In “The End of Family Court,” Prof. Jane Spinak presents a deeply researched case for the abolition of the contemporary family court. She shows, through careful legal and institutional history, how the role assigned to the court today was a product of organizational tenacity rather than an inevitability. She argues that the family court has never, and can never, meaningfully ameliorate the problems it claims to address. This powerful and deeply researched critique is coupled with a concise agenda for change that would dramatically shrink the role for courts in family life. Spinak's work expands the scope of the abolitionist project into family law writ large, and in doing so, tackles a core legal and ideological construct that has caused coercive therapeutic approaches to take such a central role in our contemporary social policy systems, the ‘Great Idea’ of the Progressive Era juvenile court.
Spinak carefully traces the legal and institutional history of the “Great Idea,” namely that a benevolent court can constructively (and coercively) intervene in family life through the careful distribution of therapeutic services. This paternalistic approach toward children and families was emblematic of a broad movement toward building individualized solutions to social problems, closely informed by the nascent and rapidly professionalizing field of social work and its allies in sociology and psychology.
However, as Spinak notes, “The therapeutic impulse of the day did not include wealth redistribution” (36). The structural root causes of the social problems of the rapidly urbanizing US industrial cities of the early 20th century were not targeted for intervention. Instead, the juvenile court found itself closely allied with the settler colonial and anti-Black projects that broadly animated Progressive Era social policy.
This individualistic approach toward identifying the causes of and solutions to social problems has profoundly shaped the trajectories of the diverse functions that would come to be unified under the auspices of the family court. From a theoretical perspective, it is this foundational error in causal attribution (the displacement of structural problems onto individual children and families) that has destined the family court to fail. And Spinak shows that the ‘Great Idea’ has indeed failed to achieve its stated goals at each stage of its development.
However, over time the court has exhibited an incredible ability to move the goalposts and opportunistically expand its jurisdiction. Spinak carefully traces the institutional history of the family court starting from its early foundations in the juvenile court, with careful attention to its racialized logics that sought assimilation for white immigrant families and exclusion and subordination for Black families. She shows how judges and allied actors strategically buttressed the court against a range of political and legal challenges and preserved a strong role for judicial discretion during the due process revolution. She shows how juvenile court judges fought to preserve their control over status offenses during efforts to constrain expansive state authority, and in doing so, provided a substantial component of the infrastructure that would enable the rapid expansion of youth incarceration and detention between the 1970s and 2000s. She traces how formalized child protection mandates came under the court's purview and expanded it into a large-scale people processing bureaucracy with an array of allied institutions dependent on the caseloads it generated.
The “best interests” of children became an ideological vehicle to dramatically expand family surveillance, family separation, and termination of parental rights. Coupled with the Clinton-era dismantling of the US welfare state and rapid expansion of policing and prisons, the family court was well positioned to implement a child saving mission that located the blame for a litany of social problems in poor, Black, and Native families.
By carefully tracing this history and highlighting the actions of institutional entrepreneurs on the court who fought to preserve their jurisdiction and expand their reach, Spinak provides a powerful counterargument to approaches that would reify the role of the court. The contemporary family court is not an optimal, or even adequate, solution to the problems it has tasked itself with solving. The family court, and the “Great Idea,” have persisted through institutional creep, political opportunism, and bureaucratic self-preservation.
Highlighting the contingency of the institutional form of the family court lays the groundwork for a radical re-envisioning of the proper role of the court in family. Spinak embraces a radical non-interventionist approach to argue that family courts must be relieved of their “social mission,” and re-oriented as a last resort resource for dispute resolution.
Her concrete recommendations for abolition of the family court include recommendations for both delinquency and criminal proceedings and for child protection proceedings. On the delinquency and criminal front, she advocates for the complete elimination of status offense jurisdiction, and the dramatic expansion of due process protections and legal representation for children who remain subject to the court. On the child protection front, she advocates for eliminating the current mandated and voluntary reporting system for suspected child abuse and neglect, strictly limiting the statutory definitions of child abuse and neglect, reducing discretionary interpretation of “best interests of the child,” enhancing due process protections for children and parents, and repealing the Adoption and Safe Families Act (which shifted incentives away from family reunification for children in foster care and dramatically sped up the termination of parental rights with the intent of accelerating adoptions).
In the place of the family court and its allied institutions, Spinak endorses a re-allocation of resources away from paternalistic judicial and carceral systems toward community-based resources that prioritize concrete improvements in infrastructure and services. She argues that grassroots movements led by Black, Native, and poor families most heavily impacted by contemporary systems must be allowed to lead the way forward in articulating a new set of policy responses. Attorneys, judges, and social scientists should act in support of these efforts, rather than seeking to direct them.
“The End of Family Court” should be considered required reading for social scientists, historians, and legal scholars who work on questions involving children, youth, and families and for those who hope to better understand how paternalistic therapeutic approaches have become so powerful in contemporary legal and policy systems. Spinak's compact recommendations for abolition also provide a concrete and valuable roadmap for shrinking the coercive footprint of the court for families, activists, and policy makers.
