Family Law: Congress' Authority to Legislate on Domestic Relations Questions
Family Law: Congress’s Authority to Legislate
on Domestic Relations Questions
Updated October 25, 2007
Alison M. Smith
American Law Division
Family Law: Congress’s Authority to Legislate
on Domestic Relations Questions
Under the United States Constitution, Congress has little direct authority to
legislate in the field of domestic relations. The primary authority and responsibility
to legislate in the domestic relations arena lies with the individual states. The
rationale behind this approach is the lack of overriding national considerations in the
family law area. However, states’ freedom to legislate has led to substantial variation
between the individual states on many topics including incidents of marriage, divorce
and child welfare. As such, Congress continues to utilize a number of indirect
approaches to enact numerous federal laws which impact on family law questions.
This report discusses the extent to which Congress is constitutionally authorized to
legislate on family law questions, and includes examples of present laws utilizing the
various approaches available in this area.
In troduction ......................................................1
General Constitutional Principles.....................................3
The Enumerated Powers Clause......................................7
Overview of Federal Domestic Relations Legislation......................8
Areas in Which Congress Has Direct Authority to Legislate............8
The Commerce Clause.....................................13
Uniform State Laws.......................................17
“Sense of the Congress” Resolutions..........................19
Implementation of the Full Faith and Credit Clause..............21
Proposed Constitutional Amendments.............................27
Family Law: Congress’s Authority to
Legislate on Domestic Relations Questions
Under the United States Constitution,1 Congress has little direct authority to
legislate in the field of domestic relations. Generally, state policy guides these
decisions. Despite the lack of direct authority to legislate domestic relations issues,
Congress continues to utilize a number of indirect approaches to enact numerous
federal laws which impact on family law questions.
The Constitution’s framers felt that states, rather than the federal government,
should maintain jurisdiction over most family law questions. Thus, the final
document reflects that view. As summarized by the Supreme Court in Hisquierdo
v. Hisquierdo, 439 U.S. 572, 581 (1979):
Insofar as marriage is within temporal control, the States lay on the guiding hand.
“The whole subject of the domestic relations of husband and wife, parent and
child, belongs to the laws of the States and not to the laws of the United States.”
In re Burrus, 136 U.S. 586, 593-94 (1890).... On the rare occasion when state
family law has come into conflict with a federal statute, this Court has limited
review under the Supremacy Clause to a determination whether Congress has
“positively required by direct enactment” that state law shall be preempted.
Wetmore v. Markoe, 196 U.S. 68, 77 (1904).
Thus, the individual states have the primary authority and responsibility to legislate
in the domestic relations arena, which includes incidents of marriage, divorce, and
child welfare. The rationale behind this approach is the lack of overriding national
considerations in the family law area. Therefore, states generally have the freedom
to legislate as they see fit on these questions. However, states’ freedom to legislate
has led to substantial variation between the individual states on many of these topics,
although more uniformity now exists than at any time in the past.2 Thus, similarly
1 U.S. Const. art. VI, § , cl. 2 states “This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.” However, this language encompasses only those
areas where Congress has authority to legislate; see discussion of the enumerated powers
2 For example, all states adopted the Uniform Interstate Family Support Act (UIFSA) under
which states treat valid child support orders entered in another state as having been entered
in their own state. States’ adoption of uniformed laws such as UIFSA, Uniform Child
Custody Jurisdiction Act (UCCJA) and the Uniform Child Custody Jurisdiction and
situated spouses, parents and children may have different legal options depending on
where they reside. For example, the community property concept of marital property
adopted by nine states3 is quite different from the common law property system in the
other forty-one states. While all states have some form of no-fault divorce, based
either on grounds such as “irreconcilable differences” or some period of separation,
many authorize divorces based on fault or consider marital fault as a factor when
awarding spousal support or dividing marital property. In addition, states have
varying rules regarding the “who, what, when and where” of marriages and/or
Adoption is another area in which states have diverse regulations. Individual
states have different statutes regarding the rights of adopted adults, birth parents,
adoptive parents, birth siblings and birth relatives to gain access to identifying4 and
non-identifying5 information about the adoptee or birth relatives. For example, a
few states permit adoptees to gain access to their birth and/or adoption records,6 but
most require a court order issued for “good cause” (usually a medical crisis or some
comparably serious situation) before unsealing such information. Although many
states use similar procedures, the laws and processes surrounding access in any one
state are unique.
During the first half of the twentieth century, numerous constitutional
amendments were proposed which, if adopted would have authorized Congress to
enact uniform national marriage and divorce laws. However, none of these proposals
received the requisite two-thirds vote of each House of Congress necessitating
submission to the states for ratification.7 This approach now appears disfavored8, in
Enforcement Act (UCCJEA) have aided in fostering consistency and efficiency in the
enforcement of interstate child support and custody orders.
3 Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and
Wisconsin (due to statutory changes initiated in 1986).
4 Identifying information encompasses data which may lead to positively identifying an
adopted adult, birth mother, or birth father such as names, addresses, and dates contained
in court records or submitted to the State Department of Vital Statistics.
5 Non-identifying information is generally restricted to details about the adopted adult and
the adopted adult’s birth relatives. Information can include any of the following: date and
place of adopted adult’s birth; age of the birth parents and a description of their general
physical appearances; the race, ethnicity, religion, and medical history of the birth parents;
type of termination; facts and circumstances relating to the adoptive placement; age and sex
of children of the birth parents at the time of adoption; educational levels of the birth parents
and their occupations, interests, skills; any supplemental information about the medical or
social conditions of members of the birth family provided since the adoption’s completion.
6 Adopted adults 18 or older have automatic access to their original birth certificates only
in Alaska, Kansas, and, in some cases Ohio, Tennessee, and Montana, depending upon
which year the adoption was finalized.
7 Article V of the U.S. Constitution provides two ways to propose amendments to the
document and two ways to ratify them. Amendments may be proposed either by the
Congress, by two-thirds vote of the House and the Senate (of those present and voting,
part due to a continuing view that the federal government should refrain from
intervening in most family matters and in part because other approaches (all
discussed infra) have led, or have the potential of leading, toward the same result in
those areas where uniformity is thought desirable.
For example, the National Conference of Commissioners on Uniform State
Laws (NCCUSL), a non-governmental entity, has proposed uniform laws on a
number of family law topics, many of which have been widely adopted by the states.
A more expansive view of congressional power to legislate under its commerce
clause authority has led to federal legislation such as the Parental Kidnapping
Prevention Act (PKPA), which authorizes federal intervention into certain custodial
interference cases where applicable state law classifies such action as a felony. Also,
Congress has enacted legislation under the Full Faith and Credit Clause. Legislation
under this clause directs sister states to give full faith and credit to child custody,
child support and protection orders of other states. Congress passed the Defense of
Marriage Act, which permits sister states to give no effect to the law of other states
with respect to governing same-sex marriages. Congress has also established a
number of funding programs whereby states must comply with detailed requirements
in such areas as child abuse and the adoption of hard-to-place children before they
can receive federal money to help deal with these problems.
This report discusses the extent to which Congress is constitutionally authorized
to legislate on family law questions, and includes examples of present laws utilizing
the various approaches available in this area.
General Constitutional Principles
There are generally applicable constitutional principles which limit the authority
of all governmental entities (federal, state, and local) to legislate on family law
questions. The Fourteenth Amendment’s Due Process Clause9 has a substantive
component which “provides heightened protection against government interference
with certain fundamental rights and liberty interests,”10 including parents’
fundamental rights to make decisions concerning the care, custody, and control of
provided a quorum is present), or by a convention called by Congress in response to
applications from the legislatures of two-thirds (34) or more of the states.
8 However, beginning in the 107th Congress, legislation proposing a constitutional
amendment defining as or limiting marriage to the “union of a man and a woman.” See,thth
H.J.Res. 93, 107 Cong.; H.J.Res. 56, S.J.Res. 26, and S.J.Res. 30, 108 Cong.; S.J.Res. 1,thth
S.J.Res. 13; H.J.Res. 39, 109 Cong. and H.J.Res. 22, 110 Cong..
9 The Fourteenth Amendment forbids any State to “deprive any person of life, liberty, or
property, without due process of law,” or to “deny to any person within its jurisdiction the
equal protection of the laws.”
10 Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
their children.11 Although the Constitution fails to mention specifically a
fundamental right to privacy, courts recognize this right to encompass contraception,
abortion, marriage, procreation, education (elementary level) and interpersonal
relations.12 These aspects broadly termed “private family life” are constitutionally
protected against government interference. As such, a governmental entity must
demonstrate a compelling interest to regulate or infringe on an individual’s
fundamental right. As summarized by the Supreme Court in Moore v. City of East
Cleveland, 431 U.S. 494, 499 (1977):
“This Court has long recognized that freedom of personal choice in matters of
marriage and family life is one of the liberties protected by the Due Process
Clause of the Fourteenth Amendment.” Cleveland Board of Education v.
LaFleur, 414 U.S. 632, 639-40 (1974). A host of cases, tracing their lineage to
Meyer v. Nebraska, 262 U.S. 300, 399-401 (1923), and Pierce v. Society of
Sisters, 268 U.S. 510, 534-35 (1925), have consistently acknowledged a “private
realm of family life which the state cannot enter.” Prince v. Massachusetts, 321
U.S. 158, 166 (1944).
