Grafton High School Constitutional and Jurisdictional Framework Questions

1. Some modern day “federalists” promote greater uniformity of state laws, particularly in areas of sexuality, marriage, and family. What would be the pros and cons of having a single system of family law in the United States? In what ways could a uniform system of family law increase or decrease personal autonomy?

2. Two individuals can be married in one state but be divorced in another. Unless the parties have contracted otherwise, the state of the divorce determines the terms of separation, such as property division and spousal support. The parties obviously agreed to the state jurisdiction for their marriage, but they do not always select the same state for a divorce. What arguments might be advanced, or not, for the position that the state for the divorce should use the divorce laws from the state of the parties’ marriage?

3. In compliance      with the standards of due process, all courts require some form of notice      to the defendant in all legal cases. Divorce allows service by publication      if the filing party has attempted other methods first and files a sworn      statement that the defendant’s current whereabouts are unknown.      Publication frequently occurs in a small, local newspaper that a defendant      is not likely to read. Consider the reasons why courts have determined      that this is legally adequate. What alternatives, if any, might be used to      give notice when the defendant in a divorce case cannot be easily located?

Help me answer these three questions and only use Chapter 11 to help you answer these questions which I attached down below. Do not use anything else or any other sources.

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Help me answer these two questions and only use Chapter 12 to help you answer these questions which I attached down below. Do not use anything else or any other sources.

1. Family law has embodied a progression of changes, including the end of sex bias in awards of support and custody and the end of race bias in marriage regulation. In many ways, these changes are congruent with changes in the law outside of family law issues. For example, changes in employment law—to guarantee equal opportunity and equal pay—have matched those in family law. Is there any basis for the legislature and/or the courts to use a different standard of sexual equality in employment than in family law? For example, is there any lingering justification for considering sex of the litigant in a custody or spousal support dispute but not in a labor market dispute, or vice versa? Can the race of the child and adoptive parents be considered in adoptions without violating the Equal Protection Clause?

2. Children can be exploited and yet receive monetary compensation through Internet and television exposure. What are the advantages, if any, of keeping decision making regarding such exposure with the parents? What are the advantages and disadvantages of removing some of these choices from parents and imposing government regulation? How might we develop a rubric by which to determine when government intervention is superior to parental control?

Copyright 2015. Aspen Publishing.
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ohn hired an attorney in Connecticut to help him divorce his wife, Annie. John and Annie had been married
for ten years, but they had lived together for only five years of that time. At the time of separation, Annie
had immediately moved back to her home state—Kentucky. John said there were no issues of support or
property division—they had settled all of those issues five years earlier and neither needed anything more
from the other. They had no children.
J
John’s attorney started the divorce process in Connecticut, filing in the local court and then sending notice of
the proceedings to Annie in Kentucky. Annie agreed to cooperate and sent back her signed certification that she
had indeed received notice of the legal proceeding. John’s attorney filed this document with the court. She then
moved forward in the case, drafting the final paper work and preparing for the short, but necessary, courtroom
proceeding.
Prior to the finalization, Annie contacted John’s attorney. “I think we may already be divorced,” she said. She
added that she vaguely recalled that she had processed a divorce in Kentucky, using service by publication
because at that time she and John were temporarily out of touch. She promised to call back when she knew
more. A few days later, a letter arrived. Annie had found a copy of the divorce decree issued by the Kentucky
court. In her haste to cooperate with John, she had forgotten they were actually divorced already.
John’s legal fees remained the same—even though his attorney’s efforts had been superfluous.
Nathan was determined to get Beth, the mother of his children, to pay child support. He lived in Virginia and she
lived in California. The children had been born in Virginia and Beth had been a lifelong Virginia resident prior to
her move to California one year earlier.
His attorney filed a petition for child support in a Virginia court and Beth hired an attorney who appeared on
her behalf in the first court hearing. The attorney
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had previously discussed the case with Nathan’s attorney and the sole issue appeared to be the amount of
support.
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At the hearing, the trial court judge, on her own, raised the issue of jurisdiction over Beth. She questioned
whether the court could litigate this issue without personal jurisdiction over the respondent. Although Beth, the
respondent, had hired an attorney to represent her at the hearing, she had not filed any court document
submitting to the court’s jurisdiction.
The judge asked each attorney to write a memorandum of law on the jurisdictional issue. At the next court
hearing, the court agreed with Nathan’s attorney that, besides the children’s presence in the state with the
knowledge and consent of the respondent, Beth had sufficient contacts on her own with the state of Virginia to
support personal jurisdiction there. Therefore, it was not a denial of due process for a Virginia court to litigate the
support issue. The court then fixed an amount of child support and forwarded the support order to California for
enforcement.
THE IMPACT OF THE CONSTITUTIONAL FRAMEWORK ON
FAMILY LAW POLICY
Throughout this book, court cases and articles have referenced, both directly and indirectly, the zones of power held
by the federal and state governments to regulate family law. For example, laws from a variety of states have
illustrated the choices that legislatures can make when setting the legal rules for marriage, divorce, support, or
curtailment of violent behaviors within intimate partnerships. In accord, the Supreme Court has accepted some
questionable state laws—the sterilization law in Buck v. Bell and the protection of the family unit in Michael H. v.
Gerald D.—because a majority of Justices did not find a violation of any constitutional provision.
In contrast, other Supreme Court cases, such as Loving v. Virginia, Palmore v. Sidoti, Griswold v. Connecticut,
and Planned Parenthood v. Casey, demonstrate the opposite: Sometimes the federal Constitution places limits on
each state’s regulatory powers. In this chapter, the principles that divide states’ rights and federal power are
examined more fully. However, this division is only part of the story. Despite exercising their state right of sovereign
independence, states have an interest in common and mutually beneficial legal rules across state lines. The federal
government can also use its enumerated powers to increase interstate cooperation.
Federalism and Government Structure
The terms federal government, federalist, and federalism are related, but each has a distinct role to play in the
study of our constitutional democracy. The first term, federal government, is probably the most understood. It refers
to the centralized government powers that exist in our national legislature, our national executive branch, and our
federal judiciary, including the U.S. Supreme Court. Beyond
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these three branches, the definition of federal government includes all federal agencies and the U.S. military.
The term federalist, along with its partner, anti-federalist, has historical significance. When the colonists were
drafting the documents that would shape our country in the late 1700s, there was intense debate about the structure
of the new government. The first constitutional document, the Articles of Confederation, had some deficiencies,
notably the lack of any substantive centralized governing power. While the delegates framed a second
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constitution—which is our current constitution—they debated the crucial question of how to divide power between
the new, centralized government and the already-existing state governments. Federalists promoted a strong
national government and wanted the Constitution to favor the new federal government. In contrast, anti-federalists
favored strong state sovereignty as well as some degree of popular sovereignty, which is the power of the people
themselves.
The term federalism relates to this formative ideological battle, but denotes the conclusion of this debate over
sovereignty in a more neutral manner. At its core, federalism simply means we have established a governing
system of multiple sovereign powers. Both federalists and anti-federalists won valuable victories in developing the
structure of the current Constitution: The national government and state governments each have powers
independent of the other. Modern day federalists and anti-federalists, who sometimes argue for exaggerated powers
of either the federal government or state entities, can misunderstand this finely tuned power division that gives some
regulatory dominance to both categories of sovereigns.
In theory, the Framers of the Constitution gave the national government limited powers. They listed federal
legislative powers primarily in Article I, sections 8 and 9, and expressly limited states’ powers in just a few areas.
Traditionally, court decisions have noted that the federal government is one of express, or enumerated, powers. The
Constitution’s “necessary and proper” clause does not add new power; it simply presumes that mechanisms exist for
government implementation of the enumerated federal powers.1
The Supremacy Clause creates additional confusion for modern day “federalists.” Article VI states that “[t]his
Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or
which shall be made, under the authority of the United States, shall be the supreme law of the land.” There is a
common misunderstanding that this provision makes all federal law supreme over state law. However, this
interpretation depends on deleting the clause’s limiting proviso that requires federal laws to comply with
constitutional restrictions. These restrictions include the limited nature of explicit federal regulatory powers and the
expansive catchall nature of state sovereign power. Furthermore, even if federal laws pass the first test by being
solidly based on an enumerated
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federal power, valid federal laws do not always preempt state laws that address similar policies and social concerns.
2
The Tenth Amendment to the Constitution further clarified the meaning of the Supremacy Clause of Article VI. As
previously described, at the time the original states were ratifying the new Constitution, there were concerns about
the appropriate division of power between federal and state governments. The solution—devised to pacify the public
at large but particularly the anti-federalists—was to promise further clarification. Within two years of ratification, ten
amendments, known as the Bill of Rights, were also drafted and ratified. The Tenth Amendment confirmed state
sovereignty. It states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people.”
State Police Powers
State regulatory power, known as state police power (or state police powers), is the state’s ability to govern and to
regulate for public health, safety, law and order, and general welfare. Originally, this list would have included
morality within a state’s zone of regulatory power. Today, the historical inclusion of morality has fallen away because
in many areas of our lives there is no unifying consensus on behavioral morality.
