The Intersection of Family Law and the Constitution

Family Law and the Constitution

Show Topic

This show aired on September 17, 2017. It was hosted by David Enevoldsen, a partner with Family Law Guys. David discussed various aspects of the intersection of family law and the United States Constitution, principally revolving around case law from the Supreme Court of the United States. David discussed the importance of marriage as a fundamental constitutional right, the fundamental right to raise your children, the fundamental right to procreate, the right to privacy within abortion, and personal jurisdiction and full faith and credit related to family court judgments entered in different states than where another party is located.

Headlines

Headlines on this show looked at a lesbian couple, Carla Melendez and Mariely Martinez, who approached a homosexual couple, Alex Torres and Juny Roman, to father their children, the announcement of the breakup of Fergie and Josh Duhamel, the finalization of Scarlett Johansson and Romain Dauriac’s divorce, and the postal vote in Australia regarding voter positions on same-sex marriage.

Did You Know

This show’s Did You Know looked at the fact that on the day it was recorded, it was Constitution Day and various facts about the United States Constitution.

Transcript of the Show

Speaker 8:                         The discussions and information provided in Family Law Report are intended to be general in nature and are not directed for any individual circumstances. No attorney-client relationship is being formed through this program. If you need legal advice, your particular circumstances can vary from what is presented here, and you should seek the advice of an attorney licensed to practice in your state.

Announcer:                       Welcome to the Family Law Report, the show that explores issues related to marriage, divorce, and children, hosted by David Enevoldsen, a practicing family law attorney in Arizona. Now, here's your host.

David E.:                             Hello everybody and welcome to Family Law Report. I am your host, David Enevoldsen, here with you every Sunday at noon on Independent Talk 1100 KFNX. Here on Family Law Report, we talk about all the current topics of family law, and that can range from what's going on in the political arena to just basics like how do you work through the nuts and bolts of a divorce. I'm a practicing attorney. I work, of course, in the area of family law, and when I say family law, and I've found that a lot of people are confused about this because frankly, in a vacuum, this is an ambiguous term, but when we say family law, I don't mean necessarily dealing with trusts or anything that touches on your family. It's more things related to marriage, divorce, fights over custody with children, prenuptial agreements, child support issues, that sort of thing.

David E.:                             I'm a partner at a law firm here in Arizona called Family Law Guys, and we focus primarily on helping divorcing parents avoid getting screwed out of time with their children. We have offices here in the Phoenix area, and if you have a family court issue, I always give this admonition now at the beginning of every show, if you have a family court case going on, there are a lot of potential traps and I would highly recommend that you go out and talk to an attorney because there are so many traps. I've seen situations where people completely lose their children. There are times where people walk away with massive child support payments. I've seen people walk away with massive alimony or spousal maintenance payments. I've seen people walk away with tens of thousands of dollars in judgements for either back support, alimony, child support, sometimes equalization payments, sometimes attorney's fees. I've seen people physically dragged out of the courtroom in handcuffs before and thrown into jail over things like child support.

David E.:                             So whatever your case is, if you've got some sort of a family court matter going on, highly recommend that you go and talk to an attorney, not necessarily just us, just somebody that knows family law, somebody that you can work with. And even if you can't afford a family law attorney to just hire them on fully, pay for an hour of time to just sit down and talk to an attorney, just so that you at least have some background basic information so that you can get informed on what you're doing and have some sense of where you're going so that you don't walk into one of these potential traps.

David E.:                             Now, of course you can reach out to us if you want to do that. You can set up an appointment by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com, but again, even if it's not us, it doesn't have to be us, of course, we're not going to complain if you don't come to us, but talk to somebody if you've got something going on.

David E.:                             On today's show, we are going to be talking about the holiday that today is. Hey Derek?

Derek:                                 Yeah?

David E.:                             Do you know what today is?

Derek:                                 I know it's Sunday.

David E.:                             Derek is my board op, if you're listening. So today is actually a holiday, and I don't think a whole lot of people actually know that today is a holiday. Now, it's officially recognized tomorrow, because it's supposed to be Monday, but it's technically today. I'll give you a hint. Something happened exactly 230 years ago. Do you know what that was?

Derek:                                 I do not know.

David E.:                             Today is Constitution Day.

Derek:                                 Oh, I should know that. I should know that.

David E.:                             On September 17, 1787, the U.S. Constitution was signed. Today is, of course, September 17, 2017, unless you're listening on a podcast, which it's not, in which case you're late, but next September 17th whatever year it is will be, but yes, today is a holiday, so we're going to talk a little bit about the intersection of the Constitution and family law in honor of Constitution Day.

David E.:                             But before we get into that, I'm going to hit our headlines, and in headlines, we usually hit anything that is related to family law in the press going on right now. One interesting article that came out was about, to me it was a reflection of kind of the evolving nature of families particularly in light of all of the stuff that's been going on recently with same-sex families, same-sex marriages, that sort of thing.