The LaFleur decision struck down various local maternity leave rules which
required pregnant teachers to begin leave at specified stages of their pregnancies and
not to return to work until some specified point in the school year after their children
were born or attained a certain age. Meyer and Pierce invalidated statutes which
were held to interfere with parents’ right to educate their children as they see fit; the
Meyer statute prohibited instruction in foreign languages before the eighth grade,13
while the statute in Pierce required children to attend public schools.14 Moore stuck
down a local ordinance that specified which members of extended families could
reside together in common households — in the particular household which formed
the basis for the suit, two grandchildren could have legally resided with their
grandmother under the ordinance were they siblings, but were prohibited from doing
so because they were first cousins.15
While “the family is not beyond regulation,” Prince v. Massachusetts, supra at
166 (ban on street selling by minors upheld), “when government intrudes [into family
matters], this Court must examine carefully the importance of the governmental
interests advanced and the extent to which they are served by the challenged
regulations.” Moore, supra, at 499.
11 Id.; see also Reno v. Flores, 507 U.S. 292, 301-302 (1993).
12 In addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially
protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388
U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535
(1942); to direct the education and upbringing of one’s children, Meyer v. Nebraska, 262
U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy,
Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid.; Eisenstadt v.
Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952),
and to abortion, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
13 Meyer v. Nebraska, 262 U.S. 300, 399-401 (1923).
14 Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925).
15 Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977).
In Griswold v. Connecticut,16 the Supreme Court recognized an additional tenet
of privacy: the right of married couples to use contraceptives. The Court extended
this right to minors, married or unmarried, in Carey v. Population Services
International.17 Also, In Roe v. Wade,18 the Supreme Court substantially limited
governmental authority to regulate abortions, holding that a mother’s personal
privacy right prevented a state from intervening at the first trimester of pregnancy,
and permitted intervention during the second trimester only as needed to protect the
mother’s health. The Court reasoned that a state’s interest fails to become
compelling enough to justify extensive regulation until a fetus becomes viable, at
approximately the end of the second trimester. This ruling was clarified, but retained
in three companion cases decided in 1983: Akron Center for Reproductive Health,
Inc. v. City of Akron19; Planned Parenthood Association of Kansas City, Missouri,
Inc. v. Ashcroft;20 and Simopoulous v. Virginia.21 In 1992, the Supreme Court
reaffirmed Roe’s essential holding that before viability of the fetus, a woman has the
right to choose to have an abortion and has the right to obtain an abortion without
undue interference from the state.22 In Planned Parenthood of S.E. PA v. Casey, the
Court held that a statute requiring spousal notification before a woman could have
an abortion constituted an undue burden, thus violating the due process clause of the
Fourteenth Amendment.23 However, the remaining four challenged aspects of the
Pennsylvania Abortion Control Act of 1982 were found to be constitutional and not
undue burdens. The Court held valid: (1) the act’s definition of a “medical
emergency,” a condition warranting exemption from the act’s other limitations; (2)
record keeping and reporting requirements imposed on facilities that perform
abortions; (3) an informed consent and 24-hour waiting period requirement; and (4)
a parental consent requirement, with the possibility for a judicial bypass.24
A right to marry has also been judicially accepted as a guarantee of due process.
Thus, the Court struck down miscegenation statutes in Loving v. Virginia,25 finding
that the state lacked a compelling interest in prohibiting persons from marrying based
solely on their race.
16 381 U.S. 479 (1965).
17 431 U.S. 678 (1977).
18 410 U.S. 113 (1973).
19 462 U.S. 416 (1983).
20 462 U.S. 476 (1983).
21 462 U.S. 506 (1983).
22 Planned Parenthood of S.E. PA v. Casey, 505 U.S. 833 (1992).
25 388 U.S. 1 (1967).
The equal protection clause26 is another constitutional limitation on
governmental entities’ authority to legislate on domestic relations issues. When
legislation or government policy discriminates between classes or deprives a group
of a particular right, the level of scrutiny applied under an equal protection challenge
turns on the nature of the group allegedly discriminated against. As a general rule,
courts will uphold the challenged governmental action if the classification drawn by
the statute is rationally related to a legitimate state interest.27 For example, states can
legislate to protect minors, prevent close relatives from marrying, require blood tests
before marriage and impose other marriage restrictions so long as the restrictions are
reasonably related to a valid state interest.
Where the statute targets a quasi-suspect class, namely those based upon gender
or illegitimacy, a heightened level of scrutiny applies. Under this intermediate
scrutiny test, the statute is presumed invalid unless it is substantially related to a
sufficiently important governmental interest.28 For example, in Orr v. Orr,29 the
Supreme Court applied this standard and found a statute which imposed alimony
obligations on husbands, but not on wives unconstitutional as violative of the equal
protection clause. However, where a statute targets a suspect class, including race,
alienage, or national origin or burdens a fundamental right, the statute in question
will only be sustained if it is narrowly tailored to serve a compelling state interest.
Under this standard, the Court has stuck down statutes in Eisenstadt v. Baird30 and
Skinner v. Oklahoma31 as violative of the equal protection clause. Conversely, in
Nguyen v. INS,32 the Supreme Court found a statute which provided different rules
for attainment of citizenship depending upon whether the one citizen parent was the
father or mother, did not violate the equal protection clause.33
26 The Fourteenth Amendment guarantees that “[n]o State shall make or enforce any law
which shall deny to any person within its jurisdiction the equal protection of the laws.”
While there is no corresponding provision applicable to the federal government, the Fifth
Amendment Due Process Clause applies the same limitation to the federal government.
27 See e.g., Romer v. Evans, 517 U.S. 620 (1996) (applying the rational basis test in
analyzing the equal protection challenge to the state constitutional amendment which
prohibited all governmental action designed to protect homosexuals from discrimination).
28 See generally, United States v. Virginia, 518 U.S. 515 (1996) (stating that if gender-based
governmental discrimination is to pass judicial muster, the state must demonstrate the
existence of an “exceeding persuasive justification.”).
29 440 U.S. 268 (1979); see also Califano v. Goldfarb, 430 U.S. 199 (1977)(finding
unconstitutional a statute which imposed a one-half support requirement on widowers, but
not on widows, in establishing surviving spouse benefits’ entitlements).
30 405 U.S. 438 (1972)(finding unconstitutional a Massachusetts statute prohibiting the
distribution of contraceptives to unmarried persons).
31 316 U.S. 535 (1942)(holding a law requiring sterilization of certain criminals violative of
equal protection; but emphasizing the importance of marriage and procreation).
32 533 U.S. 52 (2001).
33 Id. The Court found that two important governmental interests justified Congress’s
decision to impose different requirements: (1) the importance of assuring a biological
parent-child relationship exists; and (2) the determination ensuring that the child and citizen
One instance where these arguments have been unsuccessful involves adult
adoptees seeking to obtain information on their birth parents. Such adoptees have
advanced both personal privacy and equal protection claims when challenging closed
records statutes. However, courts consistently ruled that the privacy rights of the
birth parents, as well as the state’s interest in maintaining a smoothly-functioning
adoption system (parents might become reluctant to place children for adoption if
they thought the children would later seek them out), justify these laws.34 However,
the Supreme Court has yet to rule on this question so the issue of closed records
statutes remains unsettled.
The Enumerated Powers Clause
As opposed to the general constitutional restraints discussed above, Article I,
Section 8, of the Constitution, the enumerated powers clause, limits congressional
authority to act by specifying general subject categories where federal action is
permissible. These categories encompass those topics the Constitution’s framers
thought could best be handled on the national level, such as war-making and defense,
interstate and foreign commerce, coinage and currency, the post office, bankruptcies,35
copyrights, and the judicial system. Under this clause and the Tenth Amendment,
categories other than those enumerated are reserved for state action.
These enumerated powers do not readily encompass most family law questions.
As such, federal legislation in this area is usually hinged on some other federal
interest. For example, while states have the primary authority to legislate on
adoption, alien children less than sixteen years of age adopted by unmarried United
States citizens have been granted immigrant status.36 Legislation such as the Indian37
Child Welfare Act is based on congressional authority over Indian questions. States
retain general authority over child pornography, but the federal government can
regulate that portion which moves in interstate or foreign commerce, and/or which
is shipped through the mail.38
Where Congress has authority to act in a given area, it can exercise one of three
options: Congress can (1) supersede all state action on the question; (2) defer entirely
parent have some demonstrated “opportunity to develop a relationship that consists of real,
everyday ties providing a connection between child and citizen parent.” Id.
34 See, e.g. ALMA Society v. Mellon, 601 F.2d 1125 (2d Cir. 1979); Yesterday’s Children v.
Kennedy, 569 F.2d 431 (7th Cir. 1979).
35 The Tenth Amendment states, “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
36 8 U.S.C. § 1101.
37 P.L. 95-608, 92 Stat. 3069, codified at 25 U.S.C. §§ 1901-1963.
38 18 U.S.C. §§ 2251-2259,2423; 19 U.S.C. § 1305; See also, CRS Report 95-406, Child
Pornography: Constitutional Principles and Federal Statutes, by Henry Cohen.
to individual state judgments; or (3) legislate somewhere between these two
extremes. Congress’s options can best be illustrated by looking at its handling of
former spouses’ entitlements to pensions paid under a federal retirement program.
Under Social Security and the Railroad Retirement System,39 a former spouse who
meets specified conditions is entitled to 50% of the covered spouse’s benefit,40 while
federal civil service and military pensions are divisible at the option of the individual
state hearing the matter (i.e., states are authorized to treat civil service41 and military
retirement42 payments the same way they treat other pensions for this purpose). The
acts governing foreign service and Central Intelligence Agency pension division43 are
hybrids between these two approaches, as they suggest a pro rata division formula
predicated on length of marriage/length of service, but permit deviation from this
formula by court order or if the parties agree to some other arrangement.
