Family Law Outline I. THE FAMILY AS A REGULATORY CLASSIFICATION a. Zoning Rules i. Moore v. City of East Cleveland ii.

NOTES 1. Defining the Family 2. Distinguishing Moore and Belle Terre 3. Marshalls Belle Terre Dissent Versus the Plurality Opinion in Moore 4. Zoning Ordinances and Subtexts Relating to Race, Class, and Other Distinctions 5. Foster Families and Group Homes b. Rent Control Regulation i. Braschi v. Stahl Associates Co. ii. NOTES 1. A Postscript to Braschi 2. Functional Definitions of Family 3. Functional Definitions of Family in the Law 4. Comparative Perspective 5. Evaluating Formal vs. Functional Definitions of Family ENTERING MARRIAGE a. Formal Requirements i. Licensure and Solemnization 1. NOTES a. Licensing Process b. Waiting Period c. Ceremony and Registration d. Proxy Marriage 2. State v. Denton 3. NOTES a. Violation of Formalities b. Void Versus Voidable c. The Marital Communication Privilege ii. Common Law Marriage: Exception to Formality Requirements 1. In Re Estate of Hall b. Substantive requirements i. Constitutional Restraints Upon Substantive Requirements 1. Zablocki v. Redhail 2. NOTES a. Scope of Zablocki b. Importance of Poverty to Zablockis Holding c. What is Zablocki Protecting? d. A Dissent on the Right to Marry ii. Same-Sex Prohibitions 1. Varnum v. Brien

II.

2. NOTES a. Status of Same-Sex Marriage Bans b. Constitutional Overview of Same-Sex Marriage Prohibitions i. Sex discrimination? ii. Fundamental right to marry? c. More on the Interests of Gay Couples d. More on States Interests e. Conflict Within the Gay/Lesbian Community f. Changing Religious Views on Same-Sex Marriage? g. Public Opinion on Same-Sex Unions h. Same-Sex Unions in Other Countries i. Literature on Same-Sex Marriage j. Marriage Involving a Transsexual 3. NOTES ON CONFLICT OF LAW AND MARRIAGE a. General Rule b. Marriage Invalid Where Performed c. Choice of Law and Same-Sex Marriage d. Defense of Marriage Act 4. Regulation iii. Other Restrictions on Available Marital Partners 1. Age a. NOTES i. Age Regulations ii. Rationale 2. Non-relation a. Denise Grady, Few Risks Seen to the Children of First Cousins 3. NOTES a. Consanguinity Prohibition b. Affinity Prohibition c. Adoption and Incest d. Effect of Incestuous Marriage 4. Monogamy 5. NOTES a. First Amendment and Polygamy b. Polygamy in the United States c. Polygamy in Other Countries d. Enoch Arden Situation iv. Consent Requirements 1. NOTES a. Capacity to Consent b. Fraudulently Induced Consent c. Duress-Induced Consent d. Limited Purpose Marriage e. More on Immigration Marriages

III.

IV.

V.

LAW OF THE INTACT MARRIAGE a. Duty to Support i. McGuire v. McGuire ii. NOTES 1. Common Law Duty of Support 2. Refusal to Interfere 3. Martial Autonomy 4. Fault and Action for Support iii. Forsyth Memorial Hospital v. Chisholm iv. NOTES 1. Necessaries Doctrine 2. The Necessaries Doctrine in a Gender-Neutral World 3. The Necessaries Doctrine in a No-Fault World 4. Criminal Non-Support b. Spousal Control Over Earnings and Property i. NOTES 1. Analogous Management Choices 2. Three Kinds of Gender-Neutral Management 3. Open Questions 4. Common Law Applications CONSEQUENCES OF MARITAL STATUS a. Liability for Spousal Violence i. Reva Siegel, The Rule of Love: Wife Beating as a Prerogative and Privacy ii. NOTES 1. Estimates of Family Violence 2. Men as Victims of Spousal Abuse 3. Criminally Prosecuting Family Violence 4. Civil Rights Actions Claiming Failure to Enforce Laws Against Domestic Violence 5. Mandatory Criminal Arrest and Prosecution 6. Declining Intimate Violence 7. Non-Criminal Response to Spousal Abuse 8. Federal Response to Domestic Violence 9. Domestic Violence in the Workplace 10. Marital Rape Exemption 11. Model Penal Code Position 12. Current Status of the Marital Rape Exemption b. Evidence, Torts and Criminal Responsibility i. NOTES ON TORTS AND THE MARRIED COUPLE 1. Interspousal Immunity 2. Marriage-Related Torts THE ORIGINS AND HISTORY OF AMERICAN DIVORCE LAW a. Early American Divorce i. Lawrence M. Friedman, A History of American Law b. American Divorce in the Twentieth Century

VI.

