125
Family Law Is Not “Civil”: The Faulty
Foundation of the Domestic Relations
Exception to Federal Jurisdiction
JOSEPH A. CARROLL*
Introduction
Courts and scholars often refer to family law1 as a quintessentially
and appropriately state-controlled and state-adjudicated area.2 The U.S.
Supreme Court has frequently emphasized that the federal government’s
reach must be limited within the realm of family law because family
1. For the purposes of this essay, “family law” refers to the formation and dissolution
of familial relationships, nonexhaustively including marriage, divorce, property distribution,
alimony, paternity/maternity, custody, visitation, child support, adoption, and termination of
parental rights. See Jill Elaine Hasday, Federalism & the Family Reconstructed, 45 UCla l.
rev. 1297, 1372–73 (1998) (providing a denition for “family law”). Family law addresses
people’s rights and responsibilities that result from their familial relationships. Id. Additionally,
this essay will use “domestic relations” and “family law” synonymously.
2. See Elk Grove Unied Sch. Dist. v. Newdow, 542 U.S. 1, 12–14 (2004); Ankenbrandt v.
Richards, 504 U.S. 689, 692 (1992) (quoting In re Burrus, 136 U.S. 586, 593–94 (1890)); Barber
v. Barber, 62 U.S. 582 (1858); Bradley G. Silverman, Federal Questions and the Domestic-
Relations Exception, 125 yale l.J. 1364, 1391-95 (2016); Mark Strasser, Congress, Federal
Courts, and Domestic Relations Exceptionalism, 12 Conn. pUB. int. l.J. 193, 193 (2012);
Hasday, supra note 1, at 1298 (“Throughout the debate on federalism, family law emerges as
the one clear case in which federal involvement is inappropriate . . . .”); Sharon Elizabeth Rush,
Domestic Relations Law: Federal Jurisdiction and State Sovereignty in Perspective, 60 notre
dame l. rev. 1, 8–9 (1984).
* First Place, 2017 Howard C. Schwab Memorial Essay Contest; Dickinson School
of Law, The Pennsylvania State University, J.D. 2017, summa cum laude; associate, Meyer,
Unkovic & Scott LLP, Litigation & Dispute Resolution Group, Pittsburgh, Pennsylvania.
Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
126 Family Law Quarterly, Volume 52, Number 1, Spring 2018
law is appropriately reserved for the states.3 Accordingly, the Supreme
Court has long-recognized the “domestic relations exception” to federal
subject matter jurisdiction to preserve family law issues for state courts.4
However, the legal foundation for the domestic relations exception and the
exact parameters of the domestic relations exception have proven elusive
and vexing for courts and litigants.5 Likely because the Supreme Court has
failed to articulate a principled basis in either constitutional or statutory
law for the domestic relations exception, federal courts’ denition and
application of the domestic relations exception can, to quote Professor
Michael Stein, “most charitably be described as chaotic.”6
The seemingly most denitive and authoritative pronouncement on
the scope of the domestic relations exception came in Ankenbrandt v.
Richards7 in 1992. In Ankenbrandt, the Supreme Court concluded, “[T]he
domestic relations exception, as articulated by this Court in Barber, divests
the federal courts of power to issue divorce, alimony, and child custody
decrees.”8 Yet despite this seemingly clear denition of the domestic
relations exception, federal courts, both before and after Ankenbrandt,
have applied the domestic relations exception to dismiss family law cases
for lack of subject matter jurisdiction in many cases that do not involve
the issuance of divorce, alimony, or child custody decrees.9 Furthermore,
case law demonstrates inconsistency and confusion among federal courts
as to whether the domestic relations exception applies only in the context
3. See Elk Grove, 542 U.S. at 12–14; Ankenbrandt, 504 U.S. at 692; Mansell v. Mansell,
490 U.S. 581, 587 (1989) (“[D]omestic relations are preeminently matters of state law.”); Moore
v. Sims, 442 U.S. 415, 435 (1979) (“Family relations are a traditional area of state concern.”);
Burrus, 136 U.S. at 593; (“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.”);
Barber, 62 U.S. at 582.
4. See Barber, 62 U.S. at 584 (“We disclaim altogether any jurisdiction in the courts of the
United States upon the subject of divorce, or for the allowance of alimony . . . .”); Ankenbrandt,
504 U.S. at 703.
5. See Meredith Johnson Harbach, Is the Family a Federal Question?, 66 wash. & lee l. rev.
131, 134 (2009).
6. Michael Ashley Stein, The Domestic Relations Exception to Federal Jurisdiction:
Rethinking an Unsettled Federal Courts Doctrine, 36 B.C. l. rev. 669, 679 (1995).
7. 504 U.S. 689, 692 (1992).
8. Id.
9. See infra note 10.
Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
