Constitutionalizing Family Law

| Section of Civil Rights and Social Justice |

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The Federalization of Family Law

Vol. 36 No. 3

Historically, family law has been a matter of state law. State legislatures define what constitutes a family and enact the laws that regulate marriage, parentage, adoption, child welfare, divorce, family support obligations, and property rights. State courts generally decide family law cases. But since the 1930s, Congress has enacted numerous federal statutes to address serious problems regarding family law matters that states have been either unwilling or unable to resolve, especially when the welfare of children is involved. Today, congressional legislation, decisions of the U.S. Supreme Court, and the participation of the United States in more international treaties have “federalized” more and more areas of family law traditionally left to the states.DivorceCorp - Consulted a minister and psychiatrist NOT Lawyer - AFLA Blog 2016

A multitude of federal laws now regulate and impact families; some specifically confer jurisdiction on federal courts. As a result, federal courts now hear a growing number of family law cases, especially those that involve complex interjurisdictional or full faith and credit issues. The Supreme Court has contributed to this federalization by “constitutionalizing” family law. It has repeatedly used the U.S. Constitution, in particular the Fourteenth Amendment, to extend constitutional privacy protections to increasing numbers of persons and to invalidate state laws in areas of law previously thought to be the exclusive province of state legislatures.

Internationalization of the law likewise contributes to federalization. As people and goods move freely across country borders, so do their family law issues and problems. The U.S. State Department now actively participates in the drafting of international treaties, working with the Hague Conference on Private International Law and the United Nations (UN) to address family law issues on a global scale. iinguanzo-v-rose-causes-20151The United States has ratified and implemented many international law conventions. The Supreme Court has noted the judicial opinions of the European Court of Human Rights in cases involving privacy rights of same-sex partners and the juvenile death penalty.

Congressional Action since the 1930s

For almost two hundred years, the fifty states regulated family law because the federal government did not. The Tenth Amendment left states with “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it.” Beginning with the New Deal legislation of the 1930s, Congress has used its powers under the Commerce Clause, the Full Faith and Credit Clause, and the spending power to set policy. A brief look at the areas of child support and child protection illustrate how Congress has set the national social welfare agenda by passing laws, allocating money for programs, and requiring states to comply with federal regulations to receive funding.

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THE ALIENATOR

I am an alienator. You know me well. You lived with me once and you witnessed my behavior patterns but you did not spend time studying and internalizing them. I know your behavior patterns better than you know them yourself. I know how to measure you, test you and control you. I know what your hooks are and I know that the depth of the love for your children is a weakness I can exploit. I am an emotional terrorist. I will terrify you into submission. You will do as I tell you to do, if you do not, I will take your children away.

I am an alienator, you didn’t notice that when we lived together but I began my work long before we went our separate ways. I created fissures and fractures within our family and I managed and manipulated reality, though for a long time you did not notice that.

I am an alienator, at times in the past you felt a chill wind blow through you when my moods changed as I raged and then sweet talked you to smooth the ripples in your growing awareness. My mind is distorted but the projection of shadows causes you to believe it is yours which has failed you. Eventually you came to believe that it was you and not I who was crazy. You shivered as I turned down the gas light.

When you appeal to the outside world for assistance I will turn my most charming face to the sun and open my arms wide and beseech them to believe that I only want the best for my children. I will widen my eyes and up turn my palms and say ‘what can I do when they don’t want to see you’ and suck into my airspace all those who attempt to bring change to the lives of the weapons I know I can use.

My children are assets, collateral, extensions of plans that I make to wreak my revenge upon people who challenge my views or attempt to remove the control that I have in my life.

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