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THEMES IN FAMILY LAW

THEMES IN FAMILY LAW. WHO Regulates: State vs. Federal Law WHY Regulate: Goals of Family Law HOW to Regulate: Discretion vs. Rules LIMITS on Regulation:. WHO: STATE vs. FEDERAL. State: Family Law Traditionally Matter of Local Law (Divorce, Alimony, etc.)

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THEMES IN FAMILY LAW

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  1. THEMES IN FAMILY LAW

  2. WHO Regulates: State vs. Federal Law • WHY Regulate: Goals of Family Law • HOW to Regulate: Discretion vs. Rules • LIMITS on Regulation:

  3. WHO: STATE vs. FEDERAL

  4. State: Family Law Traditionally Matter of Local Law (Divorce, Alimony, etc.) • Federal: Since 1970’s, Trend Toward Increasing Congressional/Federal Regulation of Family (Child Support, Child Custody, Domestic Violence)

  5. WHY: What Are The Goals Of Family Law?

  6. GOALS: Moral, Social, Economic • Preserve/Stabilize Families: Importance of Family Unit in Society • Protect Vulnerable Members Children Victims of Abuse • Protect State from Economic Burden

  7. HOW: BROAD DISCRETIONARY STANDARDS vs. FIXED RULES

  8. Examples: CHILD CUSTODY Discretion: Best Interest of Child (custody & visitation of children) Rule: Primary Caretaker/Joint Custody Pres. (custody & visitation of children) CHILD SUPPORT Discretion: Ability To Pay & Needs of Children (child support) Rule: Formula Based On Income & Number of Children

  9. Limits On What Law Can Do

  10. U.S. Constitution Amendment XIV July 28,1868: Section 1. …No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law… 1) Doctrine of family privacy/autonomy: law cannot interfere with family unless threat of harm • Decisions about family planning • Decisions about minor children ~ school ~3rd party visits

  11. Limits, cont’d 2) Law must provide equal protection U.S. Constitution: Equal Protection Clause: no state shall deny any person w/in its jurisdiction the equal protection of laws • Maryland Constitution, Article 46, November 7, 1972: Equality of rights under the law shall not be abridged or denied because of sex. • Laws preventing men from receiving alimony; laws making age to marry different for men and women

  12. How to Implement Laws • Inadequate supply of free or low cost legal assistance • Access to lawyers limited: increase in pro se (without lawyers) litigants • Family law cases largest part of civil caseload in state courts

  13. Domestic Relations: A Quickly Growing Caseload in State Courts Note: Not shown are 16% of cases in "other" category Source: State Court Caseload Statistics Annual Report 1992 (February 1994) involving data from 27 state courts, from Amy Stevens, The Business of Law: Lawyers and Clients; More Than Just Torts, Wall St. J., July 1,1994, at B6.

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