Family courts; the “stepchild” court of N.Y.
N.Y. family courts were established in 1962 to handle some of the most vulnerable cases in the system involving children and families. With the increase in filings resulting in over 700,000 cases pending, and the lack of resources to efficiently handle all of these cases, the family court administration struggles to provide litigants the justice they seek.
However, concerns regarding the overwhelming number of cases and lack of judicial resources within the family court system was a topic of discussion back in 1987, when New York State Chief Judge Sol Wachtler categorized the family courts as the “stepchild” of the state’s judicial system in N.Y. at the New York City Bar Association’s celebration of the 25th anniversary of the N.Y. family court system.
25 years later, around the 50th anniversary in 2012, organizations like the New York State Bar Association and the Citizen’s Committee for Children continued to categorize the family courts as the “stepchild,” due to the continued lack of attention and need for resources and support.
In 1983, case filings reached about 366,000, but by 2012, the number of cases filed increased by about 90% reaching close to 700,000 cases. According to the New York State Senate’s Committee on the Judiciary, a report released in 2009 indicated that the amount of case filings in family court is approximately 42% higher than supreme and county courts in N.Y.
Not to mention, the responsibilities of the family courts increased hand-in-hand with the increase in cases. As cases continued to file in and older cases continued to be delayed, the burden was placed on the court officials, particularly judges, to handle the influx. According to the testimony provided by Stephanie Gendell, associate executive director of the Citizen’s Committee for Children (CCC) and the co-chair of the N.Y. Coalition for Family Court Justice, a New York City family court judge handles about 1,533 cases per year, but with 222 court days per year, six hours per day hearing cases, a family court judge with that caseload can only allocate about 52 minutes per case each year.
While organizations like the CCC and the New York State Senate Committee on the Judiciary have indicated how delay and lack of proper resources for the court negatively affect litigants who come seeking justice, litigants themselves share their stories on how court delay and lack of justice has affected their families.
One litigant, Melissa J. Shea, is a mother of three children and a victim of domestic violence, who spent about seven years in Suffolk County family court in N.Y. fighting for custody of her children. “I would have thought with a case like mine that the family court system would have been very quick to settle the case, but that wasn’t really the case,” said Shea.
In 2007, her journey in court began after her husband broke her jaw while she was eight months pregnant. She suffered injuries that were so severe, the child had to be induced. Despite all of the evidence Shea had regarding the domestic violence incident, Shea was not awarded custody. “I only get to see my children four days of the month and that includes the child that almost died as a result of the injuries,” said Shea.
Shea used her experience to start advocating for family court reform locally, since she is just one of many Suffolk county litigants that has suffered the loss of her children at the hands of the court. “It’s a heartbreaking story, but unfortunately, mine is not the only one. There are thousands of others and this needs to change,” said Shea.
Gary Jacobs a Long Island businessman in Smithtown, N.Y. was also separated from his children during his 13-year long litigation in court. After facing false allegations for domestic violence, Jacobs was arrested several times and issued a court order that kept him away from his home and his children.
His experience inspired him to also advocate for family court reform. “What I advocate for is change in the judicial system so it stops destroying families,” said Jacobs, who also decided to get involved in politics.
In 2013, Jacobs ran as the democratic candidate for the Suffolk County Legislature, specifically highlighting his passion for reform. “What’s in the best interest of any child is having the involvement of both parents in their lives,” said Jacobs, who supports the notion of shared parenting. Currently, Jacobs advocates to publicize the stories of litigants in the local Long Island area. Jacobs created a video segment called, “Long Island Backstory,” where he sits down with litigants, family court activists, and legal professionals to spread awareness about the family court system.
Advocacy for legislation adding judgeships
While some critics say that the system functions inefficiently because judges are overworked with caseloads exceeding 700,000 filed in a year, other critics say, it’s not the amount of cases that are hindering the system, but rather that judges hold too much power with little to no oversight and accountability for their actions towards litigants that step into their courtrooms.
Despite both claims, the latest steps toward reform began with the passing of legislation in June 2014, which added 25 additional judgeships to family court benches throughout the state.
The collective agreement amongst family court reformers, activists, professionals and litigants is that family court reform at a statewide level is still an ongoing process and there is much more work that needs to be done to make litigation less daunting for the people that come before the court.
The New York State Coalition for More Family Court Judges is made up of more than 80 organizations from all parts of N.Y. who all advocated for more judgeships and resources for the courts. The coalition really took off and gained a lot of attention in 2014.
Stephanie Gendell, the associate executive director for policy and government relations for the Citizen’s Committee for Children (CCC N.Y.), co-chaired the statewide coalition with Denise Kronstadt, the deputy executive director and director of advocacy for the Committee for Modern Courts.
