for speeding, and the driver pretends to be his brother, the driver is guilty of false personation. His brother is an actual person, and the crime of false personation is designed to take advantage of his brother’s reputation and driving record. If the driver pretends to be Dick Tracy, a fictitious person, he is not guilty of false personation. Harming Dick Tracy’s fictitious reputation and driving record is not an intended function of the crime. However, in this situation, the driver may be guilty of a different crime such as FRAUD or giving false information to a police officer. The benefit or harm sought by impersona- tors may take many forms. Some are obvious, some are not. In the example of the driver who is pulled over for speeding and impersonated his brother, an obvious benefit is to avoid paying a speeding ticket. A less obvious benefit is to keep this offens e off the driver’s record. Even less obvious, the driver may have set up the whole situation in order to tarnish his brother’s driving record or reputation. False personation statutes may prohibit false personation of another generally, or they may specify a particular group, office, or profession. There are federal statutes that specifically prohibit the false personation of a U.S. citizen; an officer or employee of the United States in pursuit of money or other valuables; an officer or employee of the United States attempting to arrest or search a person or building; a creditor of the United States; a foreign diplomat or official; a 4-H Club member or agent; or a member or agent of the Red Cross. Many states have statutes prohibiting the impersonation of police officers, firefighters, married people, or voters. The increased availability of personal infor- mation on the INTERNET may result in IDENTITY THEFT , a type of false personation that can have extreme consequences for the victim. THEFT of identity occurs when an unauthorized person uses someone else’s personal information, such as their name, SOCIAL SECURITY number, or date of birth, to open credit card accounts, apply for jobs, and generally assume the identity of the other person. The victims include the financial institutions who are thus defrauded , as well as the individual whose good name and credit rating can be temporarily ruined. This type of fraud can occur on or offline, but it has become an increasing concern for consumers, given the relative ease with which thieves can access online information. Fraud, of course, is a crime in most juris- dictions. Since the late 1990s Congress and many states have passed special criminal laws that speci- fically prohibit identity theft. Congress strength- ened the identity theft statute in 2000 to clarify that online identity theft was covered and to strengthen federal law enforcement with regard to identity theft. Internet False Identification Prevention Act of 2000, Pub. L. No. 106-578. Under the federal identity theft law, the FEDERAL TRADE COMMISSION (FTC) was directed to estab- lish a national clearinghouse for identity theft complaint data and to provide assistance to identity theft victims. The FTC has a toll-free hotline as well as a Web site for consumers, and has published a comprehensive consumer brochure on the subject of identity theft. Using its general authority to stop unfair and decep- tive practices under the FTC Act, the FTC has also moved against Internet sellers of false identification templates, which facilitate the creation of fake driver’s licenses or even birth certificates. FALSE PRETENSES False representations of material past or present facts, known by the wrongdoer to be false, and made with the intent to defraud a victim into passing title in property to the wrongdoer. Suppose Reba tells Alberto that a synthetic gemstone is a valuable diamond that she will give to Alberto in exchange for Alberto’s truck. Alberto thinks this sounds like a good deal and transfers title of his truck to Reba. If Reba knows that the stone is a synth etic gemstone, she is guilty of false pretenses. A truthful statement that causes someone to give up rights in property does not constitute criminal false pretenses; a representation mu st be false at the time the potential victim is about to pass title. If the representation was false when made, but changing circumstances made it true by the time the victim passed title, false pretenses did not arise. Also, if the alleged wrongdoer thought his or her statement was a lie, but the statement was in fact true, the crime of false pretenses was not committed. For example, if Reba thinks the stone is synthetic, but it actually is a diamond, her statement to Alberto claiming that it is a diamond is true (even if she doesn’t know it). Therefore, Reba is not guilty of false pretenses. