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Review of the Year 2017–2018 in
Family Law: Courts Tackle Immigration,
Jurisdiction, and the Usual Family Law
Disputes
LINDA D. ELROD* & ROBERT G. SPECTOR**
Introduction
The 2017–18 reporting year had relatively little activity by Congress.
Federal courts have also been relatively quiet in the family law area, except
for abortion, immigration, and the Indian Child Welfare Act (ICWA)
cases. States, however, continue to hear a seemingly increasing volume
of cases. In addition to the usual marriage, divorce, child custody, child
support, alimony, and division of property disputes, there were several
cases dealing with jurisdictional issues this year.
I. Federal
Although Congress passed only a couple of pieces of legislation that
2017 removed the alimony deduction starting January 1, 2019. While it
loss of the obligor’s ability to deduct alimony will undoubtedly affect
divorce negotiations. The Tax Cuts and Jobs Act also eliminated the
federal dependency exemption but raised the standard deduction. In many
* Linda D. Elrod is the Richard S. Righter Distinguished Professor of Law and Director
of Children and Family Law Center at Washburn University School of Law in Topeka, Kansas.
She is Editor Emeritus of Family Law Quarterly; she was Editor in Chief from 1992–2016.
** Robert G. Spector is the Glenn R. Watson Chair and Centennial Professor of Law
Emeritus at the University of Oklahoma College of Law in Norman, Oklahoma, and is a member
of the Family Law Quarterly Editorial Board.
Published in Family Law Quarterly, Volume 52, Number 4, Winter 2019. © 2020 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.
520 Family Law Quarterly, Volume 52, Number 4, Winter 2019
states, child support guidelines currently include consideration of tax
consequences. Agreements made under the old tax rules may be revisited
under the new ones. Taxpayers are just beginning to feel the tax changes
with indications that corporations, rather than families, have seen the most
child-welfare system is the Bipartisan Budget Act of 2018 (H.R. 1892),
which included the Family First Prevention Services Act (FFPSA). FFPSA
seeks to increase investments in prevention services to keep families from
getting into the child welfare system. Child welfare funds under Title IV-E
will be directed toward prevention, away from housing and separation.
While the details are still being developed, FFPSA may decrease the
Conservative Justice Kavanaugh replaced Justice Kennedy, who was
often a moderate swing vote, on the U.S. Supreme Court. The impact of the
decisions are on appeal. The Supreme Court upheld a Minnesota statute that
automatically revoked provisions for ex-spouses on divorce. The statute’s
life insurance policy that was made before the statute’s enactment did not
violate the contracts clause of the Constitution.1
emerged to President Trump’s immigration policies.2 Migrant parents
brought a class action against Immigration and Customs Enforcement
(ICE) alleging the practice of separating migrant parents and children
held in immigration detention without a showing that the parent was
The Southern District of California granted an injunction to allow family
3 Unfortunately, thousands of children
appear to be “lost” in the system. The family of a Mexican teen killed in
1. Sveen v. Melin, 138 U.S. 1815 (2018).
2. NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018) (staying order vacating rescission
of Deferred Action for Childhood Arrivals (DACA) program); Batalla Vidal v. Nielsen, 279 F.
Supp. 3d 401 (E.D.N.Y. 2018) (claims that DACA rescission was motivated by discriminatory
animus was plausible); Medina v. U.S. Dep’t of Homeland Sec., 313 F. Supp. 3d 1237 (W.D.
Wash. 2018) (granting preliminary injunction enjoining government from terminating DACA
status); Inland Empire—Immigrant Youth Collective v. Nielsen, No. EDCV172048PSGSHKX,
2018 WL 1061408 (C.D. Cal. Feb. 26, 2018) (unpublished).
3. Ms. L. v. U.S. Immigr. & Customs Enf’t, 310 F. Supp. 3d 1133 (S.D. Cal. 2018),
, 330 F.R.D. 284 (S.D. Cal. 2019).
Published in Family Law Quarterly, Volume 52, Number 4, Winter 2019. © 2020 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 2017–2018 in Family Law 521
a cross-border shooting by a U.S. border patrol agent could not bring an
action for damages under the Fourth Amendment against the agent.4
judge in Texas found the ICWA to be unconstitutional as a discriminatory
race-based statute that could not withstand strict scrutiny.5 The decision
was stayed pending appeal, and it is likely to be overruled by the Fifth
Circuit. Every other court of appeals who has heard ICWA challenges has
upheld ICWA.
A U.K. charge of child abduction criminalized the same essential conduct
as the U.S. crime of international parental kidnapping. Thus, a fugitive’s
extradition to the United Kingdom to face a charge of childhood abduction
extradition treaty’s requirement of dual criminality.6 The Sixth Circuit
found that the federal statute that prevents people with misdemeanor
7
A woman who claims to have been defrauded by her ex-husband and
his business associates may not sue in federal court because the division of
marital property is closely tied to the divorce itself and therefore invokes
the “domestic relations” exception to federal jurisdiction.8 A man’s lawsuit
against his son’s mother alleging she fraudulently claimed the boy as a
dependent on her federal tax returns must be dismissed because, even if he
is correct, the Internal Revenue Code does not provide him with a remedy.9
Another federal case involved a woman who thought her husband was
having an affair and began attacking the other woman on social media. A
jury found the woman was defamed by the comments that she fraudulently
obtained her Ph.D. and other statements. The court enjoined the wife and
survive strict scrutiny because the injunction punishes future conduct that
may be constitutionally protected. The dissent argued that the majority
created a rule that protects recidivist defamers.10
4. Hernandez v. Mesa, 885 F.3d 811 (5th Cir. 2018).
5. Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).
6. In re Extradition of Fordham, 281 F. Supp. 3d 789 (D. Alaska 2017).
7. Stimmel v. Sessions, 879 F.3d 198 (6th Cir. 2018).
8. Xie v. Turner Designs Hydro Carbon Instruments, Inc., No. 117CV00284LJOSKO,
2017 WL 6371363 (E.D. Cal. Dec. 13, 2017) (unpublished).
9. Martinez v. Berrios, No. CV 18-985, 2018 WL 1426598 (E.D. Pa. Mar. 22, 2018)
(unpublished).
10. Sindi v. El-Moslimany, 896 F.3d 1 (1st Cir. 2018).
Published in Family Law Quarterly, Volume 52, Number 4, Winter 2019. © 2020 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.
