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101 Cards in this Set
- Front
- Back
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equal protection analysis |
1. rational basis scrutiny
2. strict scrutiny 3. intermediate scrutiny |
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rational basis scrutiny
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used for regular classifications
A classification is presumed valid unless plaintiff can show that the differential treatment bears no reasonable relationship to a legitimate public interest |
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strict scrutiny
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used for suspect classifications (race, nat'l origin, and alienage)
the classification is presumed invalid unless the state can show that the discrimination is necessary or narrowly tailored to the achievement of a compelling state interest |
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intermediate scrutiny
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used for quasi-suspect classifications (gender or status as an illegitimate child)
the state can overcome the presumption of invalidity by proving the classification is substantially related to the achievement of an important state interest |
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due process analysis
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the due process clause places substantive limits on gov'tal power
courts usually use the rational basis test, but use the strict scrutiny test when analyzing fundamental aspects of liberty |
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Examples of marriage classifications the court has struck down
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bans on interracial marriage (Loving)
bans on remarriage for men who can't pay child support obligations (Zablocki) Bans on prisoners getting married (Turner) |
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Same-sex marriage
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Early decisions assumed that marriage necessarily involved one woman and one man; this changed with Lawrence
The Massachusetts SC struck down a ban on same-sex marriage on EP grounds in 2003 (Goodridge) While states often bend their marriage policies to uphold those from other states, 41 states enacted statutes or constitutional amendments refusing to grant such recognition. DOMA does the same. |
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Polygamy
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The SC has upheld anti-bigamy statutes, distinguishing between constitutionally protected religious beliefs and religiously motivated conduct in violation of social duties or subversive of good order. State courts agree.
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Polygny
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2+ wives
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Polyandry
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2+ husbands
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Incest
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All states criminalize marriage to a
-parent -child -grandparent -grandchild -sibling Most states prohibit marriage to a -aunt -uncle -niece -nephew States split on marriage to a first cousin Some states treat relations by affinity the same as those by consanguinity. The MPC rejects this theory. Most states don't prohibit marriage between people related by adoption, even if they are brother and sister. |
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policy reasons for criminalizing incest
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1. health
2. preventing internal family strife or tension 3. preventing unequal r'ships (e.g., father marry daughter) |
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minimum age at marriage
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In most states, 18, but some allow 16-17 year olds to marry with parental and/or judicial consent
In some states, even younger minors can marry in exceptional cases (e.g., pregnancy) |
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consent to marriage
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A valid marriage requires the mutual consent of each party, which requires that each party (1) have the mental capacity to consent and (2) give a voluntary consent free from duress or fraud
See, e.g., Santolino, where the court found that plaintiff stated a valid claim that her deceased brother lacked the mental capacity to marry defendant where he was heavily medicated and ill with cancer during the marriage. |
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marriage formalities
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to establish a valid ceremonial marriage, most states requires (1) a marriage license and (2) solemnization. Some states require a waiting period between the two.
Often, the solemnization fees are forgiving. Some states (and the UMDA) even allow marriage by proxy |
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common-law marriage
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Common-law marriage exists if the parties are competent to be married and:
1. live together; 2. hold themselves out as married; and 3. possess the mutual intent to be married. Satisfying the elements of common-law marriage can overcome defects in a formal marriage. Today, less than a dozen states allow common-law marriage. |
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putative spouse doctrine
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An equitable remedy for an innocent spouse who has relied in good faith on a mistaken belief in the validity of his or her marriage.
To prove that one is a putative spouse, the moving spouse must show (1) a proper marriage ceremony and (2) a good-faith belief by one or both spouses that the marriage was valid. While the marriage becomes void after successful invocation of this doctrine, relief resembles the relief granted in a divorce. |
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Necessaries doctrine
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At common law, a wife's personal property and legal existence came under her husband's control when she got married. To compensate the wife for this disability, the husband had a corresponding duty to maintain his wife in accordance with his means, i.e., provide her with a suitable home and necessaries like food and clothing.
