Family Law

Front 1

Definitions of "family"

Back 1

- Under the formalist approach (see Hewitt; City of Ladue), the court would apply a strict definition of marriage and family. Under this approach, cohabitation would not constitute marriage or family.
- Under the functional approach (see Braschi), "family" is based on an objective examination of the relationship between the parties. Under this approach, the court will consider the following factors to determine if there is a "family":
1. Exclusivity/monogamy;
2. Length of relationship;
3. Level of commitment (financial and emotional);
4. Holding out;
5. Reliance for daily family services.

Front 2

Ceremonial marriage general rule

Back 2

In order to have a valid ceremonial, both procedural and substantive requirements must be satisfied.

Front 3

Ceremonial marriage, procedural requirements ("Are the procedural requirements satisfied?")

Back 3

The parties must go through whatever forms/procedural formalities are required in the state where they intend to get married. These formalities traditionally include: a marriage application, fee, and solemnization (ceremony).

Front 4

Ceremonial marriage, procedural mistake

Back 4

Depending on the jx, a procedural mistake may invalidate the marriage.
- Under the majority approach, a procedural mistake made in good faith will not invalidate a marriage.
- Under the minority (and CA) approach, formalities must be strictly complied with. In CA, unless the mistake is made by a NON-PARTY TO THE MARRIAGE, the marriage will be invalid. The parties may be "putative spouses," but they are not legally married.

Front 5

Ceremonial marriage, substantive requirements ("Are the substantive requirements satisfied?")

Back 5

There are a number of substantive requirements and restrictions on marrying. First, there must be a valid agreement to marry. Second, the marriage cannot be

Front 6

Voidable marriages

Back 6

- Marriages in JEST are voidable.
- Marriages procured by FRAUD are voidable.
- If either party is insane/MENTALLY INCOMPETENT, the marriage is voidable by a party to the marriage (or through his/her guardian).
- A marriage entered into before the AGE of consent is voidable by the under-aged party (or his/her guardian) while he/she is underage. The marriage will become valid when the couple continue to live as husband and wife after reaching the age of consent.

Front 7

Void marriages

Back 7

- In most states, SAME SEX marriages are void (exception: Mass.).
- BIGAMOUS/POLYGAMOUS marriages are void.
- INCESTOUS marriages are void.

Front 8

Fraud for purposes of family law

Back 8

As stated in Wolfe, marriage procured by fraud is voidable. For the purposes of family law, fraud exists when the following elements are satisfied:
1. Material misrepresentation of fact;
2. Knowing it to be untrue;
3. Intends to induce agreement;
4. Reasonably relied on by injured party in making the agreement.
- The misrepresentation of fact is "material" if it goes to the essentials of the marriage.

Front 9

Marriage voidable by reason of mental insanity or deficiency

Back 9

As stated in Edmunds, mere weakness of the mind is insufficient - the party must have a mental defect as to prevent the party from comprehending the nature of the contract and from giving free and intelligent consent to it.

Front 10

Marriage void if incestuous

Back 10

As stated in Sharon H., incestuous marriages are void. All states prohibit marriage with a common ancestor, including half-ancestors. Specific rules depend on state law. There are two types of limits based on incest:
1. Consanguinity statutes that limit marriages based on blood relationships; and
2. Affinity statutes that limit marriages based on marriage/adoption/family.

Front 11

Common law marriage requirements

Back 11

As stated in Weingard, the burden falls on the proponent of the marriage to prove, by a preponderance of the evidence, 1) intent/agreement to marry, 2) holding out to the community, and 3) continuous cohabitation.
- As seen in Weingard, holding out can serve as circumstantial evidence of intent.
- When determining whether the "holding out" element is satisfied, a court may consider:
a. Family name;
b. Wedding name;
c. Monogamy;
d. How family is viewed in the community;
e. Bills, credit cards, insurance, taxes, etc.
- CA does not recognize common law marriage.

Front 12

Determining which marriage in a series of marriages is valid

Back 12

There is a split in jx over how to determine which marriage in a series of marriages is valid.
- In CA (see also Spearman), there is a presumption that the most recent of a series of marriages is valid.
- In other jx, the courts hold that a marriage validly entered into continues, i.e., the second marriage is presumptively invalid if there is a valid first marriage.

