CFS 4052 Lecture Notes - Lecture 9: Legal Guardian, In Loco Parentis, Equal Protection ClauseExam
DepartmentChild and Family Studies
Course CodeCFS 4052
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Exam 2 Terms
1. Parens Patriae – a very limited paternalistic power to protect or promote the wellbeing of certain citizens
who lack the capacity to act on their own behalf or in their own best interests; namely, children and people
who are mentally “incompetent.”
2. In loco parentis – to stand in place of parents as a decision making agent for the child; usually a role taken
on by the courts or in some cases, delegated by the parents to another entity.
3. Guardian ad litem – court appointed advocate for the child, to protect and insure the child’s wellbeing
4. PINS/FINS – person in need of support/family in need of support – a person or a family in need of state
supervision because of their status as a minor (PINS) or because of deficiencies/concerns about their behavior
5. “mature minor” – usually a status declared by the court to support the court’s decision to side with a minor
against the wishes of the parent or guardian
Exam 2 Discussion Questions
1. Write a brief summary of the highlighted cases, describing why they are important generally to our
understanding of marriage, family, or family life; describe why or how the equal protection clause and/or
the due process principles were invoked in deciding the case.
The following Supreme Court rulings are important in helping us understand marriage, family, and
family life. These important case rulings include: Moore vs. City of East Cleveland in 1977, Griswold vs.
Connecticut in 1965, Loving vs. Virginia in 1965, and Zablocki vs. Redhail in 1978. Moore vs. City of East
Cleveland in 1977 shows what the Court protects as a family relationship. The Court favored the woman who
was sued for breaking the law, because she was living with her two younger first cousins and this was not
defined as a family by the state of Ohio. The Supreme Court declared this law arbitrary violating the
substantive due process clause, because it did not violate the public’s health or safety. The Supreme Court
ruling of Griswold vs. Connecticut in 1965 showed the Court’s view on privacy within a family. When a doctor
was arrested for providing a woman with contraception, the Court reversed the jurisdiction, declaring it a
privacy right. The Supreme Court case ruling of Loving vs. Virginia in 1965 demonstrates the Supreme Court’s
view on people of different races and ethnicities marrying. The Court did not agree with the state of Virginia,
because they were violating the Equal Protection and Due Process clauses by prohibiting the Lovings from
their fundamental right of marriage just because they were of different races. In the Supreme Court case
ruling of Zablocki vs. Redhail in 1978, the court declared needing orders to marry is unconstitutional, because
prohibits a person to exercise their fundamental right of marriage. The man could not obtain an order from
the court to marry, because he was not paying child support for his illegitimate child, but this was deemed
The Supreme Court ensures people are able to exercise their fundamental right to marry without any
barriers or obstacles in the way, including orders from the court, policies against race and ethnicities. The
Supreme Court also ensures a sense of privacy for women and families, allowing them to use contraception as
a legal means. Lastly, the Supreme Court acknowledges their definition of family does not have to mean just
biological ties to one another, but also people can be seen as a protected family relationship if they are a
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potential child relationship, cohabitate together, are permanently and formally committed to one another,
and psychologically support one another.
2. Describe and discuss briefly the early legal assumptions about the family in American Society. How did
our changing views of family life, captured in the Burgess definition of the family, represent a shift from
those early assumptions toward a "parting of the veil" on family life?
The legal early assumptions about the family in American society include intrafamily tort immunity,
husband and wife are one, mother and child are one, a private, confidential nature of home and family,
marriage and family are “confidential conversations,” childhood is a special state of existence, adolescence is a
time of “storm and stress,” and due to “original sin” of children, parents owe them discipline. The first legal
early assumption about the family in American society is the idea of intrafamily tort immunity. This means
that members of a family could not hold their own family members liable of dangers. Any damage done
within the family by its members would not be held liable. However, this has changed and family is not
viewed as a veiled separate entity. Today, children and parents can sue each other for damage or harm done
to one another.
The second legal early assumption about the family in American society is the idea husband and wife is
one. They were seen as one, but under the husband. The husband made all of the decisions. Women did not
need the right to vote, because they would have been forced to vote the same as their husbands. This began
to change when the Married Women‘s Property Act was passed giving women control over any property they
brought into the marriage.
The third early legal assumption is the idea that woman and child is one. The mother and child were
seen as bonded in a way that the child could never be separated from the mother. It was also assumed the
mother would never harm the child, because it would be the same as if she was harming herself since they
were seen as one. During this time, the mother was always seen as the custodial parent, the “tender years”
doctrine, but now we use the “best interest of the child” principle to determine the custodial parent.
