Being a Family
Descriptively - family as sociological unit
Normatively - provides basis for how members of such an institution should conduct themselves and how society should deal with that institution
notion of the family unit broader than myth of marital unity
	Marital Property Rights
 notions of family privacy and family protection will compete with the interests of individual family members
		Governs while people are married:
			someone outside marriage has economic claim
			when marriage ends by death not divorce
			equitable distribution when divorce, therefore who owns what only 			important during marriage
		Governs with unmarried co-habitants
		2 Types Of Property Rights Systems
			Common Law  - own all property separately except where expressly 			agreed to hold jointly
pg.13 problem - need to see how each is titled;
				Real Property -explained by myth of marital unity
					husband acquired wifeÕs estate by marital right with authority to 					manage and use rents at least through life of wife (transfer of 					administration)
					wife lost power to convey property she brought to/given after; 					unless husband died
				Personal Property - resp for liabilities = ctrl of assets
					husband owned wifeÕs personal wealth(includ liabilities)
				Gifts
					generally construed in wifeÕs favor
				Modification of CL Scheme
					C17th & 18th- cts in equity devised set of principles for preserving 					in certain situations wifeÕs use of property given b4/during 					marriage
						where exclusive use for wife specified transferorÕs limitation 						given effect in equity by trust - separate estate in equity
						1840Õs Married WomenÕs Property Acts - return women to 						capacities as single persons in dealing w/ their property
				The Title System and Possibilities of Equity
					Murdoch v. Murdoch (pg.14)-  
						trust is way of owning property where legal title and right to 						manage belong to A (Trustee) and economic benefit belong to B 						(beneficiare) constructive trust; 
						equitable remedies are created by courts - give someone 						interest in property; economic benefit but not $
						resulting trust or constructive trust - ways of giving beneficial 						interest in property; resulting  based on common intention - 						must put in cash; constructive trust based on unjust enrichment 						(still must show fraud, etc)
				people are treated as individuals - each owns 50%
				each separate property is not liable for debts of the other spouse
				when jointly liable can go agst separate property of each spouse - 				creditor has full rights against each one
				Basic principle: can be given property or give consideration (money 				or labor) for property (creditor can get the house)
					can get property through beneficial interest:constructive or 					resulting trust
				Analysis: title, gifts, basis for making 				resulting/constructive trust
			Community Property - own substantial portion or even all property 			jointly unless expressly agreed to hold separately
				Analysis: any property acquired by labor is community; any inherited 				b4/during = separate property
				community property, his property, her property
				wife exclusive rights to control, manage, dispose, convey of 				her 				separate property
				Debts: his debt, her debt, community debt
				location of sole mgmt pwr in husband disappeared during 70Õs by 				legislation; replaced by combination of:
					joint mgmt - joint decision re community wealth
						could burden commerce
					sole mgmt - one spouse sole pwr to manage particular 					community assets
						problems of inequality esp where one spouse works in home
						can affect rights w/o notice
						fiduciary duty to manage to benefit of other spouse
					equal mgmt - either spouse to manage community property
						prob where give contrad instr to 3rd party
						can affect rights w/o notice
			CL v  Community
				b4 70Õs CL your wages yours; CP wages=CP and sole mgmt in 				husband
			Uniform Marital Property Act -adopted in only one state - WI; embraces 			community property principles; only applies while married - not during 			divorce 
				Section 4. Classification of Property of Spouses
					all property is marital property except that which is classified 					otherwise by this [Act]
					All property of spouses is presumed to be marital property
					Each spouse has an undivided one-half interest in marital 					property
					Income earned or accrued by a spouse or attributable to property 					of a spouse during marriage and after the determination date [of the 					Act] is marital property
					(g) [gifts to one spouse - nonmarital and personal injury awards 					except to extent reimbursements for expense paid from marital 					property]
				Section 5 - mgmt and control of property
					creates title-based system where act alone on indiv owned and 					jointly by joint action
				income during marriage as community property
		Daily Management and Control of Marital Wealth
			McGuire v. McGuire  - where the marriage is ÒintactÓ courts traditionally 			refused to enter support decrees unless gross and dangerous neglect is 			proved; founded on principle of family autonomy
			Sharpe Furniture v. Buckstaff  - doctrine of necessaries - 
		Constitutional Limits on Gender-Based Classifications (see problems)
		Spousal Contracts During Marriage
			issues:
				whether engaged people at arms length
				whether the agreements violates public policy by encouraging 				divorce
			always have consideration in marriage
			Borelli v. Brusseau - CA/1993 - Contracts where wife is to receive 			compensation for providing services are void as against public policy; and 			there is no consideration for the husbandÕs promise
			Simeone v. Simeone - PA/1990 - Prenuptial agreement must be regarded 			as binding, without regard to whether the terms wre fully understood by 			appellant where full and fair disclosure of worth; Paternalistic to assume 			spouses are of unequal status and that women are not knowledgeable 			enough to understand the nature of contracts they enter
			 CL bargaining process more policed: 1) substance of provisions made for 			spouse; 2)no, presumption that contract product of overreaching - 			presumption overcome y showing full and fair disclosure and in some 			jurisdcitions - independent counsel
			contracts by married women generally unenforceable at CL bc 1) myth of 			marital unity 2) wife and her goods property of husband 3) remedies of 			arrest and confinement innap 4) parties never intended 			sued upon
			premarital agreements re property recognized assuming certain req of 			discloure and fairness satisfied
			Uniform Premarital Agreement Act 19 states -includ Oregon
				¤2 - must be in writing and signed by both parties - no consideration
				¤3 - may not affect child support
				¤6 - unenforceable where - b4 execution 1) no fair and reasonable 				financial disclosure 2) if lack of spousal support = pub assist must 				provide to that level 3) issue of unconsionability decided by ct as matter 				of law
					R2d ¤208- procedural unconscionability - unfairness in bargaining 					process; substantive unconscionability - unfairness in bargaining 					outcome (terms)
			ANALYZING EQUAL PROTECTION ACTIONS
				Determine basis for classification
				Level of Scrutiny based on classification: looking for i) importance of 				government interest; ii) how closely state interest related to 				classification--
					Stict Scrutiny - must be necessary to achieve compelling state 					interest
					Intermediate Scrutiny - must be necessary to achieve important 					state interest
					Mininal Rational Basis - classification must be rationally related 					to achieve permissible
	Violence Issues
 notions of family privacy and family protection will compete with the interests of individual family members	
		Crimes Between Spouses
			People v. Liberta - CANY/1984 - No rational basis for distinguishing 			between marital rape and nonmarital rape - therefore marital exemption 			for rape in NY statute unconstitutional under equal protection clauses of  			both state and federal Constitutions
			MPC ¤¤ 213.1; 213.6 - retained spousal exemption for rape and extended it 			to persons living as man and wife, regardless of legal status of their 			relationship; reasoning:
				avoids unwarranted intrusion of penal law into life of family
				already penaly for assault and voluntary association of husband and 				wife affects nature of the harm involoved in unwanted intercourse
			(see Problems II)
		Violence Against Women Act of 1994 - creates federal cause of action, incl 		compensatory and punitive damages; federal authority from the Commerce 		Clause--nexus by evid demonstrating the effect of gender-based crim and fear 		of crime on employment opportunities, health expenditures, and consumer 		spending which affect interstate commerce and the national economy; also 		provides financial support for state programs that encourage/require arrest of 		domestic violence offenders 
		Personal Responsibility and Work Opportunity Reconcilation Act of 1996 - 		gives states option of granting Temporary Assistance to Needy Families, 		benefits to victims of domestic violence
Divorce
	Grounds
		 Traditional Fault Divorce - as of 1994 30 states retained tradÕl fault grounds
			KUCERA V KUCERA
		Adultery - voluntary sexual intercourse by married person with a person 		who is not his/her spouse
			Owens - GA/1981 - includ homosexual relationships
			direct evidence rarely available; circumstantial evidence such as 			inclination and opportunity weighed by the court as in Kucera
		Cruelty - violence/ intentional and serious injury that reasonably led to fear 		for life or health/ threats to mental well-being
		Desertion - without consent or justification--some req abandoned spouse to 		engage in conduct that would itself provide grounds for divorce/some-		prove 		cohabitation impossible
			some states - minimum continuos period
		Impotence - 
	Defenses to Divorce - generally affirm defenses that must be pleaded & proved
		Insanity - where actions founded on adultery and desertion
		Connivance - where offending conduct was agreed to by spouse now seeking 		divorce (adultery/desertion)
