BOSTON UNIVERSITY SCHOOL OF LAW. Family Law, JD 814 A1. Professor McClain Date: April 28, 2011

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1 BOSTON UNIVERSITY SCHOOL OF LAW Family Law, JD 814 A1 Exam #: Professor McClain Date: April 28, 2011 Format: Open-Book Time: 3 hours INSTRUCTIONS: 1. This is an open-book exam. You may use the casebook, Contemporary Family Law (D. nd Abrams et al, 2 edition 2009), the Supplemental Reading, the Class Handouts, your class notes, and any additional notes or outlines you have prepared. 2. This exam has three Parts and is 9 pages in length, including this cover page. You must answer all the parts of the exam. Part I asks you to answer 6 out of 8 questions. 3. Each Part will be of approximately equal weight in determining your grade. The time recommendations are: Part I: 6 (out of 8) short essay questions Part II: Fact pattern essay question Part III: Law reform question Total time: 60 minutes 60 minutes 60 minutes 3 hours 4. When answering questions, assume that the doctrines and principles of American family law apply, unless you are given specific jurisdictional information. Where there are majority or minority approaches to some issue, or a variety of approaches, depending upon jurisdiction, explain these in your answer, as time permits, and the extent to which these might result in different conclusions. If you believe that in order to answer a question completely you need to assume a fact not expressly given in the question, state what fact(s) you have assumed and how your answer might be different without the assumed facts. 5. Use your exam number, not your name. If you are writing your answers, please write on only one side of the page, and write on every other line. If you are typing, double-space and use an ordinary margin and legible font size. 6. Good luck, be confident, and have a great summer! Page 1 of 6

2 Answer Questions 1 and 2: Part I. Short essay questions (recommended time: 60 minutes) Answer Questions 1 and 2 and four of the other six questions (Do not answer more than or fewer than six questions in all.) 1. Throughout this course, we have encountered the proposition that the state is a third party to every marriage. A similar assertion is that the state is a third party to every divorce. What interests does the state have in marriage and divorce? Discuss and evaluate specific contexts in which you find evidence of this state role. Be sure to include at least one example relating to marriage and one example relating to divorce/family dissolution. 2. On more than one occasion, the U.S. Supreme Court has declared that the whole subject of domestic relations has long belonged to the states. Indeed, invoking such precedents, a federal district court judge, in Gill v. Office of Personnel Management (in which same-sex couples married in Massachusetts but denied federal benefits challenged DOMA), asserted that there can be no dispute that the subject of domestic relations is the exclusive province of the states. He invoked federalism and federal deference to states with respect to defining marriage as a reason to invalidate Section 3 of the Defense of Marriage Act (which states that, for federal law purposes, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or wife ). (His ruling is now on appeal.) However, we have seen that federal family law shapes state family law and family life. Give examples of federal family law you have encountered in this course and evaluate the relationship you see between state and federal authority to regulate families. Answer any four of the following six questions (do not answer more than four): 3. Jack Sprat and Jill Hill have lived together as intimate partners for 10 years. They have not married, but they share a household (Jill s house), have a sexual relationship, and are known to their friends as a couple. Their mail box says Jack & Jill, as do their vanity license plates. At the beginning of their relationship, Jill, 40, successfully ran a computer software business; Jack, 23, was a computer programmer in her company. He had no savings. Once their relationship began, Jill persuaded Jack to work part-time as her special projects director, a position with a lower salary and less opportunity for advancement within the company, but one allowing him to be near Jill during the work day, to travel with her on business trips, and to help her prepare for important events and presentations. In addition, it gave Jack flexibility to be home more than Jill to provide care for Jill s young child, Peep (Peep s biological father is deceased). Jill repeatedly referred fondly to Jack and Peep as her family. Her company was worth $1,000,000 when they first began their relationship; it is now worth $10,000,000. Recently, Jill told Jack their relationship is over, asked him to move out, and informed him she was phasing out his position at work. Jack asks you (an attorney) about whether he can sue for a share of Jill s business, lifetime financial support from her, and the right to shared custody of Peep. Indicate the advice you will give him, being sure to consider the different possible bases of recovery. If Jack had come to you ten years ago, on the eve of his relationship with Page 2 of 6

