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Cardozo Law Review

Abstract

Legal scholars have made calls to “abolish family court” or “abolish the family.” Before family court can be abolished, society must reduce its reliance on state interventions to resolve family disputes. This Article applies abolition theory and the praxis of “non-reformist reforms,” derived from Black feminist thought and the prison abolition movement, to family law. It details the context of the current “carceral” interventions that rely on state enforcement and then categorizes alternative family law tools into noncarceral, anticarceral, and transformative practices. Noncarceral approaches, such as private ordering through prenuptial, “no-nuptial,” and separation agreements, and establishing parentage for assisted reproduction through known donor agreements, tailor a court’s discretion based on individual needs and circumstances. Anticarceral approaches decenter the state even further, aiming to minimize state intervention. The authors coin the term “autonomous contracts,” agreements that memorialize relationship promises and include terms that disincentivize parties from pursuing litigation, as a path forward for practitioners. Finally, transformative practices operate on a community level to decrease our collective reliance on the state by building alternative systems. Mutual aid and community trusts are some alternatives to family court and family policing. Building community-level interventions can show society that abolishing family court is possible, and—perhaps—preferable.

Disciplines

Courts | Family Law

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