Front 13

Determining which marriage in a series of marriages is valid: burdens of proof rule

Back 13

As stated in Spearman, under the CA rule, the first spouse has the burden of proving that his/her marriage is still valid. She/he can do this by showing that there was no legal proceedings to terminate the marriage. Burden then shifts to the second in a series of spouses to show that the marriage was dissolved.

Front 14

Putative spouse doctrine ("Does [PROPONENT] qualify as a putative spouse?")

Back 14

As stated in Spearman, a putative spouse is one whose marriage is legally invalid, but who has 1) engaged in a marriage ceremony/solemnization, 2) on the GOOD FAITH BELIEF (objective reasonable person standard) in the validity of the marriage.
- ASK: Should [PROPONENT] have known that the marriage was invalid?

Front 15

Palimony requirements ("Is [PROPONENT] entitled to palimony?")

Back 15

There is a split in jx over how to evaluate palimony claims.
- Under the traditional rule, there were no rights attached to cohabitation, i.e., no palimony.
- Under the contract-based CA rule (see Marvin), palimony as a right is created under contract law and can be express or implied. Court will look to the following elements to determine if there existed an implied agreement to support: 1) holding out, 2) cohabitation, 3) financial interdependence. In Roccamonte, we learned that economic inequality is a concern in palimony cases.
- Under the Washington rule, the question is whether the parties' relationship LOOKS like a marriage. Courts will look to duration of relationship, holding out, pooling of resources, etc. to determine whether the relationship has attained meretricious status. If the court deems the relationship marriage-like, then the palimony-seeking individual will receive half of the community property acquired during the relationship.

Front 16

Conflict of law rules

Back 16

Under Mary's Estate, the legality of a marriage is determined by the place where it was celebrated. There exists an exception when the state of enforcement has 1) an explicit statute that prohibits the marriage, 2) a strong public policy against it.
- A mini-DOMA would qualify as an explicit statute that prohibits the marriage, providing an exception to the conflict of laws rules.
- In Mary's Estate, the court held a marriage valid because there was no state statute prohibiting these kinds of marriages from out-of-state.

Front 17

CA domestic partnership requirements

Back 17

In order to qualify for a domestic partnership, the couple must be of the same sex or over 62 and have a common residence. These requirements must be satisfied at the time of filing a declaration with the Secretary of State.
- Terminates via divorce procedure, except no residency requirement.

Front 18

CA Domestic Violence Prevention Act

Back 18

Domestic violence is violence against:
- spouse
- former spouse
- cohabitant
- former cohabitant
- girlfriend/boyfriend
- abuser's child's parent
- child subject of action under the UPA.
Court will make order granting/modifying custody when parent has committed recent or continuous acts of domestic violence.

Front 19

Inter-spousal tort immunity

Back 19

There is a split in jx over the existence of an inter-spousal tort immunity.
- In CA (see Burns), there is no inter-spousal tort immunity, i.e., spouses can sue each other in tort. The public policy behind this approach is to deter wrongful conduct, abolish archaic notions that women are the property of their husbands, and give victims a civil remedy to recover for their damages.
- A minority of states still recognize inter-spousal tort immunity (see Hill). The policy behind this approach is the potential for fraud in inter-spousal tort cases, marital privacy and a need to promote reconciliation.

Front 20

Reproductive rights

Back 20

- Under Griswold, the right to access/use contraception is a fundamental right.
- Under the UNDUE BURDEN TEST (see Casey), a state can regulate abortion from conception to viability unless doing so imposes an undue burden, i.e., law has the purpose or effect of placing a substantial obstacle in the way of a women seeking abortion.
- Under Roe, the state can restrict abortion post-viability unless the life/health of the mother is at risk.
- Under Danforth and Casey, requiring consent of spouse or notice to spouse imposes an undue burden.

Front 21

State intervention in child custody

Back 21

As stated in In re Juvenile Appeal, there is a fundamental right to keep the family together, but the state can intervene when there is or may be serious physical injury to the child.

Front 22

Fault-based divorce

Back 22

Although divorce was generally prohibited, if there was sufficient misconduct, an innocent spouse had grounds for divorce. Grounds for fault include: cruelty, adultery, desertion, impotence, and incarceration. Defenses include: recrimination, insanity, condonation, connivance, and collusion.