Morality is no longer a stand-alone category in the litany of state police powers. Nevertheless, ethical concepts
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still underlie some of what remains in the domain of police powers. For example, the category of law and order
regulates thefts, assaults, and murders, behaviors that are both criminal and, by popular consensus, immoral. In
contrast, behaviors involving birth control, some sexual practices, and personal choices—use of particular words or
clothing styles, for example—might have come under state regulation in the past but not today. Some formerly
regulated lifestyle choices do not continue to coincide sufficiently with public safety or health. Moreover, federal
constitutional claims of personal autonomy have further weakened, or in some instances eliminated, state laws that
were based solely on moral stances and not sufficiently linked to health, safety, or law and order.
The Federal Government’s Role in Family Law
The historical record and our written Constitution demonstrate the primacy of the states in family law. It is impossible
to deny, however, the extensive influence of the federal government. Although state police powers encompass
family law, Congress can regulate family law in federal territory. This means the federal government has some
degree of “police powers” over the District of Columbia,3 military bases, and all
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p. 447
federal lands. For example, in the landmark case Reynolds v. United States, the Supreme Court examined a
federal, not a state, law banning polygamy. The federal establishment of marriage entry laws—a subject normally
outside of federal government power, was appropriate because it applied only to those residing in federal territory.
In 1878, the area we now know as the state of Utah was not yet admitted to the union and thus federal laws
governed the day-to-day activities typically left to a state’s sovereign regulatory powers.
The federal government has also passed domestic relations legislation pursuant to its commerce power and
launched family-related programs pursuant to its spending power. For example, divorce decrees with support orders
now contain many federally mandated provisions related to the collection of that support. These federal
requirements were enacted pursuant to federal welfare legislation that fell within federal spending power. If the
states want federal welfare benefits to flow to recipients in their territory, their support orders must contain
information that maximizes the potential for collecting their support money from the absentee parent.
The federal Defense of Marriage Act (DOMA) originally existed in two parts. The first, 1 U.S.C. §7, defined
marriage as between a man and a woman for purposes of federal law. This provision was declared invalid in United
States v. Windsor (2013), previously discussed in 28 U.S.C. §1738C, specifies that no state is required to give full
faith and credit to the same-sex marriage of another state. Arguably, this provision may also violate the Constitution.
Congress enacted it pursuant to Article IV, Section 1, which appears to give Congress the ability to legislate some of
the terms of the Full Faith and Credit Clause, but it is not clear whether this authority would save it from due process
or equal protection challenges.
The U.S. Supreme Court can regulate provisions of family law because all government actions—including all
state laws on marriage, divorce, and related matters—must comport with constitutional rights. State laws must be
congruent with due process and equal protection and comply with the precedents that define our rights of personal
autonomy and free exercise of religion. States have an elaborate range of options for regulating family law under
their state police powers, but the Court’s decisions delineate the constitutional boundaries for legislative choices.
The amendments to the Constitution, which govern the relationship between the government and its people,
delineate requirements and pose restrictions. In contrast, congressional controls over the states’ family law systems
emanate primarily from its power to spend money, which enables the federal government to cajole states into
compliance with its federal programs.
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RAMIFICATIONS OF STATE REGULATORY POWER
Diversity of Laws
The federalist approach to governing creates, at least in theory, the potential for 51 different systems of family law:
one for each state and one for the District of Columbia. The people of each state, through their legislature, can
develop any set of values and operational approaches so long as these do not conflict with any constitutional
requirement or restriction. Any federal legislative initiative based
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p. 448
on an offer of federal spending is usually too enticing for a state to reject, but rejection is constitutionally permissible.
The states’ choices span a wide variety of topics. A partial list would include marriage entry rules, grounds for
divorce, custody and support determinations, abortion regulation (within the criteria established by Supreme Court
cases such as Planned Parenthood v. Casey), adoption and assisted reproductive technology laws, and definitions
of child neglect and abuse.
Despite each state’s sovereignty, state legislation does not exist in isolation. Spouses can marry in Nevada and
get divorced in Florida; a Hawaiian court can issue a child support order that is enforced in New York; a same-sex
couple married in Massachusetts may move to Virginia, a state that does not currently offer such marriages; and so
on. State law makers and judges recognize that regulatory independence contributes to inconsistencies,
inefficiencies, and weak enforcement. A highly mobile population can seek recognition and/or enforcement of one
state’s judicial orders or a legal status conferred in another state and each state’s legislators recognize the need for
interstate cooperation.
These interstate issues lead to pragmatism and some coalescing around bigger themes. At the international
level, these cross-jurisdictional issues would be evaluated under the concept of comity. The term comity refers to
the international custom whereby one government respects and assists another government in the enforcement of
its laws, each government relying on the pragmatic payback of reciprocity. For example, in the field of criminal
justice one jurisdiction—a state or a nation—might extradite an individual for prosecution in another jurisdiction.
The term reciprocity, as opposed to comity, more commonly describes state-to-state interactions. Reciprocity
denotes the cooperative nature of states respecting each other’s orders. Although each state seeks to protect its
own sovereign choices, mutual interests also compel each jurisdiction to have some degree of respect for the rules
of other equally sovereign states. Perhaps Florida issues a custody and child support order in 2010, but the parent
and child immediately move to the state of Georgia. Should Florida be the litigation forum for a change in custody,
visitation, and support because the non-custodial parent has remained there? Alternatively, can Georgia now litigate
the issue because this is where the custodial parent and child are now living? Moreover, which state’s rules will
control the outcome—should the support rules of Florida or Georgia prevail? Our governing scheme of federalism,
combined with a highly mobile population, make these questions commonplace in the field of family law.
Beyond comity and reciprocity, state legislatures have frequently invested in a third path—the enactment of
uniform laws. There are several paths to uniformity, but all are voluntary. First, there are a variety of legal groups
that formulate model laws. They then present these models to the fifty states as viable and valuable options for
legislative enactments. Groups that propose model laws might be national, formalized associations or state bar
groups, non-profit groups, or anyone interested in the legal issue. A model law is just that, a model, a proposal for
law makers to consider. If it is a good model, if it responds to problems in existing laws or effectively addresses
societal and jurisdictional problems, legislatures may indeed adopt it. However, until that point in time, a model law
is not law at all. It is only a
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formulation of a solution waiting for some state, and ideally multiple states, to adopt.
These same groups can move beyond modeling to direct advocacy of uniform laws across all jurisdictions. For
example, the National Conference of State Legislatures is a non-profit group that formulates laws in key areas of
policy implementation and enforcement.4 The group does not necessarily produce uniform laws dealing with
substantive family law issues, such as who can be married or the grounds for divorce. Instead, uniform laws in the
area of domestic relations tend to be more focused on preliminary matters, such as which state has jurisdiction, as
well as follow-up details such as which state can modify an existing order, and enforcement issues that determine
when and how another court’s order should be implemented. For example, notable uniform laws include the Uniform
Interstate Family Support Act (UIFSA),5 the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),
and the Revised Uniform Reciprocal Enforcement of Support Act (RURESA).6
States can initiate uniformity and reciprocity, but federal laws and Supreme Court decisions work toward those
same goals. Federal laws that require a quid pro quo—the passage of certain state laws in return for receipt of
federal money—usually create national conformity. Congress used its Commerce Clause power and the Full Faith
and Credit Clause to enact the Parental Kidnapping Prevention Act,7 which pushed states toward cooperation in
child custody cases.
Supreme Court decisions on constitutional rights bind states to universal principles, even if the legislative details
remain unique for each jurisdiction. For example, the Supreme Court’s decision that abortion access is a
constitutional right prior to fetal viability still allowed state regulations that did not severely interfere with a woman’s
right to choose to terminate an early stage pregnancy. Therefore, states have enacted a variety of abortion
regulations that arguably—but not always convincingly—fit within this rule of being a “regulation that is not an undue
burden” on the right to choose.
Limitations on Federal Court Jurisdiction
Family law disputes routinely begin in state courts. The controversies may progress to the U.S. Supreme Court, but
they generally travel initially through state courts, not federal courts, even when the litigants assert federal
constitutional rights. Federal judiciary power is defined in the Constitution to “extend to all Cases, in Law and Equity,
arising under this Constitution, [and] the Laws of the United States.…” The U.S. Supreme Court’s jurisdiction is
“original” in only a few instances, as enumerated in the Constitution. Original jurisdiction means that the Court acts
as an original trial court for adjudicatory purposes, hearing witnesses and taking
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ANKENBRANDT V
U.S. SUPREME C
504 U.S. 689 (19
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After concluding that a federal trial court could
hear the case, the Supreme Court examines
whether there are other reasons the lower court
should refrain, or abstain, from exercising its
power.
Knowledge and Analysis
1
The Court suggests that once a court has
jurisdiction, it should only rarely refrain from
adjudicating the case based on the concept of
federal abstention. The opinion notes that respect
for state policies is integral to the abstention
doctrine. Notably, in diversity of citizenship cases, the federal court uses federal procedural rules along
with the applicable state’s substantive laws that govern family law issues. Even in federal question cases,
the federal court must also use any applicable state law in addition to the federal law procedural
principles. Under this dual approach, a federal court’s exercise of jurisdiction maintains respect for state
policies.
The domestic relations exception suggests that federal courts should decline to hear family law
cases despite constitutional authority to decide
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p. 453
cases that have federal law questions or diversity of citizenship along with sufficient dollar amounts in
controversy. The Court references five factors as it considers whether the case can be heard in a federal
court: case precedent, the Constitution, Congressional action/inaction, enforcement and monitoring
concerns, and comparative judicial expertise.
How effectively does the Court explain the basis for the domestic relations exception to federal
court jurisdiction? In what ways is the explanation based on legal principles, practical considerations, or
something else entirely? What other arguments, if any, might be made to support federal abstention in this
case?