David E.:                             The situation started with a woman named Carla Melendez, and her wife, Mariely Martinez. Now, both of them lived in Florida. They wanted to have kids. Now, of course, they couldn't, and at first they started looking at donors, but they were concerned about the children's involvement with their biological fathers, because they had this idea that they wanted the kids to be involved with the fathers. So they ultimately ended up approaching their friend Alex Torres, and basically fleshed out whether or not he would be willing to be a donor, and he was interested in that. They reconnected, both Carla and Mariely had known Alex for the past 10 years. Interesting thing about this was that Alex was also homosexual, and he was married to another man named Juny Roman.

David E.:                             Well, when the group met, when they met Alex and Juny, they ended up really liking Juny also, so they ended up deciding to have both men act as donors, and both guys were on board with that. So Mariely ended up giving birth to a son, Carla ended up giving birth to a daughter, so those two are married, but then they've got these other two homosexual men that are still involved, and while the woman have full custody of the children, they have gone out and Alex and Juny are actively being involved with these kids, so it was interesting ... It's not the normal nuclear family dynamic that we usually see, but it is sort of a reflection of the changing family dynamic I think we're seeing as a product of a lot of the things that have been changing with same-sex marriage and it's increasing acceptability in the U.S., of course, depending on who you're asking. But also across the world, as we've talked a lot about in past shows, there's been a lot of controversy about same-sex relationships, same-sex marriage, that sort of thing. So I just thought this was an interesting reflection of that.

David E.:                             In other news, Fergie, the singer/songwriter/actress, has announced that she is going to be splitting from her husband. She is married to Josh Duhamel, and as I've said in past shows, I really like watching some of the celebrity divorces and custody fights, because I think it's so reflective of what we see every day with normal people. They do the exact same things. They go through the same trials and tribulations that everyone else goes through, and it's a way we can kind of watch all that. It has sort of a gossipy air to it, but I find it all very interesting because you can see that these people are human and you can kind of watch the same problems that they're going through and kind of learn from that on the same level.

David E.:                             These two, Josh Duhamel and Fergie, started dating back in September of 2004, and they met together when she was filming an episode of a show called Las Vegas. They got engaged in December 2007, ended up getting married on January 10, 2009, and they now have a son together. He's four years old and his name is Axl, A-X-L. So they've been married for the last eight years, and they've just came out and said that they are separating and they had a representative release a statement to People that said, "With absolute love and respect we decided to separate as a couple earlier this year. To give our family the best opportunity to adjust, we wanted to keep this a private matter before sharing it with the public. We are and will always be united in our support of each other and our family."

David E.:                             So not a whole lot that's been out there other than the fact that they're separating, and this seems to be a pretty common statement that we see from the celebrities when they're going through this, and understandable. I don't think that they want the whole universe prying into their private matters as they're going through a potentially terrible time. So we'll see if anything else comes out of this, but there is another celebrity divorce out there.

David E.:                             On a different front, also in the celebrity divorce universe, we talked about this a few shows back, I don't remember exactly when it was, but Scarlett Johansson had been married to Romain Duariac, and they had declared that they were going to get divorced back in, I think it was March of this year, and they'd been married for two years. They have a two year old daughter. Well, Wednesday they announced that they are now officially divorced. They came out and said, "We remain close friends and co-parents with a shared commitment to raising our daughter in a loving and compassionate environment."

David E.:                             So here, this is another one we have very little information out there. Apparently, they came to a total settlement. I don't think they went to any sort of trial or anything. The documents in the case were actually sealed, and they haven't even come out and said very much, so I'm not even really sure what happened through this divorce other than there seems to have been some sort of a settlement and they've got a kid and everything seems to be working.

David E.:                             I imagine, I've heard a lot of guys say that they have crushes on Scarlett Johansson, so maybe this is good news for everybody. Oh, Derek, is that you? What's your girlfriend going to say, man? I see Derek waving his hand back there. Well, you have a chance now, because Scarlett Johansson is, I guess, available, because she's no longer married, but I won't tell your girlfriend. I hope she's not listening.

Derek:                                 She might be.

David E.:                             Oh, she may be. All right, well, I'm sure we're all joking here. I don't think you're going to go date Scarlett Johansson right now, are you? No. All right. I've got Derek laughing.

David E.:                             In other news, we'd alluded to this a little bit recently, Australia has been doing this national poll related to homosexual marriage, and I guess that has finally started. It's sort of an interesting backstory on this. We've had a couple other recent articles. They've been engaging in a lot of press on this whole topic related to this poll that Australia is doing. They're doing this postal poll where they're sending out people letters and they're supposed to send back something. Every registered voter in Australia is sending back a letter responding as to how they feel about same-sex marriage and whether or not that should be legalized.

