501
Published in Family Law Quarterly, Volume 51, Number 4, Winter 2018. © 2018 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Review of the Year 2017 in
Family Law: Immigration Issues
Impact Families
BY LINDA D. ELROD* & ROBERT G. SPECTOR**
I. Introduction
Family law cases cover a variety of topic areas and can appear in state
or federal courts depending on the issues and jurisdiction. This year was
no exception. All separating or divorcing families face numerous, often
complex issues as spouses and parents attempt to move on with their lives.
Immigrant families, however, faced additional challenges in 2017. In
June 2012, the Obama administration had established the Deferred Action
for Childhood Arrivals (DACA) policy that protected from deportation
about 800,000 undocumented immigrants who were brought to the United
States as young children. On January 25, 2017, the new President signed
an executive order “Enhancing Public Safety in the Interior of the United
States” which stepped up current immigration enforcement. In addition to
enforcement-only policies, the administration also announced immigration
bans and threatened to end DACA. In June 2017, Homeland Security
rescinded a proposed expansion of DACA. On September 5, 2017, the
administration rescinded DACA but federal courts have stayed action until
Congress acts on an immigration bill. Increased enforcement efforts have
resulted in thousands of children, many citizens of the United States, being
separated from their parents who are detained and subject to deportation.
* Richard S. Righter Distinguished Professor of Law and Director, Children and Family
Law Center, Washburn University School of Law; Editor Emeritus, ABA Family Law Quarterly;
Editor-in-Chief 1992–2016.
** Glenn R. Watson Chair and Centennial Professor of Law Emeritus, University of
Oklahoma; Associate Editor, Family Law Quarterly.
502 Family Law Quarterly, Volume 51, Number 4, Winter 2018
Published in Family Law Quarterly, Volume 51, Number 4, Winter 2018. © 2018 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.
Much of the year has focused on immigration issues in federal courts,
many of which remain unresolved.
II. National
A. Federal Cases
The United States Supreme Court handed down four important decisions
that impact family law and families. The Supreme Court handed down the
most signicant education decision in about thirty years. The Individuals
with Disabilities Act (IDEA) requires schools receiving federal funds to
provide a “free and appropriate” public education for children. The Court
required a school district to pay private school tuition for an autistic boy
when the school was unable to provide the appropriate education to meet
his needs and the child was making progress in the private school.1
In June 2017, the Court found that gender-based differentials for a child
born abroad to acquire citizenship violated the Equal Protection Clause.
A child born abroad to a citizen father should not have to overcome more
hurdles than a child born abroad to a citizen mother.2 The result in the
current climate may be stiffer requirements for both. The Supreme Court
also found that an Arkansas law that prohibited married, same-sex parents
from both being listed on their children’s birth certicates while requiring
that both married, opposite-sex parents be listed infringed on the marriage
rights of same-sex couples.3
The Supreme Court ruled unanimously that federal law prohibits states
from requiring a military member to reimburse the nonmilitary spouse
for that part of retirement that was waived to receive veterans’ disability
benets. The divorced spouse in the case had lost a portion of retirement
pay due to the veteran’s post-divorce waiver of retirement pay to receive
service-related disability benets.4 This case effectively overruled a
number of state decisions to the contrary.5
Several federal cases dealt with residual effects of recognition of
same-sex marriage.6 A Texas federal district court applied Obergefell
retroactively so that a Texas woman could proceed with her claim to be
1. Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 743 (2017).
2. Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017).
3. Pavan v. Smith, 137 S. Ct. 2075 (2017).
4. Howell v. Howell, 137 S. Ct. 1400 (2017).
5. See, e.g., Nesbitt v. Nesbitt, 503 S.W.3d 807 (Ark. Ct. App. 2016); Cassinelli v.
Cassinelli, 210 Cal. Rptr. 3d 311 (Ct. App. 2016).
6. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
Review of the Year 2017 in Family Law 503
Published in Family Law Quarterly, Volume 51, Number 4, Winter 2018. © 2018 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.
the surviving common law spouse of her deceased same-sex partner.7 A
federal court in Florida held that a decedent’s same-sex spouse did not need
court approval to be listed as the surviving spouse on the death certicate.8
Taxpayers lacked standing to challenge a North Carolina law that allows
state ofcials to refuse to marry people due to religious objections.9
After Rowan County Clerk Kim Davis refused to issue marriage licenses
to four same-sex couples wanting to marry, the State of Kentucky had to
pay $222,695 in legal fees to the couples’ attorneys.10 Davis herself must
also face a damages suit by a same-sex couple she refused to serve.11 In
other marriage license cases, a county clerk violated an engaged couple’s
constitutional right to marry by insisting that the man’s incarcerated
ancée appear at the clerk’s ofce in person to ll out the marriage license
application.12 A federal court in Louisiana found that the state could not
constitutionally require naturalized citizens who were born outside the
United States to present a valid birth certicate from their home country
before they could obtain a marriage license.13
Although the same-sex marriage issue is settled for states, there are
still questions with Indian tribes. The Osage Nation joined the Cherokee
Nation and the Cheyenne and Arapaho Tribes in recognizing same-sex
marriages.14
The United States Court of Appeals for the Ninth Circuit handed
down three opinions that touched on domestic violence issues. In one, a
victim of domestic violence can be forced to testify against her husband
because there is an exception to the spousal privilege when one spouse is a
victim.15 The court found that a ten-year rearms possession ban for those
charged with misdemeanor domestic violence offenses does not violate
the Constitution.16 It also determined that a Hawaii ban on gun ownership
7. Ranolls v. Dewling, 223 F. Supp. 3d 613 (E.D. Tex. 2016).
8. Bircheld v. Armstrong, No. 4:25-cv-00615-RH/CAS, 2017 WL 1319844 (N.D. Fla.
Mar. 23, 2017) (unpublished).
9. Ansley v. Warren, 861 F.3d 512 (4th Cir. 2017).
10. Miller v. Davis, 267 F. Supp. 3d 971 (E.D. Ky. 2017). See also DeLeon v. Abbott, No.
15-51241, 2017 WL 1406499 (5th Cir. Apr. 18, 2017) (unpublished) (Texas must pay legal fees
and costs incurred by two couples in their successful 2014 challenge of its same-sex marriage
ban).
11. Ermold v. Davis, 855 F.3d 715 (6th Cir. 2017).
12. Jones v. Perry, 215 F. Supp. 3d 563 (E.D. Ky. 2016).
13. Viet Anh Vo v. Gee, No. 16-15639, 2017 WL 3394034 (E.D. La. Aug. 8, 2017).
14. See Kristi Eaton, Native American Osage Nation Votes in Favor of Same-Sex Marriage,
NBC News (Mar. 23, 2017), http://www.nbcnews.com/feature/nbc-out/native-american-osage
-nation-votes-favor-same-sex-marriage-n737761.
15. United States v. Seminole, 865 F.3d 1150 (9th Cir. 2017).
16. Fortson v. L.A. City Att’y’s Ofce, 852 F.3d 1190 (9th Cir. 2017).
