Federal "diversity jurisdiction" exists to prevent unfair home-court advantage, so why doesn't it apply to family law?
By Joseph A. Carrol, Dickinson School of Law
ABA First Place Schwab Essay Contest Winner, 2017
Should we loosen rules that automatically suspend lawyers who were disciplined in another jurisdiction, and that ensure they get the same punishment that the other jurisdiction imposed ? The Virginia State Bar thinks so, but it wants comments by August 6 on a thorough proposal about this.
Generally, the existing rules are good: they protect the public so that disbarred lawyers can't just hop from one state to another. They make the discipline process more efficient for the bar and the defendants, so the same offenses aren't litigated twice.
But a problem was revealed recently in a case where a lawyer was banned from a particular Federal tribunal, for reasons that never would have called for complete suspension or disbarment from the state bar. And although the tribunal was technically another "jurisdiction" under the ethics rules, the judge's banishment of the lawyer from that one tribunal was never intended to be as severe as a disbarment. He was trying to ban the guy from his tribunal, not put him out of business entirely.
The new proposal addresses all the potential problems with that case and several others the drafters anticipate. Please look at it and tell the Bar's Executive Director what you think, via firstname.lastname@example.org. All public comments are shared with the entire governing Council of the bar several days in advance of any vote on a proposal.
The legislation described in our earlier blog post takes effect this week. It says that couples married in DC who no longer live there, but whose marriages are not recognized where they live, can be divorced in DC.
The bill, No. B19-526, the Civil Marriage Dissolution Equality Amendment, would let gay couples who married in Washington get divorced even if they no longer live there, if they live in a state that would not let them divorce because it does not consider them married. (Or possibly even if it refuses to divorce them for completely unrelated reasons, such as their not having divorce grounds under their state's laws - the text is ambiguous about that.) Under current law, one spouse has to live in Washington for six months before starting a divorce case.
However, Tuesday's unanimous vote was only a preliminary approval - a final vote,the mayor's signature, and a 30-day U.S. Congressional review period are still needed.
"DC Council approves bill making gay divorce easier" - WVVA.com 2/7/12, via Kansas City family lawyer Ron Nelson
The bill would add the following to the Code's divorce residency requirements:
“(b)(1) An action for divorce by persons of the same gender, even if one of or neither party to the marriage is a bona fide resident of the District of Columbia at the time the action is commenced, shall be maintainable if the following apply:
“(A) The marriage was performed in the District of Columbia; and
“(B) Neither party to the marriage resides in a jurisdiction that will maintain an action for divorce; provided that it shall be a rebuttable presumption that a
jurisdiction will not maintain an action for divorce if the jurisdiction does not recognize the marriage.
“(2) Any action for divorce as provided by this subsection shall be adjudicated in accordance with the laws of the District of Columbia.
“(c) No action for annulment of a marriage performed outside the District of Columbia or for affirmance of any marriage shall be maintainable unless one of the parties is a bona fide resident of the District of Columbia at the time of the commencement of the action.
“(d) The residence of the parties to an action for annulment of a marriage performed in the District of Columbia shall not be considered in determining whether such action shall be maintainable.
“(e) If a member of the armed forces of the United States resides in the District of Columbia for a continuous period of six months during his or her period of military service, he or she shall be deemed to reside in the District of Columbia for purposes of this section only.”.
A new law signed by Governor Jerry Brown not only allows gay divorce; it allows it for couples married in California who have moved to states where gay divorce is unavailable. Until now, jurisdiction for divorce has been based only on the spouses' residences at the time of the divorce, regardless of where they got married, which meant that same-sex couples could be left with no state that is willing and able to divorce them.