If husband failed to provide for wife, she could his credit to buy necessaries that were suitable given their lifestyle from a third party. If he failed to repay, the third party could sue husband for the debt. Today, most states retain the doctrine but have made it gender-neutral. |
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Suit for insufficient support
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In some states, a wife may sue her husband for insufficient support.
See McGuire (Neb. 1953), where the court declined to award wife maintenance and support because while husband was cheap, she lived with it for over 33 years before taking action. |
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Palimony
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Palimony claims are claims for the enforcement of agreements between unmarried but cohabitating partners involving earnings, property, and expenses, so long as sex doesn't provide an inseparable part of the agreement's consideration.
To successfully state a palimony claim, a plaintiff must prove (1) an express or implied promise of support and (2) a marital-type relationship (cohabitation isn't req'd, but it is persuasive evidence of a marital-type r'ship) This type of claim was first recognized in Marvin (Cal. 1976). |
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Marvin (Cal. 1976)
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P and D made an oral agreement to live together, combine earnings, and share all marital property equally. They held themselves out to the public as husband and wife.
P would give up her lucrative career as a singer and be a homemaker and companion to D, who in turn would provide financial support. D stopped providing support and forced P to leave their house. P asked the court to determine her contractual and property rights and asked the court to impose a constructive trust on 1/2 the marital property. As long as the agreement doesn't use sex as a consideration, a property agreement between an unmarried man and a woman living together is enforceable. Even if sex is part of the consideration, that part of the agreement can be severable if possible. Absent an express written agreement, the court may look into whether an oral or implicit agreement exists. It may impose a constructive trust or award damages for the reasonable value of household services rendered minus the reasonable value of support received. |
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Domestic partnerships
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Domestic partnerships are meretricious relationships (stable, marital-like relationships in which the parties cohabit knowing they aren't married) that grant both partners mutual rights and responsibilities, including health care, inheritance, and retirement benefits. In some states, property accumulated during such relationships is presumed to be community property.
In determining whether such a r'ship existed, courts look at 1. whether there was continuous cohabitation 2. the duration of the r'ship 3. the purpose of the r'ship 4. whether there was a pooling of resources 5. the intent of the parties 6. any other relevant facts |
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Civil unions
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Some states allow unmarried couples all the rights and responsibilities of married couples. Most states limit them to same-sex couples.
This restriction has been upheld on the basis that the states have a rational basis in encouraging marriage between heterosexual couples. |
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heart balm torts
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1. alienation of affections
2. criminal conversation 3. seduction These torts have mostly been abolished. |
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Alienation of affections
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A spouse whose partner had a romantic affair can sue the paramour for damages. Proving that the spouse and paramour had sex isn't req'd.
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Criminal conversation
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Created liability for having sex with a partner married to someone else.
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Seduction
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Allowed parents to recover for the deceitful courting of their children.
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loss of consortium
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Allows plaintiffs to recover for damages related to a negligent injury inflicted upon a loved one.
Damages compensate for the impairment of their intimate r'ship. Spouses may recover, and many courts allow parents and children to recover as well. The tort is not available without a formal, legally recognized, familial r'ship. This includes those prevented from being married at the time of the injury (e.g., same sex couples) |
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fault grounds for divorce
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1. adultery
2. desertion 3. physical cruelty 4. mental cruelty |
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adultery as a fault grounds for divorce
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All forms of sexual contact, not just intercourse, qualify as adultery justifying divorce.
Courts allow circumstantial evidence to prove adultery, but proving it still presents evidentiary issues. |
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desertion as a fault grounds for divorce
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In generally, desertion requires (1) the willful abandonment of cohabitation (2) for a sufficient period of time (usually one year) along with (3) the intent to abandon.
