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MEE - Family Law

Terms in this set (92)

Breach of Promise to Marry
Breaking off an engagement to marry

1. Rare today in most states
2. When used, provides for tort damages including actual damages as well as loss to reputation and mental anguish. Punitive damages may also be available.
Gifts in Contemplation of Marriage
1. Gifts made conditioned on the subsequent marriage, like engagement rings, are null if the marriage fails to take place.
2. Consider the type of property given, the conditions attached, and the intent of the donor.
Prenuptial Agreement
1. Many states have adopted the Uniform Premarital Agreements Act (UPAA)
2. Premarital agreements address rights of the parties in the event of death or divorce.
3. Parties can agree to the disposition of property at divorce and to alimony. Generally, waiver of alimony will be upheld unless doing so will cause disadvantaged spouse to become a public charge.
4. Courts cannot be bound by provisions in the agreement regarding children (custody and support that is not in the BIOC).
Prenuptial Agreements: Requirements for Validity
1. Must be in writing and signed
2. Entered into voluntarily (without fraud, duress, or overreaching)
3. Full disclosure of assets OR proof that party had independent knowledge

NOTE: Under the UPAA, the court must determine first that the agreement was unconscionable when executed and then whether there was a fair disclosure of assets or independent knowledge (also consider waiver).

- Some courts will consider general fairness and whether the parties were represented by independent counsel.
- The parties can agree on the state law to apply and if not, the law of the state with the most significant relationship to the parties and the transaction OR the law where the agreement was executed will apply.
Requirements for Marriage
1. License
2. Ceremony with authorized officiant
3. No legal impediments to marriage
4. Capacity to consent
Requirements for Marriage: License
1. Some states require a medical certificate showing no disease
2. Most states provide a 72-hour waiting period after the application before the ceremony can take place
Failure to meet procedural requirements will not invalidate the marriage
Requirements for Marriage: No Legal Impediments
1. Too closely related
- Cannot marry ascendants, descendants, siblings, aunt/uncle, niece/nephew, whether by whole or half blood
- Many states prohibit marriages between those related by marriage, step-relations, or adoption
- Marriage between first cousins is permitted in some states
2. Married to someone else (bigamy)
Requirements for Marriage: Capacity
1. Capacity - must have the mental ability to consent at the time of the ceremony.
- Consider someone under the influence of alcohol or drugs or mentally handicapped.
2. Age - must be of the age of majority, generally 18; parental (16-17) or judicial consent (under 16) required for underage person to marry.
Common Law Marriage
Generally, there are 3 requirements for a valid common law marriage:
1. Consent to marriage (not just to cohabit)
- Remember, must have the capacity to consent and no legal impediments to wed.
2. Cohabitation
3. Holding yourself out publicly as spouses

In states that do not permit common law marriage, those states will regard the marriage as valid if entered into under the laws of a state that permits common law marriage.
Marriage by Estoppel or Putative Marriage
1. Equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering an invalid marriage.
2. In some states, the putative spouse can acquire all of the rights of a legal spouse.
Rights/Responsibilities Among Spouses: Property
1. Each spouse owns and controls his or her own property but in the event of divorce, title will not be dispositive in the equitable division of property.
2. Generally, if spouses take title to real estate in their joint names, a tenancy by the entireties is presumed and therefore one spouse cannot convey or encumber the property without the consent of the other spouse.
Rights/Responsibilities Among Spouses: Support
1. During marriage, spouses owe support to one another.
2. The doctrine of necessaries can be used to make one spouse liable to third parties for the other spouse's purchases for necessary expenses, such as food, clothing, and health care.
Rights/Responsibilities Among Spouses: Spousal Abuse Orders
1. Laws in every state protect victims of domestic abuse both in and outside of marriage.
2. The victim is entitled to a protective order against the other spouse which can be granted ex parte and can last for one month to several years depending on the jurisdiction.
Rights/Responsibilities Among Spouses: Tortious Interference with Marriage
Alienation of Affection
Requirements:
1. Genuine love and affection between spouses who are validly married.
2. Love and affection was alienated and destroyed
3. Defendant's acts caused the loss of love and affection.
Adultery is NOT a requirement
Proof of damage is required and is highly subjective. Punitive damages are permitted in some jurisdictions.