Where congressional intent is unclear or ambiguous, as was the case pertaining
to the possible division of military pensions in divorce cases for some time,44 or
where Congress fails to act in a certain area when it has the authority to do so,
individual states are free to act and/or interpret the applicable federal statutes as they
see fit, subject to the constitutional considerations discussed above. However, once
Congress acts to clarify its intent, states are bound by this interpretation and are no
longer free to vary their approaches.
Overview of Federal Domestic Relations Legislation
Areas in Which Congress Has Direct Authority to Legislate
Federal Benefits. Congress has plenary legislative authority over federal
salaries, pensions, and other benefits, including those aspects which touch on family
law questions. The State of California advanced a strong argument in McCarty v.
McCarty, 453 U.S. 210 (1981), (where the court ultimately held federal law
39 42 U.S.C. § 402(b) (Social Security); 45 U.S.C. § 231a (Railroad Retirement). These
payments do not reduce the retired spouses’ entitlements.
40 Many of the laws cited in this report have exceptions or technicalities not covered by these
general summaries. The texts of the particular statutes should be consulted if additional
information is required.
41 5 U.S.C § 8345(j)(1).
42 10 U.S.C. § 1408.
43 22 U.S.C. § 4044 (foreign service); § 222 of the Central Intelligence Agency Retirement
Act, (CIARA) codified as a note following 50 U.S.C. § 403.
44 Although there is no federal statute directly on point, the Supreme Court examined a
number of related statutes and congressional documents before deciding in McCarty v.
McCarty, 453 U.S. 210 (1981), that Congress had not intended that military pensions be
divisible in this context. At the time of this decision, all of the community property states
and a number of equitable distribution states were dividing military pensions, but they could
no longer do so after it was issued. The McCarty decision and subsequent legislative action
to authorize such division is discussed in the next section.
prevented state division of military pensions in divorce cases), that its interest in its
residents’ well-being, along with general state authority over divorce law, was
sufficient to confer upon its courts the authority to grant a divorced wife a share of
her husband’s military pension. The Supreme Court disagreed, citing congressional
power under Article I, Section 8, Clause 14 of the Constitution “[t]o make Rules for
the Government and Regulation of the land and naval Forces.” The military system
was enacted pursuant to this grant of constitutional authority, and the Court found
that the application of state community property law as envisioned by the lower court
McCarty rulings (which divided the pension) could potentially frustrate the
congressional objectives of providing for retired personnel and meeting the
management needs of the active forces. However, the McCarty court recognized the
serious plight of an ex-spouse of a retired service member,45 and invited Congress to
change the situation legislatively if so desired. Congress shortly thereafter enacted
the Uniformed Services Former Spouses’ Protection Act (FSPA),46 which authorized
states to divide, or not divide, these pensions in accordance with applicable state laws
As discussed in the preceding section, Congress has for the most part deferred
to state judgments in those divorce cases which involve pensions paid to federal
employees. Of the pertinent statutes, only the Foreign Service Act and the CIA
retirement Act contain suggested division formulas. These optional formulas take
into account the particularly disadvantageous economic position of many of the
wives whose husbands served in the Foreign Service or with the CIA. Under the
Social Security Program, a former spouse who was married to an annuitant spouse
with ten or more years of covered service47 is entitled to 50% of the annuitant’s
pension at the time he or she reaches age 62, provided the former spouse has not
remarried prior to that time.48 This is a separate entitlement which does not reduce
or affect the annuitant spouse’s payment. Even in the absence of these statutes,
voluntary division of annuities was possible if the parties so agreed. However, as
might be imagined, such action occurred infrequently.49
45 453 U.S. at 253.
46 10 U.S.C. § 1408.
47 Periods of employment where the annuitant spouse paid into the Social Security System.
48 42 U.S.C. § 402(b).
49 In the vast majority of divorce cases, the parties work out their financial arrangement
without court assistance, and the court routinely incorporates this agreement as part of the
final decree unless it is on its face grossly unfair to either party. Thus, there is no reason
why an annuitant spouse cannot voluntarily agree to divide his or her annuity with the other
spouse, presumably in return for some other consideration; and such agreements, once
finalized by court order, are binding on the parties. However, the rationale behind
legislatively sanctioning such division is that it is unlikely many annuitants will voluntarily
agree to split a pension when there is no legal requirement to do so.
Certain former spouses of Social Security,50 Civil Service,51 military,52 railroad,53
CIA,54 and Foreign Service55 annuitants are entitled to survivor annuities (annuities
which continue after the annuitant spouse’s death). Moreover, federal payments,
including wages, pensions, tax refunds, and most other benefits, can be garnished for
alimony and child support payments.56
Taxation. Nearly every tax imposed by Congress has at least a tangential
impact on family life, if only because it determines how much money the family
might have available to it under specified circumstances. This topic is much too
complex to provide more than a brief overview of possibly relevant provisions and
Congress frequently uses its taxing power to establish social policies, as shown
in its determinations that people should be encouraged to adopt,57 to contribute to5859
charitable organizations, or purchase their own homes. To promote marriage
neutrality,60 Congress passed the Economic Growth and Tax Relief Reconciliation61
Act of 2001. Another tax provision frequently thought to have major social policy
implication involves tax deductions for certain child care expenditures.62 However,
these deductions may show congressional recognition that both parents often must
work for financial reasons, or there is only one parent to support the family, rather
50 42 U.S.C. § 402(e), (f).
51 5 U.S.C. § 8341(h)(1).
52 10 U.S.C. § 1447.
53 45 U.S.C. § 231a.
54 CIARA, § 204, codified as a note following 50 U.S.C. § 403.
55 22 U.S.C. § 4054.
56 42 U.S.C. §§ 659-662, 664
57 P.L. 107-16, 115 Stat. 38 extends permanently the adoption credit for children other than
special needs children. In addition, the act increases the maximum credit to $10,000 per
eligible child, including special needs children. The act also extends permanently the
exclusion from income for employer provided adoption assistance.
58 26 U.S.C. § 170 (deductions to qualified organizations tax exempt).
59 26 U.S.C. § 163 (mortgage interest tax exempt).
60 Marriage neutrality means that the tax system should not influence the choice of
individuals with regard to their marital status. For a discussion on the marriage tax penalty
relief provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001, see
CRS Report RS21000, Marriage Tax Penalty Relief Provisions of the Economic Growth and
Tax Relief Reconciliation Act of 2001, by Gregg A. Esenwein.
61 P.L. 107-16, 115 Stat. 38. This act contains three marriage tax penalty relief provisions:
(1) increases the standard deduction for joint returns to twice the amount of the standard
deduction for single returns; (2) increase the width of the 15% marginal income tax bracket
for joint returns to twice the width of the 15% tax bracket for single returns; and (3)
increases the earned income credit phaseout start and end points for joint returns.
62 26 U.S.C. § 44.
than a congressional belief that both parents should necessarily be encouraged to
work outside the home.
Furthermore, there are numerous tax provisions which become operable when
couples divorce. Frequently those negotiating a financial settlement can choose
among several options which can have a substantial impact on the amount of money
available to each spouse following the divorce. Tax laws treat child support and
alimony differently. For example, alimony or separate maintenance payments from
one spouse to another are deductible by the person making the payments and treated
as taxable income to the recipient, while child support payments are neither taxable
income to the recipient nor deductible by the payer.63
There are also a number of tax laws which reference adoption. For the most
part, these statutes provide that adopted children are to be treated the same as natural
born children for whatever purpose is involved.64
Bankruptcy. Article I, Section 8, Clause 4 of the Constitution authorizes
Congress to establish “uniform Laws on the subject of Bankruptcies throughout the
United States.” As with taxation, the entire Bankruptcy Code, codified as Title 11
of the United States Code, can have an effect on the family lives of those involved
in personal or business-related bankruptcies. However, for family law purposes, the
most important provision prohibits individuals from discharging alimony and/or child65
support payments. Other provisions may affect such situations as the timing of a
bankruptcy petition vis a vis the filing of a divorce suit, or interspousal transfers prior
to the filing of a bankruptcy petition or while such a petition is pending.
Indians. Generally, Indian tribes have extensive power to regulate domestic
relations among tribal members. As summarized in the authoritative text on this
Indian tribes have been accorded the widest possible latitude in regulating the
domestic relations of their members. Indian custom marriage has been
specifically recognized by federal statute, so far as such recognition is necessary
for purposes of inheritance. Indian custom marriage and divorce has been
generally recognized by state and federal courts for all other purpose.... No law
of the state controls the domestic relations of Indians living in tribal relationship,
even though the Indians concerned are citizens of the state.... Property relations
of husband and wife, or parent and child, are likewise governed by tribal law and66
63 26 U.S.C. §§ 71(a), 215.
64 See, e.g., 26 U.S.C. § 318 (constructive stock ownership); § 2613 (tax on generation
65 11 U.S.C. § 523(a)(5).