Front 23

Cruelty

Back 23

Cruelty is defined as grievous bodily injury or grievous mental suffering.

Front 24

Adultery

Back 24

There are definitional problems with adultery (see Kucera). The family law textbook defines adultery as voluntary sexual intercourse by a married person with a person who is not his/her spouse. Adultery can be proved through circumstantial evidence of inclination and opportunity.

Front 25

Desertion

Back 25

Desertion is defined as leaving with the intent to desert spouse and end the marriage. Courts also recognize "constructive desertion" which includes the persistent refusal to have reasonable matrimonial intercourse when health or physical condition does not make such refusal reasonably necessary.

Front 26

Impotence

Back 26

Impotence of either party is grounds for divorce.

Front 27

Incarceration

Back 27

Incarceration is grounds for divorce when a spouse is convicted of a crime punishable by imprisonment for more than a year and actually imprisoned under such conviction.

Front 28

Recrimination

Back 28

Under the recrimination defense, a showing by the defendant of any cause of divorce against the plaintiff is a bar to the plaintiff's cause of divorce. This defense is virtually extinct.

Front 29

Insanity

Back 29

Insanity is generally recognized as a defense to divorce actions founded on adultery and desertion. Under Simpson, a defendant asserting an insanity defense to divorce founded on grounds of cruelty must prove that, at the time of such conduct, as a result of the mental disease/defect, he/she lacked the capacity to either appreciate the wrongfulness of his conduct or the volition to control his/her acts.

Front 30

Condonation

Back 30

Condonation occurs when the injured spouse, knowing of a marital wrong, continues or resumes marital cohabitation. Condonation can be express or implied.
Revival is a counter-defense to condonation. If a condition on the condonation is not upheld, then the ground is revived.

Front 31

Connivance

Back 31

Connivance is a defense to divorce when the offending conduct was agreed to or encouraged.

Front 32

Collusion

Back 32

The court can raise the defense of collusion sua sponte when the parties work together to present false evidence of fault, i.e., to defraud the court.

Front 33

No fault divorce

Back 33

Some jx, including CA, have abolished fault completely in divorce proceedings. Under the UMDA, there are two grounds for no-fault divorce: 1) living separate and apart for more than 180 days (time varies from state to state) and 2) Irretrievable break-down of the marriage.
- As stated in Desrochers, evidence that one party does not want to divorce can be used as evidence to show a reasonable possibility of reconciliation, but is not a bar to divorce. It is for the trier of fact to determine whether the marriage is irretrievably broken.

Front 34

Procedural requirements for divorce

Back 34

In general, there are no default divorce judgments (see Manion). In other words, the court must conduct a hearing in order to grant a divorce. In CA, however, we have an exception for the summary dissolution of marriage procedure when the parties have been married for less than 5 years, have no children together, and no real property (among other requirements).

Front 35

Property division at divorce

Back 35

Property division is unmodifiable. Property division is subject to prenup agreements between the parties. There is a split in jx over how to determine which property is subject to the courts dispositional authority and how to allocate the property. A key variable distinguishing these systems is the amount of judicial discretion. There are four main systems: 1) Title-based distribution, 2) Pure equitable distribution, 3) Strict community property, 4) Hybrid community property/equitable distribution.

Front 36

Title-based system

Back 36

Under the title based distribution system, property is divided according to the name on the title. Judges have little or no express discretion. This system is certain and easy to apply, so it, in theory, takes little judicial resources.

Front 37

Pure equitable distribution

Back 37

Under the pure equitable distribution system (see Pierson), all property owned under any circumstances is up for grabs to be equitably distributed. The court will consider need, fairness, and the need for a clean break in determining distribution. The policy arguments behind this system are fairness, flexibility, reliance principle.

Front 38

Strict community property

Back 38

Under the strict community property system, property is characterized as community or separate. Community property is acquired during the marriage. Separate property is acquired before marriage, gifts and inheritances, and after separation. Under strict community property rules, the community property is to be divided as 50/50. Separate property remains separate. This approach is supported by the following policy considerations: certainty, less judicial discretion, fairness, and the idea that inequities can be dealt with in support award.