David E.:                             Well, the letters just started going out on September 12th, and there's been a lot building up to this. There's been all sorts of ads coming out, all sorts of people fighting about all of that. Final tally isn't going to actually be available until November 15th, but the interesting thing about this is the backdrop of the whole thing. Apparently, there's been a couple of failed attempts to enact legislation over same-sex marriage in Australia, both in 2016 and 2017, and after the last failed attempt, this is, I'm not even entirely clear on why, but this is what the government elected to do. They wanted to have this nationwide postal vote.

David E.:                             Now, the other interesting piece of this is that most of the polls that are out there currently that weren't officially conducted by the government have indicated that there's a pretty overwhelming majority of people in Australia that are in favor of the legalization of same-sex marriage, but it seems to be getting stalled out in terms of actually legislating some sort of recognition of same-sex marriage in Australia, seems to be getting stalled out in the legislature. So I'm sure there's going to be a lot more coming out in the very near future as to how this is going to unfold. There's already been a lot of controversy, lots of ads. We've seen quite a bit going on there, so we'll continue to monitor this as we continue to have interesting issues related to same-sex marriage.

David E.:                             All right, we're going to take a quick break. I am attorney David Enevoldsen with Family Law Guys. When we return, we're going to be talking about the intersection of family law and the Constitution. You are tuned into Family Law Report on Independent Talk 1100 KFNX.

Announcer:                       Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That's 480-565-8680.

David E.:                             Welcome back to Family Law Report. I am your host, David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. If you want to reach out and schedule an appointment with myself or another attorney at my firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.

David E.:                             If you are listening and you want to call in and ask any questions, share thoughts, tell me how great I am, talk to Derek about his chances of catching Scarlett Johansson now that she is single, you can do so by calling 602-277-KFNX, and today, we're going to be talking about the intersection of family law and the Constitution, and as I said earlier, today is a holiday, so that's what I'm going to do our Did You Know about, because that'll kind of bleed I think into or create a good segue into our actual topic for the show, so I'm going to talk a little bit about Did You Know?

David E.:                             Did You Know? is the part of the show where we do basically a little background of some sort of family law trivia. Now, obviously, the Constitution isn't family law per se, but it's extremely intertwined with family law, and arguably, everything in family law roots itself in the Constitution, because the U.S. Constitution is sort of the foundational document of everything in our legal system. That is to say, all of it comes out, all the states have their statutes and codes and all these different powers and all of that authority comes out of the U.S. Constitution, so I am going to submit to you that Constitution Day is extremely relevant to family law in a general sense.

David E.:                             Now, as I indicated earlier, September 17, 1787, the United States Constitution was signed, and today is, of course, September 17, 2017, unless you're listening to a podcast, in which case, you're late. You should be listening to me live. Come on. But that was 230 years ago, was the signing, so this is our 230th anniversary of the signing of the Constitution. In fact, it was mentioned, President Trump has been doing a weekly address to the nation, he mentioned it the other day. The Constitution interestingly in my opinion is very vague in a lot of places, which has resulted in a whole lot of different ... or the need for a lot of different Supreme Court decisions to interpret what these things mean, so some of what we're going to be talking about in just a little bit is Supreme Court cases that are extrapolating on what we mean for certain things within the Constitution, but for the Did You Know?, I'm going to offer a couple of interesting little facts about the U.S. Constitution that I found.

David E.:                             First off, did you know, I guess these could all start with just did you know statements, because that's what our Did You Know? is, just trivia, did you know that there are over 11,000 amendments that have been submitted to Congress? 11,000. That's a lot of potential amendments. Now, of all of those 11,000, only 33 of them have actually proceeded out to get ratified by the states, and of those 33, only 27 have actually been approved. So we've had 11,000 submissions for amendments through Congress and only 27 of those have actually gone out and become part of the Constitution. It's not easy to make a change to the U.S. Constitution.

David E.:                             Here's another interesting one. In the Constitution itself, in the list of signers, the name Pennsylvania is misspelled. Did you know this? They actually have-

Derek:                                 I didn't know it.

David E.:                             You did not. My understanding is, in that section there, there's a missing N, so it's only got one N under Pennsylvania, but in a previous section, they spelled it with the two Ns. My understanding here is that at the time, that was a commonly acceptable way of spelling it, but it just seems inconsistent, because you've got the two different sections there.

David E.:                             Here is another one. Ben Franklin signed the Constitution, but at the time, he was apparently very ill and needed help to do it, so somebody had to come over and help him to sign it, and it is reported that when he signed, he was crying, and I'm not entirely clear if that was some sort of emotional thing or if it was because he was ill, but I guess he was crying in the midst of his signing.

