Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts

60 Pages Posted: 27 Apr 2018  

Elizabeth D. Katz

Stanford Center for Law and History; Harvard University - Department of History

Date Written: April 24, 2018

Abstract

This Article challenges core understandings about the family law canon, the growth of probation, and the criminal-civil divide by providing the first history of a formative yet forgotten chapter in the development of specialized family courts and child support enforcement. A central tenet in family law scholarship holds that “family law” and “criminal law” are distinct, except in limited or modern circumstances. Scholars suggest this separation results from and reflects fundamental notions about family privacy and state nonintervention. Relying on extensive historical research, this Article radically revises that account by demonstrating that modern support enforcement is rooted in criminal statutes passed around the turn of the twentieth century. Criminal nonsupport prosecutions introduced novel state intervention in family behaviors, and especially marital finances, by assigning newly minted probation officers to reconcile, investigate, and monitor families. Probation officers, in turn, promoted and staffed specialized criminal nonsupport courts — initially called “domestic relations courts” and later “family courts” — that cities first opened in the 1910s. Beginning in the 1930s, perceived disadvantages of 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 half-century in which family law was largely criminal law shifted norms about acceptable and desirable state involvement in family relationships. As the number of civil nonsupport suits surpassed prosecutions under criminal statutes, which all states retained, and divorce jurisdiction moved to family courts, family law and courts increasingly appeared civil, obscuring their criminal heritage and continued criminal-law reinforcement.

The criminal origins of family courts and support enforcement hold significant implications for the millions of domestic relations cases filed each year, as well as for other types of litigation that blur boundaries between civil and criminal categories. The “civil” label can bring momentous consequences. In a prominent family-related example, Turner v. Rogers, 564 U.S. 431 (2011), the Supreme Court rejected a father’s claim that he was entitled to a public defender, when facing incarceration for a year for nonpayment of child support, on the basis that his imprisonment was for civil contempt. This Article employs history to demonstrate the superficiality of the Court’s holding and to formulate a sounder analysis for future cases in the child support context and beyond.

Keywords: family law, criminal law, criminal procedure, child support, probation, civil-criminal divide, contempt, family court, legal history

Suggested Citation

Katz, Elizabeth D., Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts (April 24, 2018). University of Chicago Law Review, 2019. Available at SSRN: https://ssrn.com/abstract=3168243

Elizabeth Katz (Contact Author)

Stanford Center for Law and History ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

HOME PAGE: http://https://law.stanford.edu/directory/elizabeth-katz/

Harvard University - Department of History ( email )

Cambridge, MA
United States

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