According to a report released by the coalition, of the 700,000 cases that are filed annually in family courts statewide, there are only 153 family court judges to hear these cases. New York City handles about 250,000 cases annually, with only 47 family court judges. However, even with case filings increasing over the years, no new judgeships have been added for New York City since 1991 and on a statewide level since 1998.
Although the coalition drew a lot of attention in 2014, advocating for more family court judges has been on the radar of legal organizations, such as the New York State Bar Association (NYSBA) years prior.
In fact, because of the growing concerns regarding family court caseloads, the NYSBA created the Task Force on Family Court in 2010 to examine the challenges and recommend measures that would help courts meet the demands placed on them.
In January 2013, the task force released a final report listing 26 recommendations, but focused primarily on five principal priorities; the top of that list was the growing need for additional family court judges.
The task force held four statewide hearings in 2011 and 2012 in Albany, New York City, Hempstead and Buffalo. According to the Task Force’s 2013 final report, more than 60 witnesses testified during these hearings.
Susan B. Lindenauer, co-chair of the NYSBA’s Task Force on Family Court said the witnesses who testified before the task force felt an increase in judges would reduce delay and make the court system function more effectively.
One witness was Jane Spinak, clinical professor of law at Columbia University, and author of the article, “Reforming Family Court: Getting it Right between Rhetoric and Reality,” for the Washington University Journal of Law and Policy. Spinak was in attendance at the hearing in Hempstead on March 22, 2012.
“I still believe that just having more judges is not the answer; it’s can we use those judges in a smart way,” said Spinak.
Spinak pointed out that supervising judges need to utilize these judges in a way that will substantially have an impact, not just redistribute the cases.
“Because if that’s all they are doing, I don’t think the court will work better,” said Spinak, “It doesn’t really analyze whether there are different ways in which to handle different kinds of cases, or why there are long adjournments in some parts and not others, and why some judges seem to run their courtroom well and others don’t.”
With the limited amount of time and resources to handle the large number of cases, having the new judges in place to handle the backlog in cases is something the task force and the coalition wanted.
Understanding a judge’s perspective
Philip Segal, former N.Y. Family Court Judge, sat on the bench in New York City from April 1991 to April 2001 and focused on family law issues for over 30 years as a judge and practicing attorney.
“Family court has a lack of resources from top to bottom. It’s not just the judges. Everybody who deals with family court has astronomical caseloads and calendars. Anything you can do to add judges to the court can only help,” said Segal. The former judge shared that the nature of the cases wasn’t the primary challenge of his job, but rather the excessive amount of cases.
“I always said that I could deal with any of the cases, as personal, horrible, contentious as can be, but I can’t do 10 of them between 1:00 and 4:00 in the afternoon. You get to a point where you either can’t do it or react in similar ways to similar kinds of cases, which is wrong because every case has its own unique facts and problems,” said Segal.
Although it is still early to monitor the true impact of these additional judges on the system, David Brookstaver, a spokesperson for the N.Y. Unified Court System’s Office of Administration, said the increase in judges has helped lessen the number of cases for individual judges and resolved the issue of backlogs in some places in N.Y.
The task force and the coalition hope this legislation will prove to be successful so they can continue advocating for the additional resources that they would like to see added into the budget in the future.
“There’s so much more that’s wrong with family court than just the lack of judges,” said Lise Bang-Jenson, NYSBA’s director of media services, “Other recommendations are still something that we want to see implemented.”
The nature of family courts
The phrase, “With great power comes great responsibility,” rings true with the role of family court judges, who handle not only a large amount of cases, but some of the most contentious cases in the unified court system. “You’re dealing with people’s lives. You’re dealing with children. You’re dealing with fundamental rights and that always involves emotion,” said Lindenauer, co-chair of the NYSBA’s Task Force on Family Court.
According to the Office of Court Administration for the New York State Unified Court System, courts consider “the best interest of the child” when making a decision that involves children, but the Office of Court Administration also notes that there is no standard definition to clarify what that means. Instead, the judge determines those standards on a case-by-case basis.
Segal reflected on his term as a former New York City family court judge, noting that his primary concern was to make sure he was following procedure, while also considering the rights of families that came before him.
“There are plenty of judges that think they are child savers and they act on what they think is ‘in the best interest of the child.’ I’ve been working in family court since 1974 and I don’t have any better idea on what that phrase means today than I did in 1974,” said Segal.
For the new family court judges, the training process is extensive, but according to the Office of Court Administration, many of these judges have the sufficient backgrounds to understand what their role is and how the system functions.
Brookstaver, the spokesperson for the N.Y. Unified Court System’s Office of Administration said that the new family court judges who have been added to the benches across the state go through a one-week training period, which includes ethics training. In addition, they meet with administrative and supervising judges, as well as, judges that already have experience on the bench.