David E.:                             Here's another interesting one. The word democracy does not appear anywhere in the Constitution, which seems interesting because you almost would think that that would show up somewhere, but it doesn't. The word democracy is nowhere there.

David E.:                             The last one I'm going to offer you is that the United States Constitution is not only the oldest but is also the shortest of any government's written national Constitution in the world, which probably is why we have so much ... The fact that it's so short is probably why we have so much litigation around it and so many different Supreme Court cases interpreting what the provisions of the Constitution mean because there's just inherently going to be some ambiguity when you have a short document like that.

David E.:                             All right, so that's our Did You Know? for today. Today is Constitution Day. Also, one other note is that many people call it Citizenship Day, is my understanding, so it's either Constitution Day or Citizenship Day, same basic thing, but it's officially recognized tomorrow. It is technically today and that's our Did You Know.

David E.:                             All right, so we're going to jump into the main topic of our show, which is going to be a direct tie-in to what we were just talking about, the fact that it's Constitution Day, and again, everything in family law is spinning out, arguably, every single thing that exists in family law comes from the Constitution, but I want to talk specifically about a couple different areas within which the Constitution seems to have some very overt relevance to family law, and I want to start with just kind of a discussion about marriage. This kind of breaks down into a few different topics for me. There's the nature of marriage, there's issues related to homosexual marriage or there's issues related to child support, even. There's issues related to the right to raise your children. There's issues related to the right to have children. There's issues related to abortion. There's even stuff about personal jurisdiction, which may be getting a little academic, but I'm kind of a law nerd, so I find this stuff all very interesting. Hopefully, you do, too.

David E.:                             But let's start with the nature of marriage. So nature of marriage constitutionally has been recognized from a long, long time ago. There's a case from 1880 called Maynard v. Hill in which they said that marriage was "the most important relation in life, as having more to do with the morals and civilization of a people than any other institution." So from really early on, we have the Supreme Court looking at marriage as being this really important thing, this thing that they're holding up above all other things. It's not just another contract from the mindset of the Supreme Court or from very early on, anybody that was interpreting the Constitution, and that is spilled out for quite a while now, we've recognized that marriage is a fundamental constitutional right.

David E.:                             A lot of this is coming out of the 14th Amendment. Much of what we're going to talk about today is from the 14th Amendment. Specifically, the due process clause, a couple different places in the 14th Amendment. The due process clause says that the state shall not "deprive any person of life, liberty, or property without due process of law," and then there's an extra phrase on here, "nor deny to any person within its jurisdiction the equal protection of the laws." So there we're talking about the equal protection clause. So we've got due process related to liberty, we've got equal protection, and that spills out a lot in family law.

David E.:                             The first one let's talk about, the first major case that we'll discuss here, and part of why I like law in general is that a lot of the stuff is spinning out of cases which are a bunch of just stories, and all of the cases, when I was in law school, we just read cases constantly, so anybody that's a lawyer out there, I'm sure you can relate, or maybe you're just sick of this, I don't know, but I always found it interesting because you had this story that was explaining how the rules were applying.

David E.:                             Well, one of the early cases, not really early, but it was from this century, that talks about how important marriage is, comes from a case called Loving v. Virginia, and this is one we've referenced in a couple past shows, but this all started with in Virginia, there was a guy named Richard Loving, and he married a woman named Mildred. Interesting thing about this situation was that Richard was white and Mildred was black. Now, at that time, Virginia had a statute that made it a felony to engage in interracial marriage. It was called an anti-miscegenation law, made it a felony, and it was punishable by between one and five years in prison to marry someone of a different race, in essence. They ended up going to Washington, D.C., left Virginia, to get married because of this law making it illegal in Virginia, came back, and they were indeed sentenced.

David E.:                             Now, the interesting thing about their plea agreement was that they wouldn't be ... The sentence was going to be suspended if they agreed to leave Virginia and never come back to the state for at least 25 years, and one of the interesting quotes from the trial court opinion, judge said, "The almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix."

David E.:                             So later on, the ACLU comes back, takes up the case, it works its way all the way up to the Supreme Court of the United States, and there was a whole bunch of stuff embedded in this. Specifically, now this is the part we haven't talked about on a previous show, because I know we've referenced this particular case, specifically they were looking at that equal protection part of the 14th Amendment there, in the due process clause, and they're saying you're basically treating people differently. You've got two different people of different races and you're saying that you're treating them disparately, they're not allowed to marry, and marriage is this fundamental constitutional right, so you just aren't allowed to do this. So that's one of our first really interesting Supreme Court cases, talking about how important marriage is.

David E.:                             All right, we're going to take another quick break. I'm attorney David Enevoldsen with Family Law Guys. When we return, we're going to be talking about the intersection of family law and the Constitution. If you want to call in and ask any questions, you can do so by calling 602-277-KFNX. You are tuned in to Family Law Report on Independent Talk 1100 KFNX.

