Deck 13: Appeals

Question 1

Some people suggest that too many marriages end in divorce, and therefore the institution of traditional solemnized marriages is no longer preferred, and thus more states should recognize common law marriages. Discuss the legal rights and benefits of each form of marriage and the implications of this argument.

Answer 1

Marriage is a social institution wherein a man and a woman agree to live together in a socially or religiously recognized union, establishing rights and obligations between themselves.
Nowadays, many marriages end in divorce therefore, the traditional marriages are not preferred anymore. Couples are willing to adopt new forms of marriages like common law marriages, consanguinity, solemnization, pre-nuptial agreement, cohabitation agreement and palimony. All these new forms of marriages are discussed below:
1. Common law marriages : In a common law marriage, a couple is legally considered to be married because of the fact that the spouses have been living together for a long period of time. Only a few states allow this kind of marriage. Recognition of the legal rights of the parties are limited to certain purposes like: tax and probate. Spouses are willing to live in a common law marriage setup because it allows them to identify rights and liabilities for themselves.
2. Prenuptial agreement: Individuals prefer to enter into an agreement before marriage in order to specify and even control few aspects of the marriage like: alimony, child support and custody, etc. It is better to form a contract between spouses because it gives the parties certain amount of predictability in situations like divorce.
3. Cohabitation agreement : Cohabitation agreement is one in which individuals enter into a contract that sets the conditions relating to the cohabitation. People prefer to live together as a couple for an unspecified period of time without any intention to get married. Cohabitation agreement is preferred by people as this agreement allows the parties to specify all the rights and obligations and therefore, it is easy for the parties to end the contract without going through any divorce proceedings.

Question 2

In some states, grandparents are able to obtain visitation rights with their grandchildren. Do you think the courts should take into account the interests of the parents regarding with whom their child should have contacts? Does it matter if the grandparents have had significant relationships with the child prior to the parents' divorce?

Answer 2

Right of visitation refers to the right given to the non-custodial parents or grandparents to spend time and meet with the children or grandchildren.
The right of visitation originates from the right of custody of the child. A parent who has the custody of the child will control the right of visitation. In the case of the grandparents' right to visit their grandchildren, this right will be based on the best interest and welfare of the child.
In the case of Troxel v Granville 530 U.S. 57 the Supreme Court of the United States held that the Washington's third-party visitation statute "violated the parents' fundamental rights to make decisions about their children." However, the court did not consider the statute to be unconstitutional because the court refrained from setting any parameters "precedent to granting visitation rights of the grandparents."
Third party visitation statutes, like that of Washington and Tennessee grant visitation rights to the grandparents if it can be proved that the child " had a significant relationship with the grandparent and that loss of the relationship is certainly cause emotional harm to the child. "
Therefore, a grandparent has the right to visit his or her grandchild if they shared significant relationship and the loss of the relationship can cause emotional harm to the child.

Question 3

The "best interests of the child" is the prevailing standard when determining custody, but to what extent should the court take into consider the interests of the parents? Discuss your view on the constitutionality of state statutes granting grandparents visitation rights.

Answer 3

Right of visitation refers to the right given to the non-custodial parents or grandparents to spend time and meet with the children or grandchildren.
The guiding principle for the court in third party visitation right is always the " best interest " and " welfare " of the child. In the case of Troxel v Granville 530 U.S. 57 the Supreme Court of the United States held that the Washington's third-party visitation statute "violated the parents' fundamental rights to make decisions about their children." However, the court did not consider the statute to be unconstitutional because the court refrained from setting any parameters "precedent to granting visitation rights of the grandparents." Similarly, in Gatliff v Sisson 13 P.3d 152 (Or. Ct. App. 2000) the court denied the grandparents the visitation rights stating that "the visitation would cause trauma to the child" and held that grandparents must show that the child " would benefit from the visit."
Therefore, the states' visitation statutes are not unconstitutional as the statutes define concrete conditions that needs to be fulfilled before a grandparent ask for the visitation rights.

Question 4

"No-fault divorce laws that deny divorcees the opportunity to apportion blame for the breakdown of the marriage can never be successful in today's society." Discuss your views on this statement, taking into account your state's laws.