      compute child support
      1) add gross income of both parents to get monthly income
      2) look at income guidelines to find out how much CS to pay
      3) make the parents contribute proportionally according to their income; divide by ratio of incomes to each other non-custodial to custodial
      4) take base CS and add medical support order, childcare expenses, and transportation expenses
      support alimony from someone other than the parties to the child support case
      included in calculation of income; factor
      support alimony from the parties in the case
      not included in income calculation; non-factor
      court must do 3 things
      1) utilize child support guidelines worksheet and attach it to the decree
      2) order income assignment unless parties can show good cause not to or have an agreement not to
      3) if income assignment, must go through the central registry (maintained by DHS)
      Three pony rule
      no child needs 3 ponies; CS shouldn’t be excessive
      4% rule
      take the big number that exceeds guideline and multiply by 4%
      court can deviate from CS amount when
      1) order is unjust, inappropriate or create economic hardship on the person OR
      2) the parties represented by counsel have agreed to a different number OR
      3) one party is unrepresented and the deviation benefits that party
      if deviate from CS amount, judge must make findings of fact to support that
      1) reason the court deviated
      2) the amount of CS that would have been required if no deviation
      3) and a finding by the court how the deviation is in the best interests of the child
      to have modification, court must find
      1) material change in condition and
      2) that change in condition warrants the modification–burden is on moving party
      -no retroactive modification
      3 things are necessary to have modification
      1) change in child needs
      2) decrease in recipient’s income
      3) material change in payor’s income/circumstances
      back CS payment
      no SoL to collect
      -need to be paid first to registry to current obligation, then to past due amounts, and finally to interest on the principal balance
      defense to back CS payment
      1) laches and estoppel
      -only works if there is an unreasonable delay which created a material prejudice
      2) waiver- agreement not to collect
      – only applies to past due; can’t waive future payments w/o court approval
      how long to pay CS
      – Have to pay child support until child reaches 18.
      – If 18 and still in high school, pay until they graduate or reaches 19
      – If a child has significant additional needs (disabled, etc.), child support can be continued after adulthood OR parties have agreed to continue support through college or something like that
      Uniform Interstate Family Support Act
      look at where the child resides as a result of the acts of the individual
      the court has continuing jurisdiction over a CS order if: 1 of the parties lives in the state, or all parties file written consent
      multi-state alimony for support
      still remains in state regardless of where you move. Different from CS
      what create jurisdiction in another state
      – served in the state
      – individual sometime resides with the child in the state
      standing to collect back CS
      non-disabled adult child has no standing to bring an action to collect
      indirect contempt for remedial purposes
      civil contempt
      indirect contempt for penal purposes
      criminal contempt
      income assignment
      CS payor’s employer withholds the CS and sends directly to the payee
      –> may not be enforced if it will cause payor to lose job
      attorney fees
      needs contemporaneous time record and expert; based on judicial balancing of equities to award
      burke hearing
      income share approach for CS- OK
      parents have to contribute based on their earnings–guidelines are mandatory
      -CS that you pay for other kids in other cases is deducted from adjusted gross income
      -support alimony from case at hand not considered; from a different party considered
      when income exceeds 15 K in guideline for CS
      1) court can change the number considering all the facts
      2) most of the time, do 4% rule
      enforce CS order
      – indirect contempt
      – revocation of licenses
      – criminal statute of abandonment of minor child
      termination of parental rights
      does not affect CS

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      Family Law

      How are Statutory Laws Created?
      Passed by a legislative body, must be consistent with constitutional law.
      How are common laws created?