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FALSE PRETENSES 339 A false representation can be a verbal, written, or implied statement. For example, if a statement suggests that the wrongdo er has the authority, power, or ability to perform what is represented, but the wrongdoer does not have that authority, power, or ability, the implication is a false representation. A false representation can also occur when the wrongdoer says or does nothing. This is the case when someone knowingly conceals infor- mation that the victim should be made aware of. For example, if Reba tells Alberto that she will trade her valuable sports car for Alberto’s truck, knowing that the sports car does not have a motor, she must tell Alberto about the missing motor or her nondisclosure will be a false representation. The false representation supporting false pretenses must be about a material fact. A material fact is one that would be important to the victim in his or her decision-making process. For example, it is important fo r Alberto to know that Reba’s sports car does not have a motor, because without a motor, the car is less valuable and cannot be driven. It is less important for him to know that the tire pressure is low, because that fact does not affect the value of the car, and thus Reba would not be guilty of false pretenses for failing to mention that the tires need air. The representation must concern a past or present fact; a false representation of a future fact does not constitute criminal false pretenses. A car salesperson who claims that a car will run great in ten years is representing a future fact. An exaggerated expression of opinion, like a sales pitch, may not be entirely true but is not a criminal false representation. However, a prom- ise about the future that, at the time it is made, the promisor does not intend to keep, is a criminal false representation of a material fact. If the salesperson promises to buy the car back if it is not running great in ten years, but he does not intend to satisfy the promise, the false promise is a false representation. When a representation is in fact false, the wrongdoer must know it is false. If an alleged wrongdoer believed the statement was true—whether that belief was reasonable or unreasonable—he or she did not commit false pretenses because they did not knowingly make a false representation. If Reba believes that the synthetic stone is in fact a diamond, then she does not commit false pretenses when she tells Alberto it is a diamond. However, if the wrongdoer is not sure or does not care if a statement is false, and makes the statement with reckless indifference for truthfuln ess, the state- ment is a false representation. It is important to determine why the wrongdoer told the lie. The wrongdoer must intend the false representation to DEFRAUD the victim. Intention to defraud the victim exists where the wrongdoer planned to unjustly acquire title to the victim’s property by means of the untruth. That is, the wrongdoer will have planned the false representation in advanc e and will have calculated to deceive the victim into transferring title by way of the false statement. Telling an untruth, in and of itself, will not subject the liar to prosecution for false pre- tenses. The victim of false pretenses must have relied on the false representation. The false representation must be the reason, or one of the reasons, that the victim passed title to the wrongdoer. It does not matter how gullible or naive the victim would seem for believing the representation; the wrongdoer is still guilty. On the other hand, to rely on a false statement, the potential victim must believe it to be true. An individual who does not believe a false repre- sentation but passes title to the statement maker anyway does not rely on the representation, and the statement maker will not be guilty. Conviction of false pretenses requires the wrongdoer to obtain more than possession of the property; the wrongdoer must also obtain title to the property. A wrongdoer who gains possession of property but not title to the property is guilty of a different crime often referred to as LARCENY. For example, a wrong- doer who breaks a truck’s window and hot- wires the truck acquires only possession of the truck and is guilty of larceny. Other la ws may require the delivery of the possession of property in order to complete a transfer of title. In such cases, the wrongdoer may have to obtain title as well as possession of the property to be guilty of false pretenses. Imagine that the laws of the state where Alberto and Reba live require a party to take possession in order to obtain a valid transfer of title. Alberto signs the paper title over to Reba, but before Reba drives the truck away, Alberto figures out the scam, and Reba runs off. No GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 340 FALSE PRETENSES transfer of title has occurred, because the state’s laws require possession in addition to paper title, and Reba is not guilty of false pretenses. Title does not have to pass directly to the wrongdoer. A wrongdoer can cause a victim to pass title to someone other than the wrongdoer and still benefit from the transfer. A transfer of title to a family member or a corporation in which the wrongdoer has an interest constitutes a transfer of title for purposes of false pretenses. In many states, crimes relating to THEFT of property, including false pretenses, have been combined and consolidated into one offense. Statutory consolidation usually does not change the essential elements of false pretenses, but instead ensures smoother prosecution so that wrongdoers cannot avoid criminal conse- quences by finding legal loopholes to slip through. A number of crimes are very similar to false pretenses. For example, when an individual attempts to pass a bad check, there is intent to defraud because he or she is attempting to obtain money or property by issuing checks from an account that does not exist or has insufficient funds. Mail fraud is a crime rea- sonably calculated to deceive victims, and ac- complishes the deception by using the U.S. mail. A scheme to defraud using the mail is actionable whether or not any false representa- tion was made. Securities registration laws prohibit a wrongdoer from