Once judges complete their training process, they operate independently. “Judges view themselves as being independent and that’s part of their obligation to be independent. There’s a natural tension there between their independence and making judgement, and them being part of a system, “ said Lindenauer. She continued explaining that the only oversight within the system comes from having skilled administrators in place who can work the dynamic of maintaining the standards of the family court system, while allowing the judges to operate independently.
Family courts criticized for alleged abuse of power
While many organizations are thrilled about the new legislation, others believe that adding more judges is not the solution to the problem. Critics against the legislation believe adding more judges will continue to reinforce the lack of oversight over the judiciary and further inflate the alleged corruption that exists within the family court system.
Stephen Baskerville is an American scholar, professor of politics and also described as the leading authority on divorce, child custody and the family court system by Paul Craig Roberts, a former United States assistant secretary of the treasury for economic policy. Baskerville also authored a book called, Taken Into Custody: The War Against Fatherhood, Marriage and the Family.
“The biggest issue is justice,” said Baskerville, “This is one of the myths that we hear, that all of these abuses and problems are caused by inefficiency and overloaded cases. No, that is nonsense. Increasing the number of judges simply increases the number of abuses that can be perpetrated.”
Baskerville isn’t alone in this viewpoint. Other family court critics such as Greg Roberts, founder and president of the Families Civil Liberties Union (FCLU) agrees that increasing the amount of judges is not addressing the true problem. The FCLU is a national activist organization headquartered in New York City, where their mission is to promote, “the use of fair and standard equal practices in our family court system nationally,” according to the organization’s website.
Roberts began the FCLU in 2012 after his own run-in within the family court system, not in N.Y. but in N.J. Roberts said, in his litigation, he faced false accusations of child abuse, which led to both of his two young children having vaginal rape exams conducted on them. In addition to fighting these accusations, Roberts also fought to keep his children from being relocated to Oregon. In the end, his custody settlement allowed him to see his children every other weekend and every Wednesday night.
Roberts was driven to start the FCLU in order to provide other family court litigants with an outlet to reach out if they felt they’ve been wrongfully treated in family court. The FCLU opened a formal Federal Trade Commission (FTC) case to investigate “Family court fraud, deception and racketeering.”
“You can forget about changing laws, you can forget about talking to politicians, you can forget about talking to the state assemblies, you can forget about talking to reform commissions,” said Roberts, “The only way you’re going to make a change, and this took me a while to realize it, is to get publicity and by getting the right publicity, and giving this industry the black eye that it deserves.” Roberts believes that the best form of legislation over the family courts will come from the federal government, if awareness is brought to a national level.
“It’s completely indefensible in terms of constitutional rights, in terms of due process law, in terms of sound family policy. In my book, I go through the Bill of Rights and I show how virtually every article and then some is violated by these courts on a routine basis, said Baskerville, “so if we have any respect at all for due process of law, this would not be tolerated.”
Spinak, clinical professor of law at Columbia University and one of the witnesses that testified during the task force hearings, also believes there is a lack of due process in the system, but believes that the entire court system is accountable for making sure that the proper legal requirements are followed. In addition, Spinak believes that the lawyers who practice in family court have a responsibility to hold judges accountable during hearings, “so that if they believe the court is not being fair or not making just rulings, they can appeal it.”
One attorney did what Spinak suggested, and labels judges as part of the problem with the family court system. Susan Settenbrino, a former assistant district attorney for Kings County and privately practicing attorney in N.Y. spoke out saying she was a targeted attorney in the system for standing up against judges and even having some recused.
Settenbrino authored a book called, Unchecked Power Guide: The New York State Court System: A Look at the Entrenched Power, Politics and Over $2 Billion of N.Y. State Funding. Settenbrino describes the N.Y. family court system as a political machine, saying that the judges and court officials are amenable to politics within the system.
“I realized that the judges are primarily political and they’re put on the bench through appointment or basically elections that are not really decided by people, but decided by the party bosses or the people who nominate them, because people just go and vote for whoever their congressman or assemblyman or councilman tell them to vote for,” said Settenbrino.
Settenbrino also said that a major issue with the family court system is the lack of oversight by offices like the New York State Commission on Judicial Conduct to monitor judges that abuse their powers.
N.Y. State Commission on Judicial Conduct and Office of Court Administration responsibilities
Robert Tembeckjian, the administrator and counsel for the New York State Commission on Judicial Conduct said that the role of the Commission is to “consider complaints of misconduct against individual judges and, where appropriate, to discipline those judges for engaging in ethical misconduct.” However, Tembeckjian stressed that the Commission does not play a management role in providing oversight to the courts, since that is the responsibility of the Office of Court Administration.
Brookstaver, the spokesperson for the N.Y. Unified Court System’s Office of Administration emphasized the Office of Court Administration is solely responsible for, “the smooth and efficient operation of the court system, but we do not tell judges how to decide cases and what to do on a daily basis, because we have no authority to do so.”