      • developed by courts if statutory law doesnt exist or apply
      • must be consistent with constitutional law
      • developed through court decisions, or precedents

      Describe Criminal Cases

      • Brought by state against someone accused of a crime, civil violation, or other offense
      • Local DA represents state
      • Penalties= imprisonment, fine, probation, or combination of all three
      • offenses are divided into classes indicating seriousness and penalties
      • States must prove beyond a reasonable doubt- very high standard of proof
      • Defendent doesn’t have to prove innocence

      Describe a Civil Action

      • Cases between private individuals or corporations involving the breach of a legal duty and remedies to repair or prevent damage
      • Types of civil actions- breaches of contract, personal injury or property damage due to negligence, debt collection, divorce, landlord-tenant disputes.
      • Plantiff must prove case by a preponderance of evidence- lower standard of proof
      • Must have grounds for civil suit, otherwise monetary penalties for filing frivilous law suit

      Differences between criminal cases and civil actions

       

      • Criminal is State vs.Defendent, Civil is Individuals or corporations.
      • Criminal cases require the state to prove beyond a reasonable doubt, Civil cases need a preponderance of evidence(lower standard)
      • Criminal Penalties include imprisonment, fines and probation; Civil ask for remedies to repair or prevent damage: No Jail time or probation.

      How is the Maine Court System set up? (ie, what is the court system heirarchy)

      Supreme Judicial Court

      Superior Court

      District Courts

      Probate Courts

       

      What does the Maine Supreme Judicial Court do?

      • oversees the judicial branch of the Maine State Government
      • rulemaking authority for all of the state’s courts
      • There are 7 members, Headed by Chief justice
      • Decides who is admitted to the bar & conduct and discipline of lawyers and judges
      • decides appeals on questions of law in civil actions and criminal trials
      • also called law court because of appellate function
      • may hear appeals of sentences of incarceration for a year or more
      • may advise Governor or Legislature

