Where do Child Custody and Child Support Law Come From?
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Where do Child Custody and Child Support Law Come From?

Where do Child Custody and Child Support Laws Come From?

People ask all the time, where do child custody and child support laws come from? Are the laws in each state completely different? Are these laws even constitutional? Let’s find out.

Family law in the United States comes from several sources. Primarily, family law is a state affair and much of the laws governing child custody and child support are state statutory law. These laws are found in each states’ codified statutes and/or codes. In New Mexico, we have Chapter 40 of the New Mexico Statutes Annotated 1978. This is the “Domestic Affairs” section of the state statutes.

These various statutes are interpreted first by the district courts or trial courts of original jurisdiction and then these laws are further applied and interpreted by the appellate and supreme courts of the several states, commonwealth(s), possessions, and territories. Not only are these laws created by state lawmakers, applied and interpreted by state courts, but these laws are applied in conjunction with state court procedural rules such as the rules of evidence and the rules of civil procedure.

 We also have children’s court rules, decisions, and of course the court orders issued in everybody’s individual cases such as the divorce decree, and the plethora of minute orders and temporary orders which typically are issued in an average case.

So the first thing we must understand is that in the United States, family law especially as it relates to child custody and child support is for the most part under the purview of state law. The United States Supreme Court in Rose v. Rose, 481 U.S. 619, 625 (1987) (quoting In re Burrus, 136 U.S. 586, 593-594) repeatedly insists that “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” This line of thinking comes from the Amendment 10 of the federal constitution which provides, “the powers not delegated to the United States by this constitution nor prohibited by it to the States, are reserved to the States or the people.” This of course is an overstatement and an oversimplification, yet is still generally true.

Yet over the last hundred years or so, the federal government viz. various social welfare and educational policies, federal courts, and believe it or not, international treaties have changed the landscape of modern family law by means of slowly unifying the hodge-podge state laws. In recent times the United States Supreme Court began to recognize “a private realm of family life which the state cannot enter.” SeeMeyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925) and Prince v. Massachusetts, 321 U.S. 158, 166 (1944).  

The Supreme Court has attributed this constitutional protection to the Due Process Clause or the Equal Protection Clause of Amendment 14 of the federal constitution. They have also cited to implied rights of privacy emerging from the “penumbras” of other textual guarantees. SeeGriswold v. Connecticut, 381 U.S. 479 (1965).

One of the key cases where the United States Supreme Court has helped to change the dynamics of family law was Loving v. Virginia, 388 U.S. 1 (1967). This case outlawed the ban on interracial marriage and reversed the laws of 17 states which prohibited interracial marriage. This case is frequently cited in same-sex marriage litigation.

Very recent judicial lawmaking with respect to same-sex marriage has been based upon equal protection and in the case of New Mexico, our equal rights provisions within our state constitution. This is how the federal courts have intervened in a seemingly state issue.

 There are federal laws which affect family law as well. Most of those which will directly play in your case are likely federal tax laws, federal child welfare laws, and in many cases Medicaid, Social Security, and TANF  rules and regulations. However you should be aware of federal child support enforcement laws, federal deadbeat parent laws, and kidnapping laws. Lastly, depending upon your circumstances, federal and tribal laws may play a role in your child custody or child support case.

Despite these federal developments, much of family law including custody law is local. We discussed earlier that most family law is state statutory law. This law is derived from state constitutional provisions. However we often forget that even local city and county zoning ordinances have an impact upon family because they define “single-family” uses and other residential definitions.

The laws affecting family law especially child custody and child support are ever changing and complex. The best thing to do if you have further questions is to contact me.


38 Comments to Where do Child Custody and Child Support Law Come From?:

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