		Condonation - to most grounds for divorce; injured spouse knowing of 		marital wrong continues/resumes cohabitation
		Recrimination - where reciprocal claims rest on various acts and omissions 		alleged to constitute cruelty tot he other and neither is guilty of adultery or 		felony, tc deter less at fault, grant divorce, and adjust spousesÕ rights
	The Bar of Collusion - need not be pleaded or proved- but raised by the court- 	reflecting that state seeÕs itself as 3rd party in the divorce
	Procedure Under Fault System - 
		Only Spouses are Parties - Baugh - MI/ 1877; unless 3d party property 		interest
		many cases hold that divorce cannot be given by stipulation or default; 		judgment on the pleadings and summary judgment seen as inappropriate - 		Rea - D.C./1954
		many courts consider affirmative defenses of condonation and 		recrimination even where not raised by D
	The Adoption of No-Fault Divorce
		CA first no-fault state in 1969: thought to be less adversarial and perjured
		Uniform Marriage and Divorce Act
			¤302 - lived apart for 180 days or irretrievable breakdown
			¤305 - irretrievable breakdown: both agree; where only one agrees--ct may 			make a finding of such meaning no reasonable prospect of reconciliation, 			or ct may cont matter for further hearing
		most states use English style compromise: fault of irreconcilable differences 
			Desrochers v. Desrochers - NH/1975 -  irreconcilable differences 			determined by reference to subjective state of mind of the parties and one 			spouses desire to continue not a bar to divorce (deter by TC); D may offer 			evid to impeach evid of PÕs state of mind; ct may continue the action to 			deter if reconciliation possible
			MO - only allows irreconciliable when both parties agree; otherwise fault
			Hagerty v. Hagerty - MN/1979 - 
		Covenant Marriage - LA/1997 - requires premarital counseling and allows 		divorce only for limited fault grounds
	The Economics of Divorce
		Policy Change in Shift to No-Fault
			divorce policy to relieve spouses of socially dead relationship: decree 			should end all personal and economic ties and no fault/gender 			equality 			implied both should become equal and indep social and economic actors 
			support as pension for wronged spouse replaced by impt of spousal 			contribution: based on impt of womenÕs work, cp principles
		Property Division at Divorce
			issues in classifying property:
				What property is subject to division?
				On what basis is property divided?
			three types of property division at divorce:
				Title-Based Distribution - cts have little discretion; awarded as 				owned during marriage - based on principles discussed above; now 				only used in 3 cp property stateÕs for separate property
				Pure Equitable Distribution - full judicial discretion to deter just and 				proper division; who legally or equitably owned during marriage 				relevant but not determinative
				Marital Property Systems - most common-medium discretion; cp- 				equitable rather than equal division of cp and lmtd equit of separate; cl- 				Ôdeferred marital propertyÕ- during each mgs own assets acquired 				during but at end shared as if cp
				Uniform Marriage and Divorce Act ¤307
					Alternative A (for CL) - w/o regard to misconduct shall equitalbly 					apportion property and assets w/o regard to title considering: 					duration of marriage, skills, future opportunity....
					Alternative B (for CP) - separate property to owner and cp w/o 					regard to misconduct in just proportions considering: 1) contrib 2) 					value of property 3) duration of marriage 4) econ circum when 					division effective
				related cases:
					Rothman v. Rothman - NJ/1974 - equitable distrib not violative 					of dp b/c exercise of police power of state to promote public health, 					saftery, morals, or general welfare; public interest to be promoted 					sufficiently outweighs impaired private right
					Hatch v. Hatch - AZ/1976 - unequal distrib violates dp except in 					unusual circumstances
					Eggemeyer -TX/1981-separate property to other spouse violates dp
			The Meaning of Equitable Distribution
				important issues:
					allowing former spouses to live post-divorce lives as indep actors 					by dividing property according to need; and/or
					dividing property based on contribution to acquisition of assets
				Pierson - OR/1982 - -court shall consider the contribution(includ 				homemaker) with rebuttable presumption that both spouses have 				contributed equally to the acquisition of property whether jointly or 				separately held;  farm called marital property and subj to distribution 				b/c mts test: inherited during marriage (normally inherited isnÕt mp); 				rebutted by she inherited and he contributed nothing to it; other 				marital assets divided taking into acct wife has greater incom and bc of 				inheritance, greater financial resources; as well as promoting financial 				indep  - better to have unequal than lenghty with house sale(normally 				need not considered)
				Leathers - OR/1989 used business law principles to give wife half of 				oil business; getting around restrictive premarital agreement
				Contribution - (expand w/ exÕs) backward looking;homemaking, 				working on property, money towards property....(negative and positive 				economic and emotional contributions)
				Homemaker -all states value homemaker contribution
					 some presume=market workerÕs (presumption of equal contrib)
					some use tort structure to  break hm into tasks that can be valued 					in the mktplace
					some assess value case by case by how good homemaker
				marital fault: 1/4 states use as factor in property division (though 				typically given minor role if used; 1/4 				exclude--as UMDA; 1/2 donÕt 				mention
				economic misconduct: 1/2 states allow as factor in property division  				pertaining to partiesÕ contributions to acquisition/dissipation of assets
			Dividing Debts
				Geldmeier - MO/1984 - 
					Equitable division of all - divide debts and assets separately and 					equitably; factors- ability to pay, which spouse principal financial 					mgr/incurred debt 
					Divide debts proportionately to division of assets - treat as distinct 					but allocate responsibility in same proportion
						also, might group mortgage debt with house as asset
					Total netting out - (concurrence)from total value of divisible 					assets subract total divisible debts and divide the remainder
					Netting out of specific assets - when asset specifically 					encumbered, value at the difference btwn mkt value and debt
				marital v. separate debt
					where only marital property divisible, only marital debt divisible
					where equitable distrib of marital debt--separate debt may be 					taken into acct in determining ability to pay
					marital debt if incurred for joint benefit/acquiring marital asset
			The Marital Home
				Gelmeier - sanctioned common practice of ordering division of 				house but not requiring immediate sale bc children would have been 				displaced
		Spousal Support at Divorce
			Changing View in No-Fault Era
				modern preference for no alimony or limited in time; awards 					rose in 				80Õs w/ anaysis of state of women and children 
			Applying the Changing Views
				Uniform Marriage and Divorce Act ¤308 - (early in no-fault era so 				reflects clean break) - based on need w/o re to misconduct or gender 					 				considering amt of marital property awarded to claimant spouse, 					ability 				to be self-supporting, and minor children (preference for using 				property division rather than alimony)
			Types of Spousal Support
				Turner v. Turner - NJ/1978 - rehabilitive alimony to sustain std 					for 				time necessary for spouse to hone self support skills; though 					where std 				never to be met permanent can be given in conjunction. encourages 				women to work, clean break, marital advtg to husband;limited term 				(apparently renewable) support;
				Larocque - WI/1987 - held lmtd term (renewable) support 				impermissible--awarded modifiable indefinite award (what is the 				difference)not based on implicit assumption that econ indep will be 				reached;recipient has claim on income of payor into the future bc of 				changes that occured during marriage
			parties submit detailed budget to prove their needs
			Fault as a consideration in spousal support
				in more than half states fault not factor in determining spousal 				support; some person agst whom fault awarded canÕt be awarded 				support
				UMDA ¤308 - precludes consideration of marital misconduct
				Chalmers - NJ/1974 - equitable distribution requires that fault be 				excluded as consideration; statute allows it for alimony but not for 				distrib of marital property
				OR - not issue in property division or spousal support
			Economic Misconduct as consideration in spousal support
				some statures explicitly include as a factor
			Spousal Support for the Caregiving Parent
				UMDA ¤308(a)(2) - caretaker of children may be eligible for spusal 				support though otherwise capable of self-support; many cases have 				held such--usually terminating when child reaches age of mjty
				Policy: facilitating care of children in difficult period after divorce 				and allocating to both parents the costs of putting children first 					during 				marriage
		Divorce and New Property
			New Property: pensions/employment benefits, professional licenses, 			educational degrees; traditionally not considered divisible property but 			potential sources of income from which spousal support could be paid
			former spouses who can be self-supporting often not entitled to spousal 			support and canÕt share in employment-related interests through alimony; 			however-capacity for support doesnÕt bar property division (ct often give 			wife house and husband his pension)
			Problems:
				produce post-divorce income--not property;economists treat as 				property
				hard to assess value and divide fairly
				less like property: nonassignable and anti-alienation
			Pensions and Other Employment-Related Benefits
				defined benefit plan - benefit deter on basis of formula based on years 				of service/salary (not amt of contributions)
				defined contribution plan - each employee has separate account; 				benefit amt depend on much in acct through contributions, interest 				earned, etc..
