THEMES IN FAMILY LAW
 WHO Regulates:
State vs. Federal Law
 WHY Regulate:
Goals of Family Law
 HOW to Regulate:
Discretion vs. Rules
 LIMITS on Regulation:
WHO: STATE vs. FEDERAL
• State:
Family Law Traditionally Matter
of Local Law (Divorce, Alimony,
etc.)
• Federal: Since 1970’s, Trend Toward
Increasing Congressional/Federal
Regulation of Family (Child
Support, Child Custody, Domestic
Violence)
WHY: What Are The Goals Of
Family Law?
GOALS: Moral, Social, Economic
1. Preserve/Stabilize Families: Importance of
Family Unit in Society
2. Protect Vulnerable Members
Children
Victims of Abuse
3. Protect State from Economic Burden
HOW: BROAD DISCRETIONARY
STANDARDS vs. FIXED RULES
Examples:
CHILD 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
Limits On What Law Can Do
• U.S. Constitution Amendment XIV July 28,1868:
Section 1. …No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law…
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
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
How to Implement Laws
• Inadequate supply of free or low cost legal
assistance
• Access to lawyers limited: increase in pro se
(without lawyers) litigants
• Family law cases largest part of civil
caseload in state courts
Domestic Relations: A Quickly
Growing Caseload in State
Courts
Estate
Tort
Small Claims
Contract
Domestic Relations
0
0.05
0.1
0.15
0.2
0.25
0.3
0.35
Percentage of Total Caseload
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.