Marriage Law Digest

Vol. 13, No. 7-8, July-August 2016

JULY-AUGUST 2016 CASE SUMMARIES William C. Duncan, Editor no-fault divorce granted by the trial court as a violation of his religious freedom as a practicing Hindu and argued the state should apply India’s Hindu Marriage Act.

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BHANDARU V. VUKKUM, No. 2014CA-00182-MR, Kentucky Court of Appeals, August 19, 2016 (free exercise challenge to no-fault divorce) DRUMGOOLE V. PARAMUS CATHOLIC HIGH SCHOOL, Docket No. BER-L-3394-16, New Jersey Superior Court, Bergen County, August 22, 2016 (discrimination complaint based on firing for same-sex marriage)

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BROOKE S.B. V. ELIZABETH A. C.C., Case No. 91 & 92, New York Court of Appeals, August 30, 2016 (parentage in unmarried relationships)

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BLUMENTHAL V. BREWER, 2016 IL 118781, Illinois Supreme Court, August 18, 2016 (palimony claim)

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The appeals court responded to the religious freedom claim by saying, “since the provisions are of general applicability, we must presume that they are constitutional unless there is absolutely no rational basis for them.” The court also held the Hindu Marriage Act only applied in India, while the parties have lived in Kentucky for a long time. DRUMGOOLE V. PARAMUS CATHOLIC HIGH SCHOOL Docket No. BER-L-3394-16 New Jersey Superior Court, Bergen County August 22, 2016 http://dng.northjersey.com/media_server/tr/20 16/08/23opinion/drumgoole.pdf An employee of a Catholic school argued she was terminated from her employment because she married a same-sex partner.

BOOK NOTE: Allan C. Carlson, Family Cycles: Strength, Decline and Renewal in American Domestic Life, 1630-2000 (Transaction Publishers 2016)

The court determined the case should proceed to the discovery stage so the court can determine “whether the plaintiff’s employment qualifies as ministerial.” The court also declined to initially rule in favor of the school because it wanted to “Evaluate whether the dispute is secular or ecclesiastical.”

BHANDARU V. VUKKUM No. 2014-CA-00182-MR Kentucky Court of Appeals August 19, 2016 http://cases.justia.com/kentucky/court-ofappeals/2016-2014-ca-001832mr.pdf?ts=1471615344

BROOKE S.B. V. ELIZABETH A. C.C. Case No. 91 & 92 New York Court of Appeals August 30, 2016

The wife in a couple married in India sought a divorce. The husband challenged the

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Marriage Law Digest in which such a person has standing as a ‘parent’” for purposes of seeking custody. The court determined that if a non-biologicalparent partner can show by clear and convincing evidence that “he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.” The court did not decide whether standing could be determined in the absence of such an agreement.

https://www.nycourts.gov/ctapps/Decisions/2 016/Aug16/91-92opn16-Decision.pdf In an earlier decision, New York’s highest court had ruled that “an unmarried couple, a partner without a biological or adoptive relation to a child is not that child's "parent" for purposes of standing to seek custody or visitation.” This decision involved two cases, each involving same-sex couples, one of the partners in each of which had conceived a child through artificial insemination. Both relationships had ended and the partner who was not a biological parent sought custody and visitation.

A concurrence disagreed with overruling the earlier case, saying that decision was consistent with the law at the time and “the Legislature has never altered our conclusion.” That case had “showed respect for the role of the Legislature in defining who a parent is.” Criticism of that holding “is properly directed at the Legislature.” Since the legislature has adopted same-sex marriage and the courts have approved second-parent adoptions, there are no longer “any obstacles to living within the rights and duties” of the state’s custody law. The concurrence agreed with the result, though, because the couples had been unable to marry so, “the law did not presume -- as it would have for a married heterosexual couple -- that any child born to one of the women during their relationship was the legitimate child of both.” This “constitute[s] extraordinary circumstances that give these petitioners standing to seek visitation.”