				vested - canÕt draw now--unmatured, but can remove later because 				vested (must vest within 5yrs)
				contributory/noncontributory - empolyer alone or both contribute
				ERISA requires that an employeeÕs interest not be assignable or 				alienable
			Issues:
				to what extend treat as property and not income for spousal support
				what methods used to divide (pros/cons)
			Laing - AK/1987 - trend is to consider nonvested pensions as marital 			property--prob of valuation (whether contingent future interest or mere 			valuation)not bearing on non-employee spouseÕs 			entitlement to just share 			of marital assets; held: ct not to consider pension in initial property division--must come back once vested and seek order dividing pension 
			How Courts Deal With Pensions as Property
				QDROÕs (amendment to ERISA - assignable to limited extent) - ct 				order to pension plan administrator to divide btwn spouses; parties 				donÕt have to cont to deal with each other; applies to partic. plans 				(Laing)
					Option of receiving benefits in form of joint and survivor 					annuity - so cont after death; written consent to revoke
					divorce b4 retirement - former spouse can retain J&SA where 					QDRO expressly provides
				Offset/present value -places all risk on 					employee - though 					attempts 				to compensate by factoring risk into PV; best effectuates 					goal that 				property settlement be final resolution of financial affairs.  (Laing) 
					ct determines PV of employee spouseÕs right to receive 						payments 					from the pension in the future and offsets for 						nonemployee
				Reserved Jurisdiction -TC retains jurisdiction and order payment of 				% of each payment received or % in lump sum once vested; distribÕs 				risk of forfeiture but not finality.  (Laing)
				when nonvested pensions werenÕt treated as property it could be 				considered in determinin spousal support; TC sometimes award 				spousal support instead of dividing pension
			Professional Practices and Other Closely Held Businesses
				Issues:
					is the business interest divisible?
					if so, how should this interest be valued and divided?
				Fleege - WA/1979 - goodwill is property of an intangible nature--the 				expectation of continued public patronage; elements: continuity of 				name, location, reputation for honest and fair dealing, indiv 				talent/ability...; son bought practice from father for $80k--$32k more 				than the value of the equipment; goodwill is an asset that existed at the 				time of divorce rather than future earnings.  Policy: economic justice
					dissent: to be true goodwill, must have an existence separate from 					the continued presence of those who generated it; derives from 					ability of successor to enjoy predecessorÕs name and reputation
				Holbrook - WI/1981 - reputation canÕt be separately sold or pledged
				Taylor - NE/1986 -goodwill must be business asset with value indep 				of presence or reputation of partic indiv--can be sold, etc...
				most courts value goodwill where mkt value avail--less where sole 				practioner
				ALI Family Dissolution Principles recommend that goodwill be 				treated as property, whether marketable or not
				some state only recognize goodwill out of sole practionership
				ORS created workable hybrid solution
				Is goodwill separate or marital property?
				Valuation of Goodwill
					donÕt need to value separately if entire business can be valued by 					sale price on open mkt or by total of stocks traded
					Hall - WA/1984 - five formulas for valuing
						straight capitalization - avg net profits determined and 						capitalized at a definite rate.  The result is total value of the 						business including tangible and intangible assets.  Goodwill is 						value left when business assets are subtracted
						capitalization of excess earnings - avg net income determined.  						Annual salary of avg employee practitioner with like experience 						subtracted.  Remainder multiplied by fixed capitalization rate = 						goodwill
						IRS capitalization of excess earnings - avg net income of 						business for last 5 years and subtracts reasonable rate of return 						based on businessÕ avg net tangible assets.  comparable net salary 						subtracted and remainder capitalized at definite rate = goodwill
						market value approach - price on current open mkt
						buy/sell agreement - goodwill valued by reliance on recent 						sale or unexercised existing option or contractual formula in 						partnership/corp agreement
							ensures nonprof spouse doesnÕt receive more than prof
					capitalization rate - used to calculate the amount of money that 					would have to be invested at that rate of interest to produce the 					stream of income
	Parent-Child Support Duties
		Basic Legal Principles
			ORS
			spousal support must be ordered at time of divorce, not true with child 			support; easier to rationalize than spousal support
			c19th began justify req parents to support children as corollary to right to 			custody and right to exercise control over their children.  physical custody: 			living with & caring for child day to day; legal 			custody: authority to deter 			how children will live and behave
				extended necessaries doctrine to include parental support & 20 states 				have family expense statutes
			currently justify parental authority as serving best interests of kids
				divorce most common situation where ct req parents to support 			kids: impose support duty where no longer legal authority to control kid
				historical reluctance to enforce support duties bc of belief should 				coincide with custodial rights
		How Formula Set
			was similar to spousal support determination but with catalyst of federal 			Family Support Act of 1988 withholding funds to states unless child 			support formula created for welfare and nonwelfare; criteria, pg. 452:
				consider all earning and income of absent parent
				provide for childrenÕs health care 
				must review at least once every four years
				guidelines must operate as a rebuttable presumption;written/specific 				finding if application would be unjust/inappropriate under criteria estb 				by state which must consider the best interests of the child
			cost sharing - figure out cost to raise child and divide equally;not widely 			used
			flat % -WA, WI - doesnÕt look at custodial or make separate 				provision for 			child care/extraordinary med expenses - noncustodial 				pays % (conclusive 			presumption)that varies by # of children; highest awards for high income
			income share -by net/gross; not applied until obligor > poverty line; 			most widely used; highest awards for low income; makes adjustments for 			split custody(>25-30%of time)
				income of parents is determined and added together
				child support obligation calculated; est of expenditures wo 					divorce 				derived from most recent econ evid on child rearing 					expenditures; 				actual expenditures for child care/extraordinary medical added
				total obligation prorated btwn each parent based on proportionate 				shares of income
			Melson Formula -highest awards for mid income; makes adjustments 			for split custody (30%time) separate obligation calcul for each & prorated
				until basic needs of chilren met, parents not permitted to retain 					any 				more income than req for self-support
				children entitled to share in addl income to benefir from absent 				parentÕs higher std of living 
			income equalizing -provide equivalent living stds for each parentÕs 			household; total net income of each household is calculated and added 			and total is allocated btwn householdson per capita basis; new spouses 			included

			Peterson - SD/1989 - truck stop is income- falls squarely within statutory 			definition, but money was put back into family business--without power 			to guide it as minority stockholder; still taxed because investment is just 			deferred income; receipt test: if he is not going to receive it ct wonÕt 			consider it as income (con: he will eventually get it and child probably 			wonÕt); statute req appropriate amt where mo income > 1500--not partic %
				Dissent: discretion above 1500 must have sound basis in evid and 				father did receive the rental income and had pwr to guide disposition 				and it inured to his benefit
				OR Perlenfein - all of this is income; no control might be factor in 				rebuttal test\
			business expenses usually deductible from income
			Excessive Income/No Income
				where income exceeds guidelines some cts use preguideline criteria, 				others exercise discretion to add amts 
				where no income cts impute reasonable amt of income bc al parents 				havechild support duty; some states wonÕt impute to stay at home 				parent
			Benefit to custodial parent
				can have the well-off parent pay for particular activities to avoid 				prob with direct benefit of custodial parent but fairly limited
				some cts consider wealth of noncustodial over poverty of custodial
			OAR pg.100 definition of income 157.340--defined very broadly
			empolyee business expenses not deductable, though employerÕs are
			OAR  can use info on what could make if fairly sure; if voluntarily 			unempolyed statutory formula of about $3 for 3hr/wk??