Michael Katz, a court reform activist and writer who frequently posts about divorce and family courts, believes that N.Y. legislators missed the mark passing legislation for more judges, but instead, would like to see legislation that provides more supervision over the judiciary. Katz wrote a paper called “The Shame of New York” that he published online highlighting the need for more judicial reform within the court system.
“That’s the part of the law that has to change, because right now, the only supervision of a judge is the office of Judicial Conduct and that’s a volunteer, state-city organization that is super-secretive. They don’t do any proactive monitoring and then the second thing you have to change is that the chief administrative judge doesn’t have any authority over the court or the behavior of judges,” said Katz.
“Public confidence in our court system relies on many things, including the integrity of individual judges and lawyers, effective education and oversight by court administration, adequate funding for staff and programs, and discipline when specific ethical violations are established,” said Tembeckjian.
In the Commission’s disciplinary index, 40 of their public disciplines have been rendered against family court judges, which Tembeckjian believes is more than any other state. However, he also noted that family court judges comprise only 4 percent of the the New York State judiciary and 5 percent of the public disciplines that the Commission has imposed.
“In other words, the Commission does its part effectively throughout the far-flung judicial system in this geographically large state, particularly in view of its relatively limited resources.” said Tembeckjian.
Reforming Beyond Judges
Although both sides of the spectrum have their own reasons for either wanting more judges in family court or wanting a different type of reform in the system, everyone seems to collectively agree that there is still more that needs to be done to fix the N.Y. family court system.
“We certainly think that there are other things that should be addressed as well but you can’t focus on 26 items at once,” said Lindenauer, co-chair of NYSBA’s Task Force on Family Court.
The New York State Coalition for Family Court Justice and NYSBA’s Task Force on Family Court would like to see the addition of more judicial resources, such as court attorneys, court reporters and generally more administrative staff to support the additional judges added.
In addition to administrative staff, both groups recognize that extra resources for litigants and children who come before the court are severely needed. Gendell mentioned that one thing the courts need to do is extend the hours of operation so there is more time to handle emergency cases that must come before a judge for ruling. Many times, these emergency cases involve children who need to be taken care of immediately. Advocating for extended court hours is on the checklist for the coalition as they begin deciding what they would like to request next.
Lindenauer mentioned that one issue the task force has taken interest in is the issue of delay in the courts. She linked delays to the lack of continuous trials within the family court system. To Lindenauer the lack of continuous trials and delays are extremely harmful to children, especially when cases are delayed for months and sometimes even years. However, other critics debate that the root of the issue with family courts is having an independent judiciary with little to no oversight.
Katz, family court and divorce reform activist, thinks that fixing the family courts starts with the addition of supervision and having monitors in the court. Katz says the easiest law to change would involve the administrative judge and increasing the budget for him/her to hire people specifically designated to monitor the process that unfolds in family courts and in supreme courts as well.
Settenbrino, former assistant district attorney for Kings County and privately practicing attorney, also agrees that there needs to be checks on the system.
Settenbrino compares the family court system to a cancerous body, saying that aspects of corruption are present, similar to a tumor, but they go unchecked and unreported. Part of the reason why this alleged corruption goes unnoticed, according to Settenbrino, is because disciplinary offices like the Commission on Judicial Conduct are not being held accountable for enforcing discipline, even though the Commission stated that they in fact do discipline judges within their stated responsibilities.
“Those offices, if they’re not compromised and they’re operating as an honest, apolitical separate distinct overseer of the courthouse, the judges and the attorneys, that’s going to change the entire system,” said Settenbrino.
Spinak, professor of law at Columbia University and family court activist, offers an even more comprehensive recommendation for structural reform. Spinak believes that the best type of reform would be to not have a free-standing family court anymore. Instead, she believes merging the family courts into the state supreme courts will offer litigants more equal treatment within the court system. Spinak’s idea of merging the courts is not a foreign one. In fact, former New York State Chief Judge, Sol Wachtler, the judge known for calling the family courts the “stepchild” of the judicial system, recommended the same thing in 1987.
Spinak, Lindenauer, and former New York City judge, Segal, all stated that family courts particularly in New York City are predominantly looked at as “the poor people’s court.” But by merging the supreme and family courts together, judges would have the opportunity to rotate into different roles and litigants would have access to better resources that are offered in state supreme courts.
However, improvements are gradually being made to provide better resources for families, particularly parents who cannot afford proper representation in court. Improving resources for underrepresented litigants has been on the top of the list for the coalition, the task force and for Spinak, as an activist.
There will always be areas of improvement in the N.Y. family court system, but the addition of more judges has drawn statewide attention to the growing need for more resources and for more legislative attention in the future.