knowingly furnish- ing false information in connection with the sale or registration of securities. FORGERY can be likened to false pretenses in that it is a crime where the genuineness of a document is falsely represented. In addition to being criminally accountable for obtaining property by false pretenses, the wrongdoer may also be liable in a civil court. Liability for tortuous FRAUDULENT MISREPRESENTA- TION , or deceit, closely parallels liability for cri- minal fraudulent misrepresentation. A wrongdoer who fraudulently misrepresents a fact in order to induce another to act or refrain from acting in reliance upon it may be liable for PECUNIARY loss caused to the victim by the victim’sjusti- fiable reliance upon the misrepresentation. FURTHER READINGS Allen, George B. 1999. The Fraud Identification Handbook. Highland Ranch, CO: Preventive Press. Bishop, Joel Prentiss. 1865. Commentaries on the Criminal Law. Boston: Little, Brown. Available online at http:// www.archive.org/details/commentariesonc02bishgoog; website home page: http://www.archive.org (accessed July 23, 2009). Lafave, Wayne R., and Austin W. Scott, Jr. 1986. Substantive Criminal Law. Eagan, MN: West. Pickett, K. H. Spencer, and Jennifer M. Pickett. 2002. Financial Crime Investigation and Control. Indianapolis: Wiley. Torcia, Charles E. 1995. Wharton’s Criminal Law. New York: Clark Boardman Callaghan. CROSS REFERENCE White-Collar Crime. FAMILY CAR DOCTRINE A rule of law applied in particular cases of negligence that extends liability to the owner of an automobile for damage done by a family member while using the car. The family car doctrine, also known as the family purpose doctrine, is based on the premise that a car is provided by the head of the household for the family’s use and, therefore, the operator of the car acts as an agent of the owner. For example, if a husband is the owner of a car and his wife uses the car for one of the purposes for which it was purchased, such as grocery shopping, then the wife is acting as the husband’s agent in carrying out such purpose. Under the family car doctrine, the owner of the family car (in this case, the husband) is legally responsible for any damage caused by the family member driving the car (in this case, the wife) if the owner knew of and consented to the family member’s use of the car. The courts of approximately 20 states follow this doctrine. Liability under the doctrine is contingent upon control and use of the automobile. An individual upon whom liability is sought to be imposed must own, provide, or maintain the automobile. In addition, in order to successfully initiate an action within the meaning of the doctrine, it must be proven that the automobile existed for family use and pleasure. If an automobile was purchased and is used for business purposes, it might come within the doctrine, provided it is also used for family purposes and was used for such pur poses at the time of the accident. Some insurance carriers attempt to avoid the application of the family car doctrine by asking policyholders for the ages of household members, and listing teenagers as “excluded” drivers on their parents’ policy. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FAMILY CAR DOCTRINE 341 FAMILY LAW Statutes, court decisions, and provisions of the federal and state constitutions that relate to family relationships, rights, duties, and finances. The law relating to family disputes and obligations has grown dramatically since the 1970s, as legislators and judges have reexamined and redefined legal relationships surrounding DIV- ORCE , CHILD CUSTODY,andCHILD SUPPORT.Familylaw has become entwined with national debates over the structure of the family, gender bias, and morality. Despite many changes made by state and federal legislators, family law remains a conten- tious area of U.S. law, generating strong emotions from those who have had to enterthe legal process. Historical Background Most of the changes made in family law in the late twentieth cent ury have been based on overturning concepts of MARRIAGE, family, and gender that go back to European FEUDALISM, canon (church) law, and custom. During Anglo-Saxon times in England, marriage and divorce were private matters. Following the Norman conquest in 1066, however, the legal status of a married woman was fixed by COMMON LAW , and CANON LAW prescribed various rights and duties. The result was that the identity of the wife was merged into that of the husband; he was a legal person, but she was not. Upon marriage, the husband received all the wife’s PERSONAL PROPERTY and manage d all the property owned by her. In return, the husband was obliged to support the wife and their children. This legal definition of marriage continued in the United States until the middle of the nineteenth century, when states enacted married women’s property acts. These acts conferred legal status upon wives and permitted them to own and transfer property in their own right, to sue and be sued, and to enter into contracts. Although these acts were significant advances, they dealt only with property a woman inherited. The husband, by placing title in his name, could control most of the assets acquired during marriage, thus forcing the wife to rely on his bounty. In direct response to the growing number of gay and lesbian couples who wanted to have their bonds recognized as marriages, Congress passed the Defense of Marriage Act (P.L. 104- 199, 100 Stat. 2419) in 1996, expressly defining marriage as between one man and one woman