VII.

i. Note, Collusive and Consensual Divorce and the New York Anomaly ii. Lawrence M. Friedman, American Law in the Twentieth Century iii. NOTES 1. Evading Divorce Restrictions with Annulments 2. Additional Reading c. The Development of the No-Fault Approach i. Max Rheinstein, Marriage Stability, Divorce and the Law ii. NOTES ON COMPARATIVE LAW OF DIVORCE 1. English Marriage and Divorce Law 2. Divorce Reform in Europe 3. Divorce in Non-European Nations THE MODERN LAW IN ACTION a. Pure No-Fault Systems i. NOTES 1. No-Faults Statutes in the U.S. 2. Can a No-Fault Petition be Resisted Successfully? 3. Summary Proceedings 4. Unilateral Divorce 5. Requiring Counseling as Part of the Divorce Process 6. Constitutional Rights of Access to Divorce and to Block the effect of No-Fault Reforms ii. Md. Code Ann. Family Law Article, 7-103 PROPERTY DIVISION: General Principles a. The Classic Common Law Title Rule b. Equal Division c. Equitable Division i. Michael v. Michael ii. Toth v. Toth iii. NOTES AND QUESTIONS 1. What Does Equitable Distribution Mean? 2. Need as a Factor in Equitable Distribution and the Awards Relationship with Alimony a. The appropriateness of a property allocation to meet need b. Do courts now allocate property on the basis of need? c. Need and the marital home 3. The Contribution Rationale and the Residual Effects of Title 4. Broadening the Contribution Principle with Homemaker Provisions 5. Different Rule for High Asset Divorces? 6. A Discretionary System? 7. Rebutting an Equal Division Presumption 8. Are Homemaker Provisions Obsolete?

VIII.

IX.

X.

9. Marital Misconduct as a Factor in Equitable Distribution 10. Financial Misconduct Property Division: Classification Problems a. The Basics i. NOTES 1. When Does the Marital Community Begin and End? 2. As of What Date is Marital Property Valued b. Some Special Problems i. Niroo v. Niroo ii. NOTES 1. Niroo as Exemplifying the Maturing Marital Property System 2. The Case of Deferred Compensation: In General a. Allocation issues b. Estimating future income flow 3. Personal Injury and Workers Compensation Awards 4. Dividing Debts 5. Appreciation of Separate Property During Marriage 6. Income Realized During Marriage from Separate Property 7. Assets Acquired With a Blend of Separate and Marital Capital 8. Transmutation of Property 9. Bankruptcy c. Applying Marital Property Rules to Pensions i. State Law Issues 1. NOTES a. Should the Court Divide Unvested Pension Rights? b. Deferred vs. Immediate Distribution of Pension Benefits c. Valuation of Pensions d. Other Retirement Benefits ii. Federal Preemption of State Law Should Earning Capacity, Professional Credentials, Or Goodwill be Treated as Marital Property? a. Earning Capacity and Professional Credentials i. OBrien v. OBrien ii. Postema v. Postema iii. NOTES 1. The OBrien Case 2. OBriens Logic and Other Cases on Licenses and Degrees 3. Applying OBrien 4. Alternative Remedies I: Postema, etc. 5. Alternative Remedies II: Reimbursement Alimony 6. Equity, Entitlement, and Sympathy b. Goodwill Md. Code Ann. Family Law Article, 8-201, 202, 203, 204 and 205