Criminal Conversation
Requirements:
1. Marriage of the spouses
2. Adultery between the defendant and the spouse during the marriage
3. Damages are the same as the alienation claim
Annulment
1. Annulment is a declaration that a marriage is invalid.
2. Available for defective marriages that are legally void or voidable.
Void Marriage
1. Fail to meet essential requirements, so invalid ("utter nullity")
2. Can be attacked by one of the parties or collaterally by a third party
3. May or may not be remedied by continued habitation after removal of impediment

Examples: bigamy and too closely related

Uniform Marriage and Divorce Act and some states permit the marriage to be valid after removal of the impediment (ex: after the death of a prior spouse, void marriage can be validated)
Voidable Marriage
1. Event or condition affecting adequacy of consent to marriage contract
2. Treated as valid until annulled
3. Can be attacked only by or on behalf of a party to the marriage and in some cases only by the party who is sought to be protected.
4. Marriage can be ratified by continued cohabitation after removal of infirmity.

Examples: nonage, incurable physical impotence, lack of capacity, duress, fraud - must affect an essential element (pregnancy by another man)
Effect of Annulment
1. The marriage is set aside as if it never existed
2. Children remain legitimate
3. Child support can be awarded
4. Spousal support may be awarded, but not in all states
5. Property generally treated as if never married; put spouses in "pre- marital" state.
Divorce and Separation: Jurisdiction
1. One of the spouses must be domiciled in the state seeking to enter the divorce.
2. Generally, if a spouse is a resident of the state for a minimum period of time (90 days to 6 months), then there is a presumption he is domiciled there and the court will have jurisdiction.
3. Compare jurisdiction for the court to determine financial issues (like property rights and support). The court must have personal jurisdiction over both parties.

NOTE: It is possible for more than one state to have jurisdiction over the divorce. Cases can proceed in both states and once one state renders judgment, the other will lose subject matter jurisdiction.
Grounds for Divorce: No-fault
Allows for dissolution of marriage without regard to marital fault.
Generally, can be allowed on proof of:
1. Irreconcilable differences
- this type of divorce may require agreement of the spouses to get divorced
2. living separate and apart for a specified time period
- if the spouses agree, it is generally for a shorter period
- if it is unilateral no-fault, the time can be longer
3. incompatibility
Grounds for Divorce: Fault-based
1. Adultery
- often proven by circumstantial evidence of opportunity and inclination
- corroboration of adultery is often required
2. Desertion for a specified time
- unjustifiable departure from the marital home for a specified period with no intent to return
3. Cruelty (physical or mental)
4. Habitual drunkenness or abuse of drugs commencing after marriage
5. Insanity (may require that the spouse was institutionalized)
Defenses to Divorce
For no-fault divorces, traditional defenses are generally unavailable, but one spouse can claim reconciliation to restart the time clock for living separate and apart.

Defenses for fault-based grounds are rarely used, but still exist
1. Collusion- the parties agreed to simulate the grounds for divorce.
2. Connivance - the plaintiff willingly consented to the other spouse's misconduct
3. Condonation - the plaintiff forgave the marital offense with full knowledge of the offense. (generally, requires sex after forgiveness)
4. Recrimination - the plaintiff is also guilty of marital fault (doctrine of unclean hands)
Legal Separation
Often permitted for the same grounds as divorce
Can be referred to as "divorce from bed and board" (as compared to "absolute divorce") but is really just a legal separation

Effect of legal separation:
1. Parties are still married (duh!)
2. "Parties can seek to have their rights regarding property, spousal support, child custody, and child support decided."

Court may permanently divide marital property when legal separation granted. If so, after acquired property is separate property. If no final property division at that time, property will be divided when (and if) divorce is granted.

Why do it? Religious reasons, elderly, or keep status for insurance or tax benefits
Property Divisions: General Principles
Three main approaches:
1. Community property - all property acquired during marriage is owned one-half by each spouse and property owned before marriage is separate.
2. Equitable division of all property owned by either spouse.
3. Equitable division of marital property. Each spouse takes his separate property and the property acquired during the marriage is divided equitably. Most popular approach.

Property distribution decrees are not modifiable.
Property Division: Process
1. Classification: determine what is marital property and what is separate property
2. Division: make an equitable division of the marital estate no matter how the property is titled.