      Leave a comment

      Family Law

      Home equity
      The pocket value of a home or property, based on fair market value, when the amount owed on the property (mortgages, liens) is excluded
      Paid family leave
      Policy allowing a worker time off to care for a new child or a seriously ill family member, while continuing to receive some income; in many nations, but not the US, paid family leave is legally guaranteed and sometimes even subsidized by the government
      Family structure
      The composition and membership of a family, including the organization and patterning of relationships among individual family members (step family, extended family)
      Evidence-based policy
      Policy or practice that is guided by the most up to date research outcomes in that field of study
      Defense of Marriage Act
      Federal Policy signed in 1996 defining marriage as between one man and one woman and, until 2013, limited marriage benefits to couples meeting this criterion
      Family
      Not a universally defined entity, but rather a collection of people (two or more) that can be identified by its structural connection (blood,relationship, legal ties) or by its functional connection (sharing economic resources or caring for its members); the preferred definition often depends on the intent of a specific policy or program
      Family life education movement
      Trend beginning in the early 20th century that prepared students for family life functions through coursework typically taught in social science departments
      National Council on Family Relations
      Professional association of researchers, educators, and practitioners dedicated to the study and strengthening of families worldwide, and publishing three scholarly journals including “Journal of Marriage and Family Relations”
      Parental leave
      Workforce policy allowing either parent of a child to take (paid or unpaid) time off to care for that child, most commonly used in the case of a child’s birth, adoption, or sickness
      Policymaker
      Elected, hired, or appointed leader at the local, state, or national level who creates and shapes the laws or rules in the public or private sectors; leaders represent and reflect the views of their constituents in public debate and weigh these views along with local and national perspectives, popular opinion, and each one’s personal conscience
      Policymaking
      The practice of creating and shaping the laws or rules in the public or private sectors by leaders who are elected, hired, or appointed to represent and reflect the views of constituents, weighing these views along with local and national perspectives, popular opinion, and each ones personal conscience.
      Privatization
      Policies that change public programs/agencies into privately run enterprises subject to competitive market forces.
      Social Security Act
      Legislation signed in 1935 to provide federal financial assistance to the retired, aging, and unemployed
      Socioeconomic status
      Hierarchical ranking of an individual’s or groups position in a particular social structure that is based on multiple variables such as level of education, occupation, income, and place of residence.
      Deregulation
      Policies that decrease the level of governmental control over a system or industry
      Family status
      An individual’s position in a family that can determine how policies affect the individual (whether an individual is cohabiting or married, if the child is dependent)
      Medicaid
      Collaborative program of the federal and state governments, providing medical benefits for low income citizens and legal permanent residents of the U.S meeting eligibility requirements
      Political action committees
      Organizations formed to raise and disperse large amounts of money supporting their favored political candidates and initiatives
      Devolution
      Transfer of legislative power from a central government to more regional centers of government
      Equal Protection Clause
      The portion of the 14th amendment of the U.S Constitution guaranteeing all people “equal protection” under U.S. laws, which has in recent years been ruled by the federal courts to be relevant to families in some new ways
      Privatization of family law
      Increasingly prevalent legal practice of treating marriages and families as private contractual arrangements, prioritizing the rights and obligations of individuals rather than the collective needs and commitments of the family as a social institution
      Structural Family Systems Theory
      Developed by Salvador Minuchin to explain family dysfunction. These therapist strive to understand the invisible rules which govern family functioning, map the relationships between family members, and ultimately change dysfunctional families to healthy ones.
      Family allowance
      Cash subsidy offered monthly to parents or guardians of young children in some nations. The U.S does not offer this but does offer tax exemptions
      Human capital
      The economic value of human beings each representing specific competencies, skills, and an ability to produce wealth
      Income inequality
      Imbalance in the levels of income earned across various segments of society
      Income support
      Supplement that increases the income level of an individual or family
      Organisation for Economic Co-operation and Development (OECD)
      International association with 34 member nations, with a mission of cooperating to improve social and economic realities for people around the world; membership includes strong advanced nations
      Democracy
      A society in which all members share equal power
      Congress
      Legislative branch of the U.S federal government that is comprised of the House of Reps and the Senate, and whose powers are limited to those specified in the constitution; other powers are reserved for states and their citizens
      Constituents
      Members of a group who are empowered to elect or designate another such as an elected official to act as their representative
      House of Delegates or Assembly
      In state government, an alternative title for one chamber of the state legislature, the House of Representatives
      House of Representatives
      In federal government, one of the two chambers of congress consists of 435 voting members, each of whom represents a congressional district and serves a two year term; in state government, one of the teo chambers of the state legislature
      Nonpartisan
      Representing or supported by the interests or policies of no single political party, ideology, or interest group
      Policy administrators
      County and state agency personnel and directors of nonprofit organizations who develop the practices and procedures that underlie policy and program implementation
      Secession
      The act of withdrawing from an organization, union, or political entity
      Senate
      In federal government, one of the two chambers of congress that consists of 100 senators (two from each state) who serve a six year term, in state government, one of two chambers of the state legislature
      Supreme Court
      Highest judicial body within a jurisdiction whose rulings are bit subject to further review by another court, in the United States there is one Supreme Court, but each state has its own high court over which only the U.S supreme court has jurisdiction on issues related to federal laws.
      Statutes
      Laws enacted by the legislature
      Then codified, i.e. Alabama Code
      Case Law
      a written decision issued by a court, often referred to as a judicial opinion or decision
      Changes every Friday-Dynamic System
      Higher court decisions are binding on lower courts
      Concept of precedent
      Administrative
      Created by statute and charged with regulating an area of conduct
      i.e. FDA (IRS)
      Regulations- Code of Federal Regulations
      Executive Order
      A presidential policy directive that implements or interprets a federal statute, a constitutional provision, or a treaty
      Have the force and effect of law
      Courts consider such orders to be the equivalent of
      statutes
      Homeland Security Department
      Uniform Laws
      -Seeks adoption of identical or similar laws by all the states
      -The NCUSL was formed in 1892 upon the recommendation of the American Bar
      -Association for the purpose of promoting “uniformity in state laws on all subjects where uniformity is deemed desirable and practicable.”
      Bicameral Legislature

       

      • The House of Representatives
      • The Senate

      The Senate

       

      • Vice President
      • President pro tempore
      • Majority leader (who has the majority of people in the senate) (right now: democrats)
      • 17 senate committees, with 70 subcommittees

      The House of Representatives

       

      • Speaker of the house
      • Majority leader
      • 23 House committees, with 104 subcommittees
      • determined by US census every 10 years
      • a few delegates from US territories
          • New Hampshire = 2 reps
          • Louisiana = 7 reps

      Congress

       

      • 435 representatives
        • entire House membership faces reelection every two years
      • 100 Senators
        • 1/3 of the senators every two year
        • 6 year terms
        • January 3rd-July 31st

      Special Senate Duties

       