The high court said its earlier decision was a departure from a tradition of “invoking equity” by “narrowly defin[ing] the term ‘parent,’ thereby foreclosing ‘all inquiry into the child's best interest’" in custody and visitation cases involving parental figures who lacked biological or adoptive ties to the child.” The court said the decision’s “foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York State, and the United States Supreme Court's holding in Obergefell v Hodges, which noted that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples.” The court said “where both partners in a heterosexual couple are biologically related to the child, both former partners will have standing regardless of marriage or adoption. It is this context that informs the Court's determination of a proper test for standing that ensures equality for same-sex parents and provides the opportunity for their children to have the love and support of two committed parents.” The court concluded that New York law “permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation.” The court then needed “to specify the limited circumstances

BLUMENTHAL V. BREWER 2016 IL 118781 Illinois Supreme Court August 18, 2016 http://www.illinoiscourts.gov/opinions/Supre meCourt/2016/118781.pdf In a 1979 case, Hewitt v. Hewitt, the Illinois Supreme Court “held that Illinois public policy, as set forth in this State’s statutory prohibition against common-law marriage, precludes unmarried cohabitants from

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Marriage Law Digest the centrality of the marriage has been recognized as a fundamental right for all, it is perhaps more imperative than before that we leave it to the legislative branch to determine whether and under what circumstances a change in the public policy governing the rights of parties in nonmarital relationships is necessary.” Thus, since “marriage is a legal relationship that all individuals may or may not enter into, Illinois does not act irrationally or discriminatorily in refusing to grant benefits and protections under the Marriage and Dissolution Act to those who do not participate in the institution of marriage.”

bringing claims against one another to enforce mutual property rights where the rights asserted are rooted in a marriage-like relationship between the parties.” In this case, a couple who had lived together for a long time broke up and one partners sought to have their joint assets divided. The other counterclaimed seeking benefits that would have been possible if the couple were married. The trial court held it was bound by the earlier Hewitt ruling, but the appeals court “undertook its own public policy analysis, and held that the public policy of prohibiting unmarried domestic partners from bringing common-law claims against one another no longer exists in current law.”

A concurring/dissenting opinion said Hewitt “etched into the Illinois Reports the arcane view that domestic partners who choose to cohabit, but not marry, are engaged in ‘illicit’ or ‘meretricious” behavior at odds with foundational values of “our family-based society’”, a view this judge said was “neardefamatory.” To uphold Hewitt was “to reaffirm an oddly myopic and moralistic new of cohabitation.” The court also noted that a majority of states have a different rule than Hewitt. Here, the couple could not have been married under previous law, so the application of the Hewitt rule created “an untenable double bind.”

The supreme court said that in the earlier case, “the legislature intended marriage to be the only legally protected family relationship under Illinois law, and permitting unmarried partners to enforce mutual property rights might ‘encourage formation of such relationships and weaken marriage as the foundation of our family-based society.’” To hold the other way, by “judicially recognizing mutual property rights between knowingly unmarried cohabitants—where the claim is based upon or intimately related to the cohabitation of the parties—would effectively reinstate common-law marriage and violate the public policy of this state since 1905, when the legislature abolished common-law marriage.” This case was “almost indistinguishable from Hewitt, except, in this case, the parties were in a same-sex relationship.” The appeals court “could question Hewitt and recommend that we revisit our holding in the case, but it could not overrule it.” The changes in Illinois law relied on by the appeals court “demonstrate that the legislature knows how to alter family-related statutes and does not hesitate to do so when and if it believes public policy so requires.” Specifically, the prohibition of common-law marriage has remained “untouched and unqualified.” The court also said “now that

BOOK NOTE Allan C. Carlson, Family Cycles: Strength, Decline and Renewal in American Domestic Life, 1630-2000 (Transaction Publishers 2016). Fascinating description of historical cycles of family strength and weakness in consistent 50year swings. Dr. Carlson also speculates about future family trends.

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