The fourth early legal assumption is the idea that there is a private, confidential nature of home and
family and marriage and family are viewed as “confidential conversations.” The idea that marriage is a
“confidential conversation” means if the husband was to commit a crime, the wife cannot be forced to testify
against him. The husband can confess anything he wants to his wife, and the wife cannot be forces to testify
against him. This is where the concept of “pillow talk” derived.
The fifth early legal assumption of families is the idea that childhood is a special state of existence.
This idea means that the Court recognized someone as an adult or a child. There was no in between age. A
child was seen as unable to make decisions, so they cannot marry or make contracts. Children were viewed as
not knowing what was happening in the world, so parents had to make all of their decisions for them. Parents
were believed to be nurturing and sacrificial and do what is best for the child at all times.
The sixth early legal assumption is the idea that adolescence is a time of “storm and stress.” This idea
came in the 1920s when we realized there was a transformation period of development in between childhood
and adulthood. This period of time is a tumultuous and detrimental one. Adolescents were described as the
state our nation was in after World War I, which affected the way people view adolescents now.
The seventh early legal assumption is the idea that parents owe children discipline because of
children’s “original sin.” It was believed children came out of the womb not knowing what was right and
wrong, so had to beat them and discipline them however they wanted to teach them. Today, we view infants
and children as innocent, but they were not viewed this way before.
By the 1930s, the veil was slowly parted on family life and realized these assumptions were not true.
This is the time when women’s rights were affirmed. The courts recognized family members could hurt one
another and it is not a sacred private entity all the time, ridding of the intratort immunity. Developmental
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scientists distinguished more between childhood and adolescence, noting them as two different distinct
periods of life. Discovered it is a process to become an adult and it does not happen overnight. We slowly
become more sophisticated in our decision making skills. The court also realized within families there are
individuals and they have their own rights too. As in Burgess’ definition of family as, “a group made up of
individual, interacting personalities.” This began the shift to the modern day view of the family.
3. The Courts have declined to define family but have given us several indicia of the boundaries or
characteristics of relationships likely to receive protected status. What are the characteristics of protected
relationships? Describe and discuss.
Even though the Courts do not explicitly define what a family is, they define what relationships they
will protect. The criteria for relationships the Courts will protect indicate how they view traditional families.
Each separate criteria is not sufficient enough to define a protected relationship as a family. It is the
combination of these characteristics that helps the Court define what a family is. The criteria for protected
relationship according to the Courts includes: biological relationship, potential parent-child relationship,
cohabitation, and psychological support and involvement. The Court will protect a relationship that does not
have a biological relationship present, meaning the people are not already related by blood to each other.
Also, the Court will protect relationships in which there is a biological tie between the parent guardian and
child, but this criteria is not sufficient enough for either instance. Two people can be not biologically related
and live together, but not be a family. They could be just roommates. Also, a parent could have a biological
tie to a child, but not actually support, nurture, or care for the child. Parents of an adopted child could also be
seen as a family, but they are not biologically tied to them, so this criterion alone is not sufficient.
The next criteria of protected relationships of the Court, the potential parent-child relationship, means
families in which the grandparents were acting as the parents were protected. This characteristic was used to
eliminate homosexuals as a protected relationship, because they could not bear children. However, now this
is not sufficient enough, because the Court protects relationships in which families do not or cannot have
The Court will also protect people are who cohabitating as protected relationships. However, this
piece of criteria is not sufficient enough on its own, because friends could cohabitate together, so the
evidence a shared home is not enough. The criterion of cohabitation includes all of the following ideas: a
shared living arrangement, economic cooperation between the spouses, and sexual relations between the
The Court protects relationships of permanence and formal commitment. A formal commitment
indicates permanence, which in turn, implies stability, psychological support, and security. The Court does not
protect relationships in which people marry just to prevent someone from being deported. They want the
people in the relationship to have the intent to stay together and make a family. In order to show
permanence and commitment, the couple must show a merge of bank accounts, a newly established
residence, or changing of last names.
The last criterion the Court looks for to protect a relationship is psychological support and involvement.
This criterion means the spouses are intimate, stable, and care for one another. This criterion is the most
open one of the five because it is not sufficient enough to protect foster family relationships. Each one of
these characteristics alone do not define what a family is or what if the Court would protect the relationship.
It is the combination of all of these criteria that helps the Court to see the protected relationship as a family.
4. Name and discuss at least 5 conditions or requirements for marriage currently in place in most states.
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