      • Confirm or disapprove any treaties the President drafts
      • Confirm or disapprove the Presidential appointments, such as the Cabinet, officers, Supreme Court Justices, and ambassadors.
      • Holds a trial for a government official who commits a crime against the country

      Powers of Congress

       

      • Coining Money 
      • Maintaining a military
      • Declaring war on other countries
      • Regulating interstate and foreign commerce
      • Elastic Clause
      • Impeachment 
      • write, debate, and pass bills
      • investigating pressing national issues
      • supervising the executive and judicial branches

      15 Executive Offices of the Cabinet

      • Department of Agriculture
      • Department of Commerce
      • Department of Defense
      • Department of Education
      • Department of Energy
      • Department of Interior
      • Department of Justice
      • Department of Labor
      • Department of Health and Human Services
      • Department of Homeland Security
      • Department of Housing and Urban Development
      • Department of State
      • Department of Transportation
      • Department of Treasury
      • Department of Veterans Affairs

      Department of Agriculture
      farming, agriculture, food
      Department of Commerce

      • Improving living standards by promoting economic development and technological innovation 

      Department of Defense

       

      • military forces (pentagon)

      Department of Education

       

      •  equal access and opportunity, educational excellence

      Department of Energy

       

      • gas supply, securing the development and distribution of clean, reliable, and affordable energy 

      Department of Health and Human Services (HHS)

       

      • responsible for protecting the health of all americans and providing human services especially for those who are least able to help themselves (CDC) food safety. 700 billion dollar budget 

      Department of Homeland Security

       

      • patrol borders, protect travelers

       

      Department of Housing and Urban Development

       

      • responsible for housing needs, fair housing laws are enforced, low income substities programs (section 8 housing)

       

      Department of interior

       

      • protecting natural resources

      Department of Justice

       

      • enforce the law, defend  the interest of the united states according to the law 

       

      Department of Labor

      • Charged with preparing the American workforce for new and better jobs, and ensuring the adequacy of America’s workplaces

       

      Department of transportation

      • Oversees federal highway, air, railroad, and maritime and other transportationadministration functions; components include the FAA

      Department of Treasury

       

      • financial infrastructure of the country 

      Department of State

      • The United States federal executive department responsible for international relations of the U.S.

      Department of verteran affairs

       

      • administering all of the programs to veterans

      Bipartisan

      representing, characterized by, or including members from two parties or factions.
      The process of how a Bill becomes a law:
      Bill draft–>Committee hearings–>Floor debate in the first chamber–> Floor debate in the second chamber–>Executive approval
      Explicit
      primary domains of family (really about families)
      Implicit
      anything else that impacts families (tax credit, education)
      Mediation
      the act or process of mediating; especially : intervention between conflicting parties to promote reconciliation, settlement, or compromise
      Arbitration
      a process of settling an argument or disagreement in which the people or groups on both sides present their opinions and ideas to a third person or group
      Draytan Neibors info:
      -Former Alabama supreme court Justice
      -What was the most important thing in the last thousand years? democracy
      -Paul Johnson says it was the Rule of Law
      -The legislature is where policy is made
      Civil Case
      everything that is not criminal, conflicts between people (FAMILY LAW)
      Criminal Case
      conflict of the law and is punishable
      Law-standards imposed by society (minimum standards)
      Punishments-fines, imprisonment, restitution payment
      Probate Court
      where all wills and estates are filed
      Common law
      accidents, contracts
      The Accountability Act
      -42 states have charter school authority-alabama does not
      -The teachers union AEA keeps that from happening
      -12 states that have tax credit scholarships
      -Either pay $10,000 in taxes to the state or $5,000 to school to pay for scholarships for poor students to go to school
      -AEA can block charter schools but didn’t block scholarships

      The Alabama Accountability Act of 2013 does three things:
      1. Allows for flexibility contracts between the State Board of Education and local school districts
      2. Creates tax credits for families with students in a (chronically) failing school to attend a nonpublic school or non-failing public school
      3. Creates tax credits for taxpayers (individuals and businesses) who donate to a nonprofit “scholarship granting organization” that provides scholarships for students to attend a nonpublic school or non-failing public school

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