XI. XII.

Md. Code Ann. Family Law Article, 11-101, 106, 107 and 108 Alimony a. History and Historical Justification i. ALI, Principles of the Law of Family Dissolution ii. NOTES 1. Stereotype Reinforcement 2. Traditional Statutes 3. Frequency b. The Struggle for a Modern Rationale i. NOTE: GENDER PATTERNS IN ALIMONY CLAIMS ii. NOTE: THE DEBATE OVER DIFFERENCES IN THE FINANCIAL IMPACT OF DIVORCE ON MEN AND WOMEN iii. NOTE: THE ALIMONY PUZZLE c. Why do we have Alimony? i. Clapp v. Clapp ii. Marriage of Wilson iii. NOTES d. Size and Duration of Awards Following a Long-term Marriage i. Rainwater v. Rainwater ii. Hecker v. Hecker iii. NOTES 1. The Size of Alimony Awards 2. Rehabilitation and an Alimony Awards Duration a. Expectation of rehabilitation b. The limits of obligor responsibility 3. Policing Obligees Rehabilitation Attempts iv. NOTE: EARNING CAPACITY LOSSES AND THEIR RECOVERY XIII. Rescission After the Short-Term Marriage a. Rose v. Rose XIV. Modification of Awards: Some Special Problems a. Basic Rules b. Remarriage of the Obligee i. NOTES 1. Agreements to Make Alimony Non-modifiable 2. Agreements to Continue Alimony Past Remarriage 3. Agreements to Revive Alimony if Second Marriage Fails 4. The Annulled Second Marriage c. Obligees Cohabitation i. OConnor Brothers Abalone Co. v. Brando ii. Love v. Love iii. NOTES 1. The Effect of Obligees Cohabitation When Parties Have No Agreement a. The traditional rule b. The recent trend

2. The Validity of Contractual Terms on the Effect of Cohabitation 3. Conceptual Difficulties With the Financial-Impact Rule 4. Administrative Difficulties with the Pure Financial Impact Rule d. Economic Changes i. Increase in Obligors Income ii. The Obligors Retirement or Change in Employment iii. Voluntary Employment Changes by the Obligee iv. Inflation XV. Should Courts Consider Claims of Marital Misconduct? a. As a Factor in Alimony or Marital Propertu Adjudications? i. Ira Mark Ellman, The Place of Fault in a Modern Divorce Law XVI. Nonmarital Cohabitation a. The Deomgraphics of Unmarried Cohabitating Couples in the U.S. b. Enforcing Obligations Between Cohabitants i. Contract-Based Remedies 1. Marvin v. Marvin 2. Hewitt v. Hewitt 3. NOTES a. Michelle Triola Marvins Recovery on Remand b. State Recognition of Marvin Remedies c. Assessing the Impact of Marvin d. Comparing Marvin and Hewitt-Household Services Versus Market Labor and Economic Contributions e. Requirements for Marvin-type Claims i. Are the provisions of household services necessary for recovery? ii. Were the services provided with the expectation of payment? iii. The severability of the sexual relationship iv. What constitutes cohabitation? And is cohabitation required for recovery? v. Is a writing required? vi. Relationship between implied-in-fact contracts and equitable claims vii. Requirements for equitable claims viii. Applying Marvin to same-sex couples f. Does Recognition of Cohabitation Remedies Revive Common-Law Marriage g. Separation Agreements for Cohabitants h. Effect of Property Accumulated in Cohabitation on Property Distribution in Subsequent Marriage and Divorce ii. The Status Alternative to Contract Remedies 1. Washington States Approach

a. Connell v. Francisco b. NOTES i. Factors Indicating a Cohabiting Relationship Requiring Equitable Distribution ii. Comparing Washingtons Unmarried Cohabitant Doctrine with Common Law Marriage iii. Application of Washingtons Unmarried Cohabitant Relationship Doctrine to SameSex Couples iv. Application of Status-Based Unmarried Cohabitant Relationship Doctrine in Other States 2. The ALI Approach 3. ALI PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS 4. NOTES a. Understanding the ALI Proposal b. Critiques of the ALI i. The ALI proposals and the traditional family ii. The ALI proposals and private ordering c. The Blending of Contract and Status Frameworks d. Other Proposed Compromises Between the ALI and Contract Regimes e. Comparative Perspectives on Nonmarital Cohabitation f. Interstate Recognition of Nonmarital Cohabitant Relationships c. Legal Status of Unmarried Partners Vis--vis Third Parties i. NOTES 1. Tort Claims 2. Unemployment Compensation 3. Employee Benefits 4. Housing Discrimination 5. Employment Discrimination 6. Probate 7. Spousal Violence 8. Testimonial Privileges 9. Guardianship and Health Care 10. Aftermath of 9/11 d. Formal Status Alternatives to Marriage i. State Laws that Allow Partners the Same Rights and Benefits as Marriage-Civil Unions and Civil-Union-Like Domestic Partnerships ii. State Laws that Provide Limited Privileges to Relationships-