66 Cohen, Handbook of Federal Indian Law 137 (4th ed. 1954), (footnotes and citations
However, some tribes specifically defer to state authority in this area,67
recognizing as valid marriages and divorces where pertinent state statutes have been
followed. Federal law68 permits states to assume jurisdiction over civil causes of
action between Indians or to which Indians are parties, and which arise in Indian
country, as long as the tribe occupying the particular Indian country specifically
consents to the exercise of jurisdiction.69 Once the tribe consents, this authority
encompasses such civil actions as marriage, divorce, and adoption.70
These various approaches are recognized under 25 U.S.C. § 372a which states
that “heirs by adoption” for purposes of certain probate matters shall include
adoptions entered by a state court or an Indian court; those approved by the
superintendent of the agency having jurisdiction over the tribe of either the adoptee
or the adoptive parent; and adoptions handled in accordance with procedures
established by the tribal authority of the tribe of either the adoptee or the adoptive
parent. Rights of parties to marriages between Indians and non-Indians are set forth
at 25 U.S.C. § 181-184.
The Indian Child Welfare Act (ICWA)71 is a comprehensive measure designed
to “protect the best interests of Indian children and to promote the stability and72
security of Indian tribes and families.” Establishment of minimal federal standards
for the removal of Indian children from their homes and procedures for their foster
or adoptive placement, and funding a variety of Indian child and family welfare
programs help facilitate the act’s goals. Indian tribes retain jurisdiction over custody73
proceedings involving Indian children unless they specifically decline to exercise it.
Upon attaining age 18, Indian adoptees are entitled to receive information as to
their birth parents’ tribal affiliation and other information necessary to protect rights74
flowing from their tribal relations. This is the only federal statute dealing with the
confidentiality of adoption records.
Congress utilizes indirect approaches in instances where it lacks direct authority
to legislate in the domestic relations field. These indirect approaches include (1) the
67 E.g. State ex rel. Iron Bear v. District Court of Fifteenth Judicial District in and for
Roosevelt County, 162 Mont. 335, 512 P.2d 1292 (1972) (Assiniboine-Sioux Tribes); Bad
Horse v. Bad Horse, 163 Mont. 445, 517 P.2d 893 (1974) (Cheyenne Tribe).
68 25 U.S.C. § 1322.
69 Id.; Kennerly v. District court of Ninth Judicial District of Montana, 400 U.S. 423 (1972);
Poitra v. Demarrias, 502 F.2d 23 (8th Cir. 1974).
70 E.g., Nononka v. Hoskins, 645 P.2d 507 (Okla. 1982); United States ex rel. Cobell v.
Cobell, 503 F.2d 790 (9th Cir. 1974).
71 P.L. 95-608, 92 Stat. 3069, codified at 25 U.S.C. §§ 1901-1963.
72 25 U.S.C. § 1902.
73 25 U.S.C. § 1911.
74 25 U.S.C. § 1917.
commerce clause; (2) a funding nexus or spending power; (3) Uniform State laws;
(4) “Sense of Congress” resolutions; and (5) the Full, Faith & Credit Clause of the
The Commerce Clause. Article I, Section 8, Clause 4 of the Constitution
authorizes Congress “to regulate Commerce with foreign Nations, and among the
several States.” There are three categories of activities subject to congressional
regulation under the commerce clause. Congress may regulate the use of the
channels of interstate commerce, or persons or things in interstate commerce,
although the threat may come only from intrastate activities. Finally, Congress may75
regulate those activities having a substantial relation to interstate commerce. Thus,
Congress can regulate interstate aspects of certain family law matters even in the
absence of direct legislative authority in the area.
For example, the Federal Parent Locator Service, an office in the Department
of Health and Human Services (HHS) helps states locate non-custodial parents who
fail to make court-ordered child support payments, once states have exhausted their
own efforts to locate these individuals.76 Under the Parental Kidnapping Prevention77
Act of 1980 (PKPA), this office also acts on requests from authorized persons to
locate non-custodial parents who have abducted their children from custodial parents78
in violation of valid court orders.
The PKPA also makes the Federal Fugitive Felon Act79 applicable to cases
involving parental kidnapping and interstate or international flight to avoid
prosecution under applicable state felony statutes. This provision again defers to
state judgments inasmuch as the provision fails to become operable unless the state
where the violation occurred has classified such action as a felony.
A parent whose child has been taken out of the country has greater difficulty in
locating the child and arranging for his or her return than if the child remains in this80
country. However, if the taking is classified as a felony, extradition treaties can
sometimes be used to effectuate this result. The Hague Conference on Private
International Law completed work on a Convention on the Civil Aspects of
International Child Abduction, which the Senate consented to October 9, 1986.
Congress adopted legislation to clarify how the Convention would be implemented
in this country.81
75 United States v. Lopez, 514 U.S. 549, 558-559 (1995) (citations omitted).
76 42 U.S.C. § 653.
77 28 U.S.C. § 1738A.
78 18 U.S.C. § 663.
79 18 U.S.C. § 1073.
80 See generally Westbrook, “LAW AND TREATY RESPONSES TO INTERNATIONAL CHILD
ABDUCTIONS,” 20 Va. J. of Int’l L. 149 (1981).
81 42 U.S.C. §§ 11601-11607. The Hague Convention fails to provide for the recognition
and/or enforcement of foreign custody decrees; rather, it requires restoration of the custody
The Commerce Clause also serves as the basis for federal regulation of child
pornography that moves in interstate or foreign commerce.82
In 1992, Congress passed the Child Support Recovery Act (CSRA)83 which
created a federal criminal offense for any willful84 failure to pay past child support
obligations to a child who resides in a different state than the parent.85 Appellate
courts that have thus far heard appeals of the CSRA decisions have unanimously
declared the CSRA a constitutional exercise of congressional authority, pursuant to
the Commerce Clause.86 The Second Circuit pointed to the fact that various state
courts attempted to make the defendant pay his child support, but failed.87 Because
the Commerce Clause gives Congress the authority to pass legislation which aids the
status quo that existed before the abduction. Thus, it denies the abductor any legal
advantage in the country to which the child has been taken as courts in that country are
under a treaty obligation to return the child to the country from which the child was
abducted without conducting any proceedings on the merits of the underlying custody
claim(s). For a discussion and analysis of the Convention, see “AMERICAN AND
INTERNATIONAL RESPONSES TO INTERNATIONAL CHILD ABDUCTIONS,” 16 N.Y.U.J. Int’l L.
& Pol. 415 (1984).
82 18 U.S.C. §§ 2251-2259; See also CRS Report 95-406, Child Pornography:
Constitutional Principles and Federal Statutes, by Henry Cohen.
83 P.L. 102-521, 106 Stat. 3403 (codified at 18 U.S.C. § 228).
84 The original bill created a presumption that any nonpayment of child support was
intentional. See 138 Cong. Rec. S17131 (daily ed. October 7, 1992)(statement of Sen.
Kohl). The bill which was actually enacted provided that the government must prove a
willful failure to pay. See id. At least two lower courts have found the rebuttable
mandatory presumption that the existence of a court support order indicated a defendant’s
ability to pay violated due process by shifting to the defendant the burden of persuasion of
the crime’s willfulness element. See, United States v. Morrow, 368 F.Supp.2d 863 (C.D.
Ill. May 6, 2005); United States v. Pillor, 387 F.Supp.2d 1053 (N.D. Cal. May 12, 2005).
While these courts found that the presumption (18 U.S.C. § 228(b)) violates due process,
both found the section severable.
85 See 18 U.S.C. § 228(a).
86 See United States v. Kukafka, 478 F.3d 531 (3rd Cir. N.J. 2007); United States v. Klinzing,
2001)(finding that the CRSA did not usurp state enforcement, as the act merely reinforced
state laws which states were unable to enforce on an interstate basis); United States v.st
Lewko, 269 F.3d 64 (1 Cir. N.H. 2001); United States v. Benton, 2001 U.S. App. LEXISthth
United States v. Parker, 108 F.3d 28 (3 Cir. 1997)(finding that CSRA falls within the cope
of congressional authority under the Commerce Clause as a valid regulation of activity
having a substantial effect upon interstate commerce); United States v. Bongiorno, 106 F.3dstth
v. Hampshire, 95 F.3d 999 (10 Cir. 1996); United States v. Mussari, 95 F.3d 787 (9 Cir.
1996)(holding that Congress possesses the power, under the Commerce Clause, to punish
willful violations of child support orders); United States v. Sage, 92 F.3d 101 (2d Cir. 1996).
87 See Sage, 92 F.3d at 103.
states in matters that are beyond their “limited territorial jurisdiction,”88 the court
concluded that Congress has the authority to intervene and help the states.89 Further,
it held that if Congress can use the Commerce Clause to promote interstate
commerce, then “it surely has power to prevent the frustration of an obligation to
engage in commerce.”90 Merely because the obligation comes from a court order,
and not a contract, does not alter the outcome; the obligation is, nevertheless, a result
of interstate economic activity among the states.91 The Supreme Court has yet to rule
on this question.
Funding Nexus. The public child welfare system is society’s mechanism for
protecting children whose families are unsafe or unable to care for them. States have
the primary responsibility for administering child welfare services and establishing
policy. However, the federal government plays a significant role in child welfare, by
providing funds to states and attaching conditions to these funds. Provision of these
funds is a valid exercise of Congress’s spending power as Article 1, Section 8 of the
Constitution authorizes Congress to use federal monies to provide for the common
defense and the general welfare. These programs have been judged not to violate the
Constitution due to the voluntary nature of states’ participation. States and localities
remain free to reject the federal monies; but if accepted, they are taken subject to the
conditions imposed by Congress.
