To help celebrate Family Lawyer Magazine’s tenth anniversary, here is a top 10 list of the most important/influential family law cases over the last decade.
By Laura W. Morgan, Family Law Consultant
Putting together a list of the top ten most important/influential family law cases in the last ten years was difficult. As we all know, family law is, for the most part, a matter left to individual states. In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court stated that federal courts could not regulate “family law (including marriage, divorce, and child custody).” 541 U.S. at 564. See also Sosna v. Iowa, 419 U.S. 393, 404 (1975) (family law is a matter “virtually exclusive” to the states). Thus, federal cases affecting family law in the last ten years were few and far between. But when the Supreme Court or another federal court weighs in on a family law matter, you know the opinion is important.
It was also difficult to decide which state cases to include. Sometimes, a state supreme court will issue a decision that is decidedly influential, because other states adopt the reasoning of the ruling. Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996), which set out the standard for considering the relocation of the custodial parent, comes to mind. It can be hard, however, to predict if a recent state supreme court will be influential because influence takes time. We may not know if a decision issued by a state supreme court today is truly influential until years from now.
With these caveats in mind, here is my top ten list of important/influential family law cases over the last ten years. Reasonable minds may differ.
Top 10 Family Law Cases from the Last 10 Years
United States Supreme Court Cases
United States Supreme Court Cases- Fulton v. City of Philadelphia, 141 S. Ct. 1868 (June 17, 2021).
The City of Philadelphia contracts with private agencies to certify and support foster parents. City contracts and ordinances prohibited these agencies from discriminating on the basis of sexual orientation. When Catholic Social Services refused to commit to certifying same-sex foster parents, Philadelphia refused to renew its contract. Catholic Social Services sued, arguing the city violated the First Amendment by forcing CSS to either espouse support for same-sex marriage or abandon its charitable mission. Philadelphia argued CSS could not claim a right to serve as a City contractor while refusing to follow anti-discrimination rules designed to meet the City’s duty to protect LGBTQ children and parents in the foster care system. The Supreme Court held that the city violated CSS’s right to free exercise. The Court reasoned that the Philadelphia law was not neutral and generally applicable because it allowed for exceptions to the anti-discrimination requirement at the sole discretion of the Commissioner. Additionally, CSS’s actions do not fall within public accommodations laws because certification as a foster parent is not “made available to the public” in the usual sense of the phrase. Thus, the non-discrimination requirement is subject to strict scrutiny, which requires that the government show the law is necessary to achieve a compelling government interest. The government failed in that showing.
www.supremecourt.gov/opinions/20pdf/19-123_new_9olb.pdf - Monasky v. Taglieri, 140 S. Ct. 719 (February 25, 2020).
The first question presented concerned the standard for habitual residence: Is an actual agreement between the parents on where to raise their child categorically necessary to establish an infant’s habitual residence? The Supreme Court held that the determination of habitual residence does not turn on the existence of an actual agreement. The second question was: What is the appropriate standard of appellate review of an initial adjudicator’s habitual-residence determination? The Court held that neither the Convention nor ICARA prescribed modes of appellate review, other than the directive to act “expeditiously.” The first-instance habitual-residence determination under the Hague Convention was subject to deferential appellate review for “clear error.” Thus, under the Hague Convention, a child’s “habitual residence” depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parties, and such a determination is subject to review for clear error.
www.supremecourt.gov/opinions/19pdf/18-935_new_fd9g.pdf - Sveen v. Melin, 138 S. Ct. 1815 (June 11, 2018).
Mark A. Sveen and Kaye L. Melin were married in 1997. Sveen purchased a life insurance policy that year, and the following year he named Melin the primary beneficiary, and his children the contingent beneficiaries. Sveen and Melin divorced in 2007, and Sveen died in 2011. Meanwhile, Minnesota had changed its probate code in 2002 to apply a revocation-upon-divorce statute to life insurance beneficiary designations. Sveen had never changed the designation on his life insurance policy, and Melin was therefore still listed as the primary beneficiary at the time of his death. The Supreme Court held that Minnesota’s automatic-revocation-on-divorce statute did not substantially impair pre-existing contractual arrangements, and thus, application of the statute to revoke the ex-wife’s primary beneficiary designation under life insurance policy that was made before statute’s enactment did not violate the Contracts Clause of the Constitution.
www.supremecourt.gov/opinions/17pdf/16-1432_7j8b.pdf - Sessions v. Morales-Santana, 137 S. Ct. 1678 (June 12, 2017).
In this case, the Supreme Court cured the unequal treatment of children born to unwed U.S.-citizen fathers by extending a burden to children of unwed U.S.-citizen mothers. The particular statute at issue in the case regulates the transmission of
citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship. When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children. Morales-Santana’s constitutional challenge required the Justices to grapple with two crucial and contested issues: the extent to which constitutional gender equality principles govern regulation and recognition of family relationships and the nature of the judiciary’s role in the enforcement of the Constitution at the border. The Supreme Court declared that the law governing the acquisition of citizenship violates equal protection principles. They remedied the equal protection violation by “leveling down”: that is, rather than giving unmarried fathers and their children the benefit of the more generous standard in the citizenship statute, the Court nullified that standard for unmarried American mothers and their children.
www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf - Howell v. Howell, 137 S. Ct. 1400 (May 15, 2017).