Remember: equitable division does not necessarily mean equal.
Separate Property
1. All real and personal property owned by a spouse before marriage, including assets held in individual retirement accounts;
2. Property acquired by a spouse at any time by gift, bequest, devise, or descent;
3. Property acquired in exchange for property acquired before the marriage;
4. Income from and appreciation of separate property (but see special issues in property division below);
5. Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
6. Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.
Martial Property
1. All property acquired by either or both spouses during marriage up to the final divorce decree (some jurisdictions use the date of separation or the date of filing for divorce).
2. Includes value of vested and unvested pension, vested a benefit rights relating to employment that accrued during the period of the marriage.
3. Includes recovery in personal injury, workers' compensation, social security disability actions, and other similar actions for wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.
Special Issues in Classification of Property
1. Commingling
2. Transmutation of separate property
3. Improvement of separate property
4. Property acquired before marriage but paid for after marriage
5. Pensions
6. Professional License or Degree
7. Tax consequences
Special Issues: Commingling
1. Separate property can become marital if the property is inextricably intertwined
2. Courts will attempt to trace property
Special Issues: Transmutation of Separate Property
Separate property can become marital property based on the intent of the parties
Special Issues: Improvement of Separate Property
When separate property is improved by the use of marital funds or the efforts of either spouse, courts in most jurisdictions will grant the marital estate or non-owning spouse reimbursement for the value added.

BUT, if neither spouse ever visited the property and the property had increased in value because an interstate exit was planned nearby, the increase in value would remain separate because the increase was due to market factors, not the contribution of either spouse.
Special Issues: Property Acquired Before Marriage but Paid for After Marriage
Courts are split!

Majority view seems to be that property should be apportioned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property.
Special Issues: Pensions
1. Are considered to be marital property subject to division even if the non-working spouse did not contribute.
2. Courts use different formulas to calculate the share of the pension that was earned by the party during the marriage and the amount will be subject to division.
Special Issues: Professional License or Degree
1. Are NOT considered to be marital property subject to division
2. To avoid unfairness, some jurisdictions consider it when awarding alimony.
3. A minority of jurisdictions value the degree then award more property or alimony to the other spouse based on the valuation.
Special Issues: Tax Consequences
Property division is NOT a taxable event.
Equitable Division
Once the court identifies and values the marital property, the court will make an equitable division - not necessarily equal. Remember, the court's division of the property is not subject to modification once the divorce is final.
Equitable Division Factors
1. Age, education, background, and earning capabilities of both parties;
2. Duration of the marriage, and if there were any prior marriages;
3. Standard of living during the marriage;
4. Present income of both parties, and their vocational skills and employability;
5. Source of money used to purchase the property;
6. Health of the parties;
7. Assets, debts, and liabilities of the parties;
8. Needs of each of the parties;
9. Provisions for the custody of minor children;
10 Whether the distribution is in lieu of or in addition to alimony;
11. Each party's opportunity to acquire future income and assets;
12. Each party's contribution to the acquisition of, or enhancement of the existing marital assets;
13. Each party's contribution as a homemaker to the family unit; and
14. Whether each party has dissipated marital property (economic fault).

Note: marital fault is generally not a consideration, but it can be.

Court can divide the property in kind or by contribution.
Alimony: General Principles
Paid to the economically dependent spouse.

There are four types of alimony (also known as spousal support or maintenance). Courts can award more than one type of alimony.

There is a trend to award less money than in the past because of the 2 earning households and less economic dependence.

Trial court is vested with great discretion in awarding support.
Types of Alimony: Permanent Periodic Support
1. Example: Periodic alimony of $2,000 per month to wife until her death or remarriage.
2. Duration: Indefinite
3. Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.
Types of Alimony: Lump Sum Support
1. Example: The sum of $36,000 paid at a rate of $1,000 per month for 36 months
2. Duration: For specified time period; can be payable in installments or in a lump sum.
3. Modification: None - treated like a contract right; binding on payor's estate
Types of Alimony: Rehabilitative Support
1. Example: Rehabilitative alimony to wife of $1,000 per month for thirty-six months to gain education or skills
2. Duration: For specified time period, unless modified by court.
3. Modification: Can be increased, decreased, or terminated upon proof of substantial change of circumstances.

