Family Law

Barbara Glesner Fines1-511 Holmes

235-2380

Why Family Law? Fundamental understanding of law

Bar preparation generally and specifically

Preparation for practice Foundation for further study

What will we learn? Doctrine Themes Skills

Substantive Doctrine

Defining Family Regulating Family Reorganizing Family

Themes in family law Public v. private

ordering – Should the government regulate family? When? Why? How?

Is the law a good tool for regulating family?

Who should decide?

Government? Which one?

Family? Which one? HOW do we decide who

should decide?

Who should decide?

What Standards? Moral? Social? Economic? Psychological? Legal? Personal?

What is a Family?

How do we label families? “Nuclear Family” Single-parent (never-married, divorced,

widowed) Blended (Steps and Halves) Adoptive Foster Extended Non-traditional

Census definition

“Two or more persons, living in the same household, and

related by blood, marriage or adoption.”

Census: Families & Non-Families

Non- family

Family

Family Compositions

Married no kids

Other

Married w/ kids

Solo

Other family

What is the Law’s Definition of “Family”?

• It Depends: The legal definition of “family”, like the body of family law itself, is not a unitary concept derived from a single area of legislation or a single branch of case law

What purposes are served by a legal definition of family?

A legal definition of family: Regulates responsibilities and authority

between individuals. Regulates access to important social

benefits. May confer psychological and social

consequences also.

What Constitutional Considerations are Implicated by a Legal Definition of Family?

Characterizing the personal interest affected

“Fundamental interests” or interests affecting “protected classes” require "strict scrutiny"

If not a fundamental interest or protected class, use the "rational basis" test

Describe the “fundamental interest” the court was protecting in Moore v. City of East Cleveland.

How might the law define “family”?

Formalism v. Functionalism

Formalistic Definitions Defines family relationships

according to the model of the traditional nuclear family.

Recognizes only individuals related to each other by the bonds of blood, adoption, or marriage.

Advantages & Disadvantages of Formalism Favors the traditional “nuclear”

family over all others Clear, predictable standard But, may be both over-inclusive

and under-inclusive.

Functional Definition of Family

Asks whether a relationship shares the essential characteristics of a

traditionally accepted relationship and fulfills the same human needs.

Functional characteristics 1.   the exclusivity and longevity of the

relationship, 2.  the level of emotional and financial

commitment, 3.  the manner in which the parties have

conducted their everyday lives 4.  held themselves out to society, 5.  reliance placed upon one another for

daily family services.

Reasons for Shift to a Functional Approach

Reflects change in societal makeup

Reflects changes in gender role

May better serve statutory purposes

Costs of Functional Approach Indeterminant Intrusive Inappropriate

Interviewing Exercise

Active Listening truly wish to learn, keep focused on them (not

yourself) verify content verify (non-judgmentally)

emotions.

Next Class

Constitutional Framework:Read 95-134; 839-870 (Zablocki,

Goodridge & Lawrence) Skim Text pp. 134-48

Mo. Rev. Stat. 451.090; 451.020; 451.030 and 451.022