Law professors sometimes comment during class that "family law" is the
"bastard step-child" of the law profession. Attorney (and former Colorado
judge), Robert Goodbinder, in
this transcript,
echoed this sentiment, when he informed the court, "frankly,
I find the practice of matrimonial [law]
repugnant."
Attorney David Heleniak, in his article (reprinted here
with his permission),
The New Star
Chamber, Rutgers Law Review, vol. 57, no. 3 (Spring 2005), 1009,
analyzed the "due process fiasco" of family law. Calling family courts "an area
of law mired in intellectual dishonesty and injustice," Heleniak identified six
commonplace deprivations of fundamental due process (seizure of children and
railroading innocent parents into jail through denial of trial by jury; denial
of poor defendants to free counsel; denial of right to take depositions; lack of
evidentiary hearings; lack of notice; and improper standard of proof). In family
law, "the burden of proof may be shifted to the defendant," according to a
handbook for local officials published by the National Conference of State
Legislatures.
Occasionally in divorce cases,
there is a serious issue of constitutional law. State courts are inhospitable
places to get state statutes, or the common law made by state family courts,
declared unconstitutional. (The U.S. Supreme Court often reverses
decisions of state appellate courts. If state appellate courts use
unconstitutional law in criminal and tort cases, then those [same] state
appellate courts probably also use unconstitutional law in divorce cases). U.S.
District Courts and the U.S. Courts of Appeals do not have appellate
jurisdiction over cases tried in state courts. And the U.S. Supreme Court very
rarely accepts domestic relations cases. So, in this scheme, if divorce law
violated a right in the U.S. Constitution, then we would have no federal
judicial forum willing to consider the complaint. . . I believe it is likely
that serious constitutional (and social) issues in family law are being ignored
by courts in the USA. The archaic nature of divorce law in many states, the
paternalistic nature of many judges in divorce courts, who ignore the law, and
the lack of careful consideration given by overloaded judges in divorce courts
all contribute to a situation that is ripe for injustice and unfairness.
In one Colorado case example a parent
alleged that he had been denied the right to "established adjudicatory
procedures," including discovery requests, evidentiary hearings and adequate
notice. See
here and
here at ¶ 36. He alleged that he had been denied a full and fair opportunity
to present exhibits.
Id. at ¶ 41. He alleged that he had been denied the right to be present
to confront his accusers.
Id. at pp. 15-16.