Note on rehabilitation: designed to restore disadvantaged spouse's earning capacity to the point that he/she is no longer economically disadvantaged relative to the other spouse.
Types of Alimony: Reimbursement Support
1. Example: The sum of $20,000 as repayment for the supporting spouse's contribution to the increased education provided to the other spouse.
2. Duration: For specified period of time; can be payable in installments or in a lump sum.
3. Modification: None - treated as a contract right and can be awarded even if the supporting spouse is not otherwise eligible for spousal support.
Factors to Be Considered When Awarding Alimony
1. The standard of living established during the marriage;
2. The duration of the marriage;
3. The age and physical and emotional conditions of both parties;
4. The financial resources of each party. Consider marital property, separate property, and whether the party will receive child support;
5. The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, childcare, education, and career building of the other party;
6. The time needed to obtain education or training to enable either party to find appropriate employment where applicable; and
7. The ability of the payor spouse to meet his needs and pay support.
8. In some jurisdictions, courts may consider marital fault.
Primary Considerations When Awarding Alimony
Need of the claimant spouse and ability of the other spouse to pay
Modification of Spousal Support
Spousal support is modifiable based on substantial and continuing change of circumstance affecting the needs of the recipient spouse or the ability of the other spouse to pay. Some states use the word "material" in addition to or in place of "substantial."

Generally, a voluntary reduction in income will not be sufficient to reduce the obligation (ex: leaving job or incarceration). It varies, but some courts will consider new legal obligations to another spouse or children in modifying spousal support.
Termination of Spousal Support
Periodic payments generally terminate:
1. Remarriage of the recipient
2. Death of either spouse
3. In some jurisdictions, on the cohabitation with another person

Lump sum awards survive death and are not modifiable.
Tax Consequences of Spousal Support
1. Post 2019, spousal support payments are NOT income to the recipient nor deductible by the payor.
2. For divorce decrees entered and separation agreements executed before 2019, spousal support payments are deductible by the payor and are income to the recipient unless the instrument is modified to comport with the new rule.
Separation Agreements: Generally
1. Entered into after marriage and is enforceable if supported by consideration
2. Just like premarital agreements, there must be full and fair disclosure and the agreement must be entered into voluntarily.
3. Parties can waive alimony or property division and parties can agree on custody and child support, but court is not bound by the parties' contract concerning children.
Separation Agreements: Modifications
Merged into the Divorce Decree
If the divorce decree includes the terms of the agreement or expressly merges them, the provisions become part of the court order. It is modifiable by the court and subject to contempt.

Non Merger
If the parties do not submit the agreement to the court, the contract is nonmodifiable and is enforceable only by contract remedies.
But note: Child support and custody can always be modified if in the best interest of the child.
Contracts Between Cohabitants
1. Contracts are valid unless sexual relations is the only consideration (giving up a career or taking care of the home can be enough)
2. Express contracts regarding earnings and property rights will generally be enforced.
3. Implied contracts (partnership or constructive trust) may be used to award property.
Child Support: Generally
1. Both parents share equally the duty to support their children based on the child's need and the ability of the parent to pay. An agreement by parents that does not meet the needs of the child will not be enforced by a court.
2. Courts have less discretion because of the proliferation of child support guidelines
3. Majority of jurisdictions follow the income shares approach which considers the number of children and the income of the parents to determine a base line of child support.
4. Courts are given discretion to add amounts for health insurance and other extraordinary educational expenses. Courts can deviate from the guidelines if it is in the best interest of the child.
5. Child support is paid independent of visitation.
Duration of Child Support
1. Generally, age of majority or
2. Death of child or
3. Emancipation of child or
4. Termination of parental rights
5. Some states allow child support to continue past 18 if child still in high school until some age or completion of education
-Most states will not extend child support to pay for college unless agreed on by the parties or provided by statute.
6) Support may continue for some longer period if the child is disabled
Child Support: Jurisdiction Generally
The Uniform Interstate Family Support Act (UIFSA) has been adopted by all 50 states and D.C. to simplify the collection of child support when the parties move out of state.
Child Support: Original Jurisdiction
Jurisdiction is proper where the first petition under UIFSA is filed.
Another state can only exercise jurisdiction if:
1. The second petition is filed before the time to answer the first has expired
2. The petitioner objected to jurisdiction in the first action
3. The second state is the child's home state.
Child Support: Jurisdiction to Enforce
The issuing court has continuing jurisdiction to enforce.
Another state can enforce by:
1. Direct enforcement - obligee mails the order to the obligor's employer in another state and the employer will withhold wages
2. Registration - child support order is registered in another state and is then subject to enforcement in that state.

