Review of the Year 2015–2016 in
Family Law: Domestic Dockets Stay Busy
BY LINDA D. ELROD* & ROBERT G. SPECTOR**
I. Introduction
Family law issues appear daily in the news and on social media. Family
lawyers face increasing challenges with learning new procedures and
technologies, such as those required when ling electronically, discovering
electronic evidence, and managing social media. Yet family lawyers
remain the main source of guidance and protection for many people. On
any given day, they are drafting documents such as a power of attorney
or premarital agreement to help parties dene their nancial relationship,
helping a client have sufcient resources to move on with his or her life
following a divorce, obtaining a protection-from-abuse order, representing
a parent whose child has been taken into the welfare system, representing a
child in a contested custody case, or donating time to help a pro se litigant
navigate the complex legal system.
The year 2015–16 saw substantial activity on both the national and
state levels. While the number of cases involving the right to same-sex
marriage dwindled, there remained an abundance of issues for courts
to decide. Federalization of some areas of family law continues, as the
United States has ratied three Hague family conventions. Although the
number of divorces has remained steady for many years, the number
of high-conict custody cases continues to rise annually, with divorced
and unwed parents, former same-sex partners, and grandparents seeking
to obtain time with children or modify existing orders. As family courts
become overwhelmed, states enact provisions for case management, parent
* Richard S. Righter Distinguished Professor of Law; Director, Children and Family Law
Center, Washburn University School of Law; Editor Emeritus, Family Law Quarterly; Editor in
Chief, Family Law Quarterly, 1992–2016.
** Glenn R. Watson Chair and Centennial Professor of Law Emeritus, University of
Oklahoma, and Associate Editor, Family Law Quarterly.
501
502 Family Law Quarterly, Volume 50, Number 4, Winter 2017
coordinators, and mandatory mediation. In July 2016, the Uniform Law
Commission approved a new tool: the Uniform Family Law Arbitration
Act.
This reporting period, roughly September 2015 through fall 2016,
covered an unusual election year in which Congress enacted few laws
in general. In addition, the U.S. Supreme Court operated with only eight
justices from February 2016, when Justice Antonin Scalia died, until April
2017, when Justice Neil Gorsuch assumed ofce.
II. Federal Activity
In December 2015, President Barack Obama signed the Every Student
Succeeds Act (ESSA), which reauthorized the Elementary and Secondary
Education Act (ESEA). ESSA was the rst major overhaul of federal
education law since No Child Left Behind in 2002. The law required
states to ensure certain protections for youth in the foster care and juvenile
justice systems. The fate of this law in the new administration is unclear.
The Health and Human Services Ofce of Child Support Enforcement
announced a new rule to make state child support programs more realistic
with respect to ability of noncustodial parents to pay. The rule amends
existing policy in order to ensure child support obligations are based
upon accurate information. The provision most likely to impact state
child support guidelines is the one prohibiting states from considering
incarceration to be a substantial change in circumstances or imputing
income to an incarcerated individual. States must notify noncustodial
parents of their right to request review and adjustment of their order if
they will be incarcerated for more than six months. Many state guidelines
currently treat incarceration as voluntary unemployment. The new rules,
however, provide that to impute income when a noncustodial parent is
underemployed or deliberately unemployed requires consideration of the
subsistence needs of that noncustodial parent.1
A. Federal Courts
Federal courts continued to hear cases that impact family law. After
the Supreme Court’s 2015 Obergefell decision recognizing same-sex
marriage, the only marriage cases left involved recognition issues. The
First Circuit found that a Puerto Rican federal judge’s conclusion that the
Commonwealth’s ban on same-sex marriage is not unconstitutional “errs
in so many respects that it is hard to know where to begin.”2 One federal
1. Flexibility, Efciency, and Modernization in Child Support Enforcement Programs, 81
Fed. Reg. 93,492 (Dec. 20, 2016), effective Jan. 19, 2017.
2. In re Conde Vidal, 818 F.3d 765 (1st Cir. 2016).
Review of the Year in Family Law 503
court issued a permanent injunction enjoining state ofcials from enforcing
or applying any aspect of Kansas law that treats same-sex married couples
differently from opposite-sex couples.3
The U.S. Supreme Court reversed the Alabama Supreme Court’s refusal
to recognize a Georgia same-sex adoption. Because Georgia had subject
matter jurisdiction to hear and grant the adoption petition, Alabama must
give full faith and credit to the nal decree.4 A Mississippi federal district
court ruled unconstitutional a Mississippi statute prohibiting adoption by
a same-gender couple.5
In deciding its fty-rst abortion decision since Roe v. Wade, the Supreme
Court claried Casey’s “undue burden.”6 A Texas law required abortion
providers to have admitting privileges at a local hospital located no more
than thirty miles from their abortion facility, which facility had to meet
minimum standards for ambulatory surgical centers. The Supreme Court
held that states cannot impose restrictions that impose an undue burden on
women seeking abortions without sufcient health benets.7 The Supreme
Court also denied certiorari in a case in which Washington upheld its
regulation requiring all pharmacies to stock and sell contraceptives under
Plan B, nding no religious objection exception.8
A federal statute, 18 U.S.C. § 922(g)(9), bars gun ownership by a person
convicted of a felony or misdemeanor crime of domestic violence. In
2014, the Supreme Court had held that a knowing and intentional assault
qualies as a crime of violence.9 In 2016, the Court closed a dangerous
loophole by holding that the statute is triggered also by a conviction for a
reckless domestic assault.10
The U.S. Supreme Court held that juveniles sentenced to life in prison
may seek review of their sentences. In 2012, the Supreme Court had held
that mandatory life sentences for juvenile homicide offenders violated the
Eighth Amendment’s prohibition against cruel and unusual punishment.
The Court found that this substantive rule must be applied retroactively
under the Constitution.11
3. Marie v. Mosier, No. 14-cv-02518-DDC-TJJ, 2016 WL 3951744 (D. Kan. July 22,
2016).
4. V.L. v. E.L., 136 S. Ct. 1017 (2016).
5. Campaign for S. Equality v. Miss. Dep’t of Human Servs., 175 F. Supp. 3d 691 (S.D.
Miss. 2016).
6. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877–78 (1992).
7. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
8. Stormans, Inc. v. Wiesman, 136 S. Ct. 2433 (2016).
9. United States v. Castleman, 134 S. Ct. 1405 (2014).
10. Voisine v. United States, 136 S. Ct. 2272 (2016).
11. Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (prisoner must be given opportunity to
show the crime did not reect irreparable corruption).
