Academic journal article Emory Law Journal

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

Academic journal article Emory Law Journal

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

Article excerpt


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

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

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

Under the current approaches used by the federal circuits, this suit would result in a variety of procedural outcomes. Some circuits would permit the case to go forward since the mother is not suing for divorce, alimony, or child custody.17 Other circuits would apply the exception, noting that the suit is too closely involved with domestic relations matters.18 The practical result is that in one circuit, the mother may receive true vindication of her wrongs, but in another, she will never have her day in court, or more blatantly, may never receive custody of her children.

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

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

The second underlying value of the domestic relations exception is federalism. In the context of federal courts, federalism could mean deference22 or the belief and recognition that some areas of the law are traditionally left to the states to govern.23 When the Supreme Court famously defined "Our Federalism," it observed that the concept encompasses both of these ideas.24 The Court noted that federalism represents "a system in which there is sensitivity to the legitimate interests of both [s]tate and [n]ational [governments, and in which the [n]ational [g]overnment, anxious . …

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