3 Jill, what advice would you have given him at that time about protecting his interests? 4. Deb and Jasmine are two women in a committed, intimate relationship. They want more security in their relationship because they are ready to start a family together. They plan either to take turns becoming pregnant with donor sperm or to adopt. At present, they live in a state that (a) has a Defense of Marriage Law restricting marriage to the union of one man and one woman and prohibiting recognizing any legal status equivalent to marriage for same-sex couples and (b) does not recognize de facto parenthood or permit second-parent adoption by gay or lesbian partners. Happily, their professions allow them geographical mobility. They ask you what their options are in terms of moving to states where they can formalize their relationship and, when they have children, their parental ties. They would also like to know if it will make any difference whether their legal relationship is a marriage, a civil union, or a domestic partnership. Indicate your advice. 5. Legal parenthood is not determined exclusively by biology. At the same time, a biological connection to a child may not, standing alone, confer legal parenthood. Give examples (a) of instances where courts or legislatures have bestowed parental rights or imposed parental responsibilities on a person who is not a biological parent, and (b) of instances where they have not recognized a biological parent as a legal parent. Do persuasive rationales explain the rules concerning establishing legal parenthood? 6. Familiar cases state that there is a constitutionally-protected private realm of family life which the state may not enter. They also teach that privacy is not absolute and the family is not beyond regulation. Giving examples, discuss how these propositions feature in family law. Does privacy belong, for example, to the family as an entity or to its individual members? When is government justified in regulating the family? Do your examples suggest too little or too much privacy? Too little or too much regulation? 7. Marriage, today, is an economic partnership. One impetus for this notion of marriage as a partnership was the so-called gender revolution in family law the move away from the common law model of marriage (including the rules of coverture) to a model of marriage where the rights, duties, and roles of spouses and parents are not defined in sex-specific terms. Give examples of whether and how the notion of marriage as an economic partnership shapes doctrines concerning roles, rights, and duties during an ongoing marriage and doctrines concerning family dissolution. Do you think these doctrines take the idea of economic partnership seriously enough? Too seriously? How would you advise a couple who did not want their marriage to be an economic partnership and wanted to know how to avoid it being deemed so, particularly, if their relationship dissolves? 8. Mary and Mike of Seattle, Washington, are the parents of Tom, age 23, a young man with serious emotional problems. In 2005, Tom and his girl friend, Becky, had a child, Jane. Mary and Mike helped out this young family, spending time with them, giving advice, and buying clothes, baby food, books, and toys for Jane. They had raised four children themselves (including Tom), loved children, and wanted to contribute to stability and support in Jane s life. Becky was a loving mother, but immature and somewhat erratic; she managed to care for Jane only with great difficulty. Tom Page 3 of 6

4 tended to take a backseat to Becky and his parents. In 2007, Tom and Becky split up; Becky left for Montana with Jane. Over the next few years, she moved frequently, getting jobs that allowed Jane to be with her and living in whatever accommodations she could find. Mary and Mike traveled to Montana and persuaded Becky to let them bring Jane home to Washington. One year later, having earned enough money to travel, Becky returned to Washington and asked that Jane be returned to her. Mary and Mike refuse and petition for custody of Jane. Will they be successful? Part II. Fact Pattern Essay Question (recommended time: 60 minutes) [omitted for purposes of posting] Part III. Law Reform Question (recommended time: 60 minutes) The legislature of the State of Arcadia is considering the Marriage Preservation and Parental Divorce Reduction Act of Rep. Maggie Gallahad introduced the bill after reading the recent PEW Research Study, The Decline of Marriage and the Rise of Alternative Families, Andrew Cherlin s The Marriage-Go-Round (about Americans high rates of marriage, divorce, and remarriage and the impact on children of such patterns), and a new report commissioned by Arcadia s governor, the findings of which are summarized in the bill. The Marriage Preservation and Parental Divorce Reduction Act of 2011 Section 1. Findings and Purposes: A. The family, consisting of a lawfully married man and woman and their children, is the fundamental unit of society. The law should respect and promote the essential and complementary roles of both a mother and a father. The purposes of this Act are to halt the breakup of the nuclear family, protect children, educate adults about the elements of healthy marriage, support the essential and complementary roles of mothers and fathers, and reduce the rate of unnecessary divorce in Arcadia. B. Arcadia has among the highest rates in the nation of divorce, teen pregnancy, children living in poverty, poor educational outcomes, and juvenile crime. The social, health, educational, and economic outcomes of children in healthy, two-parent, marital families are better than those living in single-parent and cohabiting households. The relationships of cohabiting adults are less stable than those of married adults; children in such households are at higher risk of abuse than children living with their married biological parents. C. Government has a compelling interest in strengthening families and in the well-being of children. Section 2. Marriage Education and Waiting Period. Upon filing an application for a marriage Page 4 of 6