for purposes of all federal laws. Although a majority of states (38 in 2004, 45 in 2007) had laws banning same-sex marriages, several con- stitutional challenges (on EQUAL PROTECTION grounds) had proved successful. This prompted many states, in the 2008 national elections, to place initiatives on the ballots for voters to approve constitutional amendments that would define marriage similarly to the federal law. One case in point is California, where in May 2008, the California Supreme Court, to resolve several lawsuits going back as far as 2004, ruled that California laws limiting marriage to opposite- sex couples violated the state’s constitution and the rights of same-sex couples. In re Marriage Cases, No. S147999, 183 P.3d 384. When the 121- page, 4-3 majority opinion became final 30 days later, gay and lesbian couples crowded local courts and state offices to legalize their relationships. But the victory was short-lived. In November 2008, a clear majority of California voters approved “Proposition 8,” a ballot initiative to amend the state constitution limiting marriage to unions between men and women. Divorce Divorce law has also changed over time. In colonial America, divorce was extremely rare. This was partly because obtaining a divorce ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. LICENSED DRIVERS, BY AGE, IN 2007 SOURCE: U.S. Department of Transportation, Federal Hi g hwa y Administration, Highway Statistics 2007. 80 and over 3.5% 19 and under 4.8% 20–24 years old 8.4% 25–29 years old 8.8% 30–39 years old 18.0% 40–49 years old 20.1% 50–59 years old 18.1% 60–69 years old 11.6% 70–79 years old 6.7% Family Car Doctrine Total drivers: 205,741,845 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 342 FAMILY LAW decree required legislative action, a process that was time-consuming and costly. Massachusetts in 1780 was the first state to allow judicial divorce. By 1900, every state except South Carolina provided for judicial divorce. Even with availability, divorce remained a highly conflicted area of law. The Catholic Church labeled divorce a sin, and Protestant denomina- tions saw it as a mark of moral degeneration. The adversarial process presented another roadblock to divorce. In the nineteenth century, consensual divorce was not known. For a couple to obtain a divorce, one party to the marriage had to prove that the other had committed a wrong of such weight that the marriage must be ended. The need to find fault was a LEGACY of family law that was not changed until the 1970s. Beginning in the 1960s, advocates of divorce reform called for the legal recognition of no-fault divorce. Under this concept, a divorce may be granted on grounds such as incompatibility, IRRECONCILABLE DIFFERENCES, or an irretrievable breakdown of the marriage relationship. The court examines the condition of the marriage rather than the question of whether either party is at fault. This type of proceeding eliminates the need for one party to accuse the other of a traditional ground for divorce, such as ADULTERY, CRUELTY, alcoholism, or drug addiction. By 1987 all 50 states had adopted no-fault divorce, exclusively or as an option to traditional fault-grounded divorce. No-fault divorce has become a quick and inexpensive means of ending a marriage, especially when a couple has no children and moderate property assets. In fact, the ability to end a marriage using no-fault procedures has led to criticism that divorce has become too easy to obtain, allowing couples to abandon a marriage at the first sign of marital discord. Presence of Parents in the Home for Children Under 18 Years Old, 1980 and 2008 SOURCE: U.S. Census Bureau, Statistical Abstract of the United States: 2000, and America's Families and Living A rrangements: 2008, March 2008. Neither parent, 2% Father only, 2% Mother only, 14% White 1980 Both parents 83% Neither parent, 4% Father only, 2% Both parents 77% Mother only 18% Neither parent, 4% Father only, 3% All races a 2008 All races a 1980 Both parents 70% Mother only 23% Neither parent, 3% Father only, 4% White 2008 Both parents 76% Mother only 17% Neither parent, 8% Father only, 3% Black 2008 Both parents 37% Mother only 51% Father only, 2% Black 1980 Both parents 42% Mother only 44% Neither parent, 12% a Includes races not shown separately. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FAMILY LAW 343 The division of marital property has also undergone significant change since the 1970s. Courts now consider the monetary and non- monetary contributions of a spouse as a homemaker, parent, and helper in advanc ing the career or career potential of the other party—as, for example, when one spouse works so that the other may go to school. In distributing marital assets and setting ALIMONY and maintenance, the homemaker’s contribu- tions are significant factors, although there is disagreement as to their valuation. On the other hand, courts no longer look at alimony as a long-term remedy. Alimony is now often awarded for a fixed term, so as to enable a divorced spouse to acquire education or train- ing before entering the workforce. Child Custody During a marriage, all custodial rights are exercised by both parents. These include decision-making power over all aspects of upbringing, RELIGION, and educ ation, as long as the parental decision s and conduct stay clear of the neglect, abuse, and dependency laws. Upon divorce, that power traditionally went solely to one parent who obtained c ustody. Traditionally, the VISITATION RIGHTS given to the