			OAR creates rebuttable presumption
			ORS 25.275 - KNOW how child care and medical care expenses dealt 			w 			and how AFDC/Welfare parent dealt with and rule on shared custody
		Medical Expenses
			federal child support regulations req state aw to incorp provisions specif 			addressing medical expenses
			1993 Congress enacted legisl preventing employers from abridging ability 			of noncustodial to provide medical coverage; also amended ERISA to req 			covered grp health plans to honor QMCSO (qual med child support order)
		Duty to Support Adult Children
			support terminated depending on actual capacity for self-support and 			submission to parental control
			 CL age of majority at 21--emancipation; until then under control of 			parent; in 1973 age to vote lowered and most states lowered age of majority 			until 18
				ad hoc determination where actually indep or still depend
			ORS 107/108 pg.36 - 
				child support for child in school - support paid directly to child
				can argue increase in rebuttal of presumption for the addÕl expenses 
			Childers -WA/1978 -  statute says dependent not minor children; 			support obligation based on dependency, not minority, and ending the 			obligation at emancipation, not majority.  determined by: age, needs, 			abilities, std of living, resources 	
				Esteb - ct has legal right to require a divorced father to provide funds 				for college education for minor daughter
				especially where no significant hardship & if aptitude
				Constitutional Challenge: equal protection - unfair to divorced 				rather than married and unfair to former noncustodial parents; 				distinction rational bc parents living with kids normally pay
			most child support guidelines donÕt address college; some that donÕt 			may 			order parent to estb educational trust fund for minor child 
			Curtis v. Kline - PN/1995 - statute allowing cts to order divorced parents 			to pay support for adult children attending school violates the equal 			protection clause bc not an entitlement that all children have
			modern trend to req support or adult disabled
			Roe v. Doe - NY/1971 - daughter acting as emancipated; in return for 			support parent may establis and impose reasonable regulations on child;
 			room for judicial review where regualtions unreasonable or capricious; 
				concurrence: shouldnÕt set up ad hoc inquiry, too instrusive
			other cts premise support on reasonable behavior, others donÕt
		Duty of Children to Support Parents
			relative responsibility laws - intrafamily support obligations; not often 			enforced
			Americana Healthcare Center v. Randall- SD/1994 - maybe bc had just 			gotten inheritance from mom: where indigency was voluntarily creatd by 			the trust and there would have been sufficient assets to pay for the parentÕs 			care; reasonable to place support duty of indigent parent on child and there 			is legit relationship btwn the duty and the state interest in elderly care 
			Swoap v. Superior Court - CA/1973 - statute applies equally to all parents 			and children to the extent of their ability; state classifies who it gives aid to, 			not who it collects from; selected on basis of parentage, not wealth
				Dissent: state compelling some citizens to pay for benefits which 				state decides to provide to other citizens on ground that kids benefitted 				from parents
	Modification, Termination, Enforcement, and Tax and Bankruptcy Treatment 	of Orders
		General Principles:
			property division orders are not modifiable
			child support not retroactively modifiable(ORS107.135(6); (7)- spousal 			support is)
			where spousal not immediately awarded then wonÕt be; not so with child 			support
			where obligee dies no claim against the estate; dead obligor = claim
		To Modify Need Substantial or Material Change in Circumstances
			Foreseeable Changes In Circumstances
				UMDA ¤316 - emphasizes stability to modify spousal/child support 				order change of circumstances must be so substantial and continuing as 				to be unconscionable
				automatic reviewal only applicable where state provides child 				support enforcement; always where obligor on welfare; after recent 				welfare reforms stateÕs no longer have to do this but can
				ORS 25.287 - automatic 2yr review where not in compl w formula; 				modify at any time when substantial change in circumstances
			Change In Income
				involuntary - applies to recipients and obligors; genrally suff to 				decrease support
				voluntary - retirement
					Deegan - NJ/1992 - early retirement; spousal support agreements 					always subject to modification upon showing of changed 					circumstances where demonstrate impairment of ability to pay
						evaluated in three categories: no modification; evaluated on 						motives - approved if in good faith,no good faith 						where change 						is to modify obligation; any negative impact on payee considered 						sufficient to bar modification based upon voluntary retirement
						issues: motive of payor & effect on payee; whether advantage 						to retiring spouse substantially outweighs disadvantage to payee
						relevant factors: age, health, motives in retiring, timing, 						ability to pay after retirement, and ability of payee to support self, 						reasonableness of early retirement
					some jurisdictions impute income where proved parent 					diminshed income for bad faith purpose of min child support
				ORS 107.135 - no change in circum if voluntary and not in gd faith
			Change In Family
				Spousal Support, Remarriage, and Cohabitation
					Peterson - SD/1989 - alimony survives remarriage only if express 					statement in support decree; in deter whether alimony disguised as 					property distrib & therefore not modifiable ct lks at (totality of the 					circumstances test): 1)decree lang, 2)circumstances encompassing it, 					3) end sought to be achieved by parties; must show extraordinary 					circumstances to justify support from spouse and exspouse 					concurrently
					Bates - OR/1989 - spousal terminates on remarriage where 					supplants the purposes behind the initial award
					ALI family dissolution principles: should terminate on 					remarriage unless substntial injustice
					Dwyer - CO/1991 - cohabitation not in and of itself sufficient for 					suspending, reducing, or terminating maintenance bc not reciprocal 					obligation of marriage, includ CL duty of support; violates PL
					Combs - KY/1990 - whether cohabitation constitutes sufficient 					change req evaluation of : duration, economic benefit, intent of the 					parties, nature of the living arragements, nature of the financial 					arrangements, likelihood of a continued relationship
				Child Support
					the cost of maintaining children is not additive; therefore no 					jurisdiction adds all children and prorates per household; must base 					on # being cared for in particular case
					Ainsworth - VT/1990 - 1) ct can find order based on guidelines 					inequitable and reduce bc of expenses of supporting another child 					even where obligation did not preexist duty for children in 					calculation and not ct ordered; within the discretion of the tc to 					deny a modification of DÕs support obligation to child of 1st 					marriage bc ct could find voluntarily reduced income 					available(other relevant factors: income of new spouse)
