Beyond family law.

AuthorAbramowicz, Sarah
PositionApplication of child's best interests doctrine to non-family law areas - Introduction through I. Best-Interests Exceptionalism and Family Law's Insights on Child Development, p. 293-318

ABSTRACT

Family law has traditionally been treated as an exceptional field, a marginalized and special case in which the usual rules of the legal canon do not apply. This Article argues that the current challenge to family-law exceptionalism has been largely one way, to the detriment of a central concern of family law: the protection of children and of the parent-child relationship. Family-law scholars have focused primarily on whether and how to import the tools and insights of other areas of law into the zone of family relations, while largely overlooking the possibility that the tools and insights of family law might instead be exported outward, into the rest of the legal canon. In the process, family-law scholars have contributed to an already existing blind spot regarding the extent to which the conditions of child rearing are affected, often profoundly, by jurisprudence that we do not think of as involving family relations, but that affects the conditions of children's development by affecting their parents or caretakers.

This Article considers how family law's perspective on children's interests might be exported into areas of law that affect children indirectly. The Article investigates two paradigmatic fields in which children's interests may be affected by cases involving their parents: criminal law and contracts. By using the perspective of family law to examine the relevance of children's interests to criminal law and contracts, the Article shows how taking children's interests into account in cases involving their parents can further the internal consistency and legitimacy of each field. The Article builds upon this rationale to formulate a model for assessing when and how it is appropriate for courts to factor children's interests into their decision making in cases that involve children only indirectly.

INTRODUCTION I. BEST-INTERESTS EXCEPTIONALISM AND FAMILY LAWNS INSIGHTS ON CHILD DEVELOPMENT A. Bests-Interests Exceptionalism 1. Limited Applicability of the Best-Interests Analysis 2. Broad Scope and Methodology of the Best-Interests Analysis 3. Rationales for Best-Interests Exceptionalism a. Rationale for Limited Applicability: Parental Autonomy b. Rationale for Broad Scope: The Importance of Child Development to the Adult Self B. The Developmentalist Insights of the Best-Interests Analysis C. Implications II. BEYOND FAMILY LAW: CASES AFFECTING CHILDREN INDIRECTLY A. Criminal Law 1. Effect of Parental Incarceration on Children 2. Current Judicial Approaches 3. Current Debates About Considering Children When Sentencing Parents B. Contract Law 1. How Contract Litigation Can Affect Nonparty Children 2. Current Judicial Approaches a. The General Irrelevance of Parties' Status as Parents b. Exceptions 3. Arguments About Considering Children's Interests III. THE AUTONOMY-DEVELOPING RATIONALE ACROSS THE LEGAL CANON A. The Autonomy Premise in Criminal Law B. Autonomy as Premise and as Goal in Contract Law C. The Perspective of Family Law: Autonomy, Parenting, and Child Development D. Taking Children's Interests into Account in Cases Involving Their Parents IV. MODEL FOR ASSESSING WHEN TO TAKE CHILDREN'S INTERESTS INTO ACCOUNT A. Introduction B. When to Take Children's Interests into Account 1. Step One: Evaluating Premises and Goals 2. Step Two: The Nature of the Parties a. State Action Against Individuals b. Litigation Between Private Parties 3. Step Three: Balancing Children's Interests Against Competing Concerns a. State Action Against Individuals--Case-by-Case Approach b. Litigation Between Private Parties Systemic Approach CONCLUSION INTRODUCTION

Family law has traditionally been treated as an exceptional field, a marginalized and special case in which the usual rules of the legal canon, such as the ordinary operation of contracts, criminal sanctions, and torts, do not apply. (1) Many family law scholars today are engaged in challenging this family law exceptionalism. (2) For several years, scholars have contested the suspension of the usual rules of law within the specialized zone of family relations. (3) More recently, others have begun to argue for importing the tools and insights of other legal fields into family law, for instance by applying fiduciary law, (4) tort law, (5) or partnership law (6) to problems within family law, or by recognizing the constructions of the family by seemingly unrelated areas of law such as criminal law and welfare law. (7)

This Article argues that the current challenge to family-law exceptionalism has been largely one way, to the detriment of a central concern of family law: the protection of children and of the parent-child relationship. Family law scholars have focused primarily on whether and how to import the tools and insights of other areas of law into the zone of family relations, (8) while largely overlooking the possibility that the tools and insights of family law might instead be exported outward, into the rest of the legal canon. In the process, family law scholars have contributed to an already existing blind spot regarding the extent to which the conditions of child rearing are affected, often profoundly, by cases that we do not think of as involving family relations.

While family law attends with care to the ways in which the situation of parents affects their children's development and well-being, other areas of law either marginalize or ignore entirely the extent to which what happens to a parent can affect a child as well. This Article considers how family law's perspective on children's interests might be exported into areas of law that affect children indirectly by affecting their parents. The Article will consider two paradigmatic instances of fields in which children's interests may be affected by cases involving their parents: criminal law and contracts.

In criminal law, children are affected especially profoundly by cases involving the incarceration of their parents. How to treat children's interests in such situations has long been a puzzle within criminal law. By considering children's interests from within the limited perspective of their own doctrinal field, however, criminal-law scholars in favor of taking children's interests into account have struggled to articulate a convincing theoretical rationale for doing so, while those opposed have reached the conclusion that children's interests are collateral to, or even at odds with, the overarching goals and premises of criminal law. (9) This Article turns that conclusion on its head, showing that, when viewed from the perspective of family law's insights about the nature and importance of childhood, taking children's interests into account can be seen as furthering and enhancing the goals and legitimacy of criminal law.

In contract law, by contrast, scholars are often blind entirely to the ways in which children are affected by cases involving their parents. Currently, contracts scholars consider children's interests only in cases involving contracts that regulate the family directly. (10) These agreements, such as surrogacy and adoption contracts, are typically excised altogether from the realm of contract law and relegated to the specialized region of family-law exceptionalism, in which the ordinary rules of contract law do not apply. On the other hand, there is almost no discussion by contracts scholars regarding the ways in which children are affected by non-familial contracts involving their parents, such as ordinary commercial contracts or consumer agreements. This Article uses the perspective of family law to consider whether children's interests should be taken into account in such cases.

By using the perspective of family law to examine the relevance of children's interests across the legal canon, this Article shows how taking children's interests into account in cases involving their parents can be seen as furthering the internal consistency of criminal and contract law, as well as promoting certain goals and premises that are shared across a range of doctrinal fields. The Article builds upon this rationale to formulate a model for assessing when and how it is appropriate for courts to factor children's interests into their decision making in cases that involve children only indirectly.

The Article begins, in Part I, by investigating what family law assumes about why children's interests matter. It does so by analyzing the one area of law in which children's interests are paramount: child custody disputes. In assessing children's interests in the...

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