2
Legal scholars frequently cite three reasons for filing in federal rather than state courts under diversity
jurisdiction. First, the case may progress more quickly because federal courts rarely have the backlogs
seen in many state systems. Second, because federal judges are appointed for life and jurors are often
selected from a wider area than the local community, the judge and/or the jurors may be qualitatively
superior. Third, occasionally the federal procedural rules may be beneficial to one party or the other
compared to the state procedural rules. These reasons may not apply in all cases, however, and the case
opinion does not indicate why Ankenbrandt filed in federal court.
How might these three reasons be ranked as good bases for a federal court to exercise jurisdiction
rather than following the abstention doctrine?
ACCESS TO COURTS
Financial Limitations
In the next case, Boddie v. Connecticut, the Supreme Court must resolve the most basic of questions: whether poor
people can access the courts to obtain a divorce without paying the required filing fees. This may appear at first to
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involve an equal protection argument, but equal protection principles do not always address issues of opportunity
based on financial status. Notably, even in federal bankruptcy cases, bankrupt individuals must pay the court filing
fees, and exemption from this obligation is exceptionally rare.
Each state sets its own courthouse filing fees for initiating a divorce. In addition to this fee, there may be
additional expenses, such as paying for service of process on the defendant, costs associated with discovery
motions, and, in some states, fees for filing responses to any of the above. These costs are in addition to any
attorneys’ fees. In most jurisdictions, legal aid groups provide some pro bono attorneys to help those who fall below
a designated income level. This free service, however, does not include the kind of court costs that Boddie
questions in the next case. The $60 fee may appear de minimis today,
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p. 454
but poor litigants in 1971 may have found it a formidable sum. For comparison, today’s divorce filing fees are
commonly over $400.10
The courthouse fee issue shares a common foundational theme with the Loving v. Virginia case and current
issues of same-sex marriage: All three demonstrate the state governments’ monopoly of power over marriage and
divorce. No one can get married contrary to state laws and no one can end a marriage without access to the
machinery of government, in this instance the judicial branch.
As discussed in earlier chapters, marriage originated as a venture to maximize individual survival and societal
well-being. Governments and religious institutions joined in promoting and monitoring marital unions. For some
people, marriage remains intricately connected to their religion. However, religious institutions have no genuine
impact on the legalities of marriage. Marriage is solely a creature of government. Entry into marriage and the
termination of a marriage can only occur when government decrees it. In the Boddie case, the plaintiffs are asking
for the right to access this government-controlled process despite their inability to pay the required fees. The Court
answers that request by invoking due process principles.
BODDIE V. CONNECTICUT
U.S. SUPREME COURT
401 U.S. 371 (1971)
Mr. Justice Harlan delivered the opinion of the Court.
Appellants, welfare recipients residing in the State of Connecticut, brought this action in the Federal District Court
for the District of Connecticut on behalf of themselves and others similarly situated, challenging, as applied to them,
certain state procedures for the commencement of litigation, including requirements for payment of court fees and
costs for service of process, that restrict their access to the courts in their effort to bring an action for divorce.
It appears from the briefs and oral argument that the average cost to a litigant for bringing an action for divorce is
$60.…An additional $15 is usually required for the service of process by the sheriff, although as much as $40 or $50
may be necessary where notice must be accomplished by publication.11
There is no dispute as to the inability of the named appellants in the present case to pay either the court fees
required by statute or the cost incurred for the service of process.…
Assuming, as we must on this motion to dismiss the complaint, the truth of the undisputed allegations made by
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the appellants, it appears that they were unsuccessful in their attempt to bring their divorce actions in the
Connecticut courts, simply by reason of their indigency.…
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p. 455
We now reverse. Our conclusion is that, given the basic position of the marriage relationship in this society’s
hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship,
due process does prohibit a State from denying, solely because of inability to pay, access to its courts to individuals
who seek judicial dissolution of their marriages.
At its core, the right to due process reflects a fundamental value in our American constitutional system. Our
understanding of that value is the basis upon which we have resolved this case.
Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and
enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern
their affairs and definitively settle their differences in an orderly, predictable manner. Without such a “legal system,”
social organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts
individuals are capable of interdependent action that enables them to strive for achievements without the anxieties
that would beset them in a disorganized society. Put more succinctly, it is this injection of the rule of law that allows
society to reap the benefits of rejecting what political theorists call the “state of nature.”…
As this Court on more than one occasion has recognized, marriage involves interests of basic importance in our
society.…[W]e are unaware of any jurisdiction where private citizens may covenant for or dissolve marriages without
state approval. Even where all substantive requirements are concededly met, we know of no instance where two
consenting adults may divorce and mutually liberate themselves from the constraints of legal obligations that go with
marriage, and more fundamentally the prohibition against remarriage, without invoking the State’s judicial
machinery.…
Prior cases establish, first, that due process requires, at a minimum, that absent a countervailing state interest of
overriding significance, persons forced to settle their claims of right and duty through the judicial process must be
given a meaningful opportunity to be heard.…
Just as a generally valid notice procedure may fail to satisfy due process because of the circumstances of the
defendant, so too a cost requirement, valid on its face, may offend due process because it operates to foreclose a
particular party’s opportunity to be heard. The State’s obligations under the Fourteenth Amendment are not simply
generalized ones; rather, the State owes to each individual that process which, in light of the values of a free
society, can be characterized as due.
Drawing upon the principles established by the cases just canvassed, we conclude that the State’s refusal to
admit these appellants to its courts, the sole means in Connecticut for obtaining a divorce, must be regarded as the
equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of their marriages,
and, in the absence of a sufficient countervailing justification for the State’s action, a denial of due process.…
We do not decide that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by
the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of
any individual for, as we have already noted, in the case before us this right is the exclusive precondition to the
adjustment of a fundamental human relationship. The requirement that these appellants resort to the judicial
process is entirely a state-created matter. Thus we
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p. 456
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hold only that a State may not, consistent with the obligations imposed on it by the Due Process Clause of the
Fourteenth Amendment, pre-empt the right to dissolve this legal relationship without affording all citizens access to
the means it has prescribed for doing so.
Mr. Justice Black, dissenting.
…It is not by accident that marriage and divorce have always been considered to be under state control. The
institution of marriage is of peculiar importance to the people of the States. It is within the States that they live and
vote and rear their children under laws passed by their elected representatives. The States provide for the stability
of their social order, for the good morals of all their citizens, and for the needs of children from broken homes. The
States, therefore, have particular interests in the kinds of laws regulating their citizens when they enter into,
maintain, and dissolve marriages.…
The Court here holds, however, that the State of Connecticut has so little control over marriages and divorces of
its own citizens that it is without power to charge them practically nominal initial court costs when they are without
ready money to put up those costs. The Court holds that the state law requiring payment of costs is barred by the
Due Process Clause of the Fourteenth Amendment of the Federal Constitution. Two members of the majority
believe that the Equal Protection Clause also applies.…
Civil lawsuits, however, are not like government prosecutions for crime.…There is consequently no necessity, no
reason, why government should in civil trials be hampered or handicapped by the strict and rigid due process rules
the Constitution has provided to protect people charged with crime.
Knowledge and Analysis
1
The Court majority says the state is exerting “monopolization of the means for legally dissolving this
relationship” and defines the divorce process as “the adjustment of a fundamental human relationship.”
Based on this concept of state control, the Court decided that indigents are not obligated to pay the usual
court costs for obtaining a divorce. However, it does not define or delimit indigency.
What framework should a state use when determining who fits the legal definition of indigency?
Should it mirror the right to appointed counsel standard in criminal cases? Should there be a uniform rule
for the entire state, or should the monetary cutoff be different for city, suburban, and rural residents?
Which approach would most comport with constitutional concerns of equal protection and due process?
p. 456
p. 457
2
Justice Black makes a constitutional distinction between civil and criminal cases. He opines that states
should be able to choose to waive the divorce filing fees for poor people, but no provision of the
Constitution permits the Court to mandate that a state court waive the fees.
If Justice Black’s opinion had been the majority view of the Court, what other avenues of financial
assistance, if any, might be developed to help poor people seeking a divorce?
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Choosing the State Court
In contrast to Ankenbrandt, where the U.S. Supreme Court compared federal and state court access, Hopper v.
Hopper is a state court case that compares the jurisdiction of two states. The mother’s motive in moving to Montana
and using the state’s courts began with her interest in being closer to family members in her home state. This may
appear benign, but the choice of forum can have significant legal consequences. According to the majority of judges
in the Idaho Supreme Court, her move from Idaho to Montana and her subsequent use of the Montana legal system
had a substantive and negative impact on the rights that the father’s had in Idaho.
Litigants with a choice of available jurisdictional options can choose a particular court system in a process known
as forum shopping. This is what Ankenbrandt did in the preceding section—she chose a federal court rather than
the courts of either Missouri or Louisiana. In the next case, Suzanne Hopper is also engaged in forum shopping,
although she precedes this with an unannounced move from the state of Idaho. When multiple jurisdictions can
validly claim to be the appropriate forum for the litigation, chaos can result until one court eventually acquiesces to
the other’s power. Plaintiffs may pick one forum over the other simply for practical convenience or to gain a
significant legal advantage. No matter the motive for the selection—convenience or advantage—the courts involved
in each case must decide whether the initial court selection is appropriate and ultimately controlling.
