Review of the Year 2018-2019 in Family Law: Jurisdiction and Choice of Law Issues Abound
| Author | Linda D. Elrod, Robert G. Spector |
| Pages | 265-312 |
265
Review of the Year 2018–2019 in
Family Law: Jurisdiction and
Choice of Law Issues Abound
LINDA D. ELROD* & ROBERT G. SPECTOR**
Introduction
Family law cases continued to explode in numbers across the country
as the 2018–2019 reporting year saw a wide variety of issues. As families
crossed state or country boundaries, many cases required determinations
of which state’s law applied to the dispute. Other cases involved federal
law or use of constitutional principles. Appellate courts usually upheld
trial judges who reviewed the validity of marriage contracts and separation
agreements, awarded custody and support of children, determined who
was a parent, and decided what constituted marital property. A large
number of cases this year explored jurisdictional questions, especially
those raised by interpretation of uniform laws such as the Uniform Child
Custody Jurisdiction and Enforcement Act.
I. Federal
The U.S. Supreme Court heard one case under the Hague Convention
on the Civil Aspects of International Child Abduction. The Supreme Court
agreed to hear a Louisiana abortion case in 2020 requiring doctors to
have admitting privileges at a hospital no farther than thirty miles from
* 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.
** Robert G. Spector is the Glenn R. Watson Chair and Centennial Professor of Law
Emeritus at the University of Oklahoma College of Law in Norman, Oklahoma, and is a member
of the Family Law Quarterly Editorial Board.
Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
266 Family Law Quarterly, Volume 53, Number 4, Winter 2020
the women’s clinic.1 Although the Court heard a case with similar facts a
couple of years ago,2 the addition of two conservative justices may alter the
interpretation of undue burden. Lower federal courts heard several Hague
Abduction Convention cases, a major case regarding the constitutionality
of the Indian Child Welfare Act (ICWA), as well as the usual assortment
of tax, pension, and bankruptcy issues.
The U.S. Supreme Court in early 2018 had found that Minnesota’s law
for automatic revocation of provisions for a spouse upon divorce did not
substantially impair a pre-existing contractual arrangement. The children,
3
That case resulted in several states enacting statutes clarifying revocation
A panel of the Fifth Circuit Court of Appeals reversed a 2018 district court
decision that found the Indian Child Welfare Act (ICWA) unconstitutional.
The panel found that ICWA does not amount to race-based discrimination
in violation of the Equal Protection Clause, does not violate the Tenth
Amendment’s anti-commandeering doctrine, and does not violate the
nondelegation doctrine of Article 1 of the U.S. Constitution. The court
subject to rational basis review. The Bureau of Indian Affairs (BIA) had
authority to promulgate its comprehensive 2016 ICWA regulations.4 The
Fifth Circuit Court of Appeals granted review to hear the case en banc in
2020.
any relief from federal courts. The Fifth Circuit followed the pattern of
prior cases that have found no cause of action when police fail to enforce
a protection order.5 When her ex-husband broke into her home, Deanna
Cook, who had a protection order, called 911 screaming for help for
seventeen minutes. The police took over an hour to arrive. They left when
no one answered the knock at the door. The family found Deanna’s body
1. June Med. Servs. v. Gee, 905 F.3d 787 (5th Cir. 2018), cert. granted, June Med. Servs.
v. Russo, 140 S. Ct. 35 (Oct. 4, 2019). The U.S. Supreme Court reversed, sub nom., the Fifth
Circuit’s ruling just as this issue of Family Law Quarterly was about to be published in 2020. See
June Medical Services v. Russo, 591 U.S. ___, No. 18–1323, slip op. (June 29, 2020), https://
www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf.
2. Whole Woman’s Health v. Hellerstadt, 136 S. Ct. 2292 (2016).
3. Sveen v. Melin, 138 S. Ct. 1815 (2018).
287 (5th Cir. Nov. 7, 2019) (No. 18-11479).
5. See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005); DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989).
Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Review of the Year 2018–2019 in Family Law 267
two days later. The Fifth Circuit court found no basis for any constitutional
violation.6
A. Hague Conventions
To date, the United States is a party to three family law conventions: the
Hague Convention on the Civil Aspects of International Child Abduction
(Hague Abduction Convention), the Hague Convention on Cooperation
with Respect of Intercountry Adoption, and the Hague Convention on the
International Enforcement of Child Support and Other Forms of Family
Maintenance. The Family Law Quarterly is now including a separate
article that comprehensively covers Hague Convention cases. This article
highlights only a few of the major cases. The U.S. Supreme Court heard
its fourth major Hague Convention case. The married American mother
and Italian father lived in Italy before she brought the then two-month-old
infant to the United States. On the father’s petition, the district court found
the child’s habitual residence was Italy and ordered return to the father.
7
determination that habitual residence should be reviewed under a clear-
error review. The Court also found that when the child is an infant or too
young to acclimate to her surroundings, there is no need for a subjective
agreement between the infant’s parents to establish her habitual residence.8
In another case heading to the Supreme Court, the father petitioner, who
Washington, D.C., where the family had lived temporarily for the mother’s
job. The lower court held that a wrongful retention occurred when the
for return.9
that Australia was not the children’s “habitual residence” where the parties
intended to stay there for a limited time to obtain specialized medical care
for one child. The parents kept their home in the United States, left many
father’s business and bank accounts.10 In a New York case, the parties’
6. Cook v. Hopkins, 795 F. App’x 906 (5th Cir. 2019).
7. Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018).
8. Monasky v. Taglieri, 140 S. Ct. 719 (2020). The Monasky case will be further analyzed in
next year’s Family Law Quarterly article on Hague abduction cases.
9. Abou-Haidar v. Sanin Vazquez, 945 F.3d 1208 (D.C. Cir. 2019).
10. Watts v. Watts, 935 F.3d 1138 (10th Cir. 2019).
Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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