Most federal funds specifically targeted toward child welfare activities flow to
the states through the Social Security Act, which authorizes capped grants for various
child welfare services (Subparts 1 and 2 of Title IV-B), and open-ended entitlement
funding for foster care maintenance and adoption assistance on behalf of children
removed from their biological homes (Title IV-E). In addition, the freestanding
Child Abuse Prevention and Treatment Act (CAPTA) authorizes formula grants to
help states support their child protective services systems.92 As such, the Federal93
Child Abuse Prevention and Treatment Act imposes detailed requirements on state
participants, including, inter alia, implementation of state programs which mandate
the reporting of known or suspected instances of child abuse or neglect; investigation
of such reports by properly constituted authorities; the provision of protective and
treatment services to endangered children; immunity provisions for persons making
good-faith reports of suspected instances of abuse and neglect; confidentiality of
records, with criminal sanctions for those who illegally disseminate protected
88 Id. at 105.
90 Id. at 105-106.
91 Id. at 106.
92 Child protective services include investigation of child abuse and neglect reports and
removal of children from home if necessary for their protection. Child welfare services
include various home-based services to strengthen and improve family functioning, other
supportive services to maintain children in their own homes, financial support and services
for children while they are in foster care, services to reunite children with their families if
possible, and adoption assistance or other permanency planning services for children if
family reunification is not feasible.
93 42 U.S.C. §§ 5101-5115.
information; cooperation between agencies dealing with child abuse and neglect
cases;94 and other topics which would assist in identifying, preventing and treating
child abuse and neglect.95 This law is not aimed at those guilty of the abuse; but,
rather is intended to help discover, treat and prevent as many child abuse cases as
In the case of the Federal Child Support Enforcement Program (CSE),96 the
federal nexuses are the federal matching funds obtained by the states. All fifty states,
the District of Columbia, Guam, Puerto Rico, and the Virgin Islands operate CSE
programs and they are entitled to the matching federal funds. This program provides
seven major services on behalf of children: (1) parent location, (2) paternity
establishment, (3) establishment of child support orders, (4) review and
modifications of support orders, (5) collection of support payments, (6) distribution
of support payments and establishment and enforcement of medical support.
To provide these services to children, requirements are put upon the states and
participants alike. State requirements include automated registries of child support
orders along with a centralized automated state collection and disbursement unit.
Likewise, applicants and recipients are required to cooperate in establishing paternity
or obtaining support payments or risk penalties for noncompliance. If a
determination is made that an individual is uncooperative without any good cause or
other exception, then the state must reduce the family’s benefit by at least 25% and
may even remove the family from the program.
Collection methods used by CSE agencies include income withholding,
intercepts of federal and state income tax refunds, intercepts of unemployment
compensation, liens against property, security bonds, and reporting child support
obligations to credit bureaus. Moreover, all jurisdictions have civil or criminal
contempt-of-court procedures and criminal non-support laws. Public Law No. 105-
187, the Deadbeat Parents Punishment Act of 1998, established two new federal
criminal offenses (subject to a two-year maximum prison term) with respect to non-
custodial parents who repeatedly fail to financially support children who reside with
custodial parents in another state or who flee across state lines to avoid supporting
them.97 Furthermore, P.L. 104-193, officially known as the Personal Responsibility
and Work Reconciliation Act of 1996, required states to implement expedited
procedures to allow them to secure assets to satisfy arrearages by intercepting or
seizing periodic or lump sum payments (such as unemployment and worker’s
94 This situation can pose a particular problem due to the interests of law enforcement
personnel who wish to prosecute offenders may run counter to those of social workers, who
want to minimize the child’s traumatic experience, and if possible, return him or her to the
household at an early date. These goals are made more difficult if a member of the
household is charged with abuse and/or the child is called upon to discuss the abuse with
law enforcement officers or in court.
95 See CRS Report RL31082, Child Welfare Financing: Issues and Options, by Karen Spar
and Christine M. Devere.
96 42 U.S.C. §§ 651-66.
97 P.L. 105-187, 112 Stat. 618 amending 18 U.S.C. § 228.
compensation), lottery winning, awards, judgments, or settlements, and assets of the
debtor parent held by public or private retirement funds, and financial institutions.98
In addition, the law required states to implement procedures under which the state
would have authority to withhold, suspend or restrict use of driver’s licenses,
professional and occupational licenses, and recreational and sporting licenses of
persons who owe past-due support or who fail to comply with subpoenas or warrants
relating to paternity or child support proceedings.99
Uniform State Laws. The National Conference of Commissioners on
Uniform State Laws is a non-governmental entity formed in 1982 “to promote
uniformity in state laws on all subjects where uniformity is deemed desirable and
practical.”100 Since the entity’s inception, it has drafted and approved several
uniform acts, which have met with varying degrees of success in terms of enactment
by state legislatures. Three uniform domestic relations acts which have gained
widespread acceptance deal with the enforcement of child support orders (UIFSA)
and recognition of child custody decrees (UCCJEA and UCCJA) entered in other
states. All states adopted the Uniform Interstate Family Support Act (UIFSA) under
which state courts basically treat valid child support orders entered in another state
as having been entered in their own state (the state which has jurisdiction over the
person required to pay the support) for enforcement purposes.101 The states’ adoption
of the UIFSA was due to Congress’s enactment of welfare reform, officially known
as the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.102
In this act, Congress mandated enactment of UIFSA for a state to remain eligible for
the federal funding of child support enforcement.103
UIFSA provides procedural and jurisdictional rules for essentially three types104
of interstate child support proceedings: (1) a proceeding to establish a child support
order; (2) a proceeding to enforce a child support order and (3) a proceeding to
modify a child support order. UIFSA implements the “one-order system.” This
means that only one state’s order governs, at any given time, an obligor’s support
obligation to any child. Further, only one state has continuing jurisdiction to modify
98 P.L. 104-193, 110 Stat. 2105.
99 Also, passports may be denied, revoked or restricted for individuals certified by a state
agency as owing more than $2,500 in past due support. 42 U.S.C. 652(k) and 22 C.F.R §§
reduced the arrearage amount from $5,000 to $2,500.
100 National Conference of Commissioners on Uniform State Laws’ Constitution, § 1.2.
101 Unif. Interstate Family Support Act, 9 (pt. IB) U.L.A. 306 (1999). See also discussion
of the Federal Child Support Enforcement Act infra at 148.
102 42 U.S.C. § 666.
103 42 U.S.C. § 666(f). See Kansas v. United States, 24 F.Supp.2d 1192 (D. Kan.
1998)(upholding Title III of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 and its requirement of states to pass UIFSA against the Spending
Clause and Tenth Amendment challenges).
104 The word “interstate” is used here to mean that one or both parents have left the state in
which they were married or maintained a relationship.
a child support order. This requires all other states to recognize the order and to
refrain from modifying it unless the first state has lost jurisdiction.
UIFSA only governs jurisdiction to hear interstate child support proceedings.
The Uniform Child Custody Jurisdiction Act (UCCJA)105 (or the Uniform Child
Custody Jurisdiction and Enforcement Act [UCCJEA])106 and the Parental
Kidnapping Prevention Act (PKPA)107 govern jurisdiction to hear custody
Thus, the forwarding of a UIFSA proceeding to a state that would not normally
have jurisdiction over custody issues108 does not subject the petitioner to custody
claims the respondent might make. Further, a court properly hearing a UIFSA
proceeding “may not condition the payment of a support order issued under (UIFSA)
upon compliance by a party with provisions for visitation.”109
One would think that a final domestic relations decree entered in one state
should be uniformly recognized and enforced throughout the other states. However,
this was frequently not the case, because in many instances a second state would
assert its own jurisdiction to modify the original decree or enter a new decree which
in its view supersedes the original one.110 That is why, for example, the UCCJA, as
discussed above, failed, despite its widespread adoption by the states, to result in the
broad national recognition of child custody decrees its sponsors anticipated and
desired. Rather, non-custodial parents would take the child to another state, and that
state, by virtue of its jurisdiction over the party seeking the modification, would enter
a new decree changing the custody arrangement because circumstances changed since
the entering of the original decree.111 This meant that the child’s mother could have
a valid decree in one state, granting her custody, while the father had an equally valid
decree in another state, granting him custody — with concomitant frustration and
105 9 (pt IB) U.L.A. 261 (1999). Before the adoption of the UCCJEA in 1997, all fifty states
and the District of Columbia had adopted the UCCJA.
106 The National Conference of Commissioners on Uniform State Laws adopted the
UCCJEA in 1997 as a replacement for the UCCJA.
107 28 U.S.C. § 1738A (1994).
108 Under the PKPA, the UCCJEA, and, to a lesser extent, the UCCJA, the child’s home
state is favored for jurisdiction over custody issue.
109 UIFSA § 305(d), 9 (pt. IB) U.L.A. 306 (1999). See id. Prefatory Note, 9 (pt.IB) U.L.A.
See, e.g., Office of Child Support Enforcement v. Clemmons, 984 S.W.2d 837 (Ark. Ct. App.
110 In addition, most custody decrees are not final for purposes of the full faith and credit
clause, as the issuing state may modify. Thus, the doctrine of res judicata, which holds that
upon a finally adjudication a matter cannot be reopened or collaterally attacked in the
original state or elsewhere, fails to apply in child custody decrees. See, e.g. Kovacs v.
Brewer, 356 U.S. 604 (1958); Ford v. Ford, 371 U.S. 187 (1962).
111 In many instances the only change was the fact that the child was not living with the other
parent and sufficient time elapsed so that the court in the new state felt the best decision was
to assure this new continuity of care for the child.
expenditures of time and/or money by both parents, yielding unfortunate results to
the child. The Parental Kidnapping Prevention Act of 1980 (PKPA)112 has now
largely taken care of the problem.