Some courts allow recovery for constructive desertion, where one spouse made life within the home so intolerable as to drive the other spouse away |
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physical cruelty as a fault grounds for divorce
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Physical cruelty in its original form req'd acts or threats of bodily harm substantial enough to be deemed reasonably intolerable.
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mental cruelty as a fault grounds for divorce
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Requires a habitual manifestation of hate, alienation, and estrangement from one spouse sufficient to render the condition of the other spouse intolerable.
This standard is vague, and was a first step towards liberalizing divorce laws towards no-fault divorce |
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Defenses to fault-based divorce
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1. recrimination
2. provocation 3. connivance 4. condonation |
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recrimination
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Both spouses were guilty of faults which offset each other.
Similar to the unclean hands doctrine. Long thought to be "outrageous," courts have generally disfavored this defense and many states have limited its application |
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provocation
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Available when defendant claims his own faulty conduct was reasonably provoked by plaintiff's faulty conduct.
The provoking conduct need not be serious enough to be its own fault-based ground for divorce, but enough to make defendant's faulty reaction proportionate to the provocation. |
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connivance
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Bars relief if the party seeking divorce participated in manufacturing the fault upon which the divorce is sought (e.g., a spouse encourages the other to have an adulterous tryst with another)
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condonation
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Defendant's fault ground has already been forgiven by by plaintiff, either express or implied.
Forgiveness must be premised on the condition that (1) defendant's behavior won't be repeated and (2) defendant will treat plaintiff with "conjugal kindness" after forgiveness. Prior fault can be revived if defendant reoffends. |
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collusion
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Collusion is a bar to divorce.
It exists where spouses conspire to manufacture grounds for a divorce. Traditionally, courts didn't police collusion aggressively. Since the advent of no-fault divorce, it is largely unnecessary. |
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No-fault divorce
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(1) a finding that a marriage is irretrievably broken
- either or both spouses are unable or unwilling to cohabit and there are no prospects for reconciliation (2) a waiting period of living "separate and apart" -The UMDA uses a 180-day waiting period, or alternatively, a showing of "serious marital discord" -Some states allow findings of constructive separation, where both parties live under the same roof but have the intent to live separate and apart -"separate" requires an intent to dissolve the marriage while "apart" means physically apart |
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Criticisms of no-fault divorce
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(1) makes marriage fully revocable
(2) simply moves the legal conflict from the actual divorce to the custody battle (3) doesn't protect women; men will batter women whether they are married or not (4) increases the number of divorces (5) encourages selfish individualism |
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Arguments in favor of no-fault divorce
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(1) gives adults the right to choose to end a marriage
(2) proving fault is difficult and encourages perjury (3) the no-fault system is less adversarial and increases judicial efficiency |
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covenant marriage
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Available only in Louisiana, Arkansas, and Arizona
Only dissolved on fault-based grounds after a separation period Only used by about 3% of couples in the states that offer it |
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annulment
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A declaration that a marriage never existed because of a fatal impediment at formation.
Originally used to allow English ecclesiastical courts to permit exit from failed marriages while retaining the possibility of remarriage |
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Void v. voidable
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Void
-violative of core marriage prohibitions (e.g., bigamy, incest) -void ab initio (from the beginning) -open to attack by third parties (e.g., in a will contest or wrongful death action) -open to attack after death -not ratifiable, unless a spouse was married to another person and that person died Voidable -violative of less stringent policies (e.g., a spouse is below the age of consent, fraud) -valid until annulled -can't be attacked by third parties other than the parents of an underage spouse -can't be attacked after death; if the marriage is annulled before death, it is valid -ratifiable |
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economic and social protections post-annullment
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Traditionally, there was no basis for granting economic or social protections similar to marriage. Destitute wives would have no claim for alimony and children would retroactively become bastards.