Announcer:                       Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That's 480-565-8680.

David E.:                             Welcome back to Family Law Report. I am your host, David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. If you want to reach out and schedule an appointment with myself or another attorney at my firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.

David E.:                             If you want to call in and ask any questions, share thoughts, you can do so by calling 602-277-KFNX, and today, we are talking about the intersection of family law and the Constitution in honor of Constitution Day, because this is our 230th anniversary of the U.S. Constitution.

David E.:                             Now, before break, we were talking about the constitutional interpretation, and again, a lot of this is coming out of Supreme Court cases, because the Constitution is kind of ambiguous in a lot of ways, so we've got the Court to interpret it and extrapolate on it, and we were talking about how important marriage is as a fundamental constitutional right in our jurisprudence, and how we look at that, and one of the cases I just gave to illustrate that was a case called Loving v. Virginia, where we basically said that you can't have laws, it's a constitutional violation because you're violating the due process clause of the 14th Amendment, you're violating the equal protection clause of the 14th Amendment in prohibiting people of different races from getting married because marriage is so important, and marriage is a fundamental constitutional right.

David E.:                             As one more aside, there was a movie that came out last year, if you have an interest in that story, called Loving, and it's a really good, in my opinion, interpretation of that whole backstory of the Loving v. Virginia case, so check it out if you find this interesting and you're a law nerd like myself.

David E.:                             One other, I want to give you a couple other marriage related cases, and one is, I'm not going to spend a lot of time on this one, I wanted to touch on it, an extension of the same basic idea, that we place so much value on the idea of marriage, and I know this is a controversial one, so I'm not going to say anything about the merits of it, but the Obergefell v. Hodges case that came out in 2015, very recent, was based on the same basic ideas that we saw in Loving v. Virginia, and that is this dealing with the 14th Amendment of the U.S. Constitution and the due process clause, the equal protection clause, and that is the case that said that homosexual, same-sex marriages can exist in the United States and that we are going to legally recognize them. The whole theory there was once again, just like in Loving v. Virginia, that to deny same-sex partners the same fundamental constitutional right would be a violation of due process and equal protection, so they looked at, again, this liberty interest in marriage. We've talked a lot about this one in past shows, and I'm not going to spend too much time talking there.

David E.:                             Another interesting case that I think once again reflects how important the idea of marriage and the right to marry is a case from 1978, from also the U.S. Supreme Court called Zablocki v. Redhail. Now, this is super family law oriented. It deals with this guy that started off in Wisconsin, and his name was Roger Redhail and at that time, when he was in Wisconsin, there was a statute in Wisconsin that said, a statute's a law, a basic law, that said if you owe back child support, you can't get married until you're caught up on child support payments. This is interesting because I've seen basic rationale pop up in family law cases all the time, like for example, I've seen people, not necessarily with marriage per se but I often will see people say, "Well, somebody owes child support so they shouldn't be allowed to see their kids," and I've even seen people informally do this, say there's a child support obligation out there and because of that child support obligation, you can't see your kid today even though you have scheduled parenting time. As an aside, you can't do that. They're totally separate concepts and you would go enforce child support in a separate way. But in this situation, the state had gone out and enacted a law that said if you're behind on your child support payments, you can't go get married to a new person.

David E.:                             Well, the back story of this guy, Roger, when he was actually still a child himself, he was a minor in high school, became the father to this daughter. He ends up during that time getting a child support order. This is 1978, so the number's a little different, but it was $109 a month at this time, and he was then unemployed for a long time, go figure, this child who has a child, gets a child support judgment and then doesn't have a job for a while, and then he ends up, not surprisingly, with a whole bunch of back payments, and it got up to about $3,700. Then, Roger finds this woman and he wants to get married, and of course, there's a statute in place that says if you have this back support, you can't do that.

David E.:                             Well, this ends up working its way up to the U.S. Supreme Court, and he challenges it on this theory that once again, marriage is such an extraordinarily important right that we have under the U.S. Constitution, he says, "You can't do this to me. You can't take away my right to marry, even if," and he's acknowledging, he's not saying I'm disputing that there's any arrears here, this back child support that I owe, he's just saying, "You're taking this right away from me and you can't do that, even though there's arrears there."

David E.:                             So it goes up to the U.S. Supreme Court, and they agree with him. They say you can't do that. You can't go in there and prevent somebody from being able to go out there and get married just because they have back child support. So once again, we've got, and I won't beat this marriage thing anymore, but it's just such an important right that we have under the Constitution and specifically under the equal protection clause and the due process clause of the 14th Amendment. So that's the marriage component of this.