						However, child support guidelines rarely take into account in 						basic calclation the needs of depend subsequent spouse or kids
					How changes dealt with :
						treat each child regardless of parent, regardless of household, 						equally (like the equalization support model)
						take account of first kids first
						take care of custodial kids first - deduct amt necess to care for 						custodial kids and compute for noncustod from reduced amt
					spousal support received is income and paid is deduction in most 					jurisdictions; child support pd is deductible from payorÕs income in 					most states
					most states donÕt include income of new spouse as income; 					though some community property states do; statutes providing that 					spouses not liable for otherÕs premarital debts = stepparentÕs income 					no considered in calcul support obligation
					ORS 109.053 - expenses of family/educ of kids charegeable upon 					both spouses; duty to step ceases at divorce
					OAR 137-50-400:Nonjoint Children - gets to deduct amt he would 					have to pay for number of children in his home
						OR doesnÕt give automatic deduction for all child support paid 					from income
			AFDC - abolished with reform -now TANF
			What Is The Economic Unit - should legal duties to support children 			cont to depend primarily on parental status, or should people who actually 			share a household be treated as the basic economic unit
		Enforcement
			3 things cts can do:
				reduced periodic  payments reduces enforcement problems
					statutes authorize (in OR) can set up trust to ensure payment of 					periodic trust; prob is having enough $
				provide that obligor will post bond; fedÕl law req that states allow cts 				to order
				provide to maintaince of life insurance payable to obligee
					ORS 107.810-.830 - order to maintain life insurance
						if award life insurance in  lieu of support order must state so
						order allows obligee to have ins co notify if change in 						beneficiary or nonpayment; no notice wo order
			group health insurance - fedÕl law req that spouses be allowed to cont 			particip up to 36mos after divorce
			Judicial Enforcement
				for any kind of order, when obligor doesnÕt comply - reduce to final 				judgement (fedÕl govt req that unpd child support ordered final 				judgement; must get ct order for spousal); means file liens, allows 				seizure of property; effective if live in jurisdiction where obligor has 				property
					genÕl rule under ORS last for 10yrs; but child support judgments 					last 25yrs; must renew for house
					not very practical for enforcing support
			Child Support
				Older Methods
					thrown in jail
						convince DA to bring criminal suit for failing to support 						dependents; uncommon
						hold them in contempt - punishment for failure to comply 						with a court order; no punishment if unable to comply, 2 kinds 						disting by length of jail time and manner of release
							civil contempt (OR - remedial contempt) - not really 							punishing, released upon obeying order
								(1)OR proof beyond reasonable doubt; entitled to lawyer 
							criminal contempt (OR - punitive contempt) - punishment 							for specific period of time
								(1)OR - brought by DA; entitled to lawyer
								(2)Hicks v. Feiock
							no job doesnÕt necessarily = inability to pay; seek work 							orders; arrears not retroactively modifiable typically
							visitation and duty not linked; exception Dimenko - where 							deliberate concealment no duty
							no offset of order by altern support - ie shoes, etc..
				Newer Methods
					Federalization of child support enforcement to maintain FedÕl 					Welfare Funds
						Wage Withholding/Garnishment - every order presumptively 						req; also, where orig order doesnÕt req but where one mo in 						arrears, where obligee requests and in best interest, where obligor 						requests
						Automatic Transfer of Funds - 
Child Custody
	Sole and Joint Custody
		CL presumed sole custody; early on gave custody to father and 		allowed 		father to w/hold visitation
			change in 19th cent. to be decided in best interest of child; family and 			
			econ structures changing - domestic sphere v. economic sphere on tender 			years presumption; from clear rule of parental custody to judicial 			superintendence in US
		Best Interest Test
			Painter v. Bannister - IO/1966 - AC applying de novo review bc custody 			review; factors: presumption of parental preference, though primary 			consideration is best interest of the child-return likely to have disrupting 			effects; Will named husband-parentÕs wishes given consideration; 			Grandparents will be 70 when Mark graduates high school;Not in best 			interest to take out of stable atmosphere in face of warning of dire 			consequences from eminent child psychologist
			Factors Affecting Best Interest Test
				gender
				primary care taker
				behavioral issues: race, domestive violence,
			Legislatures and courts have increasingly recognized a separate role, 			although rarely as a formal party, for children whose custody and support 			will be affected; ususally by apptmt of separate counsel
			ORS 107.137(1) - In determining/modifying custody, primary focus is best 			interests of child and listing factors: emoti ties, interest of parties in and 			attitude toward child, desirability of cont relationship, abuse of parent, 			friendly parent
			ORS 107.137(3) - consider conduct, marital status, income, social 			environment, life style only if shown that any of these factors causing/will 			emotional/physical damage
			ORS 107.425(1)  - ct may order investigation in domestic relations suit
			ORS 107.425(2) - ct/parents motion for indep examination
			ORS 107.425(3) - ct/parents motion for counsel for kid; shall if req by kid
			ORS 107.425(4) - may take testimony from child/ren
		The Maternal Preference & The Primary Caretaker
			Pusey v. Pusey UT/1986 - overruling notion of gender-based preferences 			in child custody cases bc even if all things were equal precluded by Utah 			and US const(14th) - presumption serves no compelling state interest; 			factors: primary caretaker during marriage and since divorce, parent able 			to provide personal care
			Burchard v. Garay - CA/1986 - Custody determination must be based 			upon true assessment of the emotional bonds btwn parent and child; also, 			factual determination of how best to provide continuity of attention, 			nurturing, and care; Reliance on relative economic principles 			impermissible; undermines purpose of child support statutes;TC avoided 			importance of continuity and stability in custody arrangements
				requirement of material change req new circumstances representing 				a signific change from preexisting circum
			Garska v. McCoy - WVa/1981 - factors in deter primary caretaker:
				preparing and planning meals;
				bathing, grooming, dressing;purchasing, cleaning, and care of clothes
				medical care, incl nursing and trips to physicians
				arranging for social interaction;arranging altn care
				putting child to bed, attending;disciplining;educating
		Religion, Sexual Behavior, Race
			most courts use a nexus test: between parental conduct and harm to 			child; questionable characteristic must harm the child
				What counts as harm? present or future?
