National Family Civil Rights Center
NFCRC - April 16, 2013
New York, New York

Today, NFCRC President Ben Ashmore's article "From Dicta to Disarray: Split on the Domestic Relations Exception" was published by Circuit | Splits A blog about cases ripe for review. 

Circuit | Splits focuses on areas in the law where various United States Courts of Appeals have rendered decisions that are in conflict with each other.  The existence of "circuit splits" is of great importance to the jurisprudence of the United States Supreme Court.

The Rules of the U.S. Supreme Court state in pertinent part:


Rule 10. Considerations Governing Review on Certiorari

Review on a writ of certiorari is not a matter of right, but of judicial discretion.  A petition for a writ of certiorari will be granted only for compelling reasons.  The following, although neither controlling nor fully measuring Court's discretion, indicate the character of the reasons the court considers:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United State court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power."   

IN PLAIN ENGLISH: Ordinarily, only state courts decide "domestic relations" cases: cases involving divorce, custody, child support, alimony, or adoption issues.  Federal courts are barred by the "domestic relations exception to subject matter jurisdiction" from making divorce, custody, support or adoption decrees.  However, some of the U.S. Circuit Courts of Appeals permit litigants to bring cases in federal court that raise "domestic relations" issues only if the question presented to the federal court is a "federal question" about the constitutionality of state laws, statutes or procedures and the federal court is not asked to make a core domestic relations decision, decree or judgment. 

An example would be asking a federal court to invalidate a state court divorce judgment because the judgment was entered by the state court in a manner that violated the protections afforded to all Americans by the U.S. Supreme Court.  In such a case, a federal court would tell the state court to redo the divorce through a process that does not violate the rights contained in the U.S. Constitution.  Importantly however, the federal court cannot grant a divorce decree.

Under Article III of the U.S. Constitution and 28 U.S. Code §1331, Federal Courts have jurisdiction to hear cases and controversies arising from federal questions about the U.S. Constitution.  The Fourth, Fifth, Sixth and Tenth Circuit Courts of Appeals have ruled that the domestic relations exception to subject matter jurisdiction does not bar parties from raising federal questions in federal court about state domestic relations laws, statutes or procedures.  Conversely, the Second and Seventh Circuit Courts of Appeals do not let parties bring federal question cases in federal court if the questions are about domestic relations issues.  

Consequently, families that live within the jurisdiction of the Second or Seventh Circuits cannot seek relief in U.S. District Court when state courts violate federally protected constitutional rights in state domestic relations proceedings.  For these families, they can only appeal through state court appeals and then, if all appeals are exhausted, appeal to the U.S. Supreme Court.  However, as noted above, the U.S. Supreme Court is not required to take any appeals.  In fact, the U.S. Supreme Court
declines to hear the vast majority of petitions for a writ of certiorari (approximately 99% in total) where parties ask the Supreme Court for the ability to bring an appeal in the U.S. Supreme Court.  
Furthermore, the U.S. Supreme Court has noted that "[t]he judgment of a state court determining or reviewing a child custody decision is not ordinarily a likely candidate for review by this Court." Palmore v Didoti, 466 U.S. 429, 431 (1984).  Without the ability to raise federal constitutional issues in federal court in the Second and Seventh Circuit, families have little realistic chance of having federal questions decided in a federal court.

About NFCRC:

NFCRC is the only national non-profit organization solely committed to protecting and enhancing the civil rights of children and parents in all types of families.  NFCRC's mission is to enhance and protect the civil rights of families to equal protection under the law, fundamentally fair proceedings in the courts, and accessibility to legal and government processes that impact the lives of our families.  NFCRC accomplishes this through advocacy and aggressive participation in litigation directly and as amicus curiae in proceedings that present significant and pressing issues concerning the civil rights of families.  Website:


For further information, please contact NFCRC's media relations staff at the number below.

Contact NFCRC:

(800) 385-0601  (phone)
(202) 640-4433  (fax)

Washington D.C. Office:

Evening Star Building
1101 Pennsylvania Ave. NW, 6th Floor
Washington, D.C.  20004

New York City Office:

77 Water Street, 8th Floor
New York, N.Y.  10005