David E.:                             Now, there's a lot of other stuff that this spins out to, and one of them we hit last week, and that shifts into a little bit the idea of the right to raise children. Now, I discussed a little bit last week this case called Troxel v. Granville, and this one comes out of 2000. Last week, the show we did was all about third party rights and rights to children if you are not a legal parent, and under same underlying rationale here, we've got this due process clause, this right to liberty under the 14th Amendment, and within that, the jurisprudence basically says that you have a right to rear your children the way you want to, that if you're a parent, you have this incredibly important right to raise your children, do what you want to with your children, so long as you're not, and the state can step in under a lot of the laws if you're doing something dangerous. If you're in there beating the heck out of your children, the state's going to come in and do something about it. You don't have the right to inflict injury on your kids or do something really awful to them, but generally speaking, you have the right to raise your children how you want to. You've got the right to rear your children.

David E.:                             So this case we had that we talked about last week, Troxel v. Granville, is a situation where you had grandparents coming in over the objection of a legal mom, and in that case, and here again, I won't beat it too much, but I just want to mention it again because it's a reflection of this idea that the Constitution and the jurisprudence that we have interpreting the Constitution places such a massively important focus on your right to raise your kids, you as a legal parent to raise your kids. This case is a reflection of that. Now again here, I don't think that last week we talked about where that was coming from, but once again, it's coming out of this due process clause of the 14th Amendment.

David E.:                             Well, in this case, what happened was there was a mother and father of this child, grandparents of father; that is, father's parents, a.k.a. paternal grandparents, were involved with the kid. So the father ends up killing himself and so then the grandparents come in and they say, "We want to have visitation with this child," and legal mom was saying, "I want you to have way less than what you're asking for." So it ends up going to this trial court, it works its way up to the Supreme Court and the Supreme Court says this right is so important, this right to rear your children and there's such a massive weight in favor of the actual legal parents that the trial court messed this up, because they basically just assumed by default that the grandparents were going to have this right to a whole bunch of visitation, and so it ended up striking down the ruling of this lower court, saying you can't just default to the assumption that a grandparent is going to get the time without looking very heavily in favor of the legal parents and looking at what they want to do.

David E.:                             So we've got marriage, we've got children, both of these are super important rights under the 14th Amendment of the Constitution. What about the right to have children, as opposed to just rearing your children? Here's another one where we have massive emphasis, and once again coming out of the 14th Amendment, equal protection clause, due process clause. By the way, a lot of stuff comes out of these amendments. If there's any particular amendment you should know if you're remotely involved in the legal system, I think it's the 14th, because this deals with the interactions between the state and the states trying to deprive someone of equal protection or due process or any of that.

David E.:                             Well, having children, another interesting case called Skinner v. Oklahoma, and in that particular case, this one stems back from 1943, there was a guy named Jack Skinner and Jack Skinner got arrested for stealing chickens. This stems from, his first arrest was in 1926. He ends up going to prison. A little bit later, he gets out. 1929, so three years later, he gets convicted of aggravated robbery, ends up in prison, gets out. A couple years later, 1934, he once again gets convicted of aggravated robbery, goes to prison. So he robbed somebody with some firearms. All of this was going on in Oklahoma. Well, in 1935, so he had three convictions here, stealing chickens, aggravated robbery, and aggravated robbery. The last conviction was in 1934. While he's incarcerated under this last conviction in 1935, Oklahoma passes a law that says if somebody is a "habitual criminal" meaning that they've been convicted more than one time of a felony involving moral turpitude, so there's something morally wrong about this thing that they were doing, then the state could sterilize that person. That is, go in and make it such that they could not have children. It's kind of a frightening thing, if you think about it, because we're talking about reproductive rights, and this is the core of what this case was all about.

David E.:                             Now, once again, this case ends up working its way all the way up to the U.S. Supreme Court, lots of litigation, and by the way, getting to the Supreme Court, just as an aside, is an extremely difficult process. You have to, especially when it starts out of a state case, and there's additional jurisprudence saying that generally speaking, when we have domestic relations issues, when we've got things about marriage or divorce or that sort of thing, they're supposed to be reserved to the states, but when you have a case that is dealing with U.S. constitutional implications, it can work its way into the federal court system and when you get to the actual U.S. Supreme Court, they have to agree to hear the case, so there has to be something on their radar already that they're looking at that's going to deal with federal constitutional rights.

David E.:                             But here, this is one of those situations where Skinner, this guy, he's in prison. The state comes in and says we want to perform a vasectomy because this guy had three convictions in his past and a couple of those dealt with aggravated robbery with a firearm, so he objects to that, of course. He says, "I don't want a vasectomy. I don't want you to sterilize me." This is problematic. This all coming back in 1935, so I don't know what the medical implications of that were. They have a trial where they say, "Well, we can do it safely." A jury says, "All right, that's fine." He says, "No, wait." He ends up appealing it, and the Supreme Court hears it. So once again, in this situation, the Supreme Court shot it down, saying you can't do that. Equal protection, due process, and we're going to take another quick break.