noncustodial parent constituted little more than a possessory interest. This made the custody decision upon divorce a significant one: the relationship between the noncustodial parent and his or her children would change, as the parent would lose the ability to shape decisions affecting the children. Child Custody Finally, the issue of divorce raised the topic of child custody. Historically, fathers retained custody of their children. This tradition weak- ened in the nineteenth century, as judges fashioned two doctrines governing child custody. The “best-interests-of-the-child” doctrine bal- anced a new right of the mother to custody of the child against the assessment of the needs of the child. The “tender years” doctrine arose after the Civil War, giving mothers a presumptive right to custody of their young children. In the United States, since the nineteenth century, mothers traditionally gained custody of children. In the late twentieth century, changes in marital and social roles have led to fathers assuming duties once thought to be the exclusive province of mothers. This, in turn, has led to fathers showing more interest in claiming custody and to courts granting fathers custody. Yet, the vast majority of custody dispositions still go to mothers. From a dissatisfaction with custody deci- sions has emerged the concept of joint custody. Under joint custody, legal custody (the decision- making power over the child’s conduct of life) remains with both parents, and physical custody goes to one or the other or is shared. The concept has met with mixed reactions. If both parents are reasonable, both may be able to participate fully in decisions that would have been denied one of them. On the other hand, joint custody is likely to be harmful if the parents play out any lingering animosity, or confuse the child with conflicting directions, or are simply unwilling to agree on basic issues involving the child’s welfare. In January 2009 the Minnesota Joint Physi- cal Child Custody Study Group released its report studying joint physical custody presump- tions in state law. Appendix A of the 286-page report indicated that none of the 50 states had a presumption of equal physical custody, but that eight states had presumptions in favor of joint physical custody. Nine states had adopted presumptions of joint physical custody applica- ble only where parents had agreed to it. Overall, 26 states continued to have best-interest standards for determining custody. (Five states had neither presumptive nor best interest Jennifer and Gary Troxel, shown outside the Supreme Court building in January 2000, used a Washington state child visitation statute to sue for the right to visit their grandchildren. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 344 FAMILY LAW standards in place.) Moreover, 22 states had presumptions against joint custody where there was history of DOMESTIC VIOLENCE,abuse,or convictions of certain crimes. Another 18 states required courts, at a minimum, to include evidence of such factors in their best-interest analyses. Beginning in 1980, the laws governing custody disputes have been guided by federal statutes. A 1980 amendment to the Judiciary Act (28 U.S.C.A. § 1738A) authorized federal rules that control the enforcement and modification of custody decrees. When in conflict, these rules supersede state statutes, including the Uniform Child Custody Jurisdiction Act (UCCJA), which all states have enacted in some version. The UCCJA was created to specifically deal with interstate cus tody disputes. Before it was passed, a divorced parent who was unhappy with one state’s custody decision could sometimes obtain a more favorable ruling from another state. This led to divorced parents’ KIDNAPPING their chil- dren and moving to another state in order to petition for custody. The Uniform Law Commissioners strength- ened the original UCCJA in 1997 when it approved the Uniform Child Custody Jurisdic- tion and Enforcement Act (UCCJEA). Many of the provisions are the same as those in the original statute, but the new uniform law strengthened the enforcement procedures from the original UCCJA. Several of the new provi- sions are designed to expedite proceedings for determining proper jurisdiction in different states, including communication between judges in the two states. By 2008, 48 states had adopted the updated UCCJEA. Despite the enactment of the original UCCJA, the problem persisted. In 1980, Con- gress passed the Parental Kidnapping Preven- tion Act (28 U.S.C.A. § 1738A), which aids enforcement and promotes finality in child custody decisions, by providing that a valid custody decree must be given full legal effect in other states. In an international context, in 1986, the United States adopted the 1980 Hague Convention on the Civil Aspects of Interna- tional Child ABDUCTION (42 U.S.C.A. § 11603). The convention was designed to facilitate the return of abducted children and the exercise of visitation rights across international boundaries. In 2007 the Tennessee Supreme Court re- turned custody of a young girl to her biological parents, Chinese nationals, who planned to take her back to China. The primary reasoning behind the court’s decision was its conclusion that the biological parents, because of language barriers, did not understand the consequences of their earlier waiver of custody and parental rights to the American couple who raised her for eight years and were planning to adopt her. In Re ADOPTION of A.M.H., No. W2004-01225-SC- R11-PT, (2007). Visitation