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I. Introduction
Family law and criminal law both feature imperfect people ensnared in problematic circumstances. The interaction between these two distinct areas of the law is complex, and cases with overlapping issues frequently involve enormous practical challenges. This issue of the Family Law Quarterly explores the awkward intersection of criminal law and family law, addressing topics ranging from custody to technology.
Criminal law and family law serve different, incompatible purposes. Perhaps not surprisingly, few lawyers are proficient in both areas. Family lawyers handle family cases, and criminal lawyers handle criminal cases. A family lawyer may view a situation as a family case that involves criminal issues, whereas a criminal lawyer may see the same situation as a criminal case in the context of a family dispute. These subtle distinctions may impact how a professional or court approaches a dilemma and how a case proceeds.
Criminal law marks the normative boundaries of society and uses the power of the State to punish criminal acts committed by individuals. Punishing criminals serves public purposes, including deterring the general population from committing similar crimes, satisfying society's need for retribution, and denouncing conduct that falls outside of acceptable social boundaries.1 On an individual level, punishing criminal conduct is intended to deter future misdeeds, to ensure that a lawbreaker suffers in proportion to offense, to incapacitate so that a convicted person cannot reoffend, and to rehabilitate a lawbreaker.
Criminal defendants are entitled to legal protections appropriate in a free society. Examples of constitutional safeguards built into the American criminal justice system include the presumption of innocence, the requirement that guilt must be proven beyond a reasonable doubt, the right to a jury trial, the right of indigent defendants to appointed counsel, the right against unreasonable searches and seizure, the privilege against compelled self-incrimination, and related Miranda rights.2 There is a high degree of certainty that anyone convicted of a crime after receiving fair treatment by the criminal justice system is guilty. Prosecutors represent the interests of the State, which interests may not correspond with any individual. The interests of a criminal defendant's family, including the best interest of a defendant's minor children, are of little concern.
Family law involves different actors and priorities. Its primary purpose is to stabilize and...