Loading...
Removing the Bias of Criminal Convictions from Family Law
Stoever, Jane K.
Stoever, Jane K.
Collections
Abstract
What happens when a legal system reduces a person to a record of
arrests and prosecutions and prioritizes that information in family court? And
what are the implications when this legal system is rooted in racism;
disproportionately arrests, charges, and sentences people of color; and
increasingly criminalizes domestic violence survivors?
The Black Lives Matter movement brought attention to the need to expose
racial injustice in areas that scholars often overlook. This Article is the first
legal scholarship to examine judicial reliance on convictions in family law and
domestic violence proceedings. Judges are currently provided with entire
criminal histories, and statutes explicitly allow for or require family court
judges to consider past criminal convictions and the probation and parole status
of litigants seeking to secure custody or visitation of their children, form a
family through adoption, or receive protection from domestic violence, as
revealed by the research and fifty-state survey conducted for this Article.
Given the stark racial disparities that pervade the criminal legal system, the
convergence of heuristics and bias profoundly impacts litigants' lives,
relationships, families, and communities. Judges' implicit biases coupled with
structural hurdles, such as the high-volume dockets of criminal
and family courts, further affect adjudication and pressure parties to accept plea
offers or settlements. This Article also addresses survivors' advocates'
potential objections to decreasing judicial reliance on criminal convictions and
the imperative to avoid minimizing harms experienced by people of color. The
Article concludes by offering a statutory framework to reform the role of
criminal convictions in domestic violence and family court proceedings. The
recommended statutory reforms are positioned alongside emerging
expungement and vacatur laws. Without the remedy recommended in this
Article, racial bias and the stigma of criminality will continue infecting family
law cases, protection from domestic abuse, and caretaking relationships.