Is Family Court Worth Saving?

I always told myself I wouldn’t be one of those family court judges who droned on to litigants from the bench. But there I was, my last week on the bench, once again asking parents to try to look ahead for the sake of the children.

I knew that I was asking a lot. The trauma ran deep in this case, as it usually did in my courtroom: The mother standing before me had an extensive history of alcohol abuse and mental illness that had led to the removal of the child — and the father, who was a good 20 years her senior, was clearly controlling. After my little speech, I turned to the father and asked him a question to which he replied: “I don’t know. I stopped listening to you a while ago.” Then he got up and simply left the courtroom.  

Given this experience and many similar ones, you might think I would be ready to give up and agree with those who propose to scrap family court, an argument now being made in a new book by the very intelligent, dedicated advocate Jane M. Spinak.

But I can’t. Though I did leave the bench here in New York, I believe as strongly as ever that we need to fix, not discard these courts here and throughout the country.

Why? For the sake of the child in that case and the many thousands of others like her. That child wanted to see her mother; her father was preventing any contact. Given the history, mediation and other efforts to work together had failed. The mother was asking me for my help. So was the child’s attorney. Without family court, children like her would have essentially no way of getting what is to them the most important kind of justice.

In “The End of Family Court,” Spinak argues that family courts’ paternalistic and racially biased history means that they cannot be fixed. And no doubt she has some very good points. Recent reports reiterate what has been shown time and time again: that the families in the system are overwhelmingly Black and brown, and they are almost uniformly poor. The outcomes are often heartbreaking, and it makes sense to be furious.

Many of Spinak’s recommendations largely make sense. We have a responsibility to shrink the number of Black and brown families unnecessarily caught in the child protective system. I saw those families. I sent children home over objections from city agencies. And I worked with some families over years as they pieced themselves back together despite tremendous odds. Two of Spinak’s primary calls for change are inarguable: We need to limit the number of calls to the child abuse/neglect hotline, which can be a tool not only for state abuse but for intrafamily abuse as well. And we need to provide more robust parent representation across the board.

But Spinak neglects one very important thing: that society in general and the justice system in particular have a unique responsibility to children as well. And not just the children in the cases that are the subjects of neglect proceedings. 

The vast majority of the cases being heard in family courts are not between the state and a parent, but between two parents or other family members. These child custody, visitation, order of protection and guardianship disputes are not what you read about in the recent spate of books or articles on family court, but our courts are literally overwhelmed by cases where parents who can’t come to terms with one another are coming to court begging for state help.

Yet Spinak states at the beginning of the book that she is not addressing those kinds of cases. This seems a strange disclaimer to make given that they make up such a large percentage of the family court docket. Is the state supposed to turn its back on those seeking help in such cases?

But why are these families coming to court, Spinak might reply. They should get help elsewhere, she would surely argue, rather than getting tied up with the justice system. Community-based resources can address family problems and prevent childhood trauma.

Unfortunately, this is often not the case. In the case I cited at the opening, it was exactly the power of the court to make orders that the mother and the child’s attorney were seeking. Indeed, many of the litigants in family court are seeking an order to keep them and their children safe; orders that will force city agencies to let them get access to housing or medical care for the children of a deceased brother or sister; special immigrant juvenile status for their recently arrived migrant nephews; or any manner of other help that they have often tried to get in other ways and have been turned away. 

The frustration that I heard all too often from parents in my courtroom was not some version of “you are doing too much,” but rather, something closer to “you” — meaning the court, the state, the world — “are doing too little! Why won’t anyone listen to me? Why won’t anyone take my concerns seriously?”

Would it be right to argue that two partners in a small business can access the courts to resolve a dispute, but two parents cannot? That commercial relationships are worth enforcing and protecting through court orders but children’s rights to relationships with both parents and to safety are not?

I witnessed a consistent pattern in my years on the bench. The children and families I saw in custody and domestic violence cases were being underserved, while those in the abuse and neglect cases were being over-policed. As we look to reduce involvement with child protective systems, it is even more important that governments resource the court’s ability to respond proactively to serve those families that are actively seeking assistance.

The stories with which family court judges must grapple are heartbreaking, and they’re not going away. Among them: a 40-year-old man who traveled to a foreign country, where he had a child with a teenager and then refused to let her see the child when she finally made it to the U.S.; a father trying to protect his child from a mother suffering from mental illness who took pictures of herself choking the baby and sent them to him; an elderly mother whose adult daughter had hit her with a hammer but who did not want her daughter to be arrested — she only wanted services.

None of these cases involved child protective services. While my ability to respond from the bench may have been limited, turning people away would have been profoundly wrong.

Indeed, part of my argument here is the same as Spinak’s: It is not a coincidence that the vast majority of the families are Black and brown and poor. At the local, state and federal levels, government has under-resourced communities of color. One manifestation of the problem is inadequate access to a court that will hear concerns for the safety of our children.

No other court is properly positioned to do this. And no other system or program in our government can do what courts can do — balance rights and interests, and the law, and make an enforceable judgment.

Most importantly, family court is unique because we can hear from those most affected: children. Though it’s often parents who bring cases, family court reform needs to focus on the children and young people at the heart of each and every one of the legal matters. We need to operate on a child’s timeline, where six months between court dates can mean six months without critical services. The children have their own interests, expectations, and yes, legal rights. We have an obligation to listen.

We can mend family court, and we must, without giving up on it. Family court is filled with incredibly hard-working advocates just like Spinak, people who work on behalf of parents, domestic violence survivors, government and our children. The judges and court staff are also trying their best in difficult situations. The people who come to ask for court help are not wrong to do so.

The rest of us should not say to them in effect: We know better than you, really you should solve the problems on your own. Or you should wait until we are a better society. Rather, we should be providing the court and the affiliated institutions the resources that they need. That includes funding for the attorneys in the offices representing children, whose funding has been cut and whose caseloads are through the roof.

In addition to the changes mentioned above, there is a long list of reforms that can make a difference in how this court interacts with New Yorkers: everything from technical fixes, such as making remote access more user-friendly, to innovative experiments, such as allowing relaxed rules of evidence for certain kinds of documents, to fundamental shifts in resources like merging the state Family and Supreme Court, to numerous legislative changes like limiting mandated reporting and enacting the Preserving Family Bonds Act. Overall, the court is in desperate need of procedural justice reform to ensure that our interventions are built on respect for the people who need it most: the children and families who are asking for assistance.

After the father in my case walked out, that wasn’t the end: the mom still wanted to see her child — and more importantly, the child wanted to see her mom. And she will, with help from courts that must grow stronger and healthier, not be abandoned and neglected.