			Hadden - WA/1980 - best interest factors: parentsÕ & kidsÕ wishes, 			relationship of kids w parents, adjustmt to home, school, and community, 			& mental/phys condition; (Yoder)parents have right to direct relig 			upbringing provided doesnÕt jeopard health/safety; requirmt of reasonable 			and substantial likelihood of immed/future impairment
			Osier - ME/1980 - determine childÕs best interest and 			where preferred 			parentÕs religious practices have been placed in issue: 1) threshold factual 			determination that wellbeing immediately and substantially endangered; 			2) balance interests (want least possible intrusion on constitutionally 			protected interests
			Jarrett v. Jarrett - IL/1979 - applies best interest test to modify custody 			agreement and removes kids from unmarried cohabitating mom bc of 			injury to moral well-being(as a factor); absent any evid of actual harm
			MAB v. RB - NY/1986 - neednexus btwn harm and homosexuality to 			deny custody change where in best interest of child
			Palmore v. Sidoti - US/1984 - prejudice&problems bc of interacial 			marriage cannot be considered factor in best interest test
			friendly parent rule - where presumption with parent who will 			encourage relations between other parent and children
		Domestic Violence
			MT/NV/ND rebuttable presumption that custodian by abuser not in 			childÕs best interest
				ND - where both parents abuse - need detailed finding on abuse 				issue; presumption agst grter abuser
	Joint Custody
		Taylor v. Taylor - Md/1986 - legal &/or physical custody can be joint; impt 		factors to consider:
			 capacity of the parents to communicate and to reach shared decisions 			afecting the childÕs welfare
			willingness of parents to share custody - or shouldnÕt be offered 
			preference of child
			potential disruption of childÕs social and school life
			demands of parental employment
			age and number of children
			sincerity of parentsÕ request
			financial status of parents
			impact on state/federal assistance
			benefit to parents
		Lombardo v. Lombardo - MI/1993 - joint custody by definition means that 		the parents share the decision-making authority with respect to the important 		decisions affecting the welfare of the child and where parents canÕt agree on 		impt matter ctÕs duty to determine the issue in the best interest of the child
		Brzozowski - NJ/1993 - ct doesnÕt need to decide disputes unless act or 		omission will contravene best interest - choice of physical custodian
		ORS 107.105(1)(a) - encouraging joint parental custody and joint 		responsibility
		ORS 107.169 - joint custody means share rights and responsibilities for 		major decisions concerning the child, includ: residence, education, health 		care and religious training; both parents must agree to the terms and 		conditions; ct must order it if both parents want it; changed circumstances and 		best interest to modify - inability to cooperate = change
		ORS 107.179 - where one parent contest joint goes to mediation
		Problems
			father physical custody and mother visitation - fatherÕs home is base, but 			mother spends more time; why does it matter what itÕs named--child 			support; physical v. legal custody--authority to make major life decisions
			107.154 - where sole with visitation, non-custodial can still get records 			and authorize medical care -
			Lombardo - joint legal and decision making break down - legal options: 			primary physical custodian decides--wipes out joint legal in effect ; 			decideby best interests--gives court custody in effect; award to parent who 			facilitated breakdown (variation of friendly parent rule)
				under Oregon Joint Custody Statute - revisit custody issue and joint 				custody would break down -  would award to one of parents
	Visitation and Modification - 
		Morgan v. Foritich - 2yrs in jail for contempt in violating vistation order
		Ziegler - ID/1985 - limiting residency and travel wo approved ct order 		upheld as promoting compelling state interest of love, support, guidance, and 		companionship of both parents
		denial of visitation is an extreme remedy and rarely approved
		reasonable visitiation--vague, gives noncustodial parent nothing
		specific timetable - 
		Grandparents/Interested Adults
			Bucci - PA/1986 - grandparent visitation in best interest of child; 			appellees had burden of overcoming appellantÕs right to continuous 			custody; only had to prove in best interest to spend some time with 			them(less than in custody cases); authorized by statute
			not recog at CL over parentsÕ objections
		Roberts v. Ward - NH/1985 - not authorized by statute -using parens patriae pwr; judicial deference to parental rights less compelling as nuclear family eroding and psychol attachments to other adults increasing; best interests - right of child to know grandparents v custodial autonomy
			ORS 107.105(1)(b) - noncustodial and grandparent rights can be included 			in decree; parenting time plans determinative of parenting time rights - 			can be develped by the ct in the best intrest of the child, ensuring 			noncustodial suff access; deny only if endanger health/safety of child
			ORS 109.121  - grandparent visitation to be determined by best judgment 			of the facts and guided by  best interests and welfare of child
			ORS 109.123 - pwr to grant gpÕs discretionary & only where best interests
		Modification of Custody and Visitation Orders
			Dallenger - MT/1977 - Uniform Marriage and Divorce Act
			1.	No modification of custody decree earlier than two years unless enviro may endanger seriously physical, mental, moral, or emotional health of child
			2.	No modification unless upon basis of (1)facts arisen since prior decree/unknown at time of decree, (2)a change in circumstances of child/custodian and (3)modification necessary to serve best interest of child; no modification, unless
				a.	Custodian agrees
				b.	Child integrated into family of petitioner w consent of custodian
				c.	Present enviro endangers seriously physical, mental, moral, emot health, and harm to be caused by change outweighed by advtgs;
				Requirements are jurisdictional prerequisites to modification to serve 				policy behind entire section: custodial continuity
			 Other states allow change where in childÕs best interest
			some courts recog not best interest of child(already decided) but of new 			family unit; relocation, e.g. 
			exception to changes circumstances where not fully litigated
			ORS 107.137(1) - In determining/modifying custody, primary focus is best 			interests of child and listing factors: emoti ties, interest of parties in and 			attitude toward child, desirability of cont relationship, abuse of parent, 			friendly parent
			ORS 107.135(1)(a)(b) - any time upon motion court may modify custody
			ORS 107.431 - modification of parenting time and support where time 			being withheld 
Jurisdiction and Modification
	Divorce 
	Property
	Support
	Custody
	International Hague Convention - does not determine jurisdiction, child 	should to be sent to habitual residence; circumstances when donÕt have to send: 	not actually exercising custodial rights, grave risk harm to child, violation of 	fundamental rights, child now settled in new environment
Family Formation
	Marriage and its Alternatives
		Marriage Regulation - see handout
			Zablocki 1978 - addresses validity of law restricting marriage.  			classification affects right to get married; which is important state interest 			and therefore heightened scrutiny - no rational relationship btwn statute 			and state interest in support of children
			Loving - no inter-racial marriages unconst on equal protection grounds 			and marriage as fundamental right
		Monogamy & Bigamy
		Potter v. Murray City - 10th/1985 -monogamy is inextrcably woven into the fabric of our society; state justified by compelling interest in upholding and enforcing its ban on plural marriage to protect the monogamous marriage relationship - challenged on first amend grds
			Reynolds v. US - US/1878 - activities of individuals even when 			religiously based, often subject to regulation by States in exercise of 			undoubted power to promote health, safety, and general welfare;
			in many jurisdictions, bigamy is a strict liability offense; others allow 			reasonable mistake as affirm defense
			Enoch Arden Statutes - specific exception to criminal liability for bigamy 			where disappearance for usually 5-7 yrs; other statutes provide only a 			defense; others provide procedure for judicial declaration of death of 			absent spouse and offer protection to marriage contracted subsequent to 			proceeding
		Relationships
			State v. Sharon H. Del/1981 - consanguinity statutes prohibit marriage 			btwn blood relations (throught a common ancestor)based on biblical 			prohibition, genetic inbreeding; includ half-brother/sister were one 			adopted into another family
		Different Sexes
			Baehr v. Lewin - HA/1993 - (1)no constitutional right to marriage under 			privacy for same-sex; bc linked to right to procreate; (2) no fundamental 			constit right; (3) statute is unconstit under equal protection (a) treated as 			gender discrimination with strict scrutiny bc Hawaiin Const gives sex 			discrimination strict scrutiny
				opposite view: doesnÕt violate EP; neither men or women can do it; 				same argument made in Loving
				dissent: same sex marriage is not marriage
				the stateÕs marriage laws protect and foster and help perpetuate basic 				family unit; homosexuals not a suspect class