Front 39

Characterization of community property, educational degrees

Back 39

There is a split in jx over whether educational degrees are subject to division as community property.
- Under the majority approach (see Mahoney), educational degrees are NOT subject to division as community property. Under the Cal. Fam. Code section 2641, a spouse CAN seek reimbursement alimony for contributions made to educational expenses, compromised earning capacity, and other support provided while spouse got degree/furthered career with interest.
- Under the minority approach (see O'Brien), an educational degree is treated as community property and divided between the spouses.

Front 40

Hybrid community property/equitable distribution system

Back 40

The UMDA suggests a hybrid community property/equitable distribution system where the court characterizes property as community or separate and then divides the community property equitably (versus 50/50). The court will consider things like 1) contribution of each spouse to acquisition of marital property, including homemaker contribution, 2) value of property set apart to each spouse, 3) duration of marriage, 4) economic circumstances of each spouse.

Front 41

Consideration of fault in property division

Back 41

CA specifically excludes the consideration of fault in property division as a matter of public policy. In other states, fault may be taken into consideration.

Front 42

Spousal support, rehabilitative alimony

Back 42

The most common form of alimony is rehabilitative alimony. The idea behind rehabilitative alimony is to try to help the dependent spouse to be self-sufficient. Rehabilitative alimony is therefore limited in time. The court will likely consider financial need, the need for a clean break, and fairness in deciding appropriate alimony (see Turner and LaRocque).

Front 43

Spousal support under the UMDA

Back 43

Under the UMDA section 308, a court may grant alimony if the spouse seeking maintenance lacks sufficient property to provide for his/her reasonable needs and is unable to support him/herself through appropriate employment. The court shall order support in amounts and duration as is just, without regard to marital misconduct, after considering: 1) ability to meet needs independently considering property division and child support awards, 2) time necessary to acquire training/education/employment, 3) standard of living during the marriage, 4) duration of the marriage, 5) age and physical/emotional condition of maintenance-seeking spouse, 6) ability of payor to meet his/her needs while meeting needs of maintenance-seeking spouse.

Front 44

Spousal support, reimbursement alimony

Back 44

As stated in Mahoney, there will be circumstances where a supporting spouse should be reimbursed for the financial contributions he/she made to a spouse's successful professional training.

Front 45

Child support

Back 45

Federal law requires states to enact child support guidelines. There are three main child support models:
- Flat percentage model where child support = x% of obligor's income (may vary depending on number of children).
- Income shares model: child support = money child would receive under parent's shared income, had the family remained in tact.
Delaware-Melson formula: Meet obligor's needs, then kid's needs, then obligor gets remainder.

Front 46

Child support, reduction/elimination of support when child not following parents' wishes

Back 46

There is a split in jx over whether there should be a reduction/elimination of support when child not following parents' wishes.
- Some courts hold that parents cannot put conditions on support.
- Other courts hold that when the parent's commands are "reasonable," a disobedient child has emancipated him/herself and the parent is no loner obliged to pay support.
- Other courts ask whether the child's behavior is reasonable, and if so, the parent must continue to support.

Front 47

Support modification/termination

Back 47

The party seeking modification has the burden of proving MATERIAL CHANGED CIRCUMSTANCES to justify a decrease/increase in support. Party must demonstrate that changed circumstances have substantially impaired the ability to support him/herself.

Front 48

Support modification/termination, VOLUNTARY changed circumstances

Back 48

The Deegon court outlined a number tests to determine whether voluntary changed circumstances qualify for support modification:
- Two approaches follow a bright line rule. One says that if change is voluntary, support order cannot be modified. Another rule says that if there is any negative impact on the payee, support order cannot be modified. Another rule determines whether the changed circumstance was made in good faith -- retirement cannot be based on the sole purpose (or primary purpose, depending on jx) to avoid payment. Finally, the CA courts apply a cost-benefit analysis where the court balances the benefit to the paying spouse against the disadvantage to the payee. If the disadvantage outweighs the benefit, modification will be denied. The Deegon court adopted this rule. The bring line rules are certain but unfair and the subjective good faith tests come with evidentiary problems.