Courts began relying on equitable devices but now rely on statutes providing protections similar to alimony and property distribution similar to marriage. |
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legal separation
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A limited divorce req'g proof of a ground that would justify absolute divorce, after which the court may order property division and support payments while the parties live apart
Some states allow "separate maintenance," which fixes support obligations but doesn't require proof of a traditional fault ground. It doesn't allow for property division either. Used by those who (1) hope for reconciliation; (2) have religious or other objections to divorce; or (3) wish to retain the legal or other benefits of marriage without living together as a married couple |
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property distribution systems
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1. title theory
2. community property theory 3. equitable distribution theory |
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title theory
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No longer used
Provided that each spouse who held title to the asset retained ownership of it Tended to overlook the contributions of the homemaking spouse in acquiring property. |
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community property theory
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Based in French and Spanish law and used in 8 states.
Provides that property acquired during the marriage is community property, except if acquired by gift, bequest, or devise. Property acquired before marriage remains separate. Each spouse has a vested, half-interest in community property and neither may dispose of it without the consent of the other. |
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equitable distribution theory
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Replaced title theory
Each party's contributions to a marriage are measured by the whole mess of financial and non-financial contributions. When a marriage ends, each has the right to a share of the marital assets because they are the capital product of a joint enterprise. Allocation of property depends on spousal contributions and relative need. |
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types of property excluded from marital property
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1. property acquired before marriage
2. property acquired by gift, bequest, or devise 3. property excluded by agreement (e.g., prenup) 4. property directly traceable to any of these sources |
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transmutation and changes in characterization
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The characterization can change - transmute - over time (1) if a spouse gifts separate property to the marraige or (2) if separate property is commingled with marital property to the extent it is no longer traceable back to separate property.
The spouse seeking to show a shift in characterization has the burden of showing such. Commingling of separate and marital property creates a presumption in favor of finding marital property |
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appreciation of separate property during marriage
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Active appreciation - when the appreciation in value is caused by the efforts of one or both spouses - the appreciation is marital property because it was due to marital funds and/or efforts
Passive appreciation - when the appreciation is caused by inflation or market forces - the appreciation remains separate |
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non-financial contributions of homemakers in property distribution
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Equitable distribution, unlike title theory, takes non-financial contributions of homemakers into account.
Methods for determining value 1. cost of replacing homemaking services with market labor 2. opportunity costs lost by the homemaker in choosing to stay at home 3. econometric models based on economic theories and statistical analysis |
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debt in property distributions
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Debt incurred by either spouse during the marriage is presumed to be community debt. This presumption is rebuttable by showing that the debt wasn't contracted for the benefit of the marriage.
If a spouse's act creates a community liability, it is enforceable against the community property and that spouses separate property. Debt related to family expenses (e.g., on a lease for a marital home) is enforceable against community property and both spouses separate property |
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new forms of property
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1. professional degrees
-treated as a marital asset only in NY, but other sates consider enhanced earning capacity related to professional training in equitable distribution 2. pension plans -marital asset 3. stock options -marital property to the extent they are deferred compensation for work performed during marriage 4. business goodwill (the gap between the book value and actual value of a company) -marital asset 5. shares in closely held corporations -can depend on whether a spouse owns a controlling interest 6. personal injury recovery -pain and suffering awards are separate property, but economic loss and loss of consortium awards are marital property; courts split on disability benefits 7. lottery prizes -marital assets |
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QDRO
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Qualified domestic relations order
An order from a court req'g a pension administrator to segregate a portion of the payor spouse's account into a separate account for the payee spouse |
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determining what is distribution is equitable
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Most states provide lists of factors for courts to consider, but don't assign weigh to each factor
Some states require fair and equitable distribution, while others mandate equal division or begin with a rebuttable presumption that property should be distributed equally |
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justifications for alimony
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1. fault-based
-under fault-based divorce, alimony was only available to the innocent spouse; the UMDA removed fault from its alimony guidelines but some states retain it 2. need-based -spouses expect to maintain their standard of living after divorce 3. contract -reward for sacrifices made during a marriage 4. partnership -spouses impliedly agree to work for the marriage's benefit; alimony ensures that each spouse takes responsibility for the burden of its failure after divorce 5. restitution -one spouse continuing the enjoyment of a benefit incurred by the other spouse after divorce is unjust 6. reimbursement 7. compensation for losses sustained during the marriage |
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forms of alimony
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1. temporary alimony (alimony pendent lite)
2. rehabilitative alimony (transitional or short-term alimony) 3. reimbursement alimony 4. bridge-the-gap (limited duration) alimony 5. permanent, indefinite, or periodic alimony 6. lump sum alimony |
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temporary alimony (alimony pendent lite)
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The dependent spouse receives support while the parties are litigating as a stop-gap until a divorce decree is issued.