With the growing number of dis- putes among parents regarding custody and visitation of children to the marriage, states have recognized that grandparents often play an important role in the lives of their grand- children. Surveys by the AMERICAN ASSOCIATION OF RETIRED PERSONS (AARP) suggest that more than 80 percent of grandparents responding said that they had seen the ir grandchildren within the previous month. Each of the 50 states has adopted provisions in their family laws allowing visitation for grandparents under certain cir- cumstances. Such laws have come under attack by parents, who argue that giving grandparents visitation rights infringes on their right to raise their children as they see fit. The U.S. Supreme Court, in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), addressed this issue for the first time. The court ruled that the state of Washington’s grandparent visitation statute violated the Fourteenth Amendment’s Due Process Clause, as it interfered with the rights of parents to make decisions concerning the care, custody, and control of their children. The State of Washington, under section 26.10.160(3) of its Revised Code, permitted “any person” at “any time” to petition a state family court for visitation rights whenever “visitation may serve the best interest of the child.” Jenifer and Gary Troxel used this statute to petition a Washington court in 1993 for the right to visit their grandchildren, Isabelle and Natalie Troxel. Tommie Granville, the mother of the children, opposed the petition. Brad Troxel, the son of Jenifer and Gary, had shared a relationship with Tommie that ended in 1991. Though they never married, they had Isabelle and Natalie. After they broke up, Brad brought his daughters to his parents for weekend visits. When Brad committed SUICIDE in 1993, his parents sought to continue the weekend visita- tions. Tommie refused, however, allowing them GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FAMILY LAW 345 one short visit per month. This led to the filing of the visitation petition in which the Troxels asked for two weekends of visitation per month and two weeks of visitation per summer. The family court ultimately ordered visitation one weekend per month and one week during the summer, along with four hours on each grand- parent’s birthday. The Washington Court of Appeals and the Washington Supreme Court both found that the statute unconstitutionally infringed upon the FUNDAMENTAL RIGHT of parents to rear their children. It noted that the U.S. Constitution allows the state to interfere with this right only to prevent harm to the children. The Washing- ton statute did not require a showing of harm. In addition, the statute permitted “any person” to file a visitation petition. The Washington courts found that this provision was too broad. In their view, parents have a right to limit visitation of their children with third persons. The Troxels appealed to the U.S. Supreme Court, which upheld the decisions of the Washington courts. Justice Sandra Day O’Con- nor, writing for the majority, acknowledged that the demographics of the American family had changed in the past one hundred years. In 1998 almost 4,000,000 children lived with their grandparents, and 28 percent of all children under 18 lived in single-parent households. Though she noted that these changes helped explain the extension of statutory visitation right, there were “obvious costs” that came with these changes. The primary cost was the “substantial burden” placed on the “traditional parent-child relationship.” Invoking the recog- nized liberty interests of parents “in the care, custody, and control of their children,” the Court found that the statute unconstitutionally interfered with the parent’s due process rights. The Court in Troxel noted that the decision did not invalidate all grandparent visitation statutes. The scope of the Washington statute— for example, the fact that any person could seek visitation—was primarily responsible for the Court rendering it unconstitutional. As the AARP and other groups condemned the deci- sion, state legislatures in 2001 and 2002 sought aggressively to amend their statutes to comport with the Troxel decision. Each of the 50 states still has a statute providing for visitation, but many now require grandparents to demonstrate harm to the child if visitation is not allowed or to show that one of the parents to the marriage is deceased. Another case receiving wide attention was the June 2008 Virginia Supreme Court decision in Miller v. Jenkins, No. 070933, 661 SE 2d 822, cert. denied December 2008, in which a former lesbian partner was granted visitation rights of a six-year-old girl she helped to raise, despite the legal protests of the biological mother and former partner. In April 2009 the Missouri Supreme Court upheld that state’ 2005 law prohibiting child sex offenders from having unsupervised visitation with their children. Cannon v. Cannon, 280 SW 2d 79 (Mo banc 2009). Child Support In most cases, a divorce decree will require the noncustodial parent, usually the father, to pay child support. The failure of parents to pay child support has significant consequences. Lack of support may force the custodial parent to apply for welfare, which in turn affects government budgets and ultimately taxes. This problem has resulted in increasingly more AGGRESSIVE COLLEC- TION efforts by the government. The Uniform Reciprocal Enforcement of Support Act (URESA) exists in all states in some form. URESA