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