Domestic Partnerships and Reciprocal Beneficiaries iii. Statuses Granting Employment Benefits to Domestic Partners of Government Employees 1. NOTES a. The Demographics of Those Who Enter Civil Unions b. Challenges to the Civil Union Statues c. Interstate Recognition of Civil Unions d. Fiscal Implications of Civil Unions, Domestic Partnerships, and reciprocal Beneficiary Relationships e. Dissolving a Civil Union or Domestic Partnership f. Are Civil Unions Sufficiently Equal to Marriage? 2. NOTE ON FORMAL REGISTRATION SCHEMES OUTSIDE OF THE UNITED STATES XVII. Unmarried Parents and their Children a. Establishing Paternity i. Methods of Proof ii. Biological or Social Paternity? Of Procedures and Presumptions 1. Ira Mark Ellman, Thinking About Custody and Support in Ambiguous-Father Families iii. The Uniform Parentage Acts of 1973 and 2002 1. NOTES a. Comparing the Statutory Rules b. The Traditional Marital Presumption and its Allied Equitable Rules c. Res Judicata Effect of Divorce Decree d. The Nonmarital Presumption 2. NOTE ON ENFORCING PATERNAL SUPPORT OBLIGATIONS FOR NONMARITAL CHILDREN: SOME SPECIAL CONSIDERATIONS a. Establishing paternity and collecting support b. The amount of support c. Time limits on bringing a support action d. Res judicata effect of paternity adjudications e. Defense of Nonconsensual Paternity b. Establishing Paternal Rights i. Constitutional Protection of the Unwed Fathers Claim 1. Lehr v. Robertson 2. NOTES a. The Due Process Claims in Lehr b. The Equal Protection Claim in Lehr c. More on Permitted Gender Distinctions in Parentage d. Newborns e. Unaware, Deceived, and Thwarted Fathers

f. More on Putative Father Registries g. The Substantive Criteria Applied in the Adoption Hearing ii. The Unwed Father vs. the Mothers Husband 1. Michael H. v. Gerald D. 2. NOTES a. Framing the Issue b. The Husbands Versus the Putative Fathers Interests c. Victorias Due Process Claim d. Michael H. Epilogue e. Revised California Law on Marital Presumption f. Extending Californias Conclusive Presumption to Nonmarital Fathers g. State Constitutional Claims h. Alternative State Rules on Third Party Challenges to the Marital Presumption i. Multiple Parents-More Than Two c. The Constitutional Protection of Nonmarital Children From Discriminatory Treatment by Government d. Gay and Lesbian Parenthood XVIII. Adoption Trends in the U.S.: Past, Present, and Future a. Adoption in Historical Perspective b. Modern Adoption Trends i. Relinquishment of Newborns by Unmarried Women ii. Children in the Child Welfare System iii. Adoption by Relatives iv. Intercountry Adoptions v. Adoptions by Gays and Lesbians c. The Psychological Adjustment of Adopted Children XIX. Freeing the Child for Adoption a. Involuntary Termination of Parental Rights b. Consent to Adoption i. Whose Consent is Necessary? 1. Stepparent Adoption a. In the Matter of J.J.J. b. NOTES i. Alaskas Policies after J.J.J. ii. Uniform Adoption Act iii. Shifting Standards: Reconsidering the Level of Deference Accorded to Noncustodial Marital Fathers Who Refuse Consent for Stepparent Adoption iv. Marital Status, Gender, and Constitutional Considerations 2. Adoption into a New Family

