Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws
57 Pages Posted: 27 Apr 2018 Last revised: 16 Aug 2018
Date Written: August 6, 2018
Each year thousands of parents are incarcerated for nonpayment of child support without criminal procedure protections, based on an understanding that support enforcement is a “civil” matter. For example, in Turner v. Rogers, 564 U.S. 431 (2011), the Supreme Court began from the unquestioned premise that child support enforcement is civil, when holding that a father facing a year in jail was not entitled to a public defender. Though family law scholars have persuasively shown that criminal law and family law work in tandem to police certain conduct, the conventional wisdom remains that family law is a civil field. This Article challenges common assumptions about the nature of family law by tracing how modern support duties and the family courts that enforce them evolved from criminal laws and courts.
Relying on extensive historical research, this Article argues that modern 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 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. This account therefore provides a novel basis for critiquing the Supreme Court’s treatment of statutes that blur the civil-criminal divide. The Article concludes by proposing that the Court replace its faux-binary test with a spectrum of categories.
Keywords: family law, criminal law, criminal procedure, child support, probation, civil-criminal divide, contempt, family court, legal history
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