Family Court and the Association: Helping Abused, Neglected and Incarcerated Children and Their Parents
Imagine you are involved in the most important matter of your legal career, more
significant than any multi-billion dollar merger or even an argument in the United
States Supreme Court. Imagine further that the matter will be heard in a chaotic and crumbling court room, with the lawyers representing the parties being paid from $25 to $40 per hour, and with the judge having only a few minutes to decide the case.
The matter involves your child. Will the court hold that you are no longer his custodial parent? Will the Court bar you from visiting her? Will your child be put up for adoption? Will your child be sent to jail?
Those thoughts came to mind recently as I spent two half days visiting the Brooklyn Family Court. There, in a crowded, noisy and dilapidated courtroom that was smaller than my office, I saw first hand:
. A 17 year-old woman, herself in foster care, seek an order of protection from her boyfriend, the father of her two children, because he was constantly abusing her;
. A maternal grandfather demand custody of his grandson because the boyfriend of the child’s mother was beating up the child;
. New York City try to take a child away from the care of her natural parents because they were neglecting her;
. A mother resist a father’s request to be allowed to visit his son, because the father had said he was going to steal the boy away.
Each of these matters lasted on average no more than five minutes. The attorneys went through a very brief witness examination following which the judge had to decide whether to believe the complainants and deny the natural parent custody of, or at least visitation rights to, his or her child. Denial of the requested relief, often called for by the lack of evidence presented, might result in the mother’s death or the child’s abuse. However, grant of the application might not only be contrary to law and devastating to the parent, but, to the extent it means the child is being removed from the custody of his biological parents and placed in strange and potentially unfriendly and inadequate surroundings, might have substantial adverse effects on the child.
Why do we treat our most precious resources—our children—this way? The extraordinary volume of cases in the family court, coupled with completely inadequate resources, not only demeans the value of children and their parents, but turns the debate over a child’s best interests into turnstile justice, and too often becomes a concern not over what is right or wrong, but only on how to reach the end of the calendar before the end of the day.
Increasing the Resources Available to Family Court Matters
As a civilized society we must make more resources available to the New York City Family Court, in which 225,000 petitions were filed last year.
One way to provide added resources is to make the Family Court part of the Supreme Court, as the court restructuring proposal of Chief Judge Judith S. Kaye provides. The Association’s Committee on Family Court and Family Law Committee (Anne Reiniger, Chair) and the Council on Judicial Administration (Robert L. Haig, Chair) are evaluating whether such a merger would eliminate the “inferior?status of family court matters and result in more resources being available for family issues. Such a merger might also eliminate the potential, that I observed first hand, of a custody battle being relegated to a five minute hearing before an overworked Family Court judge with no familiarity with the parties, when a Supreme Court justice had earlier presided over a three-week divorce trial involving the same parties.
What Should Be Done When a Child is Abused or Neglected?
An overwhelming portion of the business of the Family Court involves abused and neglected children. As the spotlight continues on parents accused of abusing and neglecting their children—more than 142,000 cases of suspected child abuse were reported in New York City last year—and fatal consequences too frequently accompany delay in removing children from the custody of their natural parents, the Association’s Family Court and Family Law Committee is undertaking a major study of how better to meet the needs of families and reduce child abuse and neglect.
More than 42,000 children are in foster care in this city! Would their interests best be served if a court were required, within a specified time, to determine whether parental rights should be terminated, and the child therefore made eligible for adoption? A January 14 forum, sponsored by the Committee on Children and the Law (Glenda Morris Rothberg, Chair) will explore pending legislative proposals designed to prevent children from “languishing?in foster care. (See p. 7 for details.)
Improving the Operations of the Family Court
There are many ways, in addition to added resources, by which the operations of the Family Court might be improved. For example, the Association’s Committee on Alternative Dispute Resolution (Roger M. Deitz, Chair) has been encouraging the use of mediation and other types of alternative dispute mechanisms to resolve certain types of family court disputes and has made volunteer lawyers trained in mediation available to the court. In addition, our Committee on Juvenile Justice (Hon. Michael A. Corriero, Chair) is studying whether some kind of alternate dispute mechanism, as distinct from a delinquency trial, should be utilized for certain kinds of juvenile delinquency proceedings.
The role of the law guardian of a child is an aspect of family court procedure being examined by our Matrimonial Law Committee (Gordon H. Marsh, Chair). Should the guardian be an advocate for the child, arguing for the result the child wants, or should the guardian serve as a friend of the court, advising on what result is in the child’s best interests?
Another important procedural issue involves the representation of victims of domestic violence, who frequently have little understanding of their legal rights. Our Task Force on Domestic Violence (Hon. S. Michael Nadel, Chair) recently issued a report urging that a victim of domestic violence be afforded effective legal representation at every stage of any legal proceeding where the violence is material to the issues before the Court.
The Family Court is now a presumptively open court, enabling the public spotlight to better focus on the role and operation of the court and the inadequate resources allocated to it. But under what circumstances should the court be closed? On February 25, the Committee on Communications and Media Law (Laura R. Handman, Chair) will be sponsoring a forum on the opening of this court to the media.
Nothing should be more important to our society than the future of our children. The questions of child abuse and neglect that are being studied by our committees, and the need to find a way to allocate greater resources to family court issues, are of critical significance. If you are interested in joining one of these committees listed above, and playing a role in formulating the public policy to deal with these issues, please let us know.