This new California rule is actually more compatible with the contractual nature of marriage. As a specialist in interstate and international family law working in a cosmopolitan area, I already get calls and e-mails from people who assume that they need to get divorced in the same place where they married even though they no longer live here (including expats and diplomats who cannot get divorced anywhere else, because many countries are reluctant to divorce foreigners, and displaced Lousianans who had no idea that their Covenant Marriages mean nothing across state lines). After all, contracts generally -- even prenups -- are governed by the law of the place they were made. The rule, unique to family law, that your case is governed by the law of the state where one party goes and files, does not sit well with a lot of people. Nor should it. That rule is actually at the root of the centuries-old American problem of "migratory divorce" -- people getting out of a marriage by running to a state with easier divorce laws -- which made it mostly futile for states to restrict divorce, which in turn led to practically universal quickie no-fault divorce laws. Likewise, it inspired and facilitated interstate and international child abductions -- taking a child to another state or country to obtain a favorable custody ruling -- which it has taken my entire lifetime to bring under control with several Uniform Laws and treaties, beginning with the Uniform Child Custody Jurisdiction Act in 1968.
I hope this new California law rings in a new openness towards treating marriages as contracts when deciding when, where and how they can be dissolved.
Good story about the latest developments in the age-old Miller-Jenkins case. Just a couple quibbles:
- NYT still puts “international parental kidnapping” in quotes? It's only been the subject of a treaty & a federal criminal law for about 30 years.
- It says "Lisa Miller, the girl’s biological mother and a newly fervent Baptist, was championed by conservatives" -- I don't know of conservatives in general flocking to her cause. She's been supported in her politically significant legal battles by Liberty Counsel and other fundamentalist groups that are against gay marriage etc.
June 11, 2007
South Carolina has become the 46 state to adopt important state legislation which is part of the continuing effort to put an end to child kidnapping by warring parents. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), introduced as SB 13 by Senator Robert W. “Wes” Hayes, was signed into law by Governor Mark Sanford on June 8.
The UCCJEA, promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL), is now the law in every state except Massachusetts, Missouri, New Hampshire, and Vermont The UCCJEA is an important step forward in establishing clarity and predictability with regard to interstate custody rules, and resolves several significant jurisdictional questions that arose over the years concerning the Uniform Child Custody Jurisdiction Act (UCCJA) of 1968. The UCCJA was designed to prevent a fairly common legal standoff of the day, whereby one parent gained legal custody of a child in one state, and the other parent managed to take the child to a "haven state"; in search of a court willing to change the initial lawful custody order. Under the UCCJEA, this kind of conduct is no longer legal. The UCCJEA harmonizes federal law and developments in case law by prioritizing home state jurisdiction. Additionally, the UCCJEA sets forth the concept of continuing exclusive jurisdiction. The order of a state with continuing exclusive jurisdiction is entitled to be enforced in every other state. No other state can modify the order unless the first state relinquishes jurisdiction. These changes bring certainty to custody and visitation determinations within South Carolina. Moreover, the UCCJEA provides enforcement mechanisms which prevents kidnappers from hiding behind divergent state laws and ensures that missing children return home even if they cross state lines. The act also expands protections for victims of domestic violence. Additionally, the act establishes procedures for interstate enforcement of custody orders including registration, expedited enforcement, and the use of other civil remedies by prosecutors and law enforcement. In this and other respects, the UCCJEA accomplishes for custody and visitation determinations the same certainty that has occurred in interstate child support law with the promulgation of the Uniform Interstate Family Support Act, now the law in every jurisdiction.
The Uniform Child Abduction Prevention Act (UCAPA), a companion bill to UCCJEA, was also introduced in South Carolina as SB 486. The UCAPA expands abduction preventions found in the UCCJEA to all custody cases. The prevention mechanisms under the UCCJEA apply only to post-decree cases. The UCAPA was enacted in six states during the 2007 legislative season: Nebraska, South Dakota, Utah, Kansas, Colorado, and Nevada.
With South Carolina's enactment of the UCCJEA, only 4 states and Puerto Rico remain as jurisdictions within the United States that do not have the UCCJEA in effect. Those states are Missouri, New Hampshire, Vermont, and Massachusetts. The UCCJEA was introduced to the Missouri Legislature in the 2007 session, but was caught up in a busy session.
(Not that it's necessarily binding in the U.S.)