Review of the Year 2020 in Family Law: COVID-19, Zoom, and Family Law in a Pandemic

AuthorLinda D. Elrod
Pages281-324
281
Review of the Year 2020 in Family Law:
COVID-19, Zoom, and Family Law in a
Pandemic
LINDA D. ELROD*
Introduction
Although COVID-19 shut down courts across the country starting in
March 2020, lawyers and judges rose to the challenge of navigating a
justice system run remotely from homes across the country. State supreme
courts issued administrative orders tolling statutes of limitations and
notice provisions and postponing jury trials. Zoom became the platform
for hearings, pretrial conferences, mediations, and conferences as well as
for education.1 Added to the health crisis were sad reminders of systemic
racism and wealth inequalities as well as a highly contested presidential
election. In spite of the challenges, federal and state courts continued to
hand down important decisions on a variety of family law issues.
I. Federal
The U.S. Supreme Court in June 2020 handed down several major
decisions that impact families and the law. In a historic ruling, the U.S.
Supreme Court held that Title VII of the Civil Rights Act prohibits
discrimination on the basis of sexual orientation and transgender status.2
In a 6-3 decision, the Supreme Court held: “An employer who res an
1. See Elizabeth G. Thornburg, Observing Online Courts: Lessons from the Pandemic, 54
Fam. L.Q. 181 (2020); see also Lynda B. Munro & Nicole M. Riel, Our Virtual Reality: Facing
the Constitutional Dimensions of Virtual Family Court, 54 Fam. L.Q. 245 (2020).
2. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
* Linda D. Elrod is the Richard S. Righter Distinguished Professor of Law and Director of
the 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.
Published in Family Law Quarterly, Volume 54, Number 4, 2021. © 2021 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.
282 Family Law Quarterly, Volume 54, Number 4, 2021
individual merely for being gay or transgender dees the law.”3 The
decision resolved three similar cases that were pending before the Supreme
Court.4
Another important Supreme Court case saved “700,000 Dreamers” by
blocking the Trump administration’s termination of the Deferred Action
for Childhood Arrivals (DACA) program.5 The 5-4 decision found that
the administration did not provide sufcient justication for ending the
DACA program.6 While DACA was created by executive action, when
it rescinded the program, the Department of Homeland Security did not
follow the requirement under the Administrative Procedure Act that the
agency “provide a reasoned explanation for its action.”7
The U.S. Supreme Court struck the Louisiana abortion restrictions
requiring doctors providing abortions to have admitting privileges at
a hospital no farther than 30 miles from the women’s clinic.8 Justice
Roberts, for the rst time, voted to strike an abortion restriction.9 He found
that Supreme Court precedent controlled, noting the Court had recently
invalidated a “nearly identical” Texas law in Hellerstadt with similar
facts.10
In November, the U.S. Supreme Court heard the Fulton case in which
the Third Circuit had held that the city of Philadelphia did not violate the
religious-based foster care agency’s free exercise of religion by requiring
it to comply with the city ordinance that prohibited discrimination against
same-sex couples.11 The agency contended it violated their religion to place
children with same-sex couples.12 The Supreme Court agreed with the
agency, ruling that the city ordinance did not apply. The nondiscrimination
contractual provision allowed for exemptions, and the denial of a religious
exemption here did not satisfy strict scrutiny.13
3. Id. at 1754.
4. Id. at 1737.
5. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1901, 1903,
1906 (2020).
6. Id. at 1907–15.
7. Id. at 1916; 5 U.S.C. § 706(2)(A).
8. June Med. Servs. v. Russo, 140 S. Ct. 2103, 2113 (2020) (plurality opinion).
9. Id. at 2133 (Roberts, J., concurring in the judgment).
10. Id. at 2133–34 (citing Whole Woman’s Health v. Hellerstadt, 136 S. Ct. 2292 (2016)).
11. Fulton v. City of Philadelphia, 922 F.3d 140 (3d Cir. 2019), cert. granted, 140 S. Ct.
1104 (2020); Transcript of Oral Argument, Fulton v. City of Philadelphia, No. 19-123 (U.S. Nov.
4, 2020), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-123_
o758.pdf.
12. Fulton, 922 F.3d at 148.
13. Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021).
Published in Family Law Quarterly, Volume 54, Number 4, 2021. © 2021 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 2020 in Family Law 283
The Supreme Court handed down a unanimous decision in a case
under the Hague Convention on the Civil Aspects of International Child
Abduction, upholding the return of a child to the father in Italy after the
mother had brought the infant to the United States.14 The Court found that
“a child’s habitual residence depends on the totality of the circumstances
specic to the case.”15 The determination of habitual residence would be
reviewed for clear error.16 The Second and Fifth Circuits quickly used the
totality of circumstances test.17
In August 2019, a panel of the Fifth Circuit Court of Appeals reversed
a 2018 district court decision and held that the Indian Child Welfare Act
(ICWA)18 does not amount to race-based discrimination in violation of
the Equal Protection Clause, does not violate the Tenth Amendment’s
anticommandeering doctrine, and does not violate the nondelegation
doctrine of Article 1 of the U.S. Constitution.19 The panel found the ICWA
denition of “Indian child” was a political classication subject to rational
basis review.20 The court also held the Bureau of Indian Affairs (BIA) had
authority to promulgate its 2016 ICWA regulations.21 The Fifth Circuit
Court of Appeals granted review to hear the case en banc in 2020. In
2021, the Fifth Circuit rejected nondelegation challenges and some equal
protection claims but ruled for the plaintiffs on some other equal protection
claims and Administrative Procedure Act claims.22
The Seventh Circuit held that non–birth mothers in a same-sex marriage
could be listed as parents on their children’s birth certicates.23 The court
found an Indiana statutory presumption that a man was the father of a
child born or conceived in wedlock violated the plaintiffs’ equal protection
14. Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020); Hague Convention on the Civil Aspects
of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted
in 19 I.L.M. 1501–05 (1980); see Ann Laquer Estin, Where Is the Child at Home? Determining
Habitual Residence After Monasky, 54 Fam. L.Q. 127 (2020).
15. Monasky, 140 S. Ct. at 722.
16. Id.
17. See, e.g., Smith v. Smith, 976 F.3d 558, 561–63 (5th Cir. 2020) (denying father’s petition
for return to Argentina because the United States was habitual residence); Grano v. Martin, 821
F. App’x 26, 27–28 (2d Cir. 2020) (granting father’s petition to return children to Spain, which
was habitual residence).
19. Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019), reh’g en banc, 994 F.3d 249 (5th
Cir. 2021).
20. Id. at 429.
21. Id. at 438–40.
22. Brackeen v. Haaland, 994 F.3d 249, 267–69 (5th Cir. 2021).
23. Henderson v. Box, 947 F.3d 482, 487 (7th Cir. 2020), cert. denied, 141 S. Ct. 953 (2020).
Published in Family Law Quarterly, Volume 54, Number 4, 2021. © 2021 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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