Front 49

Spousal support modification/termination, second/new families

Back 49

As stated in Peterson, REMARRIAGE of recipient of spousal support generally terminates obligation to pay. There exists an exception in extraordinary circumstances or when there is an express agreement to pay upon remarriage.
There is a split in jx over whether COHABITATION justifies support modification. The majority rule (see Dwyer) says that cohabitation alone is insufficient grounds for reducing/terminating support. Unmarried cohabitants don't assume the same obligations as marriage. A minority rule, used in CA, says that cohabitation may be grounds for modifying spousal support. In CA, there is a rebuttable presumption of decreased need for support when the recipient cohabitates with a person of the OPPOSITE SEX.

Front 50

Child support modification/termination, second/new families

Back 50

There is a spit in jx over whether second/new families should be taken into consideration in modifying child support orders. Under the Ainsworth "first family first" rule, a second/new family is not grounds for support modification. Under the CA rule, the court will take new kids into account along with other factors and make appropriate modifications.

Front 51

Jailing deadbeat parents

Back 51

When a paying spouse fails to pay child support, he/she may be held in contempt of court and jailed. The deadbeat parent must have known of the order and willfully refused to pay. As stated in Moss, inability to comply with the order is an affirmative defense when there is a present financial inability to pay and an inability to obtain employment.

Front 52

Tax consequences of divorce

Back 52

Spousal support is deductible, child support is not. Any payment that is clearly associated with a contingency relating to the child is considered "child support" by the IRS. There are no income tax consequences of property division.

Front 53

Child custody

Back 53

The primary consideration in granting child custody is the best interest of the child. This is a fact-based analysis that necessarily varies from case to case. Some factors to consider are:
1. Stability and continuity for the child;
2. Care;
3. Emotional nature of the parents;
4. Parent's connection to the child;
5. Safety;
6. Economics;
7. Lifestyle.

Front 54

Natural parent presumption

Back 54

As stated in Painter, under the natural parent presumption, courts favor giving custody to the child's biological parents.

Front 55

Primary caretaker presumption

Back 55

Under the primary caretaker presumption (see Burchard v. Garay), there is a presumption that custody should go to the parent who has raised the child from birth, i.e., been the child's "primary caretaker."

Front 56

Joint custody policy/presumption

Back 56

All jxs have a policy favoring the continued involvement of both parents in the custody of the child. Thus, joint custody might be favored depending on the circumstances. The court can award joint physical custody, joint legal custody, or both.

Front 57

Appropriateness of joint custody

Back 57

As stated in Taylor, a court should consider the following factors in determining whether joint custody is appropriate:
1. Ability of the parents to communicate and reach decisions affecting the child's welfare;
2. Willingness of parents to share custody;
3. Preference of child;
4. Potential disruption of child's social/school life;
5. Demands of parental employment;
6. Age and number of children;
7. Sincerity of parents' requests;
8. Financial status of parents;
9. Impact on state/federal assistance;
10. Benefit to parents.

Front 58

Fitness/unfitness of parents

Back 58

The fitness or unfitness of the parents should also be taken into consideration. There is a presumption against awarding custody to an abusing spouse (see CA Domestic Violence Prevention Act and Opinion of the Justices to the Senate). There is also a presumption against awarding custody to an unfriendly parent (see Renaud; Cal. Fam. Code section 3040). The sexual conduct and religiously-motivated conduct may also be taken into consideration, depending on the jx and circumstances of the case.

Front 59

When joint custodians cannot agree on custodial decision

Back 59

Under Lombardo, when joint custodians cannot agree on a custodial decision and there is no enforceable agreement governing the decision, the court will decide the disagreement under the BIOC. Some don't believe that this is an appropriate role for a judge and it is bad for judicial economy. Others believe that the decision is good because it keeps the child's best interest in mind. The trial court in Lombardo held that the decision should be decided by the primary physical custodian. Some believe that this approach is unfair to the other parent defeats the purpose of joint custody.

Front 60

Friendly parent doctrine

Back 60

Under Renaud and the Cal. Fam. Code section 3040, a court may consider which parent is more "friendly," i.e., more likely to allow child frequent and continuing contact with the non-custodial parent.