				Zablocki - right to marry is part of the fundamental right of privacy 				implicit in 14th DP; state can only deny for compelling reasons
				whether fundamental constitutional right: so rooted in traditions 				and collective conscience of people that failure to recognize it would 				violate the fundamental principles of liberty and justice that lie at the 				base of all our civil and political institutions
		Common Law Marriage
			Winegard - IO/1977 - must prove 1)intent and agreement to be married, 			2) continuous cohabitation, 3) public declaration that husband and wife
			where purport to be married b4 termination of prev marriageUMDA 			¤207(b): where cohabitat after impediment revoded, lawfully married as of 			date impediment removed
			under choice-of-law rules, a state may recognize a CL marriage entered 			into in another jurisdiction; may refuse to recog when would violate a 			strong public policy of the forum state; states generally
				recog CL even where contact with state short
				no recog where not domicilied in state at time of alleged marriage
				donÕt have to be domiciled but visits alone not sufficient
			formal divorce action necessary to dissolve CL marriage
		Presumptions of Marriage and Putative Spouses
			Spearman v. Spearman - 5th/1973 - second marriage cannot be validly 			contracted if one married;
				initial presumption: rebuttable presumption arises in favor of 2d
				burden on first to estb cont validity of marriage by deomonstrating 				that not dissolved--examine records of only those jurisdictions in 				which either she or husband have been in fact domiciled (bc only the 				states in which one spouse or the other was domiciled may constit 				assert jurisdiction to divorce them)
				then, burden of demonstrating the invalidity of 1st shifts to 2d
			nonspouse may be able to estb Ôputative spouseÕ - one whose marriage is 			legally invalid but who has engaged in 1) marriage ceremony on 2) good 			faith belief in validity of marriage--entitled to property accumunlated by 			family unit during its existence
			another presumption: marriage validly entered into continues
			UMDA ¤ 209 - putative spouse provision: 1) cohabitation, 2) good faith 			belief is putative spouse untile K of fact not legally married terminates 			statuts and prevents acquisisiton of further rights
				acquires rights conferred on legal spouse, includ maint following 				termination of status
				court apportion equally amg all spouses
			ORS 112.017 - CL considered spouse for probate
		Unmarried Cohabitants
			Traditional Approach - if not married youÕre strangers and without 				contract
				Marvin v. Marvin - CA/1976 - reiterate nonmarital partners may 				lawfully contract concerning the ownership of property acquired 				during the relationship; contract fail only to the extent that they rest 				upon a considertion of sex; courts inquire into conduct of parties to 				determine whether demonstrates (extending rights of unmar coha)
					implied K/implied agreement of partnership or joint venture
					may employ principles of constructive/resulting trust
					recovery in quantum meruit for reasoanble value of household 					services rendered less the reasonable value of support received -  if 					show expectation of monetary reward
				Hewitt - IL/1979 - if CL express K govern express agreements btwn 				unmarried cohabitants, CL of implied K, equitable relief and 				constructive trust must govern partiesÕ relations absent agreement 				(Marvin); counter to policy of strengthening and preserving the 				integrity of marriage - implicit in IMDMA disfavoring mutually 				enforceable property rights to K unmarried cohabitants
				mjty of courts allow cohabitants to make claim agst the other when 				relationship ends
				some require it to be in writing to be enforceable; some agree but 				hold equitable remedies n/a
				almost all ct follow Marvin in severing sex from econ aspects for 				purposes of determining whether enforceable K entered into
				business partnership as alternative theory
			Scandinavian Approach - functional approach to unmarried cohabitants
				Shuraleff v. Donnelly - OR/1991 - find implied in fact contract (diff 				than unjust enrichment); no joint checking; he did work on farm for 				mutual benefit; ct basicallly treats couple as married - equitable 				distribution - akin to marital property division
					Beal- remedies to unmarried cohabitants as express/implied 					contract
				Braschi v. Stahl - NY/1989 -unmarried cohabitant protected in rent 				controlled protection; ct found appellant was family member; looking 				at functional v. legal family; upon objective examination of the 				relationship: exclusivity and longevity of relationship, level of 				emotional and financial commitment, manner in which parties have 				conducted everyday lives and held themselves out to society, reliance 				placed on another for daily family services
			sometimes dependents written into benefits avoiding problem of no 			familial relationship
issue in functional family: what counts
			Domestic Partnership Ordinances - 
				canÕt enter into next for 6 mos; lgr t
				(d) of san franÕs  - creating support duties
	Parent-Child Relationship
		Premises:
			Every child has at least one legal father and mother;No more than one
			marriage was the basis for legal recognition of parenthood
			bastard children were heir to noone and could have no heirs
			ecclesaistical courts enforced fathers duties to support their children 			whether in wedlock or not
			CL unmarried father no/lmtd support duty and no custodial rights
			marital status of parents cont to be impt in determinin who is childÕs 			father for legal purposes
	The Marital Presumption of Paternity
		all states by statute/CL provide married womanÕs husband is at least 		rebuttably presumed to be the father of her children
			ORS 109.070 - no one can rebut the conclusive presumption if husband 			and mother living together and husband was not impotent or sterile and 			the wife and husbad were cohabiting when the child was conceived; 			all 			other = disputable presumption;burden of proof of predicate conditions 			with person who gets legal advantage of the presumption
			even where presumption rebuttable, cts have held that it cannot be 			overcome if finding of nonpaternity contrary to the childÕs best interests 
		Michael H. v. Gerald D. - US/1989 - introduces mjr criteria now commonly 		proposed for defining legal parenthood: biological parenthood, being married 		to a person who already has parental status, intending to become a parent, 		and functioning as a parent
			Father files filiation/paternity suit - if successful would establish biolog 			and maybe legal w/ visitation;  legal effect biolog paternity = legal father; 			Gerald father bc married to mother and conclusive presumption; defines 			the unwed father away
			Scalia could have given biolog father right but no constit right is 			absolute--countervailing state interest in protecting right of mother and 			husband 
			Stevens concurring - visitation in best interest of child and should be 			awarded;statute where wi discretionary pwr of ct to award visitation right 			to nonparents;
			Dissent - paternity estb, paternity and then legal father determined by 			bestinterests; 
		other courts- have held that a presumption of paternity no longer exists and 		that a putative father may bring a paternity suit if he has estb substantial 		parent-child relationship with the child
		In re Lisa R. - US/1975 - biolog father permitted to rebut the presumption 		when the childÕs mother and her husband both dead
		Melissa G - CA/1989 - where mother and husband were divorced and 		husband had no relationship to child, conclusive presumption cannot be 		applied constitutionally
		paternity is not established by birth certificate; unilateral act of the mother
		in past couldnÕt give evid to bastardize child
	ParentsÕ Custodial Rights
		legal custody: right to make important decisions about a child concerning 		education, religion, medical care
		physical custody - living with and making day-to-day decision on behalf of a 		child
		in most states, b4 3d party can be awarded custody over the objection of a 		parent, the parent must be shown to be unfit, or detrimental to the child 		(Painter v. Bannister)--weighs in favor of parent, in contrast to best interests 		rule; some states use best interest with 3d party
		Hruby - OR/1987 - 109.119 granted sister right to intervene in brotherÕs 		custody awardd; ct concludes statute did not give sister, nonparent  legal 		advantage over natural parent; std for parent v. nonparent must show signif 		detriment to child with parent; sister arguing should be pure best interest bc 		statute wipes out parental presumpt--legisl intent in recog psychol is to give 		equal status--rejected, statute bives nonparents ability to be heard in ct on 		matters related to custody of children for whom they have long cared; in 		dicta: parent-parent: 
			ORS 109.119 - psychological parent legal par with other claimaint where 			in best interest of child
				b4 statute had to plead right to custody bc custody with dad signif 				detriment; presumption in favor of dad has pleading requirement 
				lking at estb emot ties creating c-p relationship
			Painter v. Banister - parental presumption overcome with limited evid; 			most jurisdiction give more weight to parental presumption
	Multiple Parenthood
		Every child has at least one legal father and mother bc maximizes well-being 		or in the natural order of things 