ii. What Constitutes Valid Consent? 1. Vela v. Marywood 2. NOTES a. Revocation Rules and Conflicting Policy Objectives b. Pre-Birth Consent c. What Constitutes Fraud, Duress or Coercion? d. Other Bases for Revocation of Consent e. Validity of the Minor Birth Parents Consent XX. The Adoption Process a. Choosing Adoptive Parents and Children i. Gays and Lesbians as Adoptive Parents XXI. The Legal Effects of Adoption a. What is an Open Adoption? b. Confidentiality of Adoption Records i. Access to Nonidentifying Information ii. Access to Identifying Information 1. Registries and Intermediaries 2. Exceptions for Good Cause 3. Modern Statutes Permitting Access to Birth Records c. Post-Adoption Contact Agreements and Cooperative Adoption i. Michaud v. Wawruck ii. NOTES 1. Post-Adoption Contact Arrangements (i.e., Cooperative Adoption)-A Response to the Complexity of Modern Families 2. State Policies Regarding Post-Adoption Contact Agreements 3. Post-Adoption Contact by Court Order 4. Post-Adoption Contact with Infants 5. Post-Adoption Contact Agreements, including Grandparent Visitation Agreements, After Troxel v. Granville 6. Empirical Research on the Effects of Post-Adoption Contact 7. Further Reading d. Inheritance Rights after Adoption e. Abrogation of Adoption by Adoptive Parents XXII. Alternatives to Adoption: Assisted Reproductive Technologies a. Insemination by Donor XXIII. Unmarried Parents and their Children a. Gay and Lesbian Parenthood 1. Charlotte J. Patterson, Children of Lesbian and Gay Parents ii. Adoptions by Same-Sex Couples and Gay or Lesbian Individuals 1. Second-Parent Adoption a. Sharon S. v. Superior Court b. NOTES

i. Case Law and Second-Parent Adoptions ii. Statutory Second-Parent Adoption Provisions iii. Policy Positions of National Professional Associations iv. Scholarly Commentary v. Second-Parent Adoption Outside of the United States vi. An Alternative to Adoption? vii. Effect of Same-Sex Couple Adoption Decrees in Other States 2. Statutory Bars to Adoptions by Gay and Lesbian Couples and Individuals a. Lofton v. Department of Children and Family Services b. NOTES i. Background on the Lofton case ii. Examining the Decision in Lofton iii. State Prohibitions on Adoptions by Gay and Lesbian Individuals and Couples iv. Judicial Approval of Joint Adoptions v. Lofton Superseded? iii. Parenting Disputes Between Former Same-Sex Partners 1. Custody Disputes Between Same-Sex Partners a. V.C. v. M.J.B. 2. Parentage Disputes Between Same-Sex Partners a. Elisa B. v. Superior Court of El Dorado County b. K.M. v. E.G. c. NOTES i. Multiple Legal theories ii. The Implications of Troxel v. Granville on Lesbian Co-parenting Cases iii. The Biological Mothers Intent iv. Incorporating the Childs Perspective? v. Further Reading XXIV. Alternatives to Adoption: Assisted Reproductive Technologies a. Insemination by Donor b. In Vitro Fertilization and Egg Donation c. Surrogacy Contracts i. In Re Baby M ii. NOTES 1. The Epilogue to the Case of Baby M. 2. Distinguishing Gestational from Traditional Surrogates 3. Considerations of Public Policy 4. Cases Addressing Surrogacy in the States 5. Statutes Addressing Surrogacy in the States

6. Empirical Research on the Effects of Surrogacy Arrangements on the Intended Parents, the Surrogates, and the Resulting Children 7. Complications Arising From Surrogacy Arrangements 8. Feminist Views of Surrogacy Contracts 9. Additional Commentary d. The Legal Status of Embryos and Resolution of Disputes Over their Disposition i. Davis v. Davis ii. NOTES 1. What Does it Mean to Accord Preembryos or Embryos Special Respect? 2. Can Embryos be Sold? 3. Can Embryos be Adopted? 4. Enforcement of Agreements Regarding the Disposition of Preembryos 5. Statutory Provisions Governing Disputes over the Disposition of Embryos 6. Regulation of Fertility Clinics XXV. Unmarried Parents and Their Children a. Gay and Lesbian Parenthood i. Parenting Disputes Between Former Same-Sex Partners 1. Custody Disputes Between Same-Sex Partners a. V.C. v. M.J.B. 2. Parentage Disputes Between Same-Sex Partners a. Elisa B. v. Superior Court of El Dorado County b. K.M. v. E.G. c. NOTES i. Multiple Legal theories ii. The Implications of Troxel v. Granville on Lesbian Co-parenting Cases iii. The Biological Mothers Intent iv. Incorporating the Childs Perspective? XXVI. Duty of Support a. Duration i. General Rule ii. Post-Majority Support for Disabled Children iii. Post-Majority Support for Higher Education 1. Donarski v. Donarski 2. NOTES a. Legislative Sequel b. The Remand c. Authority to Award Post-Majority Educational Support d. Educational Support by Agreement e. Can An Obligor Condition Support on Students

b.

c. XXVII. a.

b.

c. d. XXVIII. a.

b.

