Let's Not Throw Out the Baby With the Bathwater: a Uniform Approach to the Domestic Relations Exception

• Publication year: 2018

Let's Not Throw out the Baby with the Bathwater: A Uniform Approach to the Domestic Relations Exception

Karla Doe

LET'S NOT THROW OUT THE BABY WITH THE BATHWATER: A UNIFORM APPROACH TO THE DOMESTIC RELATIONS EXCEPTION

Abstract

From questions of marriage equality to marriage dissolution, federal courts are deeply divided as to when to engage claims concerning family law. The divide is most evident in the courts' treatment of the longstanding judicial doctrine called the "domestic relations exception." The domestic relations exception divests federal courts of subject matter jurisdiction over family law matters, but which specifically? The answer to this question depends on the circuit where a litigant files. Some federal courts determine that the exception only divests them of hearing actions for divorce, alimony, or child custody. Others conclude that the exception prevents not only those actions, but also related matters such as child support, guardianship, or a breach of a visitation agreement.

Other than the precise nature of the family law claim, more inconsistencies abound. Some courts apply the exception only to diversity jurisdiction, while others apply the exception to both diversity and federal question jurisdiction. One would expect this variation to be the product of a traditional circuit split, but alas, the inconsistencies persist even when an individual circuit is examined in isolation.

The diverse inter- and intra-circuit treatment of the domestic relations exception stems from the different weight courts place on the exception's underlying values: stare decisis, federalism, and access to courts. Some federal courts only apply the exception because it has long been a part of precedent; otherwise, they would overrule it. Other courts apply the exception rigorously, concluding that family law matters are properly left to state courts, elevating federalism ideas. Even still, there are courts that recognize and apply the exception, but believe federalism should always take a back seat to a litigant's right to access a federal forum. This elevation of one value, often to the downgrading or omission of another, results in the deep divide and inconsistency that exists today.

The breadth of inconsistency matters: It matters to the father who feels that although his federal rights have been violated, he cannot invoke the federal court's jurisdiction to receive a remedy that is most dear to his heart—the custody of his children. It matters to the mother who brings a tort action,

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seeking damages as a remedy for the abuse her daughters suffered at the hands of their father. And it matters to the divorcee, whose ex-spouse refuses to uphold their alimony agreement, making day-to-day financial living extremely difficult.

This Comment offers a new approach to the domestic relations exception. It proposes a three-step analysis that properly accounts for the exception's underlying values: federalism and access to courts, as well as the value that has kept the exception alive to this day—stare decisis. Should federal courts adopt this Comment's approach, a uniform application of the domestic relations exception emerges, and from there, a proper scope will develop. Although the exact contours of the exception's limits will always be difficult to delineate given the highly factual nature of family law inquiries, this Comment's proposed analysis offers a significant step toward establishing the consistency concerning the domestic relations exception.

Introduction............................................................................................1079

I. History and Development of the Domestic Relations Exception.......................................................................................1085

A. Origins of the Exception .......................................................... 1085
B. From Barber to Ankenbrandt .................................................. 1087
C. The Ankenbrandt Decision ...................................................... 1090
D. From Ankenbrandt to Present................................................. 1094

II. Circuits' Varying Approaches to the Domestic Relations Exception...................................................................................... 1097

A. The "Core-Only"Approach.................................................... 1098
B. The "Core and Penumbra" Approach .................................... 1101
C. The Eighth Circuit's "Inextricably Intertwined" Approach .... 1103
D. The Eleventh Circuit's Factor Approach ................................ 1104

III. A New Three-Step Analysis........................................................1106

A. The Three-Step Analysis ........................................................... 1106

1. Is the Litigant Affirmatively or Functionally Seeking an Issuance or Modification of a Divorce, Alimony, or Child Custody Decree? ............................................................... 1107
2. Does the State Have a Strong Interest in the Suit?............ 1109
3. Is There an Overriding Necessity to Provide the Litigant with Access to a Federal Forum? .............................................. 1111

B. Applying the Test..................................................................... 1111
C. The Test's Implications............................................................ 1112

Conclusion................................................................................................1113

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Introduction

The domestic relations exception is a judicially created doctrine that divests federal courts of jurisdiction over family law matters.¹ Its origins trace back to 1858,² and as of 2017, it lives on,³ albeit in a state of haze. The Supreme Court has given unclear direction regarding its application, leading many lower federal courts to treat the exception inconsistently.⁴ Yet despite its variance in application, the exception has made a permanent home among doctrines of federal court jurisdiction.⁵ Although many scholars have discussed,⁶ critiqued,⁷ argued for limiting,⁸ or offered alternative theories for its existence,⁹ a three-step approach that accounts for all the values underlying the exception, and one that will lead to a closer consensus on its scope, has not been suggested.¹⁰ This Comment offers that solution through a three-step analysis.

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One may question the continued vitality of the domestic relations exception given the vast amount of federal court involvement in family law matters. For example, in the recent landmark case Obergefell v. Hodges, the Supreme Court held that same-sex individuals have a fundamental right to marry.¹¹ Moreover, under its Commerce, Full Faith and Credit, and Spending Clause powers, Congress has passed many laws in the area of domestic relations.¹² Of course, being that it is the federal judiciary's "province and duty" to say what the law is,¹³ federal courts routinely review these laws.¹⁴ Yet despite the large quantity of family law activity in the federal sphere, the domestic relations exception survives, albeit inconsistently applied in federal courts across the country.

To demonstrate that inconsistency, consider the following factual scenario: A divorced mother and father are entrenched in a bitter legal dispute concerning their children's custody and visitation. The mother has filed claims in her state court and in the state court where the father is domiciled. Relying on diversity jurisdiction (because the mother seeks damages exceeding $75,000 and she meets the complete diversity requirement),¹⁵ she files a claim in her federal court for tortious interference with visitation rights.¹⁶

Under the current approaches used by the federal circuits, this suit would result in a variety of procedural outcomes. Some circuits would permit the case to go forward since the mother is not suing for divorce, alimony, or child custody.¹⁷ Other circuits would apply the exception, noting that the suit is too closely involved with domestic relations matters.¹⁸ The practical result is that in one circuit, the mother may receive true vindication of her wrongs, but in

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another, she will never have her day in court, or more blatantly, may never receive custody of her children.

The conflicting treatment of the domestic relations exception stems from the different weight federal courts place on the exception's three underlying values: (1) stare decisis, (2) federalism, and (3) access to courts.

The first value, stare decisis, is the "obligation to follow precedent."¹⁹ While it is not an "inexorable command," a previous ruling should only be overruled if, for example, the rule has been found unworkable or the premises of fact on which the rule was based have so far changed as to render the rule somehow irrelevant or unjustifiable.²⁰ Since it is debatable, at best, that the exception has met this standard to warrant overruling, courts reason that they will continue to follow the doctrine.²¹

The second underlying value of the domestic relations exception is federalism. In the context of federal courts, federalism could mean deference²² or the belief and recognition that some areas of the law are traditionally left to the states to govern.²³ When the Supreme Court famously defined "Our Federalism," it observed that the concept encompasses both of these ideas.²⁴ The Court noted that federalism represents "a system in which there is sensitivity to the legitimate interests of both [s]tate and [n]ational [g]overnments, and in which the [n]ational [g]overnment, anxious . . . to vindicate and protect federal rights . . . , always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the [s]tates."²⁵ This model, in the realm of the domestic relations exception, means that the federal government should always uphold federal rights regarding the family. But, it should do so in a way that leaves the bulk of...