		LA - allows estb of biolog paternity and give biolog fathers legal rights and 		duties while preserving childÕs statuts as legal child of motherÕs husband
		Moore v. City of East Cleaveland - US/1977 - (contrast to ScaliaÕs def of tradl 		family in Michael H.)canÕt proscribe how people 		associate(esp where blood 		relations)--impt for laws that limit living arrangements to advance impt govt 		interest; statute selects certain categories of relatives who may live together 		and declares that others may not; freedom of personal choice in matters of 		marriage and family one of the liberties protected by the DPC of the 14th
	UNMARRIED FATHERS
		Levy v. LA - SC /1968 - discrimination against children born to unmarried 		parents violated the EPC
			Trimble v. Gordon - US/1977 - intermediate level of scrutiny - 			substantially related to impt state interests 
		some state have eliminated all legal differences based on parentsÕ marital 		status; Uniform Parentage Act - parent and child relationship extends equally 		to every child and parent regardless of marital status; notwithstanding 		marital child presumption
	Child Support, Inheritance, and Public Benefits
		Gomez v. Perez - US/1973 - denying nonmariatal kids from right to support 		from the father when marital children has such a right violates the EPC
		general rule: proof of biological parenthood is sufficient for imposing a 		support duty
	L. Pamela P. v. Frank S. - NY/1983 - tc rules he must pay to keep child off welfare and no more were she claimed taking birth control but lied; overturned bc he is the biological parent; constitutional entitlement to avoid procreation does not encompass right to avoid child support obligaiton bc another private person didnÕt respect his desires
			only factors to consider in fixing award: needs of child and means of 			parents; emphasis is on welfare of child
			primary purpose of establishing paternity: to ensure adequate provision 			will be made for childÕs needs, in accordance with means of the parents
		however, if a man misrep to woma that he is unable to father children and 		he becomes pregnant he is liable to her in tort
		paternity estb biolog; legitimacy dealt with inheritance--where recog by 		parent
		Bennemon v. Sullivan - 7th/1990 - father dies b4 child born wo signif 		estate 		but had pd into ss; mom petitions for survivor benefits for child; only avail if: 		1) child eligible to inherit, 2) father acknowledged child in writing, 3) father 		declared by ct - paternity suit, 4) ss determines father living with/providing 		regular and substantial support for: dies b4 born, so really looking at 		relationship with mom, he secured her utility - not enough bc; why 		disctinction?pub policy agst illegit 
			1-3 trying to determine whether biological father
			4 deter by dependency; though ss argues underlies each
		Wolfe v. Sullivan - 10th/1993 - rejects regular and substantial test and 		accepts generous support commensurate with the unborn childÕs needs test
	Unmarried FathersÕ Custodial Rights
		Stanley v. IL - US/1972 - IL statute conclusively presumed every father of 		child born out of wedlock to be an unfit person to have custody of his 		children;  DPC violated by automatic destruction of the custodial relationship 		wo giving father opportunity to present evidence re his fitness as a parent
			Dissent: EPC not violated where recognition only of relationships that 			arise in context of family units bound by legal obligations arising from 			marriage or adoption proceedings; may constit disting btwn unwed fathers 			and mothers as unwed fathers more diff to id and locate; state interest: 			further the welfare of illegitimate children in fulfillment of StateÕs 			obligations as parens patriae
		right to participate in legal proceding and notice/procedural v. substantive 		rights:consent or unfitness or best interest
		substantive challenges consent or unfitness or best interest
			biolog paternity alone insuf to req dadÕs have legal protection; if father 			has done nothing to shoulder responsibility of parenthood can do nothing
			gender based discrimination: not similarly situtated; mom always has 			custody so state classification justified
			married v. unmarried:constitutional bc married have come forward to 			take responsibility 
			substantive: constit unless dad takes parenting responsibility
		Notice
			Lehr - US/1983 - father challenging notice; only gets notice if: paternity 			suit, lived openly, identified as father in sworn written statement, on birth 			certificate, sent in postcard to bureau of vital statistics; ways entitled to 			notice broad enough to cover fathers coming forward to take responsibility
				can get affidavit from mom or state (depending on statute) but diff to 				estb whether any of above actions have been taken
				Quilloin  - statute authorizing adoption of child out of wedlock over 				objection of natural father consistent w/ DP where in the childÕs best 				interests; father had never legitimated child and sought visitation and 				legitimation only after adoption proceeding began
				Caban  - (dissent:parental rights do not spring full-blown from the 				biological connection btwn parent and child; req relationship more 				enduring; when such develops it is entitled to protection agst arbitrary 				state action as a matter of DP)violated EPC to grant mother veto pwr 				over equally situated father 
				Synthesis: existence/nonexistence of a substantial relationship 				between the parent and child is relevant criterion in evaluating both 				the rights of the parent and the best interests of the child
				EPC: adoption procedures designed to promote best interests of child, 				protect rights of interested 3ds, ensure promptness and finality
				Dissent: if entry of adoption order deprived Lehr of a constit 				protected interest--entitled to notice & opport to be heard b4 order final
			Uniform Parentage Act - allows an unwed fatherÕs paternity to be 			established, at least presumptively, in a variety of ways without judicial 			proceedings
			UPA¤24 - only putative fathers who meet the req for 			being a presumed 			father are entitled to notice of adoption--giving 			presumed parents the 			same substantive rights that other parents have:
				are/have been married & child born during marriage, or w/i yr after 
				b4 birth, attempted to marry
				after birth, have/attempted to marry, though could be invalid and 				registered paternity, named on birth certificate, or obligated to support
				custodian
				registers and mother doesnÕt contest.  if another man presumed 				acknowledgment may be effected only with written consent of 				presumed father or after the presumption has been rebutted
			Uniform Puative and Unknown Fathers Act ¤3 - adds notice must also 			be given to putative(man claims to be, or is names as, the biological father 			or possible biological father of a child whose paternity has not been 			judicially determined) who is not a presumed father as defined above and 			whose parental rights have not been terminated.  Also,
				notice anytime putative father known
				inquiry where unknown father not given notice
				after inquiry, consider whether publication or public posting of 				notice likely to lead to actual notice
			pg.1120 facotrs in whether other presumed fathersÕ parental rights should 			be preserved; if man determined to be the father, the court determines 			whether there is a relationship; and then the ct may terminate the 			parental rights of the father only if failure to do so would be detrimental to 			the child
			Do you have to give notice?  uniform acts require judicial inquiry		
			What is sufficient notice?
			ORS 109.096 -notice to putative father where paternity not established 
				entitled to reasonable notice if recent custodian, contrib support, 				registered
		Withholding consent - can biolog to same extent as mom/husband
			ORS 109.060 - legal status and relationship and rights and obligations 			same whether or not the parents have been married
			other states donÕt give unmarried father same custodial rights as 				other 			parents--might req living w child to veto adoption
			NY - in adoption by strangers, unwed father has max protection of 				his 			relationship where he asserts his interest promptly and manifests 				his 			ability and willingness to assume custody of the child
			CA - no presumed fathers (married/attempted to marry/custodian/held 			child out)with veto rights of mom and natural fathers (biolog)  only if in 			best intersts bc mother could unilaterally prevent natural from becoming 			presumed where father promptly comes forward and demonstrate a full 			commit to parental responsibilities
		Establishing Paternity - 
			Omnibus Reconciliation Act requires all states to enact laws authorizing 			simple voluntary procedures for establishing paternity
			statutes can give stding to mothers, authorities, putative fathers, child
			some cts have held unmarried fathers have a constit right to estb 			paternity
			SoL limitations
			methods of proof
			ORS 109.092 - establishing paternity by acknowledgment; mother 			surrendering child for adoption - obligation to recognize man that may be 			biolog father; man may acknowledge, mother may acknowledge
				if paternity not acknowledged as provided in ORS 109.070(1)(e)or 				putative father has not asserted his rights in filiation prodeedings, the 				mother has the right without the consent of the father to surrender the 				child as provided in ORS 418.270