Domestic relations exception

A lawyer writes about the possibility of getting a case like mine heard in federal court:

Under the "domestic relations exception" created by the Supreme Court in the 19th Century and reaffirmed in 1992, federal courts have long had a policy of refusing to decide disputes between parents regarding the custody of a child.

There have been a dozen or so Supreme Court cases upholding parental rights (i.e., recognizing that parents are entitled to substantive and procedural due process under the 14th Amendment). None of those cases, however, involved a dispute between parents. In each case the dispute was between a parent or parents versus the state. In most of the cases, the child had only one surviving parent anyway. In the few cases where the child had both parents, there was no dispute between them.

Hence I am surprised to learn, from your blog, that the 9th Circuit has deviated from the above rules to decide cases involving a custody dispute between parents.

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James v. Rowlands was decided last week in the 9th Circuit.

In this case, the child was in the physical custody of the mother who was living with her new boyfriend. The child's father had shared legal custody, but only visitation rights. CPS was called after the child said she was molested by her mother's boyfriend's father. CPS arrived, took the child from the mother's home and placed her in foster care, but never told the child's father what happened.

The court ruled that this non-custodial father, whose only state law right was to visit his child, nevertheless had a federal due process right to be informed of this important change so he could seek physical custody of her.

In support of its ruling, the 9th Circuit panel cited three Supreme Court cases (Lassiter, Stanley, Troxel). In my view, these cases are not persuasive because neither they nor any other Supreme Court case has ever said that due process applies to a custody dispute between parents. But the 9th Circuit also cited two other recent 9th Circuit decisions where, it said, the 9th Circuit had previously upheld a federal due process claim by a parent in a custody dispute.

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Brittain v. Campbell (2006)

In this case, the father had sole legal and physical custody. The mother had visitation rights even though she did not share legal custody (which I think is quite unusual). There was a dispute when the mother did not get the visitation she thought she was entitled to, and the police were called.

The 9th Circuit ruled: "[W]e therefore hold that non-custodial parents with court-ordered visitation rights have a liberty interest in the companionship, care, custody, and management of their children." Under the 14th Amendment, a "liberty interest" is entitled to due process. The court cited several cases from other circuits which it said ruled likewise.

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Burke v. County of Alameda (2009)

In this case, the child's mother had sole physical custody and lived with her new husband. The father had shared legal custody with visitation. Police were called after the child, a 14-year-old girl, ran away with her 19-year-old boyfriend. Police located the girl and placed her in foster care after deciding she was being abused by her stepfather - but never notified the girl's own father.

The court ruled "We therefore extend the holding in Wallis to parents with legal custody, regardless of whether they also possess physical custody of their children." The effect of that was to give federal due process rights the non-custodial father.

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Frankly I'm not sure how much to make of these cases. They seem to open the door to federal second-guessing of all custody and visitation decisions involving 30 million kids. In each case the non-custodial parent won an abstract legal victory in the 9th Circuit, but we don't know whether any of them actually gained custody of their kids. I suspect the lawsuits were motivated by attorneys seeking money, not parents seeking custody. Meanwhile, I see no evidence that family courts have changed their modus operandi to reflect potential federal supervision of their decisions.

I thought that the "domestic relations exception" is only an exception to diversity jurisdiction (when the parents live in different states). So it is irrelevant to most domestic disputes.

Of course the federal courts must be kicking out these cases anyway, as I hardly ever hear of anyone winning in federal court. The recent 9th Circuit case is an exception.