allows an individual who is due alimony or child support from someone w ho lives in a different state to bring action for receipt of the payments in the home state. This measure circumv ents such problems as expense and inconvenience inherent in traveling from one state to another in pursuit of support. In response to federal legislation that mandates a more aggressive approach, states have become more creative in extracting money from those who fail to pay child support—who, because they are usually fathers, have come to be labeled “deadbeat dads.” In 1975 Congress enacted a provision that created the Office of Child Support Enforcement in the DEPARTMENT OF HEALTH AND HUMAN SERVICES (42 U.S.C.A. § 651). The office was charged with developing ways to collect child support. In 1984 the law was amended to strengthen enforcement powers. State laws now must require employers to withhold child support from the paychecks of parents who are delin- quent for one month. Employers are to be held responsible if they do not comply fully. State laws must provide for the imposition of liens GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 346 FAMILY LAW against the property of those who owe support. Unpaid support must be deducted from federal and state INCOME TAX refunds. Expedited hear- ings are required in support cases. Other Areas Family law has grown beyond the boundaries of marriage, divorce, and child custody and support. New areas of law have been created that concern the legal rights of persons who have not been legally married. Palimony The colloquial term palimony en- tered the U.S. lexicon in 1976, with the lawsuit Marvin v. Marvin, 18 Cal.3d 660, 134 Cal. Rptr. 815, 557 P.2d 106 (Cal.). The term refers to alimony paid out of a nonmarital union. In Marvin, the California Supreme Court ruled that although PUBLIC POLICY is to encourage and foster the institution of marriage, an equitable distribu- tion of property accumulated during a nonmari- tal relationship is not precluded. In this case, Michelle Triola Marvin, who had cohabited with film actor Lee Marvin for seven years without a formal marriage, brought an action to enforce an ORAL CONTRACT under which she was entitled to half the property accumulated during the seven- year period, along with support payments. Though the facts of the case ultimately led to Michelle Marvin’s not recovering any palimony, the case established the right of a cohabitant to obtain a PROPERTY SETTLEMENT. But that right has been eroded in recent years (despite some palimony awards in several jurisdictions during the 1980s and 1990s). Courts have been reluctant to formally ac- knowledge such awards as viable, as the law remains biased toward marriage, and as of 2008, six states still had anti-cohabitation laws remaining on their books: Florida, Michigan, Mississippi, North Carolina, Virginia, and We st Virginia. (North Dakota repealed its law in 2007, and a North Carolina judge, in 2006, ruled that North Carolina’s anti-cohabitation law was unconstitutional, in light of the 2003 Supreme Court ruling in Lawrence v. Texas.) In Devaney v. Lesperance, 195 N.J. 247 (2008), the New Jersey Supreme Court held that COHABITATION was not a necessary requirement to establish a cognizable palimony claim (reversing the appellate division, which would have re- quired it). The woman in that case alleged a 20-year relationship with a married man, but had never lived with him. Notwithstanding, the trial court in that case found that the couple did not commingle property, share liv- ing expenses, or, for that matter, spend much time together, thereby further undermining the woman’s claim. Of import, a concurring opinion in that case noted that very few states allowed claims for palimony in the absence of an express agreement. The concurrence further opined that they should be allowed only in exceptional circumstances, and where there was a showing of cohabitation. Many cohabiting heterosexual couples be- lieve that the law will recognize their relation- ship as a COMMON-LAW MARRIAGE with the legal protections and financial benefits of marriage. However, only Alabama, Colorado, the District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah recognized common-law marriage as of 1990. But by 2008 four more states had repealed common-law marriages: Georgia, Idaho, Ohio, and Pennsylvania, leaving just ten states. Same-Sex Marriage In Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), cert. denied, 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 ( 1972), the Minnesota Supreme Court sustained a clerk’s denial of a m arr iage license to a homosexual couple. The possibility of homosexual marriage was revived by the 1993 decision of the Hawaii Supreme Court in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44. In Baehr, the court held that a state law restricting legal marriage to parties of the opposite sex establishes a sex-based classifica- tion, which is subject to strict constitutional scrutiny when challenged on equal protection grounds. Although the court did not recognize a constitutional right to same-sex marriage, it indicated that if the state prohibited such marriages, it would have a difficult time proving that gay and lesbian couples were not being denied equal protection of the laws. The debate over homosexual marriage continues at both the federal and state levels. Although gay and lesbian partners had been unable to persuade states to recognize their unions as “marriage” in the traditional sense, an increasing