However, it must be noted that the PKPA does not confer jurisdiction on the
federal courts. This act merely delineates which jurisdiction may modify child
support and custody orders. As such, the PKPA is inapplicable to instate disputes
and only relevant in interstate disputes when the jurisdictions have conflicting laws.
Under the Supremacy Clause, the jurisdictional guidelines set forth in the PKPA
supersede any conflicting state law. As such, parents are bound by state court
decisions regarding custody, visitation and support.
“Uniform acts” such as UIFSA, UCCJA, UCCJEA fail to specify what court
orders must contain or what courts must consider when drafting them, but deal
exclusively with their enforcement once finalized. Other proposals, such as the
Uniform Marriage and Divorce Act (UMDA) and the Uniform Adoption Act, include
specific guidelines for courts to follow in drafting these various orders.
Even when domestic relations laws are drafted with great specificity, they fail
to yield comparable results in seemingly comparable cases. Each domestic relations
case presents a unique fact pattern which gives judges and hearing examiners wide
discretion in determining an equitable ruling in each case. Thus, it is difficult, if not
impossible to talk in terms of “average” alimony awards or predict with any degree
of accuracy what custodial arrangement a judge will order in a particular divorce
case. Generally, a party who receives an adverse ruling can only appeal on an “abuse
of discretion” ground, an extremely difficult standard to meet. For this reason,
reported domestic relations cases113 have little precedential value except when cited
for general policy considerations. However, courts can modify alimony, child
support and/or child custody (not marital property division)114 provisions, upon a
showing of changed circumstances.
Adoption of uniformed laws such as UIFSA, UCCJEA and UCCJA has aided
in fostering consistency and efficiency in the enforcement of interstate child support
and custody orders.
“Sense of the Congress” Resolutions. Another indirect approach which
Congress utilizes to obtain desired results are “Sense of the Congress” resolutions.
These resolutions lack any legally binding force or effect, but are introduced in the
hope that if Congress goes on record as favoring a certain policy, the individual states
will be encouraged to adopt legislation advancing that policy.
For example, H.Con.Res. 67 expressed the sense of the Congress that:
112 P.L. 96-611, §§ 6-10, 94 Stat. 3566,3567; codified at 28 U.S.C. § 1738A.
113 The only cases available for research purposes are those appealed. The appeal results in
a written decision reprinted in various court reporting services.
114 Marital property settlements are usually only modified upon a showing of fraud or
coercion at the time the settlement was approved by the parties or imposed by the court.
[A] uniform State act should be developed and adopted which provides
grandparents with adequate rights to petition State courts for privileges to visit
their grandchildren following the dissolution because of divorce, separation, or
death of the marriage of such grandchildren’s parents, and for other purposes.
This resolution passed the House of Representatives on April 22, 1985, and passed115
the Senate on September 29, 1986. Consequently, some states have enacted
specific grandparent visitation statutes, while others include grandparents within a
broader third-party visitation statute.
The content of these visitation laws varies greatly.116 Several states limit
visitation to cases involving deceased parents.117 Others specifically extend the right
to cases of divorce, annulment or separation. A few states allow grandparent
115 132 Cong. Rec. S26904 (daily ed. September 29, 1986).
116 The following is a list of state statutes governing third-party visitation. Alabama (Ala.
Code § 30-3-4); Alaska (Alaska Stat. §§25.20.060, 25.20.065); Arizona (Ariz Rev. Stat.Ann.
§25-409); Arkansas (Ark.Stat. Ann. §§9-13-102 and 9-13-103); California (Cal. Fam. Code
§§ 3102-3104); Colorado (Colo. Rev. Stat. §§ 19-1-117 and 19-1-117.5); Connecticut
(Conn. Gen. Stat. §§ 46b-56(a), 46b-57, 46b-59 and 46b-129); Delaware (Del. Code. Ann.
Tit. 10 § 1031(7)); Florida (Fla. Stat. § 752.01); Georgia (Ga. Code § 19-7-3); Hawaii
(Hawaii Rev. Stat §§ 571-46(7) and 571.46.3); Idaho (Idaho Code § 32-719); Illinois (Ill.
Rev. Stat. Ch. 750 and 5/607); Indiana (Ind. Code §§ 31-17-5-1 thru 31-17-5-2); Iowa (Iowa
Code § 598.35); Kansas (Kan. Stat. Ann. §§ 60-1616 and 38-129); Kentucky (Ky. Rev. Stat.
§ 405.021); Louisiana (La. Rev. Stat. Civ Code Ancillaries § 9:344 and Children’s Code §
Maryland (Md. Fam. Law Code § 9-102); Massachusetts (Mass. Gen. Laws Ann. § 119-
Stat. §§ 257.022, 257c.08 and 518.1752); Mississippi (Miss. Code. Ann. §§ 93-16-1 and 93-
Nebraska (Neb. Rev. Stat. §§ 43-1801 thru 43-1803); Nevada (Nev. Rev. Stat. §§ 125A.330
and 125A.340); New Hampshire (N.H. Rev. Stat. Ann. §§ 458:17d); New Jersey (N.J. Rev.
Stat. § 9:2-7.1); New Mexico (N.M. Stat. Ann. §§ 40-9-1 thru 40-9-4); New York (N.Y.
Dom. Rel. Law §§ 71 thru 72 and 240(1)); North Carolina (N.C. Gen. Stat. § 40-13.2); North
Dakota (N.D. Cent. Code § 14-09-05.1; Ohio (Ohio Rev. Code Ann. § 3109.051); Oklahoma
(Okla. Stat. Tit. 10 § 5); Oregon (Or. Rev. Stat. § 109.119); Pennsylvania (Pa. Cons. Stat.
Tit. 23 §§ 5311 thru 5314); Rhode Island (R.I. Gen. Laws §§ 15-5-24.1 thru 15-5-24.4);
South Carolina (S.C. Code Ann. § 20-7-420(33)); South Dakota (S.D. Codified Laws Ann.
§§ 25-4-52 thru 25-4-54, and 25-5-29 thru 25-5-34); Tennessee (Tenn. Code Ann. §§ 36-6-
302 thru 36-6-303); Texas (Tex. Fam. Code Ann. §§ 154.432 thru 153.434); Utah (Utah
Code Ann. §§ 30-3-5-5(a) and 30-5-2); Vermont (Vt. Stat. Ann. Tit. 15 §§ 1011 thru 1016);
Virginia (Va. Code §§ 20-124.1 thru 20-124.2); Washington (Wash. Rev. Code Ann. §
§ 767.245); Wyoming (Wyo. Stat. § 20-7-101).
117 See e.g. Hiller v. Fausey, 904 A.2d 875 (PA 2006)(holding that application of state
statute allowing visitation or partial custody to grandparents upon the death of a child’s
parent did not violate the father’s due process right to direct the care, custody, and control
of his child); see also, In re estate of Thurgood, No. 20040796, 2006 WL 2457822 (Utah
August 26, 2006)(finding that grandparent visitation statute did not unconstitutionally
infringe upon a parent’s right to the care, custody, and control of his or her children).
visitation even over the objections of both parents in an ongoing family,118 and even
against the argument that parents have the constitutional right to raise their child as
they see fit.119 Most states, however, hold by statute or court decision that the ongoing
family is not subject to enforced intrusion by grandparents, if both parents are fit and
Implementation of the Full Faith and Credit Clause. Article, Section
“Full Faith and Credit shall be given in each state to the public Acts, Records,
and judicial proceedings of every other state. And the Congress may by general
laws prescribe the manner in which such Acts, Records, and Proceedings shall
be proved, and the effect thereof.”
This clause applies principally to the interstate recognition and enforcement of
judgments. It is settled law that final judgments are entitled to full faith and credit,
regardless of other states’ public policies,121 provided the issuing state had
jurisdiction over the parties and the subject matter.122 Judgments subject to future
modification, such as child support and child custody orders, are not considered final.
Therefore, they are not entitled to full faith and credit.123 As discussed below,
however, Congress enacted the PKPA and the Full Faith and Credit for Child Support
118 State ex rel. Brandon L. v. Moats, 551 S.E.2d 674 (W. Va. 2001)(finding Grandparent
Visitation Act does not violate parents’ substantive due process right of liberty in connection
with the care, custody, and control of children without undue interference from the state
because the act requires an affirmative determination that visitation would not substantially
interfere with the parent-child relationship and places the burden of proof on grandparents
to show that visitation is in the child’s best interest); but see Troxel v. Granville, 530 U.S.
57 (2000)(finding unconstitutional a Washington statute allowing “any person” to petition
a court “at any time” to obtain visitation rights whenever visitation “may serve the best
interests” of a child as applied to an order requiring a fit parent to allow her child’s
grandparents more extensive visitation than the parent wished).
119 Id.;Lily v. Lily, 43 S.W.3d 703 (Tex. App. 2001)(finding Grandparent visitation statute
did not violate due process on its face, as statute allowed only grandparents under particular
circumstance to petition for visitation, and provided that it was in child’s best interests).
120 See e.g. Troxel v. Granville, 530 U.S. 57; see also, Linder v. Linder, No. 01-380, 2002
WL 723898, *1 (Ark. April 25, 2002) (holding state’s grandparent visitation law invalid as
applied to an otherwise fit mother who rebuffed the visitation requests of her deceased
husband’s parents); Wickham v. Byrne, No. 92048, 2002 WL 595036, *1 (Ill. April 4, 2002)
(finding Illinois grandparent visitation law facially invalid because it places a fit parent on
equal footing with the parent seeking visitation); State ex rel. Brandon L. v. Moats, 551 S.E.