Under federal law, as well as UIFSA, states are required to give full faith and credit to child support awards from other states.
Child Support: Jurisdiction to Modify
1. Once the court enters a valid child support order it maintains continuing exclusive jurisdiction during the life of the order unless no parties reside in the issuing state or the parties consent to another state's jurisdiction.
2. Federal law, just like UIFSA, prohibits modification of child support orders by courts without continuing exclusive jurisdiction unless no party resides in the issuing state or the parties consent to allow jurisdiction.
Modification of Child Support Orders
1. Child support is modifiable based on a substantial and continuing change of circumstance affecting the needs of the child or the ability of the parents to pay. Some states use the word "material" in addition to or in place of "substantial."
2. Like spousal support, a voluntary reduction in income will not be a ground for modification. Additionally, past due child support cannot be modified and is not a basis for prospective modification.
Tax Consequences of Child Support Orders
Child support payments are NOT income to the recipient nor deductible by the payor.
Enforcement of Child Support Awards
Child support can be enforced through traditional civil and criminal contempt proceedings.

As a result of federal legislation, parties may seize property, use wage withholding, intercept tax refunds and revoke licenses to enforce child support payments.
Child Custody: Interstate Custody and Jurisdiction
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to interstate custody disputes.
Child Custody: Initial Award of Custody
1. Primary Test: Home State
2. If there is no Home State, a court can assume jurisdiction if the child has a significant connection with the state and there is substantial evidence of the child's well-being in the state.
3. If state with Home State or significant connection jurisdiction declines, a state can assume deferred jurisdiction.
4. If no other state exercises jurisdiction, any state can by default.
Home State Test
1. State where child has lived with parent for at least 6 consecutive months, or
2. State that was the child's home state within the last 6 months and the child is absent from the state, but a parent continues to live in the state.
Child Support: Modification of an Existing Decree
The issuing state exercises continuing, exclusive jurisdiction unless
1. No child or parent continues to reside in the state
OR
2. The child no longer has a significant connection with the state and there is no substantial evidence in the state.
Child Custody: Declining Jurisdiction
A court may not exercise jurisdiction if:
1. A proper proceeding was already pending elsewhere when petition is filed, unless the other court defers OR
2. The person seeking to invoke the court's jurisdiction has engaged in unjustifiable conduct.

A court may decline to exercise jurisdiction if it determines it is an inconvenient forum
Child Custody: Temporary Emergency Jurisdiction
Requirements:
1. Child is physically present and
2. The child has been abandoned OR
3. It is necessary to protect child because child, sibling, or parent is subject to abuse.
Child Custody: Generally
Custody is an umbrella term that includes legal and physical custody.
- Legal custody includes the rights to make decisions regarding the child.
- Physical custody includes the possession and control of the child.
In any custody or visitation case, the hallmark consideration is best interest of the child (BIOC)
Child Custody: Considerations
1. The wishes of the parents (constitutionally protected)
2. The preference of the child
- Children under the age of 8 are generally not considered but over the age of 12 are given great weight.
- Questioning generally occurs in chambers
3. The relationship of the child with the parents and siblings and others involved with parents.
4. The child's adjustment to home, school, and community
5. The mental and physical health of the parties
6. Parent who was the primary caregiver (but no gender preferences)