number of states have passed laws allowing unmarried couples, including homo- sexual and heterosexual couples, to register as “domestic partners.” A registry identifying these partners has been established in dozens of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FAMILY LAW 347 American cities, and other citi es and states now extend certain benefits to dom estic partners even if the city or state does not provide a registry. The ordinances and statutes also provide certain procedures for property SETTLE- MENT and resolution of other issues if the partners separate. The movement was most popular in cities in the state of California, where many municipali- ties and counties provide benefits to domestic partners, domestic partner registries, or both. Although several of the cities across the United States that have extended these rights to same-sex couples are larger, urban areas, some smaller counties and cities have also exte nded such rights. Then in October 2008, the Supreme Court of Connecticut ruled that denying same-sex couples the same rights, responsibilities, and designation of being “married” violated the equal protection clause of the state’s constitu- tion. Kerrigan v. Commissioner of Public Health, SC 17716. Just weeks later, in November 2008, the state began to issue marriage licenses to same-sex couples. At that time, Connecticut became the third state ever to issue marriage licenses to same-sex couples, following Massachusetts (2004) and California (2008). (The California Supreme Court had ruled in favor of them just five months earlier in May 2008.) However, subse- quent to California’s court decision, California voters reversed the ruling through Proposition 8, a ballot initiative in the November 2008 elections that would amend California’s consti- tution. California’s reversal left only two states permitting same-sex marriages until the Iowa Supreme Court, in April 2009, legalized gay marriages by also ruling that Iowa restrictions violated the state’s constitution. This ruling again brought the total to three states upholding such marriages, and the later addition of Vermont brought the total to four. Adoption Also, with respect to same-sex cou- ples, in 2005, the U.S. Supreme Court declined review of an Eleventh CIRCUIT COURT of Appeals decision upholding Florida’s statutory ban on adoption of children by homosexuals. The case at issue was Lofton v. Secretary of the Florida Department of Children and Families, 358 F.3d 804 (11th Cir. 2004). Florida’s law, dating from 1977, was unique in the United States. (Mississippi prohibited homosexual couples, but not individuals, from adopting. Utah prohibited unmarried, cohabit- ing individuals [homosexual or heterosexual] from adopting. Six states expressly permitted adoptions by gays and lesbians: California, Connecticut, Massachusetts, New York, Penn- sylvania, and Vermont.) The Florida law was challenged by lead PLAINTIFF ACLU, representing four gay and lesbian foster parents who had wanted to adopt. (Florida law permits gays and lesbians to be foster parents.) Civil Unions and Domestic Partnerships In February 2007 New Jersey became the third state in the nation (following Connecticut and Vermont) to offer civil unions for gay and lesbian couples. The new law automatically granted civil unions to New Jersey gay couples who had previously gone through civil unions or marriages in other states or nations. The state had been permitting “domestic partnerships” since 2004. The distinction between terms was more than semantic. Under the new civil union law (similar to those of other states), couples gained the rights to adoption and child custody, as well as the right to visit a hospitalized partner and/or make medical decisions on behalf of that partner. They also gained the right not to testify against a partner in state court (parallel to state rules of evidence regarding marital or spousal privilege). However, because the federal gov- ernment and most states do not recognize civil unions or marriages between same-sex partners, a surviving member of such a union would not be entitled to a deceased partner’s SOCIAL SECURITY benefits and/or other federal or state privileges or rights regarding survivorship or inheritance, for example. One partner might not have automatic visitation rights if the other partner were hospitalized in one of these states. Artificial Conception and Surrogate Mother- hood Modern technology has created opportu- nities for conceiving children through ARTIFICIAL INSEMINATION , in vitro fertilization, and embryo transplantation. Combined with these techniques is the practice of SURROGATE MOTHERHOOD.These new techniques have also created legal questions and disputes new to family law. The most important legal question goes to the child’s status, which encompasses the child’s rights against, and claims on, the various actors in the child-bearing scenario. These actors GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 348 FAMILY LAW . GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FAMILY LAW 343 The division of marital property has also undergone. they do not comply fully. State laws must provide for the imposition of liens GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 346 FAMILY LAW against the property of those who owe support. Unpaid. Alberto figures out the scam, and Reba runs off. No GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 340 FALSE PRETENSES transfer of title has occurred, because the state’s laws require possession in addition