Front 61

Considering a parent's sexual conduct in making a custody determination

Back 61

There is a split in jx over whether to consider a parent's sexual conduct when making a custody determination.
- The majority rule is that a parent's sexual behavior will not be a factor unless the parent can show evidence of ACTUAL OR FUTURE harm to the child. Homosexuality alone is not enough under this standard.
- Another rule (see Taylor) is that there is a presumption that cohabitating harms the child.
- Another rule specifically says that giving custody to a parent cohabitating in a homosexual relationship is not in the best interest of the child.

Front 62

Considering race as a factor in making custody determination.

Back 62

Custody cannot be awarded on the basis of race. Race may be taken into consideration, for example, when there is a concern about making the children aware of their cultural and ethnic heritage.
Under Palmore v. Sidoti, race-based stigma is not a permissible consideration under the best interest of the child standard.

Front 63

Considering religiously-motivated conduct in making custody determination

Back 63

As stated in Hadeen, a court can only consider religiously-motivated conduct when that conduct jeopardizes the physical/mental well-being of the child, i.e., there is a SUBSTANTIAL LIKELIHOOD OF IMMEDIATE OR FUTURE HARM.
- Refusing medical care = substantial likelihood of future harm.
- No requirement of ACTUAL harm.

Front 64

Denial of visitation

Back 64

As seen in Morgan v. Foretich, denial of visitation is an extreme remedy, rarely approved.

Front 65

Modification of visitation order

Back 65

Court applies the BIOC to determine whether modification of a visitation order is appropriate.

Front 66

Move-away cases

Back 66

Under Burgess and LaMunche, when a non-custodial parent seeks to shift custody based on a custodial parent's wishes to move away, the non-custodial parent has the burden of showing "some detriment" to the child if the child is taken away. If the non-custodial parent meets this burden, the court will decide whether it is in the BIOC for the child to move or stay.
- If the custodial parent wishes to move to a foreign country, she/he has the burden to show that the move is in the BIOC.

Front 67

Modification of custody order

Back 67

As stated in Bail, in order to modify a custody order, the person seeking modification must show 1) material change in circumstances AND 2) modification is in the best interest of the child.

Front 68

Taking a parent's illegal conduct into consideration when seeking modification of custody order

Back 68

Under Bail, a parent's illegal conduct shall be considered only if that conduct cause or may cause emotional or physical damage to the child.

Front 69

Enforceability of prenuptial agreements

Back 69

There is a split in jx over how to evaluate the enforceability of a prenuptial agreement.
- Under the Simeon approach, a court will evaluate the enforceability of a prenup like it would any other contract.
- Under the ALI approach, the court will scrutinize the contract carefully to make sure that at the time of execution there was full and fair disclosure, the agreement was signed voluntarily, and there was informed consent. The court will also evaluate whether the contract is fair at the time of enforcement.
- Under Cal. Fam. Code section 1612(c), a spousal support provision is only enforceable when 1) the person waiving support was represented by independent counsel and 2) waiver is not unconscionable at time of enforcement. Under Cal. Fam. Code section 1615, a prenup is unenforceable if involuntary or unconscionable at time of execution. Voluntariness requires independent representation or express waiver thereof, 7 day waiting period.

Front 70

Permissive scope of prenups

Back 70

- Prenups cannot be in violation of public policy.
- Prenups cannot work to lower child support.
- Child custody provisions are reviewed under the BIOC.
- Spousal support provisions cannot work to put spouse on public assistance.

Front 71

Enforceability of separation agreements

Back 71

There is a split in jx over how to determine the enforceability of an MSA:
- Under the UMDA, courts will generally honor the MSA unless unconscionable.
- Under the ALI rle, courts will be more skeptical of MSAs and evaluate their fairness.

Front 72

Setting aside an MSA/divorce decree

Back 72

As stated in Hresko, in order to set aside a divorce judgment, the moving party must show that the judgment in question was the product of FRAUD, MISTAKE, or IRREGULARITY. In order to set aside the judgment based on fraud, the fraud must be EXTRINSIC FRAUD - it must have actually prevented an adversarial trial. In CA, failure to disclose the existence of community property constitutes extrinsic fraud.

Front 73

Adoption, termination of biological parents' rights

Back 73

There are two ways to terminate a biological parent's rights. Involuntary termination is only available when the State shows by clear and convincing evidence 1) abandonment, 2) abuse, or 3) neglect. As stated in Petition of S.O, voluntary consent to adoption must be knowingly and voluntarily and intelligently made. Most states allow a parent to revoke consent, but they must do so in a matter of days.