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rehabilitative alimony (transitional or short-term alimony)
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Support is provided for a definite period of time while the recipient seeks to become self-supporting. The recipient spouse must make good faith effort to rehabilitate his or herself.
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reimbursement alimony
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The spouse whose financial contributions during the marriage directly enhanced the other spouse's earning capacity is awarded compensation
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bridge-the-gap (limited duration) alimony
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Provides necessary funds to bridge the gap between married and single status.
Meets identifiable, short-term support needs that aren't rehabilitative in nature Available only in a few states. |
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permanent, indefinite, or periodic alimony
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The dependent spouse receives support for an undefined duration, awarded until periodic installments until death or remarriage.
Usually used where one spouse can't reasonably be expected to become self-supporting because of age, illness, or disability, or where the parties' respective standards of living would become unconscionably disparate |
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lump sum alimony
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A single payment not subject to modification often used in non-litigious divorce cases or where periodic payments can't be implemented (e.g., a spouse has substance abuse problem or expenses like tuition are due immediately)
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factors used by courts in determining the amount and duration of alimony awards
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1. financial resources and needs of the party seeking alimony
2. standard of living during the marriage 3. duration of the marriage 4. time req'd for the party seeking alimony to rehabilitate his or herself to the point where s/he can earn money 5. age, physical, and emotional conditions of both parties 6. ability of the non-seeking party to meet his or her needs while paying alimony 7. tax consequences of an alimony award 8. contribution of the spouse seeking alimony to the other spouse's education, training, or career 9. Marital fault (only some states) 10. the recipient's status as the custodial parent (only some states) |
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enforcement of alimony awards
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Spouses can sue for enforcement, but some states retain jurisdiction over divorce decrees, allowing for enforcement through contempt proceedings
Courts may also attach a portion of the payor's earnings by notice to a spouse's employer. Failure to comply can create liability for contempt. Private enforcement methods include creating a trust or req'g the payor to get life insurance. |
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modification of alimony awards
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Unexpected and substantial changes in circumstances can lead to modification (e.g., a child's unforeseen learning disabilities preventing mother from rehabilitating herself)
Courts can lower awards where a payor spouse is fired and is forced to take a lower salary after making reasonable attempts at finding similar employment. |
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termination of alimony awards
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Death, remarriage, or, in many states, cohabitation
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taxation of alimony awards
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Generally deducted from a payor's gross income and taxed to the recipient.