121 In Fauntelroy v. Lum, 210 U.S. 230 (1908) the Supreme Court required Mississippi to
give full faith and credit to a Missouri judgment, even though the judgment was based upon
a “futures” contract, a transaction which Mississippi had outlawed as against its public
122 Restatement (Second) of Conflict of Laws § 107.
123 Restatement (Second) of Conflict of Laws § 109.
Act to accord full faith and credit to child custody and support orders.124 The Full
Faith and Credit Clause has rarely been used by courts to validate marriages because
marriages are not “legal judgments.” However, courts routinely recognize out-of-
st at e-m arri ages.
Questions concerning the validity of an out-of-state marriage are generally
resolved without reference to the Full Faith and Credit Clause. As previously
discussed, marriages are not regarded as judgments. In the legal sense, marriage is
a “civil contract” created by the States which establishes certain duties and confers
certain benefits.125 Validly entering the contract creates the marital status; the duties
and benefits attached by a State are incidents of that status.126
The general rule of validation for marriage is to look to the law of the place
where the marriage was celebrated, lex celebrationis. A marriage satisfying the
contracting state’s requirements will usually be held valid everywhere.127 Many
states provide by statute that a marriage validly contracted elsewhere is valid within
the state. At least twenty-three states have adopted language substantially similar to
the Uniform Marriage and Divorce Act (UMDA),128 which states: “All marriages
contracted...outside this State, that were valid at the time of the contract or
subsequently validated by the laws of the place in which they were contracted...are
valid in this State.”129 Several states provide an exception to this general rule by
declaring out-of-state marriages void if against the state’s public policy or if entered
into with the intent to evade the law of the state. As such, eleven states have passed
legislation prohibiting recognition of out-of-state same-sex marriage.130 Moreover,
Congress passed the Defense of Marriage Act (DOMA),131 which prohibits the
124 28 U.S.C. 1738A.
125 On the state level, common examples of nonnegotiable marital rights and obligations
include distinct income tax filing status; public assistance such as health and welfare
benefits; default rules concerning community property distribution and control; dower,
curtesy and inheritance rights; child custody, support agreements; name change rights;
spouse and marital communications privileges in legal proceedings; and the right to bring
wrongful death, and certain other, legal actions.
126 On the federal level, marriage results in: distinct housing entitlements; federal income
tax rates; Medicare, Medicaid, and veterans’ benefits; and immigration and citizenship
127 See, Annotation, 71 A.L.R. 687 (1960).
128 Arizona, Arkansas, California, Colorado, Connecticut, the District of Columbia, Georgia,
Hawaii, Idaho, Illinois, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Montana,
Nebraska, New Mexico, North Dakota, South Dakota, Utah, Virginia, Wyoming.
129 Unif. Marriage and Divorce Act § 210, 9A U.L.A. 147.
130 Alaska, Arizona, Georgia, Idaho, Illinois, Kansas, Oklahoma, South Carolina, South
Dakota, Tennessee, Utah. For a discussion of same-sex marriages, refer to CRS Report
RL31994, Same-Sex Marriages: Legal Issues, by Alison M. Smith.
131 P.L. 104-199, 110 Stat. 2419, codified at 28 U.S.C. § 1738C.
federal recognition of same-sex marriages and allows individual states to refuse to
recognize such marriages performed or recognized in other states.132
The Full Faith & Credit clause is applicable to divorces. In two related cases
known as Williams I 133 and Williams II, 134 the Supreme Court articulated the extent
to which the Full Faith and Credit Clause applies in divorce cases. Both cases arose
out of the following scenario: a man and a woman, both domiciliaries (permanent
residents) of North Carolina and married to other people, moved to Nevada. They
lived there for six weeks to satisfy the Nevada durational residency requirement for
divorce, at which time they obtained divorces upon substituted service (i.e. their
spouses were notified by publication only and failed to participate in the
proceedings), married each other, and returned to North Carolina. North Carolina
then began prosecution under its bigamous cohabitation statute.
In Williams I, the Supreme Court held that in granting the divorce, Nevada was
justified in assuming that the parties were bona fide Nevada domiciliaries (a
jurisdictional requirement). Thus, the divorce was valid and warranted recognition
as such by the other states including North Carolina. However, in Williams II, the
Court held that a divorce decree issued in one state could be collaterally impeached
in another by proof that the court which tendered the decree lacked jurisdiction. In
this particular case, the fact that the new Mr. and Mrs. Williams returned to North
Carolina immediately following their marriage was sufficient to justify the North
Carolina court’s conclusion that the couple was not domiciled in Nevada at the time
their divorce was granted. As such, the divorce was void because the issuing court
lacked proper jurisdiction.
In Williams II, the rule remains in effect today, as modified by the Supreme
Court’s holding in Sherrer v. Sherrer, 334 U.S. 343 (1948), that a divorce cannot be
subsequently attacked by a spouse for lack of jurisdiction if the spouse participated
in the divorce proceeding and the divorce court specifically ruled that it had
jurisdiction.135 Under this ruling, if both parties participate in a divorce proceeding
and/or consent to the court’s jurisdiction (i.e., obtain a “bilateral” divorce, neither
party can attack the decree for lack of jurisdiction).136
132 Id. Legislation was introduced in the 108th Congress to repeal the provisions of DOMA
codified in Title 1. H.R. 2677, the “State Regulation of Marriage is Appropriate Act,” was
introduced by Congressman Barney Frank on July 9, 2003. The bill was referred to the
House Committee on the Judiciary on July 9, 2003 and was referred to the Subcommittee
on the Constitution on September 4, 2003. No further action has been taken on this bill.
133 Williams v. North Carolina, 317 U.S. 287 (1942).
134 Williams v. North Carolina, 325 U.S. 226 (1945).
135 When “[i]t is clear that respondent was afforded his day in court with respect to every
issue involved in the litigation...there is nothing in the concept of due process which
demands that a defendant be afforded a second opportunity to litigate the existence of
jurisdictional fact.” 334 U.S. at 348 (citations omitted).
136 The Court further held in Johnson v. Muelberger, 340 U.S. 581(1951), that a child could
not collaterally attack her parents’ divorce where both parties participated in the proceeding.
Due to the increased uniformity of divorce laws, states’ adoption of no-fault
divorce statutes and shorter durational residency requirements situations such as the
ones mentioned above continue to decrease. These reasons reduce a party’s need to
seek out what may be viewed as a more favorable divorce jurisdiction. While the
situation has minimized with domestic divorce decrees, a comparable situation now
exists regarding certain foreign divorce decrees (e.g., those where only one party
appears briefly in the issuing jurisdiction).137
The Full Faith and Credit Clause does not govern the domestic validity of
divorce judgments from foreign countries. The rule of comity, which generally
provides for recognition of foreign decrees issued by courts of competent jurisdiction,
governs. However, the jurisdictional tests applied are usually those of the United
States,138 rather than the divorcing country. As such, a divorce obtained in a foreign
country will be invalid in the United States if neither spouse was domiciled in that
country, even if domicile is not required for jurisdiction under its law. New York is
the only state which recognizes bilateral foreign divorces (where both parties
participate) even where its own jurisdictional requirements are not satisfied.139 No
state recognizes such unilateral divorces (where only one party appears).
Justice Frankfurter, in a concurring opinion in Williams I, noted that Congress
had the authority under the Full Faith and Credit Clause to require national
recognition of divorce decrees, but had not yet chosen to exercise such authority:
...[I]t is clearly settled that if a judgment is binding in the state where it was
rendered, it is equally binding in every state. This rule of law was not created by
the federal courts. It comes from the Constitution and the Act of May 26, 1790,
c. 11, 1 Stat. 122. Congress has not exercised its power under the Full Faith and
Credit Clause to meet the special problems raised by divorce decrees. There will
be time enough to consider the scope of its power in this regard when Congress
chooses to exercise it. 317 U.S. at 306.
In response to this dicta, Senator Pat McCarran introduced bills in the 80th
through the 83rd Congresses140 which, if enacted would have required all states to
recognize divorce decrees where: (1) the decree was final as to the issue of divorce;
(2) the decree was valid in the state where rendered; (3) the decree stated that the
jurisdictional prerequisites of the issuing stated had been met; and (4) the issuing
state was the last state where the spouses were domiciled together as husband and
wife; or the defendant was personally subject to jurisdiction in that state, or appeared
generally in the divorce proceedings. The only exceptions included fraud of the
successful party which misled the defeated party. Two of these bills passed the
137 Such divorces are commonly known as “Mexican divorces,” even though Mexico
tightened its residency requirements in 1971 so that few American now qualify for a divorce
in that country. However, several Caribbean countries continue this practice.
138 State jurisdictional requirements ordinarily include some formal residency requirement
(usually six months or a year) and proper notice to the opposing party.
139 Rosenstiel v. Rosenstiel, 209 N.E.2d 709 (1965).
140 S. 1960, 80th Cong., 2d Sess. (1948); S. 3, 81st Cong., 1st Sess. (1940); S. 1331, 82d Cong.,
Senate, in 1952 and 1953,141 but neither became law and no such measure is presently
Congressional action under the Full Faith and Credit Clause has been minimal,
“[i]ndeed, there are few clauses of the Constitution, the merely literal possibilities of
which have been so little developed as the full faith and credit clause.”142 Only on
five occasions has Congress enacted legislation to require States to give full faith and
credit to certain types of acts, records and proceedings. Three of the enactments
pertain to family law concerns.