David E.:                             I am attorney David Enevoldsen with Family Law Guys. When we return, we're going to be talking more about the intersection of family law and the Constitution. If you want to call in and ask any questions, you can do so by calling 602-277-KFNX. You are tuned in to Family Law Report on Independent Talk 1100 KFNX.

Announcer:                       Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That's 480-565-8680.

David E.:                             Welcome back to Family Law Report. I am your host, David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. If you want to reach out and schedule an appointment with myself or another attorney at my firm, Family Law Guys, you can do so by calling 480-565-8680, or check us out on our website at www.familylawguys.com.

David E.:                             If you are listening and you want to call in and ask any questions, share thoughts, you can do so by calling 602-277-KFNX, and today, we've been talking about the intersection of family law and the United States Constitution, and that's in honor of Constitution Day, because today is the 230th anniversary of the signing of the United States Constitution, and I am recognizing expressly how unimaginably important the Constitution is on the area of family law, and so we've been talking about several different cases here from the U.S. Supreme Court primarily, which has this function of interpreting the Constitution and how it's going to apply to all your different constitutional rights. So far, we've talked about how incredibly important the court looks at your right to have a marriage, to be married, under the due process clause and the equal protection clause of the 14th Amendment of the United States Constitution.

David E.:                             Right before we went to break, I was talking about the case called Skinner v. Oklahoma, with this guy who got arrested and the state came in and said well, you've been arrested too many times and you're a career criminal, you're a habitual criminal is the wording they used, and so we want to sterilize you. That case ended up working its way up to the U.S. Supreme Court, and they said, "No, can't do that," because here once again, you have a fundamental constitutional right to go out and reproduce. So we have a very similar idea here as to the marriage and the rearing of the children. You have constitutional rights around this. You also have a fundamental constitutional right related to reproduction, and Skinner v. Oklahoma was an interesting look at that one.

David E.:                             There is also kind of a different spin on this. Now, there's a slightly different case that kind of got washed out and I won't spend any real time about it, that also went up to the U.S. Supreme Court, which dealt with the issue of whether or not someone that was in an insane asylum could do these same basic things, and there, it's much muckier and it came before this case where it sounded more like you could sterilize somebody in these situations, but I think this particular case, Skinner v. Oklahoma, sort of muddied those waters a little bit so it's not as clear and I don't think anybody's really doing it anymore, primarily because of Skinner v. Oklahoma.

David E.:                             But shifting into another topic on the idea of children, a whole nother thing that we talk about that a lot of people know and this is another hot button topic is the idea of abortion. Now, there's obviously people have their different political views on that, but once again, we've got a U.S. Supreme Court case that deals with this topic of abortion, and of course, I think everybody knows this. Derek, do you know this case? What's the case, do you know?

Derek:                                 I don't.

David E.:                             Roe v. Wade?

Derek:                                 Okay, yes.

David E.:                             So that was the U.S. Supreme Court, Roe v. Wade, came out in 1973, and that created kind of the foundational idea here and it dealt with this right to abortion, which is interesting, because it's almost the reciprocal. It's not saying you have the fundamental constitutional right to raise your children, it's not saying you have a fundamental constitutional right to procreate, it's saying you have, in essence, a privacy right, which is one of the major things they were looking at, once again, under the due process clause of the 14th Amendment. They said that a woman has a fundamental right to privacy that protects abortions, and I know everybody's going to come out in different places on this, everybody has their different feelings about this, but it's sort of the reverse of what these other cases were talking about.

David E.:                             Now, the interesting thing about the abortion line of reasoning, at least under the Supreme Court's jurisprudence, is that it has sort of a balancing test here, and that is to say, it doesn't just say you have an absolute right to have an abortion. It also looks at the state's interest in protecting women's health, human life, that sort of thing, so as a pregnancy goes on, under this case, it becomes, your interest and privacy, becomes less and less. So the closer you get to ... This is the theory, at least, and again, I know there's lots of controversy around this, but the closer you get to a child coming to actual fruition, the less of a constitutional right you have in this. But here again, we've got these fundamental constitutional rights that have been interpreted by the U.S. Supreme Court that are spilling out into this area of family law and how you're dealing with children.

David E.:                             Now, we've talked about marriage. We've talked about children. We've talked about third party rights to children, the rights to have children or not have children, the rights to sterilization. Here's another interesting one, this is not ... So we'll shift away from the due process clause for just a second. Here's another really interesting area in my mind that deals with the Constitution, and this one's getting a little more academic, but it's the full faith and credit provision of the Constitution, specifically Article IV, Section 1, and that section, in my mind, deals with kind of interstate issues, and why I find this interesting is because in family law, there's a lot of interstate problems that we run into.