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Prenups
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Parties to a prenup are subject to heightened scrutiny because the parties are fidicuaries in a confidential r'ship
1. The parties must enter the agreement voluntarily and with full knowledge of the meaning and affect of its terms -courts look at the timing of negotiations, the role of counsel, and disparities in the parties sophistication 2. The parties must truthfully disclose their financial assets -the parties are entitled to heightened financial disclosures 3. the agreement's terms must be substantively fair and equitable |
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postnups
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A postnup is an agreement after the wedding but before dissolution; often they involve mutual expectations concerning troubling behavior (e.g., gambling or drinking) or a change in one spouse's financial position (e.g., a large inheritance)
A postnup is enforceable if 1. the parties acted with full knowledge of the property and rights involved 2. the agreement is free of fraud, coercion, and undue influence 3. the settlement is fair and equitable |
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separation agreements
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A court can do three things with a separation agreement:
1. approve it: declare it valid 2. incorporate it: make it part of the judgment and contractually binding 3. merge it: make it part of the judgment but no longer contractually binding An incorporated or merged agreement can be modified post-judgment. Separation agreements can be annulled, voided, or rescinded if the parties reconcile and resume marital relations |
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family law jurisdiction
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Congress has excepted from the right of diversity jurisdiction issues of divorce, alimony, child custody, or child visitation. Ankenbrandt (SC 1992)
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divorce jurisdiction
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Can turn on several issues:
1. domicile -a state can grant an ex parte divorce as long as the present spouse is domiciled there but may not prevent the readjudication of the issue of domicile by another state -if a party has appeared in a divorce action in state court and fails to challenge his spouse's domicile, he can't later attack the divorce decree for lack of personal jurisdiction -long-arm provisions allow a deserted spouse to sue in his home state because of the deserting spouse's minimum contacts with that state 2. residency -physical inhabitance, as opposed to domicile, which requires an intent to stay somewhere permanently -mandatory residency req'ts for those seeking a divorce has been upheld by the SC 3. covenant marriages -may prevent someone from getting an ex parte divorce in another state 4. civil unions or same-sex marriages -the NYS Governor issued an EO req'g the heads of state agencies to recognize same-sex marriage performed outside the state 5. comity -comity creates a presumption in favor of recognizing foreign divorce decrees, but it doesn't require it -in deciding whether to recognize a foreign decree, courts consider domicile, notice, and consent |
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alimony and property distribution jurisdiction
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Court must have personal jurisdiction over both spouses, but "divisible divorce" allows one court to grant a divorce, which has less stringent personal jurisdiction req'ts, and another to decide on property, support, and custodial rights.
Courts can't make judgments over real property located in other states, but may order disposition of such property among the spouses. |
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Persons other than parents that may be responsible for child support
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1. stepparents
-in loco parentis or parent by estoppel -some stats require stepparents to be responsible for stepchildren living in their households 2. parents in loco parentis and parents by estoppel 3. adoptive parents -an adoptive decree terminates biological parents' support obligations and begins the adoptive parents 4. grandparents -at common law, grandparents were obligated to support their grandchildren when (1) the grandparent was the legal guardian; 2) the in loco parentis or parent by estoppel doctrines applied; or (3) where the grandparent agreed to provide support -today, more than a dozen states impose support obligations whose unemancipated minors become parents. |
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in loco parentis doctrine
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Treats a person who assumes parental obligations as a parent for some purposes, including child support.
The r'ship can be terminated at will and as such, is usually only relevant for child support |
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parent by estoppel doctrine
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May impose a support obligation on those that
1. promised support 2. treated a non-biological child as their own 3. discouraged contact between a non-custodial biological parent and the child. |
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Child Support Enforcement Amendments of 1984
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Established discretionary guidelines to assist courts and agencies in determining child support awards.
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Family Support Act of 1988
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Requires states to establish mandatory presumptive child support guidelines which accomplish a three things:
1. considering the non-residential parent's earnings and incomes 2. basing awards on specific descriptive and numerical criteria 3. providing for the child's health care needs States must also establish criteria for detemining when a presumptive award may be rebutted and reexamine and revise the guidelines at least once every 4 years based on economic and empirical data |
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Child support guideline methods
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1. income shares model
2. percentage of the obligor's income model 3. Melson formula |
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income shares model
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Used in about 2/3 of states
Both parents living apart have a legal obligation to support their child in accordance with their respective means. The child should receive the same percentage of joint parental income as it would if the family remained intact. The non-custodial parent must pay his percentage and the court assumes the custodial parent will pay the rest without court order. |
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percentage of the obligor's income model
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Used in 13 states
Based solely on the non-custodial parent's income. The non-custodial parent's income is fixed as a percentage of that parent's total income and the number of children to be supported. Courts assume that the custodial parent will support the children while they are at home. |
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Melson formula
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1. Each parent's net income is determined. The minimum amount each parent needs for subsistence is subtracted from that amount. If there is nothing left, that parent owes no support.