5 license, a couple shall be provided with a list of approved instructors for a 20-hour premarital education course, which must be completed before the solemnization of a marriage. The course shall instruct on: (1) the skills and knowledge important to a healthy marriage, including conflict resolution, communication skills, family expectations, and financial responsibilities and management; (2) parenting skills, including the essential and complementary roles of mothers and fathers for healthy child development; and (3) resources available to help restore a marriage that may potentially move toward dissolution. The State shall establish a website listing approved instructors who are trained and certified in skills-based marriage education, and may include: marriage educators, clergy, mental health professionals, faith-based organizations, and community-based organizations. Couples shall pay for the course, except that indigent persons may apply for a reduced tuition, subsidized by federal healthy marriage promotion funds. Section 3. Parental Divorce Reduction; Reconciliation and Reflection Period: At present, the law of Arcadia permits a divorce (a) on the grounds of fault or (b) on the grounds of irretrievable breakdown provided at least three months have passed between the filing of the petition and the judicial order dissolving the marriage. Henceforth, in all actions for divorce, where the petitioners for divorce have one or more children under the age of 18, a petition must be accompanied by a certificate establishing completion of a divorce reduction course and satisfaction of a 9-month reconciliation and reflection period, unless a petition establishes that a court issued an order of protection against the petitioner s spouse for an act of abuse against the petitioner or a minor child of either party. A. The Divorce Reduction Curriculum: A divorce reduction course shall be 40 hours in length, taught by instructors trained and certified in skills-based marriage education, and may include: marriage educators, clergy, mental health professionals, faith-based organizations, and community-based organizations. The curriculum shall include materials and discussion on: (1) the effects of divorce on minor children, including (a) negative impacts on mental health; (b) changes in academic performance, including school attendance and dropout rates; ( c) drug and alcohol use; and (d) other symptoms of maladjustment to divorce; (2) the effects of divorce on the parties including: (a) financial consequences; (b) rates of divorce in subsequent marriages; ( c) changes in parental relationships with children; and (d) changes in time spent with children by their father after divorce; and (3) building relationship skills to include (a) parenting; (b) communication; ( c) conflict resolution; (d) money management; (e) overcoming infidelity; and (f) forgiveness. The curriculum shall include domestic violence and substance abuse information and referrals, if appropriate. Section 4: Shared Parenting: Because of the essential and complementary roles of mothers and fathers, and because every child deserves a mother and a father, it is presumed that a substantially Page 5 of 6

6 equal sharing of parental authority (legal custody) and parenting time (physical custody) is in the best interests of children. The judge may order sole legal or physical custody only upon written findings on why a child would be harmed by shared custody. Section 5. Supporting Married Parenting and Discouraging Cohabitation. (A) If a divorced parent with a minor child in the household cohabits without the benefit of marriage, this shall be grounds for denying shared parenting or modifying a parenting agreement; (B) Married couples shall have priority over single persons and cohabiting persons for placement of adoptive children. [Note: For purposes of this section, you may assume that the relevant standard for adoption is generally best interests of the child and that adoptive parents can provide a suitable home. ] Rep. Frank Foley, who is sympathetic to Representative Gallahad s concerns about strengthening families, proposes this Family Fairness and Stability Amendment: At present, many citizens of Arcadia form relationships outside of marriage, either because they cannot marry or choose not to do so. Formal recognition of such relationships would provide important benefits, make such relationships more stable, and be in the best interests of children in such households. To promote family stability, the State of Arcadia shall create a new civil partnership status available to any opposite-sex or same-sex couple not otherwise disqualified due to age, consanguinity, or bigamy. A civil partnership shall entitle partners to all the benefits, protections, and obligations of civil marriage under state law. Civil partners will be subject to the Marriage Preservation and Parental Divorce Reduction Act of This Amendment shall not be construed to require Arcadia to permit same-sex couples to marry or to require any religious denomination to solemnize any civil union to which it objects. You are the senior legislative aide to Rep. Gallahad, chief sponsor of the proposed Marriage Preservation and Parental Divorce Reduction Act of To help prepare her for debate on this bill, she asks you for a memo evaluating: (1) the wisdom and constitutionality of the Act; (2) the extent to which the Act is in keeping with or departs from contemporary family law; (3) whether you would recommend any revisions; and (4) whether and why she should support or not support Rep. Foley s Family Fairness and Stability Amendment. End of Examination Page 6 of 6