At the intersection of family and criminal law, the logic of parallel enforcement enables the state, in the form of child protective services and law enforcement, to investigate and seek sanctions for the same underlying conduct in family court and the criminal justice system, respectively. But while that abstract rationale justifies the dual-enforcement regime, there is a different reality on the ground, where the systems frequently borrow from each other, collectively strengthening them. In the context of poverty-related neglect cases, this level of state intervention is often misplaced. At the same time, the government may find its hands tied in far more serious cases of child abuse, in which the nonoffending caregiver may exercise a veto over the prosecution by refusing to cooperate. This Comment rejects certain stereotypes about these caregivers—often mothers—and instead identifies the understandable lack of clarity with respect to the family and criminal systems as a barrier to justice. The Comment uses New York law and procedure as a case study for exploring and disentangling the two systems. First, it proposes reducing the use of criminal sanctions in the neglect context. Second, it suggests the use of formal agreements that clarify the roles of the child protective and criminal systems as a way to gain the cooperation of nonoffending caregivers in the criminal prosecution of child abuse. Finally, it demonstrates how these proposals comply with existing law and may be scaled up across the United States. By rebalancing the enforcement dynamic, the state can more effectively protect child welfare and support family unity.
Volume 169 Issue 3 2021 Comment