HOPPER V. HOPPER
SUPREME COURT OF IDAHO
144 IDAHO 624 (2007)
Schroeder, Chief Justice.
Christopher Hopper (Chris) and Suzanne Hopper (Suzanne) were married in 1999 while residing in Boise, Idaho,
where they made their marital home. Their only son, Caidan, was born in January 2003.…[O]n June 17, 2003,
Suzanne took Caidan and secretly left for Montana. Caidan was five months old at the time.
Suzanne obtained a domestic violence protection order against Chris in Ravalli County, Montana, and later filed
a petition for divorce in Missoula County, Montana.
p. 457
p. 458
The claim of domestic violence was subsequently determined to be false. Chris… filed for divorce in Ada County,
Idaho. The Montana actions were consolidated and eventually dismissed on August 14, 2003 in deference to
Idaho’s jurisdiction over the matter.
Chris immediately filed a motion for temporary custody [in an Idaho court].…The combined result of Suzanne
leaving the state and filing the actions in Montana was to cut off the relationship between Chris and Caidan for over
three months. The magistrate judge…concluded that Caidan’s interests would best be served by remaining in
Suzanne’s custody during the pendency of the case, subject to substantial visitation by Chris.…The magistrate
judge appointed Dr. Mack Stephenson, Ph.D., a licensed psychologist, to conduct a parenting evaluation to assist in
making a final custody determination. Dr. Stephenson’s report recommended that the parties share joint legal
custody of Caidan, with Suzanne having primary physical custody and Chris receiving frequent visitation. Dr.
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Stephenson based his conclusion on the finding that Suzanne had historically been the primary parent and the one
with whom Caidan had spent more time, noting that children of that age need stability and consistency, including a
stable relationship with a primary caregiver.…
Chris contends the trial court abused its discretion by awarding custody to Suzanne even though she had
secretly removed Caidan from the state and deprived him of any contact with Chris for over three months. He
argues that the custody arrangement ignores statutory standards, violates public policy, and deprives him of
meaningful visitation.…
Idaho Code §32-717B(4) provides…“absent a preponderance of the evidence to the contrary, there shall be a
presumption that joint custody is in the best interests of a minor child or children.”…In this case the custodial rights
of the father were compromised by the criminal act of the mother in taking the child from Idaho and the misconduct
of the mother in making a false domestic violence claim.…
In making child custody determinations, “a child’s welfare and best interests are of paramount importance.”…In
this case the father’s equal rights were prejudiced by the mother absconding with the child in violation of I.C.
§18-4506 and obtaining an unfounded domestic violence order in Montana restricting the father’s ability to maintain
a relationship with his child. Glossing over these facts and going to the end result that the mother has a greater
relationship with the child than the father creates an untenable condition. If permitted to stand, the lesson from this
case is that the law may be disregarded, a crime committed, falsehoods told, and advantage gained from the
misconduct. The proceedings should not have been allowed to continue for the duration with the mother holding the
child out of state while gaining all of the evidentiary benefits of an enhanced relationship with that child to the
detriment of the father. The mother should have been ordered to return the child to Idaho where the father might
exercise his rights as an equal parent and have this case decided with the underlying legal and social principle that
it is the best interests of a child to have a continuing relationship with both parents.
The error that initially occurred has been exacerbated by the lapse of time as these proceedings have taken
place.…Continuing misfortunes will accumulate if the advantage gained by the mother in this case is allowed to
continue contrary to the fundamental social and criminal law of the state. There is no perfect
p. 458
p. 459
remediation for the problems in this case, but at a minimum a custody hearing must be held with the child in Idaho
where the father has an opportunity to have the contact with his child to which he is entitled and the child receives
the benefit recognized in our law that it is in the best interests of the child to have a continuing relationship with both
parents.
The order of the trial court is vacated. The case is remanded for proceedings which require the mother to return
the child to Idaho.
Justice Trout, dissenting.
…While I do not condone the mother’s actions in moving to Montana without notice to the father, I believe the record
and transcript reflect the magistrate judge carefully considered the mother’s wrongdoing in arriving at his ultimate
determination. He stated during a hearing that he disapproved of the mother’s behavior, but he felt the child’s
interests would best be served by remaining with his primary caretaker—his mother.…
Caidan, who is now four years old, has been primarily in the custody of his mother in Montana for nearly four
years. The mother’s family lives in Montana, and she has no connections to Idaho other than the father. I agree with
the Court that there is “no perfect remediation” for the problems in this case; however, the effect of the Court’s
opinion is that the child and his mother will be uprooted and forced to return to Idaho to re-litigate this matter. While
this may be a just result between the mother and father, it is clearly not in the best interests of the child.…
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Knowledge and Analysis
1
The Idaho Supreme Court remands the case and mandates that an Idaho trial court must re-examine
custody, three years after the initial litigation. The court asserts that the mother’s unilateral decision to
move to Montana gave her two unfair advantages. First, she gained time as the primary caretaker, thus
assuring her favored status as the parent who could provide stability and continuity. Second, the distance
she put between the child and his father thwarted the state’s statutory preference for joint custody.
Despite these problems, the original custody determination—made by an Idaho trial judge who had
full knowledge of the mother’s actions—did not end with an award of joint physical custody. The norm in
family law is to uphold a trial court decision unless it is an abuse of discretion. What factors, if any, support
the view that the trial judge abused his discretion in this case? What factors, if any, support the view that
the Idaho Supreme Court is acting contrary to its ordinary rules of appellate review of a custody
determination because its decision focuses predominantly on the mother’s actions?
p. 459
p. 460
2
The Idaho Supreme Court relies on I.C. §18-4506, a law that prohibits removing a child from the state to
interfere with the other parent’s rights even when there is no custody order. This law can create a
hardship on a parent who wishes to move closer to supporting relatives. However, nonenforcement of this
law creates a hardship on the parent left behind. What considerations might have led the legislature
seemingly to have more concern for the parent left behind?
STATE JURISDICTION FOR REGULATIONS AND
ENFORCEMENT
Residency Requirements
Generally, states do not have a residency rule for entering into a marriage, although there may be a short waiting
period for the marriage license itself that is applicable to both residents and nonresidents. In contrast, most states
have a modest residency requirement for divorce and a more stringent rule applicable to hearings for marital
property, custody, and support orders. To have a divorce decree respected by other states, a court must be able to
show it had proper jurisdiction. Marriage, as a res or rem—basically, a “thing,” or in this context, a status—exists in
all states and can be dissolved in any state in which a spouse is a domiciled resident.
In divorce litigation, marital status is considered to be a “thing” that can exist anywhere, and thus it is relatively
easy for a court to assert jurisdiction over the marriage itself, provided a spouse resides within the state’s
boundaries. When a court is asked to litigate supplemental details, most will hesitate to do more than that simple
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grant of a divorce if they do not have jurisdiction over both spouses. The auxiliary legal actions—property division
and spousal support determinations, for example—may not be honored by another state if the spouse charged with
a financial obligation did not reside within the issuing court’s jurisdiction.
Divorce litigation includes the concept of a divisible divorce. This means the divorce itself can occur wherever
one party to the marriage is a resident, meeting that state’s residency requirements. However, the other issues of
property and support rely on in personam, or personal, jurisdiction. In personam jurisdiction may require a separate
court filing in the state where the other spouse resides. This can create some hardships and additional expenses,
but the concept of divisible divorce respects personal autonomy by making dissolution relatively easy while it
respects due process by assuring a hearing in a convenient forum for other legal obligations.
In the following case, Sosna v. Iowa, the U.S. Supreme Court reviews a state law that denies access to divorce
to new residents of Iowa for one year. This case focuses on the divorce itself and not the divorce-related matters
that require personal jurisdiction. Several constitutional challenges are possible when a state denies in rem
jurisdiction to a new resident. The law may violate due process—it denies a legal right to be heard in a court of law.
It may violate equal protection—it treats new residents differently from old residents. The law may violate personal
autonomy—it
p. 460
p. 461
SOSNA V.
U.S. SUPREME C
419 U.S. 393 (19
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p. 461
p. 462
Iowa to visit his children, made a special appearance to contest the jurisdiction of the Iowa court. The Iowa court
dismissed the petition for lack of jurisdiction, finding that Michael Sosna was not a resident of Iowa and appellant
had not been a resident of the State of Iowa for one year preceding the filing of her petition. In so doing, the Iowa
court applied the provisions of Iowa Code §598.6 (1973) requiring that the petitioner in such an action be “for the
last year a resident of the state.”
Instead of appealing this ruling to the Iowa appellate courts, appellant filed a complaint in the United States
District Court for the Northern District of Iowa asserting that Iowa’s durational residency requirement for invoking its
divorce jurisdiction violated the United States Constitution.…
For reasons stated in this opinion, we decide
that this case is not moot, and hold that the Iowa
Sosna started this case in the state court and
durational residency requirement for divorce does
then filed an objection in the federal district
not offend the United States Constitution.…
court. In contrast to the situation in Ankenbrandt
If appellant had sued only on her own behalf,
, jurisdiction here is based on a federal question,
both the fact that she now satisfies the one-year
not diversity of citizenship. Under either
residency requirement and the fact that she has
system—state or federal—the case can (and
obtained a divorce elsewhere would make this
does) end at the U.S. Supreme Court.
case moot, and require dismissal. But appellant
brought this suit as a class action and sought to
litigate the constitutionality of the durational
residency requirement in a representative capacity.…
The durational residency requirement under
attack in this case is a part of Iowa’s
A class action lawsuit means the plaintiff’s case
comprehensive statutory regulation of domestic
includes the interests of others who are similarly
relations, an area that has long been regarded as
situated. There are special requirements to
a virtually exclusive province of the States. Cases
qualify one litigant to represent the interests of
decided by this Court over a period of more than a
others in this way.
century bear witness to this historical fact.…
The statutory scheme in Iowa, like those in
other States, sets forth in considerable detail the
grounds upon which a marriage may be dissolved and the circumstances in which a divorce may be obtained.