A veteran’s ex-wife filed a motion to enforce the divorce decree’s division of military retirement pay after the veteran waived a portion of such pay in order to collect nontaxable service-related disability benefits. The Supreme Court held that states were prohibited from increasing, pro rata, the amount a divorced spouse received each month from his/her veteran’s retirement pay in order to indemnify the divorced spouse to restore that portion of retirement pay lost due to veteran’s post-divorce waiver of retirement pay to receive service-related disability benefits. The Court did not rule out the parties agreeing to such indemnification, although later cases have misinterpreted Howell to so hold. The Court also did not rule out increasing alimony to account for the lost property benefit.
www.supremecourt.gov/opinions/16pdf/15-1031_hejm.pdf - Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584 (June 26, 2015).
The Supreme Court held that the Constitution entitles same-sex couples to civil marriage “on the same terms and conditions as opposite-sex couples.” As we all know, the game-changing nature of this decision cannot be overstated. This decision led to Pavan v. Smith, ___ U.S. ___, 137 S. Ct. 2075 (June 16, 2017), which held that an Arkansas statute that denied married same-sex couples access to the constellation of benefits that Arkansas linked to marriage was unconstitutional to the extent that the statute treated same-sex couples differently from opposite-sex couples. (The Arkansas statute generally required the name of the mother’s male spouse to appear on the child’s birth certificate when the mother conceived the child by means of artificial insemination, but allowed omission of the mother’s female spouse from her child’s birth certificate.)
www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf - U.S. v. Windsor, 570 U.S. 744, 133 S. Ct. 2675 (June 26, 2013).
In many ways, this case teed up Obergefell. The Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections. In a nutshell, Edie Windsor and Thea Spyer were married in Canada. New York state, where the parties lived, recognized their marriage as valid. When Thea died, the federal government refused to recognize their marriage and taxed Edie’s inheritance from Thea as though they were strangers. Edie challenged DOMA, alleging that DOMA violates the Equal Protection principles of the U.S. Constitution because it recognizes existing marriages of heterosexual couples, but not of same-sex couples, despite the fact that New York State treats all marriages the same. On June 26, 2013, the U.S. Supreme Court ruled that Section 3 of DOMA is unconstitutional and that the federal government cannot discriminate against married lesbian and gay couples for the purposes of determining federal benefits and protections.
www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf
Cases from the Federal Court of Appeals
Cases from the Federal Court of Appeals- Brackeen v. Haaland, 994 F.3d 249 (5th Cir. April 6, 2021).
I have included this case because the United States Supreme Court granted certiorari on February 28, 2022. In this case, Texas, Indiana, Louisiana, and individual plaintiffs sued the federal government, contending that the Indian Child Welfare Act is unconstitutional. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians intervened in the case. The Fifth Circuit Court of Appeals, hearing the case en banc, held that parts of the law were constitutional and parts were unconstitutional: 1) ICWA’s mandatory placement preferences violated equal protection; 2) provision of ICWA granting Indian tribes authority to reorder congressionally enacted adoption placement preferences violated non-delegation doctrine; 3) ICWA provision requiring states to apply federal standards to state-created claims commandeered the states in violation of the Tenth Amendment; 4) Bureau of Indian Affairs (BIA) exceeded its statutory authority in promulgating regulations, in violation of the Administrative Procedure Act (APA); 5) BIA regulations were not entitled to Chevron deference; and 6) prospective and adoptive parents whose adoptions were open to collateral attack under ICWA had no fundamental right to care, custody, and control of children in their care. Look for the Supreme Court decision in the future.
www.ca5.uscourts.gov/opinions/pub/18/18-11479-CV2.pdf - Andochick v. Byrd, 709 F.3d 296 (4th Cir. March 4, 2013), cert. denied, 134 S. Ct. 235 (2013).
In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285, 129 S. Ct. 865, 172 L. Ed.2d 662 (2009), the Supreme Court held that an ERISA plan administrator must distribute benefits to the beneficiary named in the plan, notwithstanding the fact that the named beneficiary signed a waiver disclaiming her right to the benefits. The Kennedy Court left open the question of whether, once the benefits were distributed by the administrator, the plan participant’s estate could enforce the named beneficiary’s waiver against her. In Andochick, the Fourth Circuit took up the question left open by Kennedy and held that ERISA does not preempt “post-
distribution suits to enforce state-law waivers“ against ERISA beneficiaries. Thus, wife number one and wife number two are free to duke it out with each other.
www.ca4.uscourts.gov/opinions/121728.P.pdf
State Supreme Court Cases
- Stone v. Thompson, 428 S.C. 79, 82, 833 S. E.2d 266, 267 (July 24, 2019), reh’g denied (Oct. 16, 2019).
A wave of statutes across the country in the 1960s and 1970s abolished common law marriage. One of the last holdouts was South Carolina. This decision abolished common law marriage in South Carolina. “Our review in this case has prompted us to take stock of common-law marriage as a whole in South Carolina. We have concluded the institution’s foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted. Accordingly, we believe the time has come to join the overwhelming national trend and abolish it.“ This decision may be the bellwether for the remaining holdouts to abolish common law marriage.
www.sccourts.org/opinions/HTMLFiles/SC/27908.pdf
Laura W. Morgan, Esq., is the owner/operator of Family Law Consulting in Amherst, Massachusetts. She provides legal research, writing, and advocacy services; legal memoranda; precis of transcripts; and other written products for trial or appellate court advocacy to family lawyers nationwide. www.famlawconsult.com
Related Article:
Defining “Habitual Residence” in the Hague Convention
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