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No Consensus on Custody Disputes

By Naomi Cahn
March 28, 2005

Legal issues abound in cases in which a couple, joined in a legal relationship through one state's law, then asks another state to intercede in a custody dispute. Not only are the first state's laws pitted against those of other states, but the interpretation and potential constitutionality of federal and state Defense of Marriage Acts (DOMAs) are called into question under the full faith and credit clause. The federal DOMA says that “no state is required to give effect to any public act, record, or judicial proceeding of another such organization with respect to a relationship between persons of the same sex that is treated as a marriage under the laws of such other organizations or a right or claim arising from such relationship.”

Matters are complicated; and the questions are far from theoretical because they involve the question of how a child's best interest can be served in these statutory, public policy, and constitutional intersections.

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