Jurisdiction over a petition for dissolution is established by statute in “the county where either party resides,” Iowa
Code §598.2 (1973), and the Iowa courts have construed the term “resident” to have much the same meaning as is
ordinarily associated with the concept of domicile.…The imposition of a durational residency requirement for divorce
is scarcely unique to Iowa, since 48 States impose such a requirement as a condition for maintaining an action for
divorce. As might be expected, the periods vary among the States and range from six weeks to two years. The
one-year period selected by Iowa is the most common length of time prescribed.
Appellant contends that the Iowa requirement of one year’s residence is unconstitutional for two separate
reasons: first, because it establishes two classes of persons and discriminates against those who have recently
exercised their right to travel to Iowa.…State statutes imposing durational residency requirements were, of course,
invalidated when imposed by States as a qualification for welfare payments, Shapiro, supra; for voting, Dunn, supra;
and for medical care, Maricopa County, supra. But none of those cases intimated that the States might never
impose durational residency requirements, and such a proposition was, in fact, expressly disclaimed.…
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396
p. 462
p. 463
But Iowa’s divorce residency requirement is of a different stripe. Appellant was not irretrievably foreclosed from
obtaining some part of what she sought, as was the case with the welfare recipients in Shapiro, the voters in Dunn,
or the indigent patient in Maricopa County. She would eventually qualify for the same sort of adjudication which she
demanded virtually upon her arrival in the State. Iowa’s requirement delayed her access to the courts, but, by
fulfilling it, she could ultimately have obtained the same opportunity for adjudication which she asserts ought to have
been hers at an earlier point in time.
Iowa’s residency requirement may reasonably be justified on grounds other than purely budgetary considerations
or administrative convenience.…With consequences of such moment riding on a divorce decree issued by its
courts, Iowa may insist that one seeking to initiate such a proceeding have the modicum of attachment to the State
required here.
Such a requirement additionally furthers the State’s parallel interests both in avoiding officious intermeddling in
matters in which another State has a paramount interest, and in minimizing the susceptibility of its own divorce
decrees to collateral attack. A State such as Iowa may quite reasonably decide that it does not wish to become a
divorce mill for unhappy spouses who have lived there as short a time as appellant had when she commenced her
action in the state court after having long resided elsewhere. Until such time as Iowa is convinced that appellant
intends to remain in the State, it lacks the “nexus between person and place of such permanence as to control the
creation of legal relations and responsibilities of the utmost significance.”
Perhaps even more important, Iowa’s interests extend beyond its borders and include the recognition of its
divorce decrees by other States under the Full Faith and Credit Clause of the Constitution, Art. IV, §1. For that
purpose, this Court has often stated that “judicial power to grant a divorce—jurisdiction, strictly speaking—is
founded on domicil.” Where a divorce decree is entered after a finding of domicile in ex parte proceedings, this
Court has held that the finding of domicile is not binding upon another State, and may be disregarded in the face of
“cogent evidence” to the contrary.…The State’s decision to exact a one-year residency requirement as a matter of
policy is therefore buttressed by a quite permissible inference that this requirement not only effectuates state
substantive policy, but likewise provides a greater safeguard against successful collateral attack than would a
requirement of bona fide residence alone.…
We therefore hold that the state interest in
requiring that those who seek a divorce from its
Residency and domicile are related but distinct
courts be genuinely attached to the State, as well
under most state laws. The term resident simply
as a desire to insulate divorce decrees from the
refers to a person who lives in a certain locality
likelihood of collateral attack, requires a different
or jurisdiction. The label domiciliary is given to a
resolution of the constitutional issue presented
resident who has formed an intention of staying
than was the case in Shapiro, supra, Dunn, supra,
in the state.
and Maricopa County, supra.…
[T]he gravamen of appellant Sosna’s claim is
not total deprivation, as in Boddie, but only delay.
The operation of the filing fee in Boddie served to
exclude forever a certain segment of the
Supra means the case or other source has
population from obtaining a divorce in the courts
already been referenced.
p. 464
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397
of Connecticut. No similar total deprivation is present in appellant’s case, and the delay which attends the
enforcement of the one-year durational residency requirement is, for the reasons previously stated, consistent with
the provisions of the United States Constitution. Affirmed.
Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting.
…The Court omits altogether what should be the first inquiry: whether the right to obtain a divorce is of sufficient
importance that its denial to recent immigrants constitutes a penalty on interstate travel. In my view, it clearly meets
that standard. The previous decisions of this Court make it plain that the right of marital association is one of the
most basic rights conferred on the individual by the State. The interests associated with marriage and divorce have
repeatedly been accorded particular deference, and the right to marry has been termed “one of the vital personal
rights essential to the orderly pursuit of happiness by free men.”…
The year’s wait prevents remarriage and locks both partners into what may be an intolerable, destructive
relationship.…The critical importance of the divorce process, however, weakens the argument for a long residency
requirement, rather than strengthens it. The impact of the divorce decree only underscores the necessity that the
State’s regulation be evenhanded.…I fail to see how any legitimate objective of Iowa’s divorce regulations would be
frustrated by granting equal access to new state residents.…
I conclude that the course Iowa has chosen in restricting access to its divorce courts unduly interferes with the
right to “migrate, resettle, find a new job, and start a new life.” Shapiro v. Thompson, 394 U.S. at 629. I would
reverse the judgment of the District Court and remand for entry of an order granting relief if the court finds that there
is a continuing controversy in this case.
Knowledge and Analysis
1
The Court references other cases in which the length of in-state residency affected legal rights. In one
case the Court invalidated a one-year residency rule for receipt of welfare benefits under the Aid to
Families with Dependent Children program.12 In another case, the Court invalidated a one-year residency
requirement for voting.13 Last, the Court held that a one-year residency rule for free non-emergency
medical care was a violation of the Constitution.14 In these cases the Court references both equal
p. 464
p. 465
protection concerns and the constitutional right of interstate migration. The Court says there is a difference
between a temporary delay for divorce (here) and delays in receiving financial benefits (Shapiro), voting
rights (Dunn), or medical care (Maricopa County). What basis might there be to argue that these four
items should be treated similarly under constitutional law principles?
2
Most divorce residency requirements are for less than one year, although 11 states used the one-year rule
in some format in 2012.15
What reasons speak for or against the conclusion that a state residency rule may be valid but a
one-year length of time for establishing residency creates an unreasonable and unconstitutional burden
on the right to terminate a marriage?
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Extent of Jurisdiction
In Sosna, the Court held that the spouse initiating a divorce must comply with state law and meet the prerequisites
for access to the court system. The next case, Kulko v. Superior Court, considers this principle from another
perspective: When can a defendant object to the court proceeding based on the court’s lack of full jurisdiction?
Although it may not seem logical on first consideration, states consider divorce jurisdiction as separate from the
jurisdiction required to litigate the issues that often accompany the dissolution of marriage. The legal system sees
divorce as an in rem action, which requires notice to the other spouse but does not require personal jurisdiction over
him or her. On the other hand, the adjudication of support and property issues requires the plaintiff to acquire
personal, in-state jurisdiction over the opposing party. In Kulko, the Supreme Court examines this distinction
between in rem and in personam causes of action.
KULKO V. SUPERIOR COURT OF CALIFORNIA
U.S. SUPREME COURT
436 U.S. 84 (1978)
Mr. Justice Marshall delivered the opinion of the Court.
The issue before us is whether, in this action for child support, the California state courts may exercise in personam
jurisdiction over a nonresident, nondomiciliary parent of minor children domiciled within the State. For reasons set
forth below,
p. 465
p. 466
we hold that the exercise of such jurisdiction would violate the Due Process Clause of the Fourteenth Amendment.
Appellant Ezra Kulko married appellee Sharon Kulko Horn in 1959, during appellant’s three-day stopover in
California en route from a military base in Texas to a tour of duty in Korea. At the time of this marriage, both parties
were domiciled in and residents of New York State. Immediately following the marriage, Sharon Kulko returned to
New York, as did appellant after his tour of duty. Their first child, Darwin, was born to the Kulkos in New York in
1961, and, a year later their second child, Ilsa, was born, also in New York. The Kulkos and their two children
resided together as a family in New York City continuously until March, 1972, when the Kulkos separated.
Following the separation, Sharon Kulko moved to San Francisco, Cal. A written separation agreement was
drawn up in New York.…The agreement provided, inter alia, that the children would remain with their father during
the school year but would spend their Christmas, Easter, and summer vacations with their mother.…
The children resided with appellant during the school year and with their mother on vacations, as provided by the
separation agreement, until December, 1973.…Ilsa then commenced living in California with her mother during the
school year and spending vacations with her father. In January, 1976, appellant’s other child, Darwin, called his
mother from New York and advised her that he wanted to live with her in California. Unbeknownst to appellant,
appellee Horn sent a plane ticket to her son, which he used to fly to California where he took up residence with his
mother and sister.