Behavior f. The ALI Approach g. Value of Post-Secondary Education iv. Pre-Majority Termination of Support Support of Step-Children i. General Rules of Non-Liability ii. Imposing Liability on Step-Parents iii. Same-Sex Partners as Step-Parents? Relationship Between Visitation and Support Obligations Establishing the Amount of Support from Discretion to Guideline Structure of Guidelines i. Ira Mark Ellman, Sanford Braver & Robert J. MacCoun, Intuitive Lawmaking: The Example of Child Support ii. NOTES 1. Expenditures, Not Costs, and the Tradeoff in Living Standard 2. The Expenditure Estimate: Where They Come From, and Why They Matter 3. The Importance of the Choice of Marginal Expenditures iii. Ira Mark Ellman & Tara OToole Ellman, The Theory of Child Support iv. NOTES 1. Disparate Incomes and Marginal Expenditures 2. What Child Support Arrangements Do People Think Fair? 3. Prevailing Systems Other than POOI and Income Shares 4. Comparing Living Standards 5. Visitation Discount Aspects of Support not Included Within the Ordinary Guidelines i. Expenditure for Child Care required by the Custodial Parents Gainful Employment ii. Expenditure for Health Insurance and for Uninsured Health Care Costs Determining the Obligors Resources i. In Re Marriage of Dennis Md. Code Ann. Family Law Article 12-201, 202, 203 and 204 Establishing the Amount of Support: From Discretion to Guidelines Determining the Obligors Resources i. In Re Marriage of Dennis ii. NOTES 1. Establishing Obligors Ability to Pay 2. Seek-Work Orders 3. Calculating Imputed Income Customizing a Child Support Order i. Donohue v. Getman ii. NOTES 1. Variation from Guideline Amount

2. Obligors Second Family as Justifying Deviation 3. Guidelines Versus Discretion c. High Income Parents i. Isaacson v. Isaacson ii. NOTES 1. High Income Obligors 2. Disparity Between Parental Incomes in Nonmarital Support Cases 3. Low Income Support Obligor Cases 4. Other Factors Justifying Variance d. Non-Judicial Processes for Establishing Support e. Modification of Child Support Awards i. NOTES 1. Voluntary Reductions in Income: Some Special Cases ii. Serial Families 1. Kestner v. Clark a. NOTES i. Serial Families and Theories about Child Support ii. Priority of One Family over Another 2. Retroactive Modification a. Price v. Price b. NOTE i. Rule Against Retroactive Modification XXIX. Enforcement of Support Orders a. Traditional Difficulties in Collecting Support b. Governmental Involvement in Support Enforcement i. Paul K. Legler, The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act ii. NOTE ON FEDERAL INVOLEMENT IN SUPPORT ENFORCEMENT c. Enforcement Remedies i. Income Withholding ii. Contempt 1. NOTES a. Civil Versus Criminal Contempt b. Incarceration and Compliance c. Imprisonment for Debt? iii. Other Enforcement Techniques 1. Criminal Prosecution 2. Civil Remedies 3. Revocation or Denial of Privileges 4. Termination of Parental Rights d. Defenses to Actions to Collect Arrearages i. Prior Payment ii. Custodial Changes

