Beyond family law.

AuthorAbramowicz, Sarah
PositionApplication of child's best interests doctrine to non-family law areas - II. Beyond Family Law: Cases Affecting Children Indirectly, p. 318-351
  1. BEYOND FAMILY LAW: CASES AFFECTING CHILDREN INDIRECTLY

Within the context of family law, courts and commentators faced with the problem of how to resolve custody disputes articulate at length how children are affected by the circumstances of their parents' lives. When a child stands to be separated from a parent figure, exposed to financial instability or deprivation, or subjected to a disruptive change in environment, courts assessing children's interests routinely act to prevent such outcomes in the name of protecting children from developmental harm.

Across the rest of the legal canon, attention to children's interests is significantly more limited. Courts may attend to children when they are parties to a case, or when they are directly involved, for instance as the victim of a crime. There is very little attention to children, however, in the great majority of situations where they are affected by cases involving their parents.

This Part will discuss two areas of law in which children are potentially affected by cases involving their parents: criminal law and contract law. From the perspective of family law's best-interests jurisprudence, we can see that children's development can be affected, often profoundly, by cases involving their parents in both fields. As we will see, however, criminal law gives only limited consideration to children's interests in such cases, and contract law often fails to address the matter altogether.

While criminal law scholars have long puzzled over whether to consider children in cases involving their parents, they have done so from the limited perspective of their own doctrinal field, and thus have failed to recognize the full theoretical import of whether to attend to children's interests in such cases. In contract law, scholars have attended to children's interests only with respect to contracts that redefine the family, and have largely overlooked the ways in which children are affected by other parental contracts. Scholars in both criminal law and contract law have thus missed an opportunity to consider the connection between children's interests and the underlying goals and premises of their respective fields.

  1. Criminal Law

    Perhaps the area of law that most dramatically illustrates the collateral consequences for children of cases involving their parents is criminal law. Children are potentially affected by many aspects of criminal cases involving their parents. For instance, the very definition of what is and is not a criminal offense can affect a defendant's child, sometimes in a protective way, as where the law criminalizes acts of violence against the child. (101) Indeed, the law can often reshape families for the better, as it does in criminalizing domestic violence. (102)

    But children's interests are also at stake when their parents are convicted of crimes unrelated to the children. And here, unlike in the child abuse or domestic violence context, the child is not at the forefront of the court's analysis. Nonetheless, children may well be deeply affected by the outcome of such a case. Children are especially likely to be affected by a criminal case involving a parent where the parent faces incarceration. This Section will therefore focus on the effects of parental incarceration on minor children, and the extent to which the existing sentencing regime takes these effects into account when sentencing parents.

    1. Effect of Parental Incarceration on Children

      Family law's best-interests analysis helps to bring out the extent of developmental damage that parental incarceration can inflict on a child. As we have seen, best-interests jurisprudence holds up separation of parent and child as particularly harmful to a child's development. A child whose parent is incarcerated endures an extreme form of such separation. Many children see their incarcerated parents rarely or not at all: in 2007, nearly fifty percent of both incarcerated mothers and incarcerated fathers had no visits with their minor children, (103) and many incarcerated parents had no form of contact with their children. (104) Prisons are often located far from the communities in which prisoners resided prior to their incarceration, which, in combination with limited visiting hours and other prison policies, can make visitation pragmatically difficult or prohibitively expensive for children and their caretakers. (105)

      This form of extreme separation from a parent can thwart the bonding process between a parent and a young child, leading to the attachment problems that family-law courts try to prevent when they insist on frequent contact between parents and children in the infancy and toddler stage. (106) Disruption of an existing bond between parent and child is also potentially damaging. For children under the age of five, both lack of parent-child bonding and disruption of an existing bond can create difficulties in cognitive and language development as well as in forming relationships and regulating emotions later in life. (107) Older children separated from their parents suffer developmental harm as well, often in the form of behavioral and educational difficulties. (108)

      The damage inflicted on a child by separation from the incarcerated parent is often compounded by the financial and other difficulties that parental incarceration tends to create. 109 If the parent contributed to the household finances or to household labor, the loss of that contribution through incarceration will diminish the child's material well-being. (110) As custody courts acknowledge, a decline in a child's socio-economic circumstances can reduce the likelihood that the child will flourish. (111) Where a parent is imprisoned, the child's remaining caretaker is often forced to take on new employment or to move to more affordable housing, sometimes including homeless shelters. As a result, the child is subjected to disruptions in education, home life, and environment, as well as to the anxiety and diminished availability of an overburdened caretaker. (112) We know from family law's best-interests jurisprudence that each of these factors can harm a child's emotional, cognitive, and educational progress to a significant degree. (113)

      Despite the myriad harms that incarceration of a parent inflicts on a child, those children who are able to reside with a remaining parent are the relatively fortunate ones. When a single parent is incarcerated, the child may be placed with relatives--often grandparents--or family friends who struggle to cope with caring for the child and as a result may move the child from one household to another. (114) Here children suffer repeated instances of the instability and disruption that family law presents as destructive to a child's development. (115) A number of children, moreover, are placed in foster care as a result of parental incarceration, or are have been placed in foster care shortly before their parent's arrest. (116) Children in foster care are frequently moved from one placement to the next, (117) and often suffer abuse and neglect. (118) Under the Adoption and Safe Families Act, parental rights must be terminated where a child is in foster care for more than fifteen months of any twenty-two month period, unless certain limited exceptions apply. (119) Where parental rights are thus terminated, the tie between parent and child is severed altogether as a result of incarceration. (120)

      Family law's best-interests jurisprudence helps demonstrate the myriad ways in which parental incarceration can harm children's development. Separation of child from parent, lack of parent-child contact, financial instability, and disruption of a child's environment--all likely results of parental incarceration each threaten children's well-being and developmental progress. When these factors are compounded, as they so often are when a parent is imprisoned, family law tells us that the effect is to diminish the likelihood that the child will become an autonomous, productive, and emotionally healthy adult.

    2. Current Judicial Approaches

      Criminal law is one of the few areas of law outside of family law that will on occasion take children's interests into account in cases involving their parents, and it does so primarily in the context of sentencing. A number of jurisdictions provide for some consideration of children's interests when sentencing parents. Given the significance of parental incarceration for children, this is not surprising. Even within criminal-sentencing law, however, consideration of children's interests in cases involving parents is often limited or prohibited altogether.

      Beginning in the 1970s and 1980s, the federal government and the majority of states moved from a flexible sentencing system in which judges could consider a number of factors to a more tightly regulated one in which judicial discretion was significantly constrained. (121) At the federal level, this shift occurred with the adoption of the Federal Sentencing Guidelines in 1987, (122) which apply in conjunction with independently enacted statutory mandatory minimums for certain offenses. (123) Many states adopted their own statutory guidelines to limit judicial discretion at sentencing (124) or achieved similar results through rules such as mandatory minimums and habitual offender laws. (125)

      The Federal Sentencing Guidelines greatly limit the situations in which courts can take children's interests into account when sentencing parents. Under the Guidelines, "family ties"--including those between parent and child--are "not ordinarily relevant" at sentencing. (126) According to commentary added to the Guidelines in 2003, this means that courts following the Guidelines can only take children's interests into account when they stand to suffer a degree of harm that "substantially exceeds" the harm that a child would "ordinarily" suffer upon a parent's incarceration. (127) This, in turn, requires, at a minimum, that the...

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