Less than one month after Darwin’s arrival in
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399
A request to “quash service of the summons”
asks the court to negate the delivery of notice
because the court cannot force the defendant to
submit to the jurisdiction of an out-of-state
court.
California, appellee Horn commenced this action
against appellant in the California Superior Court.
She sought…to modify the judgment so as to
award her full custody of the children; and to
increase appellant’s child support obligations.
Appellant appeared specially and moved to quash
service of the summons on the ground that he
was not a resident of California and lacked
sufficient “minimum contacts” with the State.…
The trial court summarily denied the motion to
quash.…The appellate court affirmed the denial of
Sufficient minimum contacts with a state would
appellant’s motion to quash, reasoning that, by
make it fair, and compliant with due process, to
consenting to his children’s living in California,
force an out-of-state individual to defend against
appellant had “caused an effect in th[e] state”
the legal claim.
warranting the exercise of jurisdiction over him.…
The Due Process Clause of the Fourteenth
Amendment operates as a limitation on the
jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants.…In this case,
appellant does not dispute the adequacy of the notice that he received, but contends that his connection with the
State of California is too attenuated, under the standards implicit in the Due Process Clause of the Constitution, to
justify imposing upon him the burden and inconvenience of defense in California.
The parties are in agreement that the constitutional standard for determining whether the State may enter a
binding Judgment against appellant here is that set forth in this Court’s opinion in International Shoe Co. v.
Washington, supra: that a
p. 466
p. 467
defendant “have certain minimum contacts with [the forum State] such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial justice.’”…
…[W]e believe that the California Supreme
Court’s application of the minimum contacts test in
A forum state is the state providing the
this case represents an unwarranted extension of
opportunity, or forum, for the adjudication of a
International Shoe and would, if sustained,
claim.
sanction a result that is neither fair, just, nor
reasonable.
In reaching its result, the California Supreme
Court did not rely on appellant’s glancing presence in the State some 13 years before the events that led to this
controversy, nor could it have.…To hold such temporary visits to a State a basis for the assertion of in personam
jurisdiction over unrelated actions arising in the future would make a mockery of the limitations on state jurisdiction
imposed by the Fourteenth Amendment.…
The “purposeful act” that the California Supreme Court believed did warrant the exercise of personal jurisdiction
over appellant in California was his “actively and fully consent[ing] to Ilsa living in California for the school
year…and…sen[ding] her to California for that purpose.”…A father who agrees, in the interests of family harmony
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400
and his children’s preferences, to allow them to spend more time in California than was required under a separation
agreement can hardly be said to have “purposefully availed himself” of the “benefits and protections” of California’s
laws.…
Moreover, an action by appellee Horn to increase support payments could now be brought, and could have been
brought when Ilsa first moved to California, in the State of New York; a New York court would clearly have personal
jurisdiction over appellant, and, if a judgment were entered by a New York court increasing appellant’s child support
obligations, it could properly be enforced against him in both New York and California.…The argument below to the
contrary, in our view, confuses the question of appellant’s liability with that of the proper forum in which to determine
that liability.…
Finally, basic considerations of fairness point decisively in favor of appellant’s State of domicile as the proper
forum for adjudication of this case, whatever the merits of appellee’s underlying claim. It is appellant who has
remained in the State of the marital domicile, whereas it is appellee who has moved across the continent…
…[W]hile the presence of the children and one
parent in California arguably might favor
The “choice of law” issue asks which state’s
application of California law in a lawsuit in New
laws apply to the litigation. Sometimes a court in
York, the fact that California may be the “center of
one state will hear the case but use the law of
gravity’” for choice of law purposes does not mean
another state. Advance contracting by the
that California has personal jurisdiction over the
spouses can also determine the choice of law.
defendant.…California’s legitimate interest in
ensuring the support of children resident in
California without unduly disrupting the children’s
lives, moreover, is already being served by the State’s participation in the Revised Uniform Reciprocal Enforcement
of Support Act of 1968. This statute provides a mechanism for communication between court systems in different
States, in order to facilitate the procurement and enforcement of child support decrees where the dependent
children reside in a State that cannot obtain personal jurisdiction over the defendant.…California’s version of the
p. 467
p. 468
Act essentially permits a California resident claiming support from a nonresident to file a petition in California and
have its merits adjudicated in the State of the alleged obligor’s residence, without either party’s having to leave his
or her own State.…
Accordingly, we conclude that the appellant’s motion to quash service, on the ground of lack of personal
jurisdiction, was erroneously denied by the California courts. The judgment of the California Supreme Court is,
therefore, Reversed.
Knowledge and Analysis
1
Litigation is an expensive, time-consuming, and psychologically draining activity. This is particularly true in
cases held far from a participant’s home. In such cases an out-of-state action will burden one parent or
the other.
What factors best justify the Court’s view that Kulko, the defendant, deserves more protection than
the plaintiff, Horn?
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2
The Court references the mechanisms established in each state to collect child support for children living
elsewhere. For example, the Court notes that both New York and California have the power to enforce the
New York order.
How might the argument be made, if at all, that this support enforcement power is a key factor in
the Supreme Court’s decision?
3
Writing for the three dissenting Justices, Justice Brennan noted, “[T]hough the issue is close, my
independent weighing of the facts leads me to conclude, in agreement with the analysis and determination
of the California Supreme Court, that appellant’s connection with the State of California was not too
attenuated, under the standards of reasonableness and fairness implicit in the Due Process Clause, to
require him to conduct his defense in the California courts.”
What aspects of the majority view might give us guidance on the harm that might occur, if at all, if
the dissent had prevailed and the California court had asserted personal jurisdiction on Ezra Kulko? Both
the majority and the dissent reference reasonableness and fairness as bases for their conclusions. What
factors indicate that the different views are based on practical concerns rather than constitutional law
principles?
Competing Jurisdictions
In Ware v. Ware, both husband and wife filed for divorce, one in Alabama, and one in South Carolina. Both courts
issued divorce decrees and both determined spousal support and division of marital property. In a country governed
by a constitutional system of federalism, states with competing interests must reconcile which state
p. 468
p. 469
has the best claim for the exercise of jurisdiction. Ware illustrates the complexities arising from such reconciliation
efforts. Ultimately, only one support and property division determination can control. Appellate court judges must
find some way to either command respect for their own order, or alternately, justify deference to another state’s
claim of superior jurisdictional power.
WARE V. WARE
COURT OF APPEALS OF SOUTH CAROLINA
390 S.C. 493 (2010)
Lockemy, J.
…Husband and Margaret P. Ware (Wife) were married on September 24, 1986. Over the next fourteen years, the
parties lived, worked, and purchased a home in South Carolina. In 2000, Husband joined the Military Sea Lift
Command, which caused him to be at sea for long periods of time, sporadically returning to the marital home.
Husband returned to the marital home for the last time in 2005.
On January 5, 2007, Husband filed for divorce in Alabama where he lived.…A month later, Wife filed for divorce
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in South Carolina. Four days after Wife filed for divorce in South Carolina, Alabama attorney Kesa M. Johnson
appeared on Wife’s behalf before the Alabama Court “on the limited basis and for the sole purpose of filing a motion
to dismiss” Husband’s complaint. In her Limited Notice of Appearance, Wife explicitly stated she was not submitting
to the jurisdiction of the Alabama Court.
Wife argued the Alabama Court lacked subject
matter jurisdiction and personal jurisdiction over
Divorce is an in rem action and does not require
both parties. According to Wife, Husband did not
in-state service of process. Notice to the
satisfy Alabama’s residency requirement to initiate
defendant is an absolute requirement but service
a divorce action. Wife attached a signed affidavit
by publication can suffice. This consists of
to her motion explaining she has been a resident
notice in a newspaper published and distributed
of South Carolina her entire life and has only been
near the court or near the defendant’s last
to Alabama twice to visit Husband’s family.…
known residence.
Meanwhile, Wife’s divorce action continued in
South Carolina. Wife attempted to serve Husband
through certified mail, return receipt requested,
but all certified mail was returned undelivered. Wife moved to serve Husband by publication, which the family court
granted.…
After a final hearing in June 2007, the [South
Carolina] family court issued a final divorce order
To protect the legal right to future proceeds of a
and a supplemental Qualified Domestic Relations
former spouse’s retirement account, the future
Order (QDRO) dividing Husband’s military
recipient must file a qualified domestic relations
retirement. The family court specifically found it
order.
had both subject matter jurisdiction and personal
jurisdiction over the parties. The family court
equitably divided the parties’ property, awarded
Wife $750 in monthly alimony, and awarded Wife $2,867.91 in attorney’s fees.
p. 469
p. 470
Two months later, the Alabama Court issued a final judgment of divorce. The Alabama Court declared the
divorce decree and QDRO entered by the family court “null and void and of no effect.”…
The Alabama Court granted Husband’s request for a divorce and titled his retirement, 2005 Ford F-150, old
uniforms, clothing and personal belongings into his name. Additionally, the Alabama Court titled Wife’s retirement
and disability, 2006 Jeep Liberty, household furnishings, and home in Charleston in her name. The order did not
mention alimony, attorney’s fees, or life insurance.…
After both the Alabama Court and the family court entered divorce orders, Husband requested the family court
vacate its orders.…Husband argued jurisdiction attached in Alabama before Wife filed for divorce in South Carolina;
thus, South Carolina never had jurisdiction.
