FAMILY LAW
Questions & Problems Six
Professor Coombs
Fall 2010
Day 17
a. Be prepared to enumerate the various kinds of facts that the Painter court took into account. What kinds of evidence are likely to be introduced to prove these facts? How well-equipped are judges to assess these facts? Consider the relationship between the best criteria for custody determinations, if the court had all the facts and all the wisdom needed, and the best criteria in the real world.
b. Assume your jurisdiction has a statutory "primary caretaker" preference and a lawsuit has been filed challenging the statute as unconstitutional sex discrimination. What arguments would you make in defense of the statute?
c. Consider how you would structure a parenting plan in Florida. What issues might you need to deal with in the agreement? What would you need to learn from your client in order to serve his/her interests most effectively? How would you learn and take into account the child’s own interests and wishes? Should you?
Day 18
Revised Assignment: read only pp. 625-52 (i.e. delete pp. 652-60)
a. Under what circumstances should a court consider religion or sexual orientation of a parent? When might it be relevant under a formulation, such as Florida's, that instructs the court to base its decision on the "best interests of the child"? If you are concerned that trial courts might over-rely on such factors, how could you draft the relevant statute to minimize such risks?
b. Under what theory should prior domestic violence be relevant? Does it matter whether the domestic violence has occurred in the presence of the child?
Day 19
Revised assignment: Read only pp. 660-75, 680-87 (i.e. delete Bersani and related notes @ 676-80)
If you are not participating in Exercise Four, you should still read, but may skim, the casebook and cases in the handout on relocation. You should, however, read carefully Florida Statute 61.13001
a. In what contexts can courts impose limits on the activities that non-custodial parents engage in during visitation? How will such limits be enforced? Examine problem 1 at p. 686. If the father had custody, could he get an order requiring the mother to keep Kosher and take the child to synagogue during visitation? In problem 1 itself, can the mother’s behavior be grounds for a change in custody? Would your answer be different if the parents had agreed in writing to raise the children as Orthodox Jews?
b. Consider the problems on 675 and 686-67. How would they come out under Fl. Stat §61.13(2)(d)? If you were a Florida legislator, would you propose changing the statute? How?
b. What techniques are most likely to be effective in enforcing visitation rights? Are these consistent with the underlying "best interests of the child"? Consider what tools are available (and appropriate) for the court to use if the custodial parent interferes with visitation.
Should there also be a duty to visit? A duty to the child or to the custodial parent? How should such a duty be enforced?
c. Read Van Eiff carefully. When, if at all, could a Florida court grant visitation to stepparents? What is the significance of Van Eiff after the U.S. Supreme Court decision in Troxel?
Day 20
Skip the Massie-Marcenaro case in Handout
Be prepared to do the exercises at pp. 842-43 of casebook.