Trial court is vested with a great deal of discretion to determine custody and visitation.
Types of Custody: Joint Custody
1. Can mean joint legal, joint physical, or both. Joint custody is intended to promote the involvement of both parents in the child's life.
2. In most jurisdictions, it is encouraged and will be awarded if the parents agree
3. If parents are openly hostile or unable to communicate, courts will not award joint custody
4. Courts consider a myriad of factors (mentioned above), and also consider geographic proximity, ability to communicate, and whether the parents agree.
Types of Custody: Sole Custody
Can be awarded to one parent when strong evidence demonstrates that it is in the best interest of the child. The other parent will be entitled to reasonable visitation unless harm to the child will result.
Custody of a Nonparent
Because of the constitutional protections afforded a parent, in a custody dispute between a parent and nonparent the standard is not simply the best interest of the child.
The parent is entitled to custody unless the nonparent can show harm to the child or unfitness
(ex: abandonment, neglect, abuse, surrendered custody)
Child Custody: Parental Visitation
Absolute denial of visitation to a parent is rare. Courts may deny and will restrict visitation (ex: supervised visitation) if injury to the child may result.
Child Custody: Nonparent Visitation
Every state has a statute that allows third parties, generally grandparents, to seek visitation.
Nonparent visitation generally applies in some extraordinary circumstances such as divorce, separation, or death.
SCOTUS in Troxel v. Granville found that if a parent is fit, his or her wishes on non-parent visitation are constitutionally protected and must be given "special weight."
Modification of Custody
1. Generally brought by motion of a party or the court in the original action. The party seeking the modification bears the burden of proof.
2. Standard: Whether custody or visitation issue, modification requires substantial and material change of circumstances affecting the child's well-being since prior determination of custody.
3. Overriding concern: best interest of the child
NOTE: States generally require a certain amount of time (1 or 2 years) to elapse since entry of the order, unless the child's present environment is harmful to the child.
Child Custody: Relocation
Many states have statutes to address the relocation of the primary residence of the child. Statutes generally require notice to the other parent and a court hearing to determine whether relocation is permitted.
To determine relocation, courts will consider whether relocation:
1. Is in the child's best interest,
2. Motivated by a benefit to the family, and
3. Not intended to thwart the relationship with the other parent.
Enforcement of Custody Awards
1. Violations of custody and visitation can be enforced through civil contempt proceedings.
2. State habeas corpus proceedings - this remedy is limited to physical custody of the child.
3) Suit in equity-
this remedy asks the court to enjoin conduct in violation of the custody order.
4) Out-of-state decrees
will be enforced if a certified copy is filed with the clerk of court. Will not remove continuing exclusive jurisdiction of another state but will allow enforcement of the order in the state.
Enforcement of Custody Awards: Child Kidnapping
1. If the child is removed from the state, the custodial parent must file the custody order in the new jurisdiction and seek enforcement or obtain a writ of habeas corpus from the new jurisdiction.
2. Child kidnapping is a state crime, generally a felony.
3. PKPA (Federal Parental Kidnapping Prevention Act)
- Mandates that states give full faith and credit to another state's child custody determination, if jurisdiction is proper. (because custody orders are not final)
- Jurisdiction and modification requirements under PKPA are very similar to UCCJEA (but emergency jurisdiction is not temporary)
4. International kidnapping
- The International Parental Kidnapping Prevention Act (IPKCA) and the Hague Convention on Child Abduction provide international relief when a child is wrongfully removed to a foreign country.
Nonmarital Children
1. Over the years, children born out of wedlock have received more constitutional protections. Intermediate scrutiny applies in an equal protection analysis (substantial relationship to an important governmental interest).
2. A parentage action can be brought to establish a biological relationship and settle issues of paternity. Once parentage is established, the parent owes support and has rights of custody and visitation.
Presumption of Parentage
The husband of the mother is presumed to be the father if:
1. The child is born during the marriage OR
2. The child is born within 300 days of termination of the marriage or
3. The child is born during a void or voidable marriage.

NOTE: The presumption can be rebutted but requires heightened proof (generally clear and convincing). In some cases, however, even if the husband can prove he is not the biological father of the child, many states prohibit disestablishment of paternity based on the best interest of the child.
Unwed Father
A child can be considered the child of an unwed father if:
1. After the birth of the child, the father marries the mother.
2. The father holds the child out as his biological child
3. The father consents to his name on the birth certificate.
4. The father acknowledges paternity (usually requires formality)
5. There is a judgment decreeing paternity (see paternity suits below).

Unwed fathers will be protected by the Due Process Clause and can have rights to custody of their child if they demonstrate parental responsibility
This includes acknowledgment of paternity, supervision, education, protection, care, and support.