The [South Carolina] family court denied Husband’s motion to vacate…[and] found the Alabama Court had
personal jurisdiction over Husband and his marital status. However, the family court concluded the Alabama Court
lacked personal jurisdiction over Wife or in rem jurisdiction over the marital property in South Carolina which would
have prevented the family court from exercising jurisdiction.…
Initially, we note neither party disputes the
validity of the other party’s divorce. Accordingly,
A long arm statute describes the ways in which a
that the parties are divorced is the law of the
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case.…The principal issue before this court is
whether the division of the marital property
ordered by the Alabama Court is entitled to full
faith and credit.…
Under Alabama law, Wife’s special
appearance before the Alabama Court to contest
the court’s jurisdiction did not subject her to the jurisdiction of the Alabama Court.… Because we find the issue of
the Alabama Court’s personal jurisdiction over Wife was not fully litigated, we examine whether the Alabama Court
had personal jurisdiction over Wife in order to determine whether the Alabama Court’s marital property division was
entitled to full faith and credit.…
Generally, Alabama’s long arm rule authorizes
the assertion of personal jurisdiction to the limits
The South Carolina appellate court upholds its
of due process. Alabama courts employ a
own state’s support and property division orders
two-part test to determine whether the exercise of
and rules that Alabama’s decision on marital
personal jurisdiction is proper: (1) the defendant
property and support is void under Alabama’s
must have minimum contacts with Alabama and
own laws.
(2) the exercise of jurisdiction must not offend
traditional notions of fair play and substantial
justice.…
Other than visiting Husband’s family twice, Wife had no contacts with Alabama. Thus, we find the family court
properly determined the Alabama Court lacked personal jurisdiction over Wife. Furthermore, we note because the
Alabama Court lacked personal jurisdiction over Wife, its division of the marital property outside Alabama is void
under Alabama Law.…
For the foregoing reasons, we hold the family court did not abuse its discretion in denying Husband’s motion to
vacate its divorce orders pursuant to Rule 60(b)(4). Accordingly, the decision of the family court is AFFIRMED.
nonresident may be subject to personal
jurisdiction. It must satisfy due process and
comport with standards of fairness. This usually
requires a finding of sufficient minimal contacts.
p. 470
p. 471
Knowledge and Analysis
1
The husband asserts that his first-in-time divorce filing and adjudication in Alabama mandates that the
state’s related property and support decisions prevail over the decisions from the South Carolina courts.
However, the South Carolina court notes that Alabama lacked in personam jurisdiction over the wife and
that its own court system had superior jurisdiction for the parties’ support and property issues. The wife’s
claim to jurisdiction begins with “service by publication,” which consists of printing notice of the lawsuit in a
newspaper. For some divorce actions, this is legally acceptable, but in practice it is frequently an
ineffective form of notice. Moreover, wife had never resided in Alabama and the couple had “lived,
worked, and purchased a home in South Carolina.”
Beyond the justifications given by the court, what other policy arguments, if any, exist for vacating
the husband’s order and validating the wife’s order? On the other hand, what additional policy arguments
might be made on behalf of upholding the Alabama court’s decision?
2
If the husband had effected service by publication against the wife, or if the husband had come before the
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404
2
If the husband had effected service by publication against the wife, or if the husband had come before the
South Carolina court on a limited basis just to explicitly state that he was not submitting to the jurisdiction
of the court, the outcome of this case would not be likely to change. The wife’s court orders would prevail
because only she had any legitimate claim that personal jurisdiction existed over the other spouse. The
South Carolina court goes a step further and uses Alabama law to determine that Alabama lacked
personal jurisdiction over the wife. The court further asserts the Alabama court never fully examined or
decided the jurisdictional issue.
What, if anything, might be the Alabama court’s response to the South Carolina court’s decision?
3
The husband’s home state rendered a decision that favored the retention of his assets and wife’s home
state issued a decision that gave her a share of this marital property.
How much concern, if any, do these outcomes raise regarding any bias toward a state’s own
residents and the fairness of court decisions?
CONCLUSION
In this chapter, we considered the complexities arising from the federalism-based structure of the United States in
which state governments and the federal government share governing power. Each state has the authority to write
into law its own preferred policy regarding domestic relations issues, but given the highly mobile nature of the U.S.
population, enforcing those laws and regulations is, at times,
p. 471
p. 472
difficult. The problems do not occur just in initial adjudications. Many family law decisions are subject to modification
and enforcement years later. In Ankenbrandt, the Supreme Court recognized that some family law cases could be
heard first in federal district courts, but outlined the reasons that supported a family law exception in matters of
divorce, support, and custody. In Boddie and Sosna, the Court looked at restrictions on access to divorce—filing
fees and residency rules, respectively. While states must allow indigents to access divorce proceedings, a one-year
residency requirement was only a delay, not a constitutional violation.
In Hopper, state court judges held that a former resident could not deprive the state of jurisdiction over custody
or gain a practical advantage in litigation by removing the child from the state. Similarly, in Ware, state courts vied
for jurisdiction over a divorce, but more importantly over support and property division orders. In Kulko, the Supreme
Court addressed the issue of jurisdiction over a nonresident for child support. The majority of Justices concluded
that an assertion of jurisdiction over a nonresident required a showing of minimum contacts in order to meet
standards of reasonableness and fairness. Notably, the Court separated jurisdiction from the duty to pay support
and referenced avenues for enforcement other than an expansion of a court’s power over nonresidents.
Despite diversity among the states and a separate federal system, five mechanisms minimize the chaos caused
by these jurisdictional dilemmas. First, various groups propose model laws that encourage legislatures to adopt
similar state laws. Second, state legislatures can initiate their own processes to adopt uniform laws. Third, as an
adjunct to uniformity, states can agree to enforce one another’s laws despite variations from their own laws. For
example, California can use Illinois’s child support guidelines against the payer-parent within its jurisdiction because
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the support order originated in Illinois and the child continues to reside there. Fourth, federal laws passed pursuant
to the federal spending power will create national standards, and, fifth, Supreme Court decisions that outline
constitutional obligations or restrictions generally push state laws into conformity with regard to these aspects.
REVIEW QUESTIONS
FACTUAL AND INTERPRETIVE QUESTIONS
1. Some modern day “federalists” promote greater uniformity of state laws, particularly in areas of sexuality,
marriage, and family. What would be the pros and cons of having a single system of family law in the United
States? In what ways could a uniform system of family law increase or decrease personal autonomy?
2. Two individuals can be married in one state but be divorced in another. Unless the parties have contracted
otherwise, the state of the divorce determines the terms of separation, such as property division and spousal
support. The parties obviously agreed to the state jurisdiction for their marriage, but they do not always select the
same state for a divorce. What arguments might be
p. 472
p. 473
advanced, or not, for the position that the state for the divorce should use the divorce laws from the state of the
parties’ marriage?
3. In compliance with the standards of due process, all courts require some form of notice to the defendant in all
legal cases. Divorce allows service by publication if the filing party has attempted other methods first and files a
sworn statement that the defendant’s current whereabouts are unknown. Publication frequently occurs in a small,
local newspaper that a defendant is not likely to read. Consider the reasons why courts have determined that this
is legally adequate. What alternatives, if any, might be used to give notice when the defendant in a divorce case
cannot be easily located?
QUESTIONS FOR ENHANCED UNDERSTANDING
For More Anecdotal Information
1. Determine the extent to which members of the public understand the states’ dominance over family law. For
example, do likely voters choose a presidential candidate based on the candidate’s views on marriage or abortion
laws? Do they use the same litmus test and apply it to the same extent for members of Congress, state
governors, and state representatives? Why might it be valuable to begin the survey by asking survey takers to
respond as if the presidential candidate and members of Congress would not have an opportunity to place new
Justices on the Supreme Court?
2. Ask individuals from different political parties whether they favor a uniform system of family law. For each,
regardless of their vote, what do they see as the dominant value of their preferred system (the uniform system or
the state-by-state system)?
For More Empirical Information
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1. Examine the durational residency data for divorce filing in different states, which are available via the American
Bar Association’s Family Law Quarterly website.16 Are there any similarities among the states that have longer
residency requirements? If yes, in what ways are they similar? If no, what might be the different paths by which
these states enacted and retained long durational residency requirements? Is the established durational
residency rule currently debated in the legislature or the public sphere in any of these states?
2. What are the filing fees for divorce in five different states? This information may be obtained by searching state
law or city/county court fee schedules. Are there large discrepancies or are the fees approximately uniform across
state lines? Are fees different in different parts of a state? To what extent do these states provide information
about how to apply for a fee waiver under the Boddie v. Connecticut principle?
p. 473
p. 474
QUESTIONS FOR GREATER INSIGHT
1. The U.S. Census Bureau and a variety of researchers have tabulated and/or studied state-to-state migration
patterns in the United States.17 Typically, these studies focus on economic factors that cause interstate
migrations. How might one devise a research study to assess the impact of family law policies on intra-country
migration? How would one devise research questions to assess motivators such as educational programs,
abortion rights, or marriage rights?
2. Would an alternative approach be to assess the knowledge of people in one state about their own laws and the
laws of the states around them? Would a follow-up question about the preference for one state law over another
then provide more information? In what ways might the initial knowledge-based questions reflect the importance,
or not, of these laws in their everyday lives?
TERMINOLOGY REVIEW
The diversity of citizenship jurisdiction of the federal courts allows these courts to hear cases based on state law
when the parties are residents of different states and a sufficient monetary amount is in controversy.
