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:

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Presentation transcript:

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 1970s, 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 ~3 rd party visits

Limits, contd 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 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.