To date, the major legislative initiative in this area is 28 U.S.C. § 1738A, a
provision of the PKPA which requires states to give full faith and credit to child
custody decrees entered in other states unless the state asked to modify the original
order has jurisdiction to do so, and the state which issued the original order lacks
jurisdiction to modify the order or declines to exercise its jurisdiction.143 In addition,
under 42 U.S.C. § 666(a), states must grant full faith and credit to each other’s child
support orders, to the extent of not modifying them retroactively.144
In 1994, the 103rd Congress passed the Full Faith and Credit for Child Support
Orders Act,145 requiring each state to enforce child support orders issued by the
child’s home state if done in compliance with the act’s provisions. The law was
designed so that a person with a valid child support order in one state would not have
to obtain a second order in another state should the debtor parent move from the
issuing court’s jurisdiction. Rather, the second state must recognize the first state’s
order as valid, but can modify it only when the child and the custodial parent have
moved to the state where the modification is sought or have agreed to the
modification. Retroactive modification is prohibited, and prospective modification
is authorized if the court finds that circumstances exist which justify a change.146
Also in 1994, Congress passed the Safe Homes for Women Act of 1994,147
requiring states to recognize domestic violence protection orders issued by sister
states. Any protection order issued by one state or tribe shall be treated and enforced
as if it were an order of the enforcing state. The act extends to permanent, temporary,
and ex parte protection orders. Full faith and credit is afforded during the period of
time in which the order remains valid in the issuing state. Protection orders are only
141 S. 1331, 82d Cong., passed the Senate on June 21, 1952, 98 Cong. Rec. 7773; S. 39, 83d
Cong., passed the Senate on May 6, 1953, 99 Cong. Rec. 4575.
142 Constitution of the United States of America: Analysis and Interpretation 970 (1992).
143 For specific jurisdictional requirements, see 28 U.S.C. § 1738A(c). Under this language,
a state court retains jurisdiction over a child for six months after the child leaves the state,
as long as the custodial parent continues to reside in that state.
144 This provision was added as part of the Omnibus Budget Reconciliation Act of 1986, P.L.
145 P.L. 103-383, 108 Stat. 4064, codified at 28 U.S.C. § 1738B.
146 42 U.S.C. § 666(a).
147 P.L. 103-322, title IV, § 40221(a), 108 Stat. 1930, codified at 18 U.S.C. § 2265.
afforded full faith and credit if the due process requirements of the issuing state were
In the previous instances, Congress’s exercise of its full faith and credit
enforcement power was necessitated by the failure of sister state courts to give full
faith and credit to orders not regarded as final judgments. Congress directed sister
states to give full faith and credit to child custody, child support, and protection
orders from other states. In effect, Congress required each state to give the child
custody, child support, and protection orders of other states the same faith and credit
it gives its own such orders.
Conversely, in 1996, Congress passed the Defense of Marriage Act (DOMA).148
This act differs in one critical aspect from the other legislative enactments passed by
Congress under its full faith and credit power: the DOMA permits sister states to give
no effect to the law of other states.149 Congress enacted DOMA in response to claims
by advocates of same-sex marriage that, if any state legalizes same-sex marriage, all
states and federal agencies will have to recognize as valid all same-sex marriages
performed in that same-sex-marriage-permitting state.150 Congress recognized that
the legalization of same-sex marriage in any jurisdiction would have far-reaching
potential effects upon all people and upon a wide spectrum of laws in the jurisdiction,
ranging from marriage law to public school curricula, from custody law to public
finances, from adoption to insurance issues, from alimony and property division to
employment regulations.151 Moreover, these potential effects involved a policy issue
148 P.L. 104-199, 110 Stat. 2419, codified at 28 U.S.C. § 1738C.
149 28 U.S.C. § 1738C states: “No State, territory, or possession of the United States, or
Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding
of any other State, territory, possession, or tribe respecting a relationship between persons
of the same sex that is treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such relationship.”
150 The first step in this direction was taken by the Hawaii Supreme Court in Baehr v. Levin,
852 P.2d 44 (Haw. 1993). The Baehr court held that while there is no fundamental right for
same-sex couples to marry, the state statute restricting marriage to opposite-sex couples
established a sex-based classification subject to strict scrutiny for the purposes of an equal
protection challenge. The court held that the statute amounted to sex discrimination when
analyzed under this standard. Following this decision, the Hawaii state legislature amended
the state constitution in 1998 to bar recognition of same-sex marriages and the state supreme
court found that “the marriage amendment validated” the statute in question in Baehr.
151 See H.R. Rep. No. 104-664, at 10-11 (1996)(discussing the interstate and federal
implications of the legalization of same-sex marriages in any jurisdiction). In Baker v.
Vermont, 744 A.2d 864 (Vt. 1999), the Vermont Supreme Court held that it was a violation
of the state constitution to deny same-sex couples the benefits and protections afforded
opposite-sex married couples. The plaintiffs in Baker were three same-sex couples in
committed relationships ranging from four to twenty-five years; two of the couples had
children they had raised as a family. The couples applied for marriage licenses and were
rejected, and brought suit challenging the validity of the statute under which they were
denied licenses. The trial court found in favor of the defendants, finding that limiting
marriage to opposite-sex couples “rationally furthered the State’s interest in promoting ‘the
link between procreation and child rearing.”’ Recharacterizing the issue as one of equal
of great importance to the people of each jurisdiction warranting decision by each
Proposed Constitutional Amendments
Between 1917 and 2001, 33 constitutional amendments were proposed to give
Congress authority to legislate on marriage and divorce questions.152 In addition, 12
bills were introduced during this period to provide for uniform marriage and divorce
laws throughout the United States, presumably in anticipation that such a
constitutional amendment would be ratified.153
Eleven of the proposed constitutional amendments154 and all of the
implementing bills introduced in the Senate were sponsored by Senator Arthur Caper.
The text of his proposed amendments uniformly stated:
The Congress shall have power to make laws, which shall be uniform throughout
the United States, on marriage and divorce, the legitimization of children, and the
care and custody of children affected by annulment of marriage or by divorce.
However, none of these proposed amendments ever received congressional action.
Beginning in the 107th Congress, legislation has been introduced proposing a
constitutional amendment to define marriage as the “union of a man and a
protection, the Vermont Supreme Court held that same-sex couples must be afforded
privileges and responsibilities under state law equal to those enjoyed by opposite-sex
couples that are married. The holding does not mandate that same-sex couples be allowed
to marry; instead, the Court left the exact procedure for effecting the change to the
legislature. The Vermont state senate passed the mandated bill in April 2000, allowing
same-sex couples to form civil unions. While not labeled “marriages,” these unions entitle
the couples to all the state benefits of marriage.
152 S.J.Res. 34, H.J.Res. 55, and H.J.Res. 187, 65th Cong., S.J.Res. 55, H.J.Res. 75, and
H.J.Res. 108, 66th Cong.; S.J.Res. 31, S.J.Res. 273, H.J.Res. 83, and H.J.Res. 426, 67thth
Cong., S.J.Res. 5, S.J.Res. 53, H.J.Res. 6, H.J.Res. 9, H.J.Res. 40, and H.J.Res. 109, 68th
Cong., S.J.Res. 31, H.J.Res. 30, H.J.Res. 58, and H.J.Res. 110, 69 Cong.; S.J.Res. 40,thst
H.J.Res. 35, and H.J.Res. 162, 70 Cong.; S.J.Res. 123, 71 Cong.; S.J.Res. 234 andthth
H.J.Res. 558, 7 Cong.; and S.J.Res. 28, 80 Cong.
153 S. 4394 and H.R. 13976, 67th Cong.; S. 1751, 69th Cong.; S. 1707, 70th Cong.; S. 3147,
154 S.J.Res. 273, 67th Cong.; S.J. Res.5, 68th Cong.; S.J. Res.31, 69th Cong.; S.J.Res. 40, 70th
Cong.; S.J.Res. 123, 71st Cong.; S.J.Res. 234, 75th Cong.; S.J.Res. 44, 76th Cong.; S.J.Res.thththth
155 H.J.Res. 93, 107th Cong.; H.J.Res. 56, S.J.Res. 26, and S.J.Res. 30, 108th Cong.; S.J.Res.
In the absence of a constitutional amendment providing general authority for
Congress to legislate in the field of domestic relations, its direct authority is limited
to those areas specifically reserved for congressional action under Article I, Section
8, of the Constitution. However, various indirect approaches, most notably those tied
to congressional authority under the commerce clause and Congress’s appropriations
powers, have resulted in significant federal impact on a myriad of family law
Currently, there appears to be little sentiment in favor of a national marriage and
divorce law, at least one which would be imposed involuntarily by Congress on the
states. However, it is probable that federal involvement will continue or be
forthcoming in those areas where it is argued that federal resources can be utilized
more efficiently and effectively than those available at the state or local level, such
as tracking down parental kidnappers or establishing and enforcing child support
orders. The spending power can be used to shape state approaches to a given
situation, although this option involves expenditures of federal funds; the higher the
funding level, the more likely a state is to comply with the federal directive.
The nature of family law cases is such that an individualized approach to each
particular case will undoubtedly continue. However, state domestic relations laws
have become more uniform in recent years, and even without federal intervention this
trend is likely to continue. Thus, it is possible that some of the national uniformity
envisioned by proponents of adopting a constitutional amendment for this purpose
will be realized, although states retain primary authority to legislate in this area.