The concept of divisible divorce recognizes the difference between the divorce itself and the issues of property
and support that may also be resolved in a court proceeding.
A domiciliary of a state is a resident who intends to continue to reside within the state. Many states have resident
and domiciliary requirements for divorce proceedings.
The United States has a system of governance known as federalism, which recognizes the sovereignty of each of
the 50 states and the federal government.
At the time of the founding of the United States, federalists promoted a strong centralized government and anti
-federalists favored state power.
Forum shopping refers to a litigant choosing among various court systems or jurisdictions when bringing a case.
One court may be preferable to another based on the applicable rules or simply the convenience of the location.
Some courts are also known to be more efficient, allowing a hearing at an earlier date.
An indigent litigant is one who is too poor to afford many of the costs associated with presenting or defending a
legal claim in court, particularly the cost of hiring counsel for legal representation.
p. 474
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p. 475
A court’s right to hear a case and to exercise power over the parties is known as its jurisdiction. Jurisdiction is
based, inter alia, on territory, subject matter, the residency of the parties, and proper notice to the defendant.
Jurisdiction can also refer to the geographical limits of a sovereign entity’s power.
Model laws are proposals promulgated by various groups and disseminated for states to consider for adoption.
Service of process describes the notice a plaintiff must give to the defendant in a legal case shortly after filing the
case. Ideally, a process server personally delivers the notice; sometimes the plaintiff can mail this to the defendant.
In other instances, the legal system allows notice by publication in a newspaper.
Sovereignty refers to the independence of a government entity and its power to make its own rules and regulations.
States create uniform laws when they cooperate with each other and adopt identical or highly similar laws on
topics within their common interests.
17 U.S. 316, 421 (1819), in which Chief Justice Marshall stated, “Let the end be legitimate, let it be within the scope of the Constitution,
and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and
spirit of the Constitution, are Constitutional.”
2 In some areas, the federal and state governments have concurrent jurisdiction. For example, both state and federal authorities can
prosecute most crimes that occur across state lines without violating the prohibition against double jeopardy or each other’s sovereign
powers. Another overlapping area is regulation of businesses, which typically operate both within and across state lines. Issues of
federal preemption can occur but various factors will determine whether the federal regulatory scheme permits or preempts state
regulation of the same commercial activity.
3 Much of the federal government’s direct power to regulate Washington, D.C., is delegated to the D.C. city council, with retention of
congressional oversight.
4 http://www.ncsl.org. Similar groups are the National Conference of Commissioners of Uniform State Laws, the American Law
Institute, and some uniform law sections of the American Bar Association.
42 U.S.C. §1305 (110 Stat. 2105).
6 In most states, this law has been replaced by the Uniform Interstate Family Support Act (UIFSA).
28 U.S.C. §1738A.
United States Constitution Article III, Section 2.
28 U.S.C. §1332.
10 Both Florida and California had fees over this amount in 2013.
11 In 2012, Connecticut’s court fees are $350, the service of process fees are $50 to $75, and a parent education class required for
most divorcing parents with minor children is $125 per parent.
394 U.S. 618 (1969).
405 U.S. 330 (1972).
415 U.S. 250 (1974).
15 American Bar Association, Family Law Quarterly, http://www.americanbar.org/groups/family_law/resources/family_law_in_the_50
_states.html.
16 For example, check Family Law Quarterly 45, no. 4 (2012), for recent charts and digests.
17 U.S. Census Bureau, State-by-State Migration Flows; see also, e.g., Raven Molloy, Christopher Smith, and Abigail Wozniak,
“Internal Migration in the United States,” Journal of Economic Perspectives, Vol. 25, No. 3, Summer 2011 pp. 173-196).
p. 475
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Copyright 2015. Aspen Publishing.
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.
alisa and Stefan always wanted to open a little restaurant, and finally made their dream came true. The
business was time-consuming and initial costs were high. They assigned each of their five children,
aged 6 through 14, tasks in the operation of the business. While the child-labor laws allow some
exceptions for children working under the guidance of a parent, the extent of the children’s tasks and
their hours of employment violated the law.
K
Kalisa maintained that in their culture, parents always include the children in the family business. In fact, the
broader community would criticize parents who failed to instill a solid work ethic in their children, or who allowed
children to have an excess of idle time.
Child protective services declined to pursue charges for the past violations, but only if Kalisa and Stefan
agreed to comply fully with the laws. The officials threatened government prosecution for any future violations.
Min and Luciana wanted to marry but their state of residence did not offer marriage licenses to same-sex couples.
Instead, they contracted with an attorney to create as many legal protections as possible to replicate those
provided by marriage. Their attorney prepared (a) wills, (b) trusts, (c) a medical power of attorney for each of
them, (d) a separation agreement covering issues of support and property in the event of a future separation—the
agreement mirrored the state’s laws on support and property for divorcing spouses, and (e) documents to transfer
pension rights pursuant to their employers’ regulations. The attorney charged them $8,000 for preparing these
documents. He further advised they were still lacking several legal items that were only available to married
couples: tort action rights, evidentiary rights, some tax benefits, insurance coverage options, and the ability to own
their home as tenants by the entirety—a preferred form of property ownership granted to married couples.
In their state, the cost of a marriage license is $60.
p. 477
p. 478
Family law is a dynamic field. It is concerned with our personal, interpersonal, and family lives in the context of
ongoing cultural changes. Some transformations can be cyclical; for example, periods of overprotective parenting
can alternate with laissez-faire attitudes toward raising children. Other cultural trends do not have this pattern. Laws
governing marriage and divorce, for example, have moved steadily along a trajectory connected to individual rights,
with little apparent tendency to return to previous social norms.
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Influences on such transitions can come from many sources. Science and technology have transformed our
understanding of the “rules” of domestic relationships. For example, we are aware of more lifestyle options simply
because we now have greater access to information about cultural norms around the world. This knowledge can
lead to change as young people, the media, and other receptive members of a society incorporate, embrace, or
reject the behavior and attitudes they encounter through the Internet, social media, movies, music, and other
sources. At a more personal level, technology can also change fertility and reproduction options, and scientific
research increases our understandings of gender identity. Many of these new developments ignite debate about the
dividing line between individual autonomy and the standards a society may adopt to promote its vision of the
common good.
According to surveys conducted by Pew Research, the percentage of people in the United States who believe an
individual’s sexual orientation is immutable has risen nine percentage points since 2003. At that time, 42 percent of
respondents believed this to be true. The percentage rose to 49 percent in 2006 and to 51 percent in 2012. 1
Similarly, as referenced in Chapter 2, according to a Gallup Poll Social Series poll, support for same-sex marriage
rose from 27 percent in 1996 to 53 percent in 2013.2
In addition, prominent individuals in government and media—both news and entertainment outlets—have
forcefully articulated the battle cry for the expansion of personal autonomy that was first enunciated by the Supreme
Court in the 1960s. There is a growing consensus that societal attempts to define “morality” and “family values” are
inadequate unless government regulators connect the terms to practical, real-world data regarding societal impacts.
This limitation on government’s role causes the realm of personal autonomy and equal protection rights to grow
accordingly.
Demographic changes affect family law and public policy. Immigrants’ own customs can fade with assimilation.
Alternatively, American culture can adopt and incorporate traditions from another country, sometimes through
school curricula or public celebrations bringing a new idea to the forefront. Furthermore, the situation of immigrants
who have entered or who remain in the country contrary to law gives rise to debates about the policy goal of family
unity versus the possibility of deportation.
p. 478
p. 479
The public school system has always been integral to family welfare. Beyond the basic educational program,
public schools have taught young people common values: honesty, fairness, and the rewards of hard work, to name
just a few. The role of the public school has changed in the last 50 years, perhaps beginning with the Supreme
Court’s decision in Engel v. Vitale in 1962 banning prayers in public schools. While the decision required school
administrators to leave prayer behind, school boards did not reject the concept of values education. However,
secular content promulgated by schools can be controversial too: When the school curriculum includes a
value-laden message, some parents may believe the school’s value choice threatens their parental autonomy and
their ability to raise their children pursuant to their own beliefs. Whether parents surmise that their schools are either
too progressive or too traditional, they may object that the curriculum conflicts with their own moral code and
violates their constitutional rights.
As public policy preferences transform, the law will likely follow these new cultural norms. The legislature may
act early or late in the process of societal shifts, but statutory change is inevitable when a growing majority of the
population seeks reform. Policy preferences can also shift as notable problems surface and receive widespread
news coverage. Public outcry in response to such coverage will, over time, lead to new or transformed government
policy. For example, the Supreme Court decision in favor of Edith Windsor, who had to pay over $300,000 in federal
estate tax because federal law did not recognize her same-sex marriage, may be only the beginning. Her case
presented a relatable picture of the real-world cost of the Defense of Marriage Act to a woman who lost her partner
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of nearly 50 years.3 News stories like this can propel additional changes in public perceptions and ultimately affect
legal rules.
The material in this chapter examines the dynamic nature of family law in five contexts: government’s exclusive
control of marriage, sexual identity issues, concerns of immigrant families, modern variants of child exploitation, and
perceived threats to parental autonomy in the public schools. These issues cannot be easily resolved. Every area of
family law presents dilemmas for government policy makers who seek long-term solutions to concerns that exist
within a framework of competing interests. Even short-term solutions call for in-depth analysis of the costs and
benefits to both the community as a whole and the individuals affected.
To achieve wise public policies and avoid …