Review of Law in 50 the States in 2022: U.S. Supreme Court Shakes Up Family Law Policy
| Author | Linda D. Elrod |
| Pages | 275-290 |
275
* Linda D. Elrod is the Richard S. Righter Distinguished Professor of Law and Director of
Children and Family Law Center at Washburn University School of Law in Topeka, Kansas. She
is Editor Emeritus of Family Law Quarterly; she was Editor in Chief from 1992–2016.
REVIEW OF LAW IN THE 50 STATES
IN 2022: U.S. SUPREME COURT
SHAKES UP FAMILY LAW POLICY
LINDA D. ELROD*
I. Introduction
Life returned to a more normal rhythm in 2022. State and federal
courts returned to in person hearings and trials as vaccines became
widely available and states lifted mask mandates. More people returned
to work in ofces, factories, and schools. Historic changes, however, did
occur in June 2022 as the U.S. Supreme Court dismantled the federal
protection of abortion rights that had existed since 1973. In Dobbs v.
Jackson Women’s Health Organization, the majority rejected substantive
due process and a woman’s right to privacy arguments in holding that
there is no constitutional right to an abortion.1 The legality of abortion
was tossed back to the states. In several states like Florida and Texas,
restrictive abortion laws immediately went into effect. Kansas was the
rst state to have a statewide referendum on a constitutional amendment
to restrict access. In August 2022, independents and young voters
turned out in record numbers in a primary election. The vote was 59%
against adding restrictions. The impact of Dobbs is likely to be felt for
years to come, and there are unanswered questions about the future of
other decisions that were based, in whole or in part, on substantive due
process.2
1. 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973)).
2. See Carol Sanger, The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women’s
Health Organization, 56 Fam. L.Q. 117 (2022–23).
Family Law Quarterly, Volume 56, Number 4 REVIEW OF LAW IN THE 50 STATES IN 2022 276
The U.S. Supreme Court answered a question about the presence
of domestic violence and the “grave risk” defense to return under the
Hague Convention on the Civil Aspects of International Child Abduction.
An Italian father had successfully petitioned for return of his child to
Italy, the child’s habitual residence. The mother presented undisputed
evidence of the father’s abusive conduct that could expose the child to a
grave risk of harm. Over the years, courts have struggled with whether
and to what extent courts are required to consider whether ameliorative
measures exist to protect the child if returned after a grave risk of harm is
established. Some courts went to great lengths to explore all ameliorative
measures. The Supreme Court found that the lower court has broad
discretion to deny a child’s return to a foreign country if the return could
pose a grave risk of harm without exploring ameliorative measures.3
In November, the Supreme Court heard a case by non–Native
American adoptive parents and several states challenging the
constitutionality of the Indian Child Welfare Act (ICWA).4 ICWA was
enacted to stop the unwarranted removal of Indian children from their
families. ICWA requires notice to tribes if an Indian child is involved
in a child neglect or adoption proceeding, contains a heightened
burden of proof (beyond a reasonable doubt the child will be harmed
if parental rights are not terminated) for termination of parental rights,
and requires qualied expert witnesses. ICWA also provides that when
a Native American child is removed from their home, the state must
attempt to place the child with relatives or members of the child’s tribe
before considering non-Native families.5 Although almost half of the
states joined an amicus brief supporting ICWA,6 there was fear that the
Court would nd that the placement options discriminate on the basis
of race and that ICWA exceeds Congress’s power over Indian affairs
and impermissibly commandeers state governments and courts.7 In
3. Golan v. Saada, 142 S. Ct. 1880 (2022). For more on this decision, see Molshree “Molly”
A. Sharma, Golan v. Saada: Protecting Domestic Abuse Survivors in International Child
Custody Disputes, 56 Fam. L.Q. 251 (2022–23).
4. Transcript of Oral Argument, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380
(U.S. Nov. 9, 2022); see Julia Gaffney, “The Gold Standard of Child Welfare” Under Attack:
The Indian Child Welfare Act and Haaland v. Brackeen, 56 Fam. L.Q. 231 (2022–23).
5. Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92 Stat. 3069 (1978) (codied as
25 U.S.C. §§ 1901–63).
6. Brief for the States of California et al. as Amici Curiae in Support of the Federal & Tribal
Parties, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, 21-380 (U.S. Aug. 19, 2022).
7. Kathryn E. Fort, After Brackeen: Funding Tribal Systems, 56 Fam. L.Q. 191, 199–206
(2022–23); Marcia Zug, Brackeen and the “Domestic Supply of Infants”, 56 Fam. L.Q. 175
(2022–23).
2023, however, the Supreme Court rejected the challenge to the ICWA,
deciding some claims on the merits and dismissing others for lack of
standing. The Court did not reach the merits of the equal protection
claims.8
The Supreme Court also agreed to hear a case concerning LGBT rights
that deals with an issue evaded in other post-Obergefell cases: To what
extent can a person who owns a business refuse to provide services for
a same-sex marriage based on religious objections. This case deals with
free speech claims by a website designer who does not want to design
and execute websites for same-sex couples planning to marry.9 The Tenth
Circuit afrmed summary judgment to the defendants, nding that the
state could reasonably prohibit discrimination in business transactions.
The state had a compelling justication to burden the website owner’s
free speech.10 In 2023, the Supreme Court, however, reversed and ruled
in favor of the website designer.11
II. National
A. Lower Federal Courts
There were a variety of eclectic “family law” issues heard in lower
federal courts. The Hague Abduction Convention cases are plentiful
enough to warrant their own article.12 Other interesting cases involved
abstentions and fraud. A purported owner of artwork brought a diversity
action against the possessor, his brother-in-law, alleging replevin,
conversion, and statutory theft. The defendant alleged the art was
marital property and the Colorado River abstention applied. The Second
Circuit found the abstention did not apply because the pending divorce
was not parallel to the instant action and any determination by the state
court in the divorce action would not comprehensively dispose of the
claims. The court also did not apply the domestic relations exception.13
In another case, a federal court remanded a case to consider if the
deceased husband’s fraudulent conduct in his divorce 13 years before
8. Haaland v. Brackeen, 143 S. Ct. 1609 (2023).
9. 303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2022), cert. granted in part, 142 S. Ct.
1106 (2022), rev’d, 143 S. Ct. 2298 (2023).
10. Id.; see Arthur S. Leonard, Same-Sex Family Recognition and Anti-Discrimination Law:
A Free Speech Battleground, 56 Fam. L.Q. 161 (2023).
11. 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023).
12. Robert G. Spector, 2022 in Hague Return Proceedings, 56 Fam. L.Q. 291 (2022–23).
13. Mochary v. Bergstein, 42 F.4th 80 (2d Cir. 2022).
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