David E.:                             Example, if I have a kid with someone and we do that Arizona and that person moves to Nevada and then the kid is living there and then all of a sudden, I say, "Well, I want to get a divorce from you," what state do you file in? If I file something here, is that binding on the person over there? What if it's the reverse, I'm in New York and then I'm there with my baby mama or whatever and I move to Arizona, can I file stuff here? If I do file stuff here, is the order that comes out of that binding on the person in New York? So that's what this full faith and credit thing comes from, because the full faith and credit clause reads, "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." So there is this ... and then there's a couple different ideas in here. Another one is related to the personal jurisdiction.

David E.:                             I'm going to give you another case that interprets this. Estin v. Estin, this was a 1948 case, and in this case, there was Mr. and Mrs. Estin, they were married, living in New York. Mrs. Estin ended up getting an order for legal separation and alimony coming out of New York. So they're in New York, she gets this order there. Mr. Estin, so he has this legal separation order, he ends up moving to Nevada, where she has never been. He files for divorce there, and he ends up getting an order for a divorce and at the end of the day, Mrs. Estin never says anything about the order in Nevada. Keep in mind, she hasn't been there before. They were all in New York. But in that order, it terminates his alimony obligation, so he just stops paying. He says, "Well, I don't have to pay anymore. The Nevada court says I don't have to." Well, Mrs. Estin, back in New York, says, "Wait a second. You still owe me alimony." She just says, "I'm not even going to recognize this Nevada order because I'm not from there."

David E.:                             So, once again, this case works its way up to the Supreme Court of the United States, and here, the big issue was full faith and credit, that constitutional provision saying, does the New York court have to recognize this order that came out of Nevada, this place where this other person has never been, and what we were looking at is in part personal jurisdiction, does this court in Nevada have power over this person that's never even been there, and the Supreme Court said no, you can't do that. You have to have jurisdiction over this person, you have to have some sort of ties with a person in any given jurisdiction in order to issue orders or it's not going to be valid.

David E.:                             Now, one interesting thing that also comes out of this case is that the Court says, but with respect to the change of marriage itself, you can do that, and they call this a divisible divorce, this is a buzz phrase. So if you're in a situation where you're in a state and that state has just zero ties, zero jurisdiction over another person, you can still go and change your status from married to single, but you just can't deal with anything else. You can't deal with these property rights or any of that stuff, and that's called a divisible divorce. I've done some of these, they're very interesting, where you're just going in saying, "I don't want you to resolve anything, court, but change me from married to divorced," and those can still be recognized under full faith and credit.

David E.:                             I'm going to give you one more case that is kind of on a similar topic here, and this one's dealing with a child support obligation. Now, this is a case called Kulko ... Kulko? I don't even know how you pronounce it. Kulko v. California Superior Court. This comes out in 1978, and in this case, Ezra Kulko got married to Sharon Kulko. They did the marriage in California during a three-day stopover there when Ezra was on, he was in the military, and he was on his way from a military base in Texas to Korea, and while he's transitioning over to Korea from Texas, they stop in California, they're there for three days, they get married. Ezra and Sharon were this whole time domiciled in New York, though, so they're living in New York. They just had this three-day stopover. Sharon ends up going back to New York. She has two kids. Both of them were born in New York, and there's no question here that Ezra was the parent.

David E.:                             So of course ultimately, they end up splitting up, Ezra and Sharon separate, and Sharon decides to move back to California while Ezra's out in New York. So she, strangely enough, goes to Haiti, gets a divorce decree, divorce decree from Haiti incorporates this agreement that they had with child support, and then she ends up moving back to California and then she tries to enforce and modify provisions of this Haiti decree related to child support and custody. Well, Ezra ends up challenging, he says, "Wait a second. I was only in California for three days," and this was at this time 20 years earlier than when they're actually dealing with this stuff, and so the big question here was, he's in New York on the opposite end of the country. Does he have to be bound to this place that he was just in for three days and had otherwise zero connection to? And so does that court have the power to run out and impose some order on him that he really has no ties to?

David E.:                             And so here once again, interestingly, this is dealing with both full faith and credit but also this court looked at due process and said that this is once again dealing with the 14th Amendment and ultimately said no, this was not enough. So Constitution has a huge impact, as you can see, on all sorts of areas of family law. We could go on and on about this, but that is unfortunately all the time we have for today's show.

David E.:                             So you have been listening to Family Law Report. I am your host, David Enevoldsen, attorney with Family Law Guys, an Arizona law firm. I've been talking today about that intersection of family law and Constitution. I hope you join us again next week on Sunday at noon for more of the latest on family law here one Independent Talk 1100 KFNX, and remember, if you've got a family court case going on, go talk to an attorney that does family law.

David E.:                             Thank you all for listening, and have a great week.

Announcer:                       Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems with the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX. If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys, call 480-565-8680. That's 480-565-

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