themes in family law. who regulates: state vs. federal law why regulate: goals of family law how...

THEMES IN FAMILY LAW

WHO Regulates: State vs. Federal Law

WHY Regulate:Goals of Family Law

HOW to Regulate: Discretion vs. Rules

LIMITS on Regulation:

WHO: STATE vs. FEDERAL

• State: Family Law Traditionally Matter of Local Law (Divorce,

Alimony, etc.)

• Federal: Since 1970’s, Trend Toward Increasing

Congressional/Federal Regulation of Family (Child

Support, Child Custody, Domestic Violence)

WHY: What Are The Goals Of Family Law?

GOALS: Moral, Social, Economic

1. Preserve/Stabilize Families: Importance of Family Unit in Society

2. Protect Vulnerable Members

Children

Victims of Abuse

3. Protect State from Economic Burden

HOW: BROAD DISCRETIONARY STANDARDS vs. FIXED RULES

Examples: CHILD CUSTODYDiscretion: Best Interest of Child

(custody & visitation of children)

Rule: Primary Caretaker/Joint CustodyPres.

(custody & visitation of children)

CHILD SUPPORTDiscretion: Ability To Pay & Needs of

Children(child support)

Rule: Formula Based On Income & Number of Children

Limits On What Law Can Do

• U.S. Constitution Amendment XIV July 28,1868: Section 1. …No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

1) Doctrine of family privacy/autonomy: law cannot interfere with family unless threat of harm

Decisions about minor children~ school~3rd party visits

Limits, cont’d

2) Law cannot discriminate based on gender

• U.S. Constitution: Equal Protection Clause• Maryland Constitution, Article 46, November

7, 1972: Equality of rights under the law shall not be abridged or denied because of sex.

• Laws preventing men from receiving alimony; laws making age to marry different for men and women

How to Implement Laws

• Inadequate supply of free or low cost legal assistance

• Access to lawyers limited: increase in pro se (without lawyers) litigants

• Family law cases largest part of civil caseload in state courts

Domestic Relations: A Quickly Growing Caseload in State

Courts

Note: Not shown are 16% of cases in "other" categorySource: State Court Caseload Statistics Annual Report 1992 (February

1994) involving data from 27 state courts, from Amy Stevens, The Business of Law: Lawyers and Clients; More Than Just

Torts, Wall St. J., July 1,1994, at B6.

0 0.05 0.1 0.15 0.2 0.25 0.3 0.35

Percentage of Total Caseload

Domestic Relations

Contract

Small Claims

Tort

Estate