Front 74

FL ban on same-sex adoption

Back 74

FL is the only state to expressly forbid adoption by gay parents. The law was challenged in the Lofton case, but upheld by the 11th Circuit under rational basis level of review.

Front 75

ICWA

Back 75

Race can be a factor in adoption, but cannot be determinative. Under the IWCA, the tribe gets exclusive jx over adoption when child resides or is domiciled on the reservation. Under Holyfield, a child's residence/domicile, for the purposes of the ICWA is the child's permanent home and a child cannot have a different domicile than his/her parents.

Front 76

Step-parent's duty of support to step-kid

Back 76

In general, a step parent has no duty of child support. Under doctrine of equitable estoppel (see MHB), a stepparent can be required to provide child support when the following three elements are satisfied: 1) Affirmative representation of support (stepparent encourages parent and child to rely on him/her for support), 2) Reliance (child's reliance), 3) Financial detriment (child will suffer financial harm if stepparent stops paying). One approach to this doctrine requires the child's natural parent to be unavailable due to the acts of the step-parent.

Front 77

Step-parent's rights to visitation

Back 77

In general, there is no right to visitation. Under the psychological parent doctrine (see Nelson), a step-parent may be entitled to visitation if she/he can prove the following four elements and that visitation is in the BIOC: 1) Consent of natural parent to relationship with child (natural parent encouraged the relationship), 2) Cohabitation, 3) Person took on significant parent-like obligations without expectation of reiteration, 4) Sufficient length of time to bond with the child. Under Nelson and Troxel, it appears that the natural parent would have to be deemed unfit in order to override her wishes to deny visitation.

Front 78

Whether psychological parent doctrine should apply to unmarried cohabitants

Back 78

One approach would be to follow the dissent in Nelson and extend visitation rights to unmarried cohabitants. Proponents of this approach argue that a psychological parent is a psychological parent, married or not and that the natural parent encouraged the bond so the child shouldn't have to suffer. Under the majority approach in Nelson, the exception does not apply to unmarried cohabitants. Proponents of this approach argue that unmarried cohabitants do not have the same rights and responsibilities of married couples.

Front 79

Determining parenthood, husband = father presumption in CA

Back 79

Under the Cal. Fam. Code section 7540, a child of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. Rebuttable when blood tests show that husband is not the father and wife, child, husband, or presumed father petition the court within two years.

Front 80

Determining parenthood, presumed father provision

Back 80

A man is presumed to be the natural father of a child if he 1) receives the child into his home and 2) openly holds the child out as his own.

Front 81

Determining parenthood, donor

Back 81

Under the UPA, a donor is not a parent of a child by means of assisted reproduction. In CA, the donor must provide the semen to a licensed physician and surgeon.

Front 82

Determining parenthood, constructive consent under the UPA

Back 82

Under the UPA, a husband gives constructive consent to artificial insemination and is the natural parent when he 1) resides with the mom and child during the first two years of marriage and 2) holds out the child as his own.

Front 83

Determining parenthood, husband = father presumption under the UPA

Back 83

Husband cannot contest paternity unless he does so within two years of birth and does not consent to the birth before or after OR at any time, he can prove that he did not provide sperm, he did not cohabit with mother since probable time of insemination, and he never openly held child out as his own.

Front 84

Problems with surrogate mothers

Back 84

Under CA law, natural motherhood can be proven through 1) birth or 2) blood/genetics. When two women have a claim to being the natural mother, the court will apply the intended parents test (see Johnson). Under the intended parents test, whoever's intent it was to bring about the birth of the child and who intends to raise the child as her own, will be deemed the natural and legal mother under CA law.

Front 85

Two legal parents of the same sex under the natural parent presumption

Back 85

Under Elisa B, a child may have two parents of the same sex. The rule is that a woman will be presumed to be the natural parent of a child under the UPA if she 1) receives the child into her home and 2) openly holds out the child as her natural parent.

Front 86

KM v. EG exception to the "donor is not the parent" rule

Back 86

Under KM v. EG, if a donor is not anonymous and the couple intends to raise the child in their joint home, then the donor is a parent.