iii. Delay iv. Estoppel v. Nature of Obligors Resources vi. Bankruptcy e. Special Procedures in Enforcement of Support for Indigent Families XXX. Interstate Support Litigation XXXI. Child Custody Introduction a. Brief History of Inter-Parental Custody Disputes b. Children and Divorce: Perspectives from Social Science i. E. Mavis Hetherington, Margaret Stanley-Hagan & Edward R. Anderson, Marital Transitions: A Childs Perspective XXXII. The Best Interest of the Child Standard a. Introduction b. Determining the Childs Best Interests i. Gender and Caretaking Roles 1. Burchard v. Garay 2. NOTES a. Past Caretaking as a Consideration in Custody Decisions b. Gender Roles c. Serial Partners d. Parental Interests e. Who Wins Custody Contests? f. Preference for Sex-Matching Parent and Child 3. NOTES ON DOMESTIC VIOLENCE AS A FACTOR IN CUSTODY DECISIONS ii. Sexual Conduct and Moral Unfitness 1. Van Driel v. Van Driel 2. NOTES a. Rationales for Considering a Parents Sexual Behavior b. Gay and Lesbian Parents c. Transgendered Parents and Children d. Commentaries iii. Race 1. Palmore v. Sidoti 2. NOTES a. The Limits of Sidoti? b. Custody of Biracial Children 3. NOTE ON CUSTODY AND HEALTH iv. Religion 1. Leppert v. Leppert 2. NOTES a. Background on the Winrod Family b. When Can Religious Practice Be Considered in the Custody Decision?

XXXIII. a.

b. c.

XXXIV. a.

b.

c. Custody and the Childs Prior Religious Upbringing d. Parental Religious Conflicts and Visitation v. Alienation of the Childs Affections 1. Renaud v. Renaud 2. NOTE vi. Childs Preference: The Role of Child Preferences in Custody Decisions 1. NOTE ON THE ROLE OF THE CHILDS ATTORNEY PROBLEM Alternative Custody Decision Rules Joint Custody i. McCarty v. McCarty ii. NOTES 1. The Dual Meaning of Joint Custody 2. The Current Law 3. State Law Variations 4. Joint Custody Over Parental Objections 5. Well-Being of the Children 6. Logistical Complications of Physical Joint Custody Arrangements 7. Resolving Disputes Between Parents with Joint Custody 8. Friendly Parent Provisions and Joint Custody 9. The Feminist Critique of Joint Custody 10. High Conflict Parents Past Parental Caretaking Roles The ALI Standard-Approximation of Past Parental Roles i. Elizabeth Scott, Pluralism, Parental Preference and Child Custody ii. NOTES 1. The ALI Standard as a Decision Rule 2. Comparison with Alternative Rules 3. Rejection of the Custody/Visitation Distinction 4. The Presumption of Shared Decision-making Authority Modification of Custody General Principles i. Burchard v. Garay ii. NOTES 1. The Changed-Circumstances Rule 2. The Exceptions 3. De Facto Custody Arrangements 4. Future-Oriented Provisions in Custody Orders Based on Agreements 5. Time Limitations on Modification Actions 6. Modification Actions Affecting Joint Custody The Problem of Relocation i. Marriage of Lamusga

XXXV. a. XXXVI. a.

b. XXXVII. a.

b.

XXXVIII. XXXIX.

ii. NOTES 1. The Dilemma of Relocation 2. Relocation and the Modification Standard 3. The Contemporary Legal Trend 4. Joint Custody and Relocation 5. High Conflict Families 6. Critiques and Alternatives Disputes Between Parents and Non-Parents Grandparent Visitation i. Troxel v. Granville Rights of the Noncustodial Parent Visitation Rights i. NOTES 1. Religion and Visitation 2. Visitation and Parents Sexual Activities 3. Childs Wishes in Visitation ii. NOTE ON THE ENFORCEMENT OF VISITATION ORDERS iii. PROBLEMS iv. NOTE ON CUSTODY AGREMENTS AND PARENTING PLANS Naming the Child Disputes Between Parents and Non-Parents Grandparent Visitation i. Troxel v. Granville ii. NOTES 1. Grandparents Visitation Rights-The Background 2. Troxel and the Aftermath-The Judicial Response 3. Post-Troxel Statutory Reform 4. Commentary on Troxel Custody Disputes Between Legal and De Facto Parents i. V.C. v. M.J.B. ii. NOTES 1. Sequels 2. Parent-Non-Parent Custody Disputes in General 3. The Concept of Psychological Parenthood 4. Custody and Visitation Claims by De Facto Parents 5. Doctrinal Alternatives to De Facto Parent 6. Constitutional Questions with De Facto Parenthood Claims 7. Other Non-Parent Visitation The Role of the Attorney in Custody Cases International Custody Disputes