Family Law Quarterly
Volume 44, No. 2 (Summer 2010)

Special Symposium on the Intersection of Family and Criminal Law

Table of Contents

Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.

Editor's Note      
Linda D. Elrod (Cricket)

Criminal Law or Family Law: The Overlapping Issues
Samuel V. Schoonmaker, IV

This overview article explores the interaction between family law and criminal law. It identifies enormous practical challenges that occur when matters overlap in these two areas of the law. It also critiques the Scarlet Letter proposal, detailed in the final article in this issue of the Family Law Quarterly.

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Failure to Protect from Exposure to Domestic Violence in Private Custody Contests
Leslie Joan Harris

All 50 states and the District of Columbia require courts to consider domestic violence committed by one parent against the other in resolving a custody or visitation dispute between the parents. A significant number of states also have statutes or case law that requires courts to consider the occurrence of violence in a child's household or proposed household in resolving such disputes, regardless of who commits the violence or at whom it is directed. This kind of law may be used against a parent, often a victim, who fails to protect a child from being exposed to the violence. This article examines and critiques these laws in light of how this issue is handled in juvenile court child protective proceedings. In the child welfare context, widely accepted reforms promote leaving children with their mothers who have been battered and offering services to these mothers to help them escape from the violence. The article argues that the lessons and techniques from the child welfare system can and should be brought to bear in private custody disputes involving claims of exposure to domestic violence.

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No Honor Amongst Thieves or Spouses—Issues Confronting the Divorcing Spouse in Disgorgement, Forfeiture, and Restitution Proceedings

Allen Gary Palmer

This article explores the myriad issues a practitioner may face when the adversary spouse is arrested and subjects the marital estate to claims by the government or victims of the adversary spouse's alleged criminal acts and is focused on: (1) disgorgement of profits gained or losses avoided from the use or dissemination of material, nonpublic information in violation of section 10b-5 of the Securities and Exchange Commission regulations (insider trading); (2) forfeiture of property used in the commission of acts that violate the Racketeer Influenced and Corrupt Organizations Act (RICO); and (3) orders requiring the payment of restitution by the convicted spouse.

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The Space Between: The Cooperative Regulation of Criminal Law and Family Law

Melissa Murray

This article examines the overlap of criminal law and family in the regulation of marriage, sex and intimate life. Historically, criminal law and family law have worked in tandem to produce a binary view of intimate life that categorizes intimate acts and choices as either legitimate marital behavior or illegitimate criminal behavior. Recent cases, however, such as Eisenstadt v. Baird and Lawerence v. Texas appear to reorganize sex in a more continuous fashion. Thus, the traditional marriage-crime binary is disrupted in favor of a continuum where marriage and crime remain fixed as outer extremes, framing a place where intimate acts and choices are neither valorized as marital behavior nor vilified as criminal behavior. The author concludes that this zone, in which sex is permitted outside of both marriage and crime, offers great potential and promise that has yet to be realized.

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That Guy's a Batterer!: A Scarlet Letter Approach to Domestic Violence in the Information Age

Elaine M. Chiu

This article examines the current state of domestic violence in the United States and concludes that despite massive public education efforts, expanded awareness and action among law enforcement, and the availability of orders of protection, the violence continues. The author offers a Scarlet Letter approach, which seeks to deter abusers from future acts of abuse and warn a potential future victim that this is a known abuser. The proposal would require states to maintain a registry of domestic violence abusers who have received a final order of protection from any court. The public could access this registry to identify serial batterers and forewarn those who might otherwise enter into a future relationship with these individuals. The article concludes with an examination of costs and possible concerns.

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Publication Date: October 2010