Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws
57 Pages Posted: 27 Apr 2018 Last revised: 11 Nov 2018
Date Written: August 6, 2018
Each year family courts incarcerate thousands of Americans for nonpayment of child support. The vast majority of these parents are not accorded criminal procedure protections because courts have characterized routine child support enforcement as a “civil” matter. The United States Supreme Court has endorsed this approach. In Turner v. Rogers, 564 U.S. 431 (2011), the Supreme Court considered whether an indigent father facing a year in jail was entitled to a public defender, as he would be in a criminal case. In holding that the father had no right to state-appointed counsel, the Court began from a premise it regarded as both legally significant and unquestionably true: that child support proceedings are civil. The Court’s analysis reflects a broader and widespread assumption that family law is a civil field. This Article joins recent scholarly work that has undermined that belief by exploring how criminal law and family law work in tandem to police certain conduct. This Article goes further by demonstrating that criminal law and family law have not merely acted together. Modern support duties and the family courts that enforce them evolved from criminal laws and courts.
Relying on extensive historical research, this Article is the first to argue that child support enforcement is criminal law in a civil guise. Family support duties were criminalized around the turn of the twentieth century to permit extradition of offenders. Criminal court judges then tasked newly minted probation officers with reconciling, investigating, and monitoring families—novel state interventions in domestic life. Probation officers, in turn, promoted and staffed specialized criminal nonsupport courts (initially called “domestic relations courts” and later “family courts”) that some cities opened to handle these prosecutions in the 1910s. Beginning in the 1930s, costs and stigma associated with criminal law led legislators to strategically relabel family courts and support enforcement as “civil,” even while retaining procedures, personnel, and powers drawn from the criminal approach. Observers found the ongoing use of criminal-derived oversight methods unremarkable; the decades in which support law was largely criminal law shifted norms about acceptable and desirable state involvement in family relationships. As the number of civil “child support” suits surpassed nonsupport prosecutions (which all states retained) and probation officers disappeared from family litigation, the criminal heritage and continued criminal-law reinforcement of family courts and support laws were obscured.
The calculated and incomplete conversion of criminal law to civil law in the family context undercuts the supposedly distinct purposes, procedures, and penalties in civil and criminal law. Drawing from this historical account, the Article critiques the Supreme Court’s treatment of statutes that blur the civil-criminal divide and identifies three factors that help determine which proceedings should be denominated as criminal. The proposed analysis designates modern child support enforcement as criminal. If the Supreme Court adopts this approach, state legislators would face a difficult choice. They could allocate the resources needed for criminal procedure protections or they could truly decriminalize child support—ideally through elimination of child support incarceration.
Keywords: family law, criminal law, criminal procedure, child support, probation, civil-criminal divide, contempt, family court, legal history
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