Unwed fathers may be precluded from tort recovery for the death of a child he did not legally recognize.
Paternity Suit
1. Generally used by unwed mother to obtain child support from the father. Once paternity is established, the father can assert rights of custody and visitation.
2. Statute of limitation is tolled during the minority of the child, so will last at least until the child reaches 18.
3. Level of proof varies - can be C&C or preponderance
4. Blood or tissue sampling is the superior method of establishing paternity, but testimonial and other medical evidence has been sufficient.
Termination of Parental Rights: Voluntary
Parents may voluntarily relinquish all rights to their children. (often done in preparation for adoption)
Termination of Parental Rights: Involuntary Termination
The state may not interfere in family decision making unless the decision endangers the well-being of the child.
The state may seek to terminate parental rights for:
1. Infliction of serious physical harm on the child or other children in the household.
2. Abandonment
3. Neglect or deprivation
4. Failure to provide support for the child without cause for a specified time period (usually one year)
5. Mental health of the parent that results in inability to care for the child or
6. Parental unfitness
(can be physical or psychological).
NOTE: Generally, parents cannot seek to terminate the rights of the other parent.
Adoption: Types
1. Agency Adoption:
Licensed adoption agencies act as intermediaries
2. Private Adoption:
Private persons act as intermediaries to arrange adoption.
Adoption Requirements
Termination of biological parents' rights
1. Consent of biological parents required unless:
- Rights were already terminated (see above)
- If unreasonably withheld against the BIOC
2. Consent of unmarried father
- Required if father is actively involved in the child's life
- May not be necessary if the parent has abandoned the child, failed to support for a certain length of time, or never attempted to establish a relationship.

Creation of new parent rights
1. Consent of adoptee
- In some states, adoptees over a certain age (12 or 14) must consent to adoption
2. Home Study
- Most states require an investigation of the new home, but this can be waived for relative adoptions
3. Payment of money prohibited
- Exception for medical costs of pregnancy
Adoption Records
Generally sealed unless biological parents consent to contact
Consequences of Adoption
Severs all rights and obligations of bio parents to child and creates duties to adoptive parents and child. In some states, the adoptive child still has the right to inherit from bio parents.
Assisted Reproduction: Generally
1. Often used as an alternative to adoption
2. In some cases, it is necessary that a person other than the intended parents is involved (surrogate or gamete provider)
3. The Uniform Parentage Act (UPA) (presented below) now contains provisions related to assisted conception, but has not been adopted by many jurisdictions
Assisted Reproduction: Maternity
Mother-child relationship is established by:
1. Birth of the child (unless valid gestational agreement)
2. Adjudication of woman's maternity
3. Adoption by the mother
4. Adjudication confirming mother of child born to a gestational surrogate
Assisted Reproduction: Paternity
A husband who is married to a woman who has a child through assisted conception is the child's father unless he proves his lack of consent within two years after birth.
Assisted Reproduction: Gamete Donors
1. Egg or sperm donors are not parents of a child conceived through assisted conception
2. Some jurisdictions have allowed the sperm donor to have rights if agreed in writing by the donor and the woman
Assisted Reproduction: Posthumous Conception
If a gamete provider consented in writing that his or her gametes could be used after death to conceive a child, that child can be considered the child of a deceased parent.
Assisted Reproduction: Gestational Agreements
Some states have failed to enact legislation on surrogacy because they characterize the agreement as the sale of a child.
Gestational mother is also referred to as a surrogate
• Genetic surrogate - use of carrier's own gametes
• Gestational surrogate - gametes are not her own

Gestational mother, her husband (if married) and intended parents must enter into a written agreement

Court must approve the agreement if:
1. Court has jurisdiction
2. Child welfare agency has conducted a home study unless waived
3. Agreement is found to be voluntary
4. Provision has been made for health care costs until birth (agreement cannot limit rights of surrogate to make decisions regarding her health care or that of the fetus.)
5. If surrogate is promised consideration, it is reasonable.

Subsequent marriage or divorce of intended parents does not invalidate the agreement.

The agreement can be terminated by any of the parties at any time before embryo transfer.

If the agreement is unenforceable, the gestational mother is considered the mother of the child, regardless of biology.

If the agreement is approved, intended parents must file notice of birth and court will issue an order of parentage.
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