2. If there is something left, that parent must pay the child's primary support needs. If both parents have something left, support is prorated. 3. If there is still something left, the parent will pay an additional percentage of his income to child support. |
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Imputation of income
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The court may impute income to an un- or underemployed parent, depending on the parent's
1. earning capacity 2. willingess to work as exemplified through good faith efforts 3. an opportunity to work (i.e., someone that will hire them) |
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modification of child support awards
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Child support orders are excepted from the common law preclusion doctrine, meaning that they remain modifiable after sufficiently changed circumstances.
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downward modification of child support
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Rare, but can happen if
1. an obligor seeks reemployment after being laid off 2. when an obligor remarries and incurs obligations to new children (only in some states) 3. when an obligor has unexpected health or medical needs 4. when an obligor is unable to maintain his or her obligation because of incarceration |
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imputing income in motions for modification of child support awards
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While rare, courts may impute income in motions for modification where the obligor
1. voluntarily leaves gainful, full-time employment to raise children (some states don't allow this if a reasonably, similarly situated parent would have done the same) 2. relocates for a job 3. retires early 4. gets remarried 5. voluntarily changes employment 6. is self-employed 7. is supported by a relative or other person who allows the obligor to live above his or her means |
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pater familia
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"Master of the family"
Traditionally this doctrine gave fathers absolute control over his children |
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"tender years" doctrine
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Young children in their tender years should be placed with their mother unless she was unfit to care for them. Older children were placed with parents of the same sex.
By the 1970s, courts began to hold this doctrine unconstitutional on EP grounds. Watts (N.Y. 1970) |
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"best interests" test
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This test is currently in vogue for deciding custody cases. Most statutes list factors for a court to consider, but allow the court substantial flexibility and discretion.
Factors include 1. gender 2. careers 3. domestic violence 4. sexy behavior 5. home environment 6. health issues 7. race |
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gender (best interests test)
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May not be considered; this includes traditional notions of gender roles
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careers (best interests test)
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Despite the prohibition on considering gender, some courts seem to implicitly discriminate against working mothers who fear that their careers could work against them in a custody dispute or working fathers, who fear that working long hours and traveling frequently may hurt their chances of gaining custody.
The ALI prohibits consideration of a parent's earning capacity |
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domestic violence (best interests test)
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Almost all states require the court to consider whether one parent has committed domestic violence.
Some create rebuttable presumptions against custody awards to parents with a history of domestic violence. Usually this issue requires an expert witness (e.g., child psychologist) |
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sexy behavior (best interests test)
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Most courts use the "nexus" test: to establish that one parent's immoral behavior warrants denial of custody, the other parent must demonstrate a nexus between the behavior and harm to the child.
Some states continue to apply a per se rule or rebuttable presumption in favor of loss of custody in the case of parental immorality Courts use all three of these methods in custody disputes involving an LGBT parent as well. |
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home environment (best interests test)
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Bardwell (Miss. 2001): court awarded custody to mother even though father's house was larger and closer to family because father smoked and lived with his HIV+, hemophiliac, and cancer-stricken father
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health issues (best interests test)
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The ADA doesn't apply to child custody cases - the court may consider a parent's health or disability as part of the best interests test - but a disability may not be PF evidence of a parent's unfitness.
Courts recognize that smoking is harmful to children but no court has held this to be a controlling factor |
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race (best interests test)
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Courts have been overruled for considering race in child custody decisions (e.g., white mother married a black man, creating social pressure for child) but